The applicant in these actions these actions is a minor who has made a claim for compensation pursuant to sections 59 and 61 of the Return to Work Act, following the death of her father Alan Smith in a motor vehicle accident in the course of employment in 2023. The applications for review need to be regularised as Susie Smith remains a minor.
By an application for directions of 26 November 2025, Susie's grandmother Janet Smith seeks approval to be a person eligible to be appointed litigation guardian on behalf of Susie Smith in these proceedings and that she be appointed to be litigation guardian upon signing a guardian certificate.
I have anonymised the names of the parties and family members referred to in these reasons. I've taken this action because Susie remains a minor and has to deal with not only the loss of her father but unfortunate family dissension.
Susie is now some 16 years of age. It was asserted and apparently accepted by the respondent that at the time of her father's death she was living with him and dependent upon him. Alan and Susie's mother, Charlotte Kent, had been in a relationship for some years and had two children Susie and her older brother James. Charlotte had two older children from a previous relationship. At the time of Alan's death, he and Charlotte had been separated for a number of years from about the time that Susie was five or six years of age.
Since Alan's death and apart from a period of approximately 6 weeks, Susie has been living with her paternal grandmother Janet Smith who by this application seeks to be made her litigation guardian. Janet says that this situation has come about because of Charlotte's long term, very poor mental health and consequent inability to properly care for Susie. Janet says that she had been involved in supporting her late son in the upbringing of Susie for many years, including when he was still living with Charlotte. Janet asserts that on many occasions she has seen Charlotte behaving in an erratic, angry, impulsive, delusional and irrational manner. Since Alan's death during the periods when Susie has been living with her grandmother, Janet has received family benefit payments from Centrelink.
It was Janet who took steps to investigate the legal position on behalf of Susie following Alan's death. In April 2024 she instructed Mr Wearing to submit a claim for compensation on behalf of Susie.
This is an unusual situation in that Susie's surviving parent is allegedly not in a position to care for her and, it is asserted by Janet, not an appropriate person to be litigation guardian. I determined that it was appropriate nonetheless for Charlotte Kent to be served with the application for directions and the accompanying affidavit of Janet Smith of 26 November 2025.[1] A further affidavit of Janet was filed on the 11th of December 2025 and also provided to Ms Kent.
Ms Kent attended a hearing at the tribunal on 16 December 2025. She maintained that she opposed Janet being made litigation guardian but did not appear to understand precisely what that task involved. I therefore adjourned the application to 19 February 2026 to enable Ms Kent to obtain some legal advice.
At the same time as these proceedings, Janet Smith has made an application to the Family Court to be made Susie's legal guardian. When the application was again listed on the 19th of February, Ms Kent advised that she had retained a lawyer and was seeing that lawyer in the week beginning the 23rd of February. She handed up a letter from the Legal Services Commission of South Australia advising her that her application for legal aid was successful and inviting her to make an appointment with a named lawyer. However, this aid was clearly in respect of the action taken in the Federal Circuit and Family Court of Australia in relation to "parenting proceedings" and it appeared to me that the grant of legal aid did not extend to these proceedings.
I had informed Ms Kent, on 16 December, that I intended to make orders in relation to the appointment of a litigation guardian on the next occasion. I had also made orders that she file any answering affidavit to the affidavits of Janet Smith by 30th January 2026. No such affidavit was filed.
On both occasions that Ms Kent has appeared before me, she was calm and seemed to understand what was said to her. However, she herself asserted that she had a little understanding of legal proceedings. On the first occasion it seemed to me that she might be confusing these proceedings with those in the Family Court.
On the 19th of February Ms Kent gave sworn evidence and answered questions that I put to her as to why she objected to Janet Smith being appointed litigation guardian.
Annexed to the affidavit of Janet Smith of 11th December 2025 were screenshots of a number of text messages which Janet Smith asserted had been sent to her between the 2nd of December 2025 and the 9th of December 2025 by Ms Kent. A further message was alleged to have been sent by Ms Kent's older daughter Teresa. I found these text messages quite concerning as they appeared to contain demands and threats made to Janet.
On the 19th of February, after being given the opportunity to consider again the contents of the affidavit, Ms Kent admitted to sending the text messages, apart from some sections including a text apparently sent at 12:28 PM on 8th December 2025, but admitting to sending texts at 3:28 AM on that day and two subsequent texts. She also denied sending a paragraph in part of the text apparently sent at 4:03 PM on the 9th of December 2025, although she admitted to sending the balance of that text. This seemed to me highly unlikely. I suspect her denial in respect of the text sent at 12:28 PM was because it included threats to Janet.[2]
Even without taking into account the passages which she denied sending, there was much that I found disturbing in the text messages. Ms Kent was clearly at odds with Janet over her perception that she had taken her daughter from her but also seemed preoccupied with an alleged entitlement to money following Alan's death. She demanded a check [sic] by 3:00 in the message sent on 2nd December. She talked about wanting a settlement. She seemed to think that Alan had a large life insurance policy. Much of the text did not make a great deal of sense and contained apparently delusional elements. There were references in the texts to Charlotte being poisoned by Janet. This was a theme that she took up in her evidence, asserting that Janet had sent a present of deodorant to grandson James Smith via Susie which contained poison. In response to my questions, she could not identify a reason for Janet to do this, nor a means of the poison contaminating the deodorant. Although this event had taken place in August 2025, Miss Kent agreed the matter had not been reported to police. She cited as witnesses a mental health team that was visiting her at the time. Unfortunately, I consider this to be further evidence of the delusional nature of her mental illness. She also asserted that the Smith family and Janet in particular had sway with lawyers such that she had been unable to obtain solicitors to act for her.[3]
In her oral evidence she said that she had recently been hospitalised for mental illness and spent two weeks at the Lyell McEwin hospital.[4]
As a result of her evidence, I readily concluded that it would not be appropriate to appoint Ms Kent as her daughter's litigation guardian because of her mental health issues, and an apparent intention to make some sort of claim of her own in respect of Alan's death and/or seek a share of her daughter's claim from Janet. This would put her in a direct conflict of interest with her daughter and as such it is not appropriate for her to be the litigation guardian.
When asked for any comment or submissions as to whether the litigation guardian should be Janet or the Public Trustee, Ms Kent identified the Public Trustee in effect because she accused Janet of breaking up the family and taking her daughter away from her. I consider that her opposition to Janet being named as litigation guardian stems from her resentment due to this family conflict, viewed through the prism of mental illness rather than objective reasoning.
Janet Smith is 72 years of age and is retired and in receipt of a Centrelink pension. She resides in housing SA rental accommodation and has done for a number of decades. She says that she had employment consistently in various receptionist and administrative roles in different industries until she retired at age 60. Despite a lack of resources Janet impresses as a frugal person who has managed to set aside funds from her Centrelink payments which she deposits in an account for Susie to manage herself. She has engaged experienced solicitors to work on behalf of Susie, as well as consulting with a social worker to work through the unfortunate family conflict that has been exacerbated by these proceedings.
As a 16-year-old, Susie has remained with her grandmother despite being capable, at that age, of removing herself to her mother's home if she cared to. This speaks to her relationship with her grandmother.
In my view it is preferable in these situations for a suitable family member to be appointed as the litigation guardian. To appoint the Public Trustee would involve further delays with bureaucratic process and add to Susie's distress.
The respondent raises no objection to the appointment of Janet Smith as litigation guardian.
In all the circumstances, and based on the affidavits and evidence before me, I consider that Janet Smith is a person eligible to be appointed as the litigation guardian pursuant to the South Australian Employment Tribunal Rules 2024 Rule 107(1)(d), and upon signing a guardian certificate Janet Smith should be appointed litigation guardian pursuant to Rule 109. I propose to make those orders once I've been provided with a guardian certificate.
[2]
[1] Authority for the parent in such circumstances having the right to be heard may be found in Ward v Motor Vehicle Accident Commission[2008] SASC 346.
[3]
[2] Affidavit of Janet Smith dated 11 December 2025 Annexure "JKS 4".