Baker & Baker
[2025] FedCFamC2F 862
•24 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baker & Baker [2025] FedCFamC2F 862
File number(s): PAC 1331 of 2025 Judgment of: JUDGE NEWBRUN Date of judgment: 24 June 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of litigation guardian – Identity of litigation guardian. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.14 Cases cited: Logan & Anor and Logan & Anor [2016] FamCA 649
Kannis & Kannis (2003) FLC 93-135
Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 20 June 2025 Place: Parramatta Counsel for the Applicant: Mr Gabrial Solicitor for the Applicant: John Hall Lawyers Counsel for the Respondent: Mr Fermanis Solicitor for the Respondent: A C Dunstan Lawyers ORDERS
PAC 1331 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BAKER
Applicant
AND: MR BAKER
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
24 JUNE 2025
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Pursuant to r 3.15 (2), Ms C born in 1969 is appointed as litigation guardian (“the Litigation Guardian”) for the Applicant Wife in these proceedings.
2.As and from the date of this Order, the legal costs of the Litigation Guardian, arising from these proceedings only, be paid from the income or property of the wife with such costs to be at the rate provided for in Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This is the determination of an interlocutory application by the wife to appoint the parties’ daughter as her litigation guardian in these property proceedings. The husband resists this application. He acknowledges the need of the wife for a litigation guardian. However, he contends that the daughter has an interest in the proceeding adverse to the wife, and also contends that she cannot fairly and competently conduct the proceeding for the wife: see r 3.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). He seeks the appointment of a specialist family law solicitor as a litigation guardian of the wife.
The wife relies upon the documents set out on pages 1 and 2 of her Case Outline filed 16 June 2025 (with the exception of the affidavits of Ms D and Mr B).
The husband relies upon the documents set out on pages 1 and 2 of his Case Outline filed 16 June 2025.
By way of background, the wife adduces evidence that in about May 2024 she was diagnosed with an illness which resulted in her being paralysed from the neck down. The evidence of Dr E (see his affidavit filed 10 June 2025) is that the wife is in an extremely frail condition medically as a result of the above illness. He states that the wife is effectively a bedbound quadriplegic and a fully dependent patient. She continues to require 24-hour in-patient care for all her needs in an aged care facility. He states that such illness leaves the wife under immense ongoing psychological stress. He states that in addition to the existing illness the wife, in April 2025, suffered a medical episode. He states in this context that any significant stressful events are known to put patients at significantly increased risk of further medical events. He states that therefore it is medically inappropriate to allow the wife to participate in a proposed online legal conference with her former husband’s legal team over financial matters, as this would inevitably be an extremely stressful event.
The wife adduced evidence that her cognitive function is intact.
Again, the husband did not dispute the wife’s need for a litigation guardian.
The following documents became exhibits on the application:
(a)Exhibit A: Minute of consent orders;
(b)Exhibit B: Pages 1-27 of Wife’s Tender Bundle.
On behalf of the wife it was submitted, inter alia, that the evidence before the Court indicates that:
(a)The parties’ daughter and son hold joint power of attorney for the wife pursuant to a registered enduring power of attorney dated 28 May 2024. It is submitted that there is no evidence that the parties’ daughter has acted inappropriately under that power of attorney since her appointment;
(b)With the husband’s consent, on 28 February 2025, Deputy Registrar Glavan appointed the parties’ daughter and son as litigation guardians in the parties’ now resolved divorce proceedings;
(c)The parties’ daughter does not have an adverse interest to that of the wife. It is submitted that there is no evidence to suggest that the parties’ daughter would want her mother to receive less than her proper property entitlements;
(d)The parties’ daughter is the preferred litigation guardian selected by the wife;
(e)The parties’ daughter fits the criteria of a person who should be considered as litigation guardian;
(f)The parties’ daughter is apprised of the financial circumstances of the wife and her interests are aligned with the wife rather than being in conflict;
(g)The parties’ daughter is familiar with the wife’s financial affairs and, as such, costs could be kept to a minimum. Further, in its context, the wife submits that if an independent specialist family law solicitor is appointed as litigation guardian for the wife, as proposed by the husband, the wife will incur significant legal fees for that solicitor’s work as litigation guardian. The wife points to r 1.04 which states, inter alia, that the overarching purpose of the Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible;
(h)The parties’ daughter has a close relationship with the wife;
(i)The parties’ daughter would seek to achieve the best possible outcome for the wife in the property proceedings.
It was further submitted on behalf of the wife that should the parties’ daughter be appointed litigation guardian, in theory the Court by its own motion or on the application of a party could remove the parties’ daughter as litigation guardian if she was found to have acted inappropriately pursuant to r 3.15(2);
The husband submitted, inter alia:
(a)The evidence indicates that the parties’ daughter had an interest in the proceedings adverse to the wife and it also indicates that she could not fairly and competently conduct the proceeding for the wife: r 3.14.
(b)The parties’ daughter had not formally stated in her evidence that she did not have an interest adverse to the wife;
(c)The evidence indicates that there is significant animosity between the parties’ daughter and the husband;
(d)It is irrelevant that the wife had previously appointed the parties’ daughter and son as her litigation guardian in the divorce proceedings, because those proceedings and the within property proceedings are quite different in nature;
(e)It is common ground that the parties’ daughter is a significant beneficiary under the wife’s current Will (she stands entitled to a 50 per cent interest). Accordingly, the parties’ daughter will have something to gain from this litigation other than assisting the Court to make a just and equitable division of the parties’ property;
(f)The parties’ daughter, purportedly on behalf of the wife, seeks a final order whereby the wife would retain the primary asset of the parties, namely the former matrimonial home. The husband submits that that proposed order is unrealistic, manifestly excessive and unmeritorious, and well outside the range of discretion. In this context, he refers to his draft balance sheet found at page 19 of his Case Outline stating the net assets of the parties are some $2.457 million with the value of the former matrimonial home being $1.8 million.
(g)The parties’ daughter was prepared to remain as a joint litigation guardian with the parties’ son despite the son having possession of an asset jointly owned by the parties to the matrimonial cause (namely a painting alleged to be worth about $150,000). The son relinquished this role in May 2025.
(h)The husband’s proposed litigation guardian (and he provides three affidavits of consent from three qualified and experienced family law legal practitioners) does not have any interest adverse to the wife.
DISCUSSION
The wife asserts in her affidavit the following matters which the Court takes into account:
(a)After she regained consciousness in about early May 2024, she became aware that her limbs did not work but she could think clearly. She asserts that straight away she thought that she was in this awful position needed somebody to take care of her and look after payment of her bills. She asserts that it was not conceivable that she could do it alone. She asserts that she was thinking over the previous months about giving power of attorney and guardianship to someone. In this context she stated that the parties’ daughter and son were the two people she trusted most in the world, and there was no question who she would appoint, as they have her best interests at heart;
(b)In relation to the power of attorney going to both her children, she asserts that she needed to know that she had someone who cared about her to look after her;
(c)She asserts that she made her estate planning documents (including her Will) independently, being of sound mind, and without any coercion or duress from any person.
The parties’ daughter asserts in her affidavit the following matters which the Court takes into account:
(a)She comprehensively understands the wife’s needs and wishes and is wholly committed to carrying out her wishes and representing her best interests;
(b)Her goal is to help the wife achieve the best possible outcome, to receive closure and be able to move forward with her life;
(c)She regularly visits the wife in person at the aged care facility where the wife resides, usually at least once per week, as it is a short drive from her home. She has Facetime often with the wife in between visits;
(d)She is a health care worker and has worked for the same employer since 2021. Her role as health care worker requires a high level of clinical knowledge, skill, critical analysis and completion of detailed documentation, all of which must comply with stringent legislative standards. She states that she is a respected practitioner and upholds values of integrity, fairness and honesty;
(e)She feels intellectually and psychologically equipped to represent the wife in the property proceedings;
(f)Whilst she alleges numerous factual matters in which she is critical of the husband for his alleged past adverse behaviour towards her, she asserts that she has done her best to maintain stability with the husband and has always reassured him that her motivation is purely to assist the wife and take instructions from her to facilitate a fair outcome.
The parties’ son asserts in his affidavit the following matters which the Court takes into account:
(a)He supports the wife’s request to have his sister appointed as a sole litigation guardian, and asserts that his sister has no adverse interest to that of the wife;
(b)The wife is aware the husband wants the Court to appoint an alternate litigation guardian to his sister and the parties daughter; he asserts that the wife does not understand how her interests could be better served by a representative of the husband’s choosing;
(c)He alleges that he was gifted the above painting;
(d)After the wife was hospitalised in May 2024, he had spoken with the husband and stated, inter alia, that the husband could not be living with his new partner as his long-term life partner and coming to the hospital making decisions on the wife’s behalf as her estranged husband. The husband agreed that it made sense for the parties’ son and daughter to hold the wife’s enduring power of attorney and guardianship;
(e)He now enjoys a close relationship with the wife;
(f)He supports his sister’s appointment as trustee to manage the sale of the former matrimonial home;
(g)He will assist his sister in her capacity as litigation guardian and trustee to manage the sale of the former matrimonial home.
The husband asserts in his affidavit the following matters which the Court takes into account:
(a)The parties’ daughter had decided to have no contact with the husband and wife from time to time;
(b)The parties’ daughter had verbally abused the husband in about January 2023;
(c)After the parties’ children had discussions with the husband about end-of-life decisions relating to the wife in May 2024, he asserts that his relationship with the parties’ children declined;
(d)He asserts that the parties’ son is in possession of one of the joint assets of the marriage being a painting worth about $150,000;
(e)He believes that the parties’ children have an interest in the proceedings that is adverse to the wife’s interest. In this context he asserts that this adverse interest is evidenced by the final orders sought by the wife seeking 100 per cent of the sale proceeds of the former matrimonial home which is not a just and equitable division of property. He asserts his belief that the parties’ children are seeking to maximise their inheritance from the wife’s eventual estate. He asserts that seeking 100 percent of the sale proceeds of the former matrimonial home is unrealistic and demonstrates that, if appointed, the parties’ children would not be conducive to a reasonable settlement of the proceedings.
The wife’s proposed property order seeking a distribution of funds held in trust from the sale of the former matrimonial home in the sum of 100 per cent to her is a significant proposed order. At this interim stage of the property proceedings, the court ventures no prediction as to what might ultimately be found to be just and equitable property orders to be made between the parties. There is no evidence before the Court that the parties’ daughter instructed the wife’s solicitor to propose this order, noting that as of yet no litigation guardian has been appointed for the wife.
In any event, as discussed with counsel for the husband at the interim hearing, should the parties’ daughter be appointed litigation guardian for the wife and thereafter the wife persist with a proposal which the husband regards as unreasonable, it will always be open to the husband, through his solicitor, with a view to protecting his position relating to legal costs of the proceedings, to issue a suitably worded offer of settlement to the wife’s side relating to the property proceedings.
As to the parties’ daughter being a significant beneficiary under the wife’s last Will, the Court is not persuaded that this necessarily indicates that the wife, relevantly, has an adverse interest to that of the wife in these proceedings. In fact it might be thought, to the contrary, that such potential entitlement under the wife’s Will indicates that it is more likely than otherwise that the parties’ daughter will act protectively towards the wife in the property proceedings.
In Kannis & Kannis (2003) FLC 93-135 the Full Court said:
61.In this case the parties’ son John was appointed as Next Friend of the husband. He had no interest in the proceedings adverse to the husband. Indeed as it transpired his interests in the proceedings appeared to coincide with that of the husband in that he was a beneficiary under the husband’s will. The husband apparently lacked any further testamentary capacity and accordingly, providing that John outlived his father, he would in due course inherit a share of his father’s estate. The greater that estate the more valuable John’s interest would become.
…
72.… The fact that the Next Friend for the husband stood to gain if his father obtained a more favourable result then that sought by the wife could not be seen as a reason to remove him. Indeed to the contrary. There was some communality of interest between the Next Friend and his father. The fact that the Next Friend proved to be an unreliable witness would not be enough to make it appropriate to remove him.
The Court is not persuaded, having regard to all the evidence before the court, that the parties’ daughter has an interest in the proceedings adverse to that of the wife. To the contrary, there is a significant suggestion, on the material before the Court, that the parties’ daughter will act in the best interests of the wife in the property proceedings. As submitted by the wife’s counsel, should the parties daughter be appointed the wife’s litigation guardian, and it later transpires that the parties daughter is not acting appropriately as the wife’s litigation guardian, then an application can be made for her removal, and indeed the Court of its own motion can order her removal if this was to shown to have occurred.
Again, in particular having regard to the parties’ daughter’s assertions as to her close relationship with the wife and her interest in acting in the wife’s best interests in the property proceedings if she is appointed litigation guardian, together with her expertise as a health care worker, the Court is persuaded that she will be able to fairly and competently conduct the property proceedings for the wife. In this context, the Court, again, takes into account, inter alia, the wife’s evidence that she trusts the parties’ daughter to act in her best interests in relation to the property proceedings. In this regard, it is not without relevance that the wife had so trusted the parties’ children that she had previously executed an enduring power of attorney with those children as her attorneys.
The Court is not persuaded that the parties’ daughter’s personal criticisms of the husband’s past alleged behaviour towards her, including the husband’s assertions in relation to his former and present relationship with the parties’ daughter, are such that there is any significant prospect that the parties’ daughter will not act in the wife’s best interests in the property proceedings. Again, in this regard, the Court takes into account the wife’s assertions to the effect that despite criticisms she will act in the wife’s best interests in the property proceedings.
Per Berman J in Logan & Anor and Logan & Anor [2016] FamCA 649:
30.The position of a case guardian does not need to be neutral or impartial. He can be highly protective of the protected person and even strongly opposed to the opposing party. Providing he acts honestly and is seen to do so thereby protecting the interests of the protected person, there can be no challenge to his retention.
The Court takes into account, in circumstances where it is satisfied that the parties’ daughter has no interest in the property proceedings adverse to the wife and can fairly and competently conduct proceedings for her, and thereby the parties’ daughter be appointed litigation guardian, that there is a real prospect that the wife will be spared the expense of legal fees of a specialist family law solicitor (if the latter were to be appointed litigation guardian of the wife).
Accordingly, having regard to all the above discussions, and being satisfied that the parties’ daughter has no interest in the proceedings adverse to the wife and that she can fairly and competently conduct proceedings for the wife, it will be appropriate and just to appoint the parties’ daughter as the wife’s litigation guardian in the property proceedings before the court.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 24 June 2025
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