Anton and Malitsa (No. 5)

[2009] FamCA 491

FAMILY COURT OF AUSTRALIA

ANTON & MALITSA (NO. 5) [2009] FamCA 491

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of Case Guardian

Family Law Act 1975 (Cth)

APPLICANT: Mr Anton

RESPONDENT: Ms Malitsa

FILE NUMBER: DGF 928 of 2005

DATE DELIVERED: 2 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.I. Strum

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Assoc

THE RESPONDENT: In person

Orders

1. That Mr Timothy Mulvany be appointed as the case guardian for the wife pursuant to Chapter 6 of the Family Law Rules 2004.

2. That Mr Mulvany be entitled to charge professional fees for his attendances as case guardian in respect of the matter, such fees to be paid by the wife and/or from any property entitlement of the wife.

3. That the letter of Dr K be marked as an Exhibit W13 and placed on the court file.

4. That a transcript be obtained of the evidence given and the submissions made on 30 March, 2 April and 3 April 2009 and those transcripts be made available to all parties.

5. That the parties and their practitioners attend a conciliation conference with Registrar Sikiotis at 2.00pm on 9 July 2009.

6. That the husband be at liberty to lodge the relevant taxation returns for the company, the subject of these proceedings.

7. That by 4.00pm on 12 June 2009, the wife provide to the husband:

   (a)all bank statements of the trust of her late mother’s estate; and

   (b)a copy of the lease of the property which is part of that trust.

8. That Mr Timothy Mulvany have access to:

   (a)the documents on the court file which have been filed by all parties;

   (b)the rulings by me on 30 March and 31 March 2009; and

   (c)the exhibits tendered in the proceedings.

9. That the husband’s costs of this day be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Anton & Malitsa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 928 of 2009

MR ANTON

Applicant

And

MS MALITSA

Respondent

REASONS FOR JUDGMENT

1. This is a brief ruling.  The case before me will be need to be adjourned again; it is part-heard.  This morning was to have been the resumed final hearing date of what has been a difficult property matter in which apart from the first couple of days before me, the wife has been without legal representation.  This morning she appeared, assisted by her daughter, who handed me a letter from a Dr K, dated 28 May 2009, which is addressed to the Family Court of Australia, Melbourne.  Dr K describes himself as a consultant psychiatrist and he has the usual qualifications that one would expect.

2. He says that he has been treating the wife since 29 April and that she had asked him to write requesting an adjournment of the impending court proceedings.  He said that she was currently suffering a major depressive episode and as a result, suffering from some cognitive impairment, which would make it very difficult for her to make adequate preparation for her case or to give instructions to those representing her.  He goes on to say that he could not give an exact time for any improvement subject to treatment he gives her, but he hopes that that will be in a few months time.

3. The difficulty with that statement, even if I accept it into evidence, is that it is more or less consistent with what I was told by two previous medical practitioners.  This statement goes a little further, but the reality is that I have got to the stage where of my own volition I had decided that the wife is just not capable of continuing to run the case herself.  The question of whether or not she can give evidence is an entirely different issue.  This case involves a number of difficult principles, about which decisions have to be made and in my view, she is just not capable of making those decisions.

4. On that basis I determined that there ought to be a case guardian appointed.  To some extent I have had a volunteer in the sense that her daughter has volunteered.  But I have indicated my unhappiness about that for a variety of reasons that I will not articulate now.  At my suggestion and also prompted by something that counsel for the husband indicated, Mr Timothy Mulvany has come forward and indicated after hearing what the case was about in a very simple overview, and after discussion with the wife, that if I make the order, he will accept the appointment to act as a case guardian.

5. Rule 6.09 says that a person who has a disability can only continue a case by a case guardian.  A case guardian is a person who is an adult, has no interest in the case that is adverse to the interest of the person needing the case guardian, can fairly and competently conduct the case for the person needing the case guardian and has consented to act as the case guardian. 

6. I am satisfied firstly that the wife is a person who has the disability of not being able to conduct the case in her own right.  I am satisfied further that Mr Mulvany is a person who fits each of the four criteria set out in rule 6.09.  In those circumstances I make an order that Mr Timothy Mulvany be appointed as the case guardian for the wife, Ms Malitsa.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:  Elizabeth Hore

Date:  10 June 2009