Alcroft & Cautrey - [2023] FedCFamC2F 448

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alcroft & Cautrey [2023] FedCFamC2F 448

File number(s): ADC 5551 of 2022

Judgment of: JUDGE DICKSON

Date of judgment: 20 April 2023

Catchwords: FAMILY LAW – LITIGATION GUARDIAN – Property Settlement – interim proceedings – dispute concerning appointment of litigation guardian for the wife – both parties elderly and vulnerable – whether litigation guardian should be appointed by the Attorney-General or be the wife’s daughter – conflict between the husband and the wife’s adult children - order made for the appointment of the wife’s daughter as litigation guardian.

Legislation:
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.12, 3.14 & 3.15

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)

Cases cited:
1           Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 3) (2009) WASCA 118

2           Grace & Grace (1990) FLC 92-170

3           Logan & Anor& Logan & Anor [2016] FamCA 649

4           Kannis & Kannis (2003) FLC 93-135

5           Nemeck & Nemeck [2019] FCCA 3205

6           Taylor’s Application (1972) 2 QB 369

Division: Division 2 Family Law

Number of paragraphs: 44

Date of hearing: 17 April 2023

Place: Adelaide

Counsel for the Applicant: Mr Belperio

Solicitor for the Applicant: Weldon & Coluccio Lawyers

Counsel for the Respondent: Mr Roberts

Solicitor for the Respondent: Brian Deegan Lawyers
ORDERS

ADC 5551 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ALCROFT

Applicant

AND:
MS CAUTREY

Respondent

order made by:

JUDGE DICKSON

DATE OF ORDER:

20 APRIL 2023

UPON NOTING THAT:
A.The Court is informed that all issues as to valuation and outstanding disclosure will be attended prior to the Conciliation Conference. The parties are hereby advised that costs orders may be made in the event the matter is not able to proceed on the date allocated for this conference in these Orders.
B.Prior to the Conciliation Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a Rule 12.06 Costs Notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:
i.the total costs and disbursements incurred by the party in the proceeding to date;

ii.an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
iii.an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.

C.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Conciliation Conference only. It is not to be filed or kept with the Court file after the conclusion of the conference.

THE COURT ORDERS THAT:
1.Pursuant to rule 3.15 (2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Ms B be appointed to act as litigation guardian for the wife in these proceedings.
2.As…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alcroft & Cautrey

Details

AGLC: Alcroft & Cautrey [2023] FedCFamC2F 448
Case: [2023] FedCFamC2F 448
Decision Date

CaseChat Overview and Summary

In the matter of Alcroft & Cautrey, the Federal Circuit and Family Court of Australia (Division 2) was tasked with deciding whether the wife's daughter, Ms B, should be appointed as the litigation guardian for the wife in property settlement proceedings. The court had to weigh the arguments from both the husband and Ms B, who sought to be appointed as the litigation guardian for the wife. The husband argued that a non-family member should be appointed due to the high conflict between the parties, while Ms B argued that she was best suited for the role given her familiarity with her mother's financial affairs.

The court considered the legal principles set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and found that Ms B met the criteria for a litigation guardian. The court also found that there was no evidence to suggest Ms B had an interest adverse to the wife's interest. Given the advanced age of the parties and the wife's compromised health, the court was inclined to expedite the proceedings. The court was also mindful of the potential for further delay if the Attorney General was unable to find a manager to conduct the wife's affairs in a timely manner.

The court ultimately decided that the interests of justice would be best served by appointing Ms B as the litigation guardian, subject to the court's management of the case to ensure it progressed as expeditiously as possible. The court made orders for the appointment of Ms B as litigation guardian, with the costs of the litigation guardian to be paid from the wife's income or property.

In conclusion, the court found that appointing Ms B as the litigation guardian was in the best interests of the wife and would allow the proceedings to progress in an orderly manner. The court's decision was based on the legal principles set out in the relevant legislation and the specific circumstances of the case.

Orders