CALDON and CALDON

[2024] FCWA 51

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CALDON and CALDON [2024] FCWA 51

CORAM: O'BRIEN J

HEARD: 5 MARCH 2024

DELIVERED : Ex tempore

FILE NO/S: 300 of 2024

BETWEEN: MS CALDON

Applicant

AND

MR CALDON

Respondent

Catchwords:

PRACTICE & PROCEDURE - where the husband is presently suffering mental health issues and is unable to conduct the proceedings - where it is proposed that his cousin be appointed Case Guardian, but for limited specific steps only to be taken - where such a limited appointment cannot properly be made - turns on its own facts.

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	[redacted]
Respondent	:	[redacted]

Solicitors:

Applicant	:	[redacted]
Respondent	:	[redacted]

Case(s) referred to in decision(s):

Kannis v Kannis (2003) FLC 93-135

Read v Read [1944] SASR 26

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Caldon and Caldon has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The primary matter requiring determination is the application filed on behalf of [Mr Caldon] ("the husband") on 20 February 2024 seeking orders that his cousin [Mr A] be appointed as his Case Guardian, but on the basis that his role and responsibilities be limited in the manner outlined further below.

2[Ms Caldon] ("the wife") filed a response on 1 March 2024 saying that she consented to the proposed appointment, but in effect did not seek to be heard in relation to the proposed limitations on that appointment. On that basis, she did not file a responsive affidavit.

3For the reasons that follow, the application cannot be granted in its present form.

Background

4The relevant background to the substantive proceedings may be briefly stated. The husband is a [business executive] born in 1983. The wife is an [administrator] and [healthcare professional] born in 1988. The parties were married in October 2017 and, on the wife’s evidence, separated finally on 25 March 2023. They have two sons, [Child A] born on [redacted] and [Child B] born on [redacted].

5The wife commenced proceedings in this Court on 15 January 2024. She seeks parenting orders, orders for alteration of property interests, spousal maintenance, and a Family Violence Restraining Order ("FVRO").

6For reasons which need not be summarised for present purposes, the wife’s application was listed before a magistrate urgently on an ex parte basis. An interim FVRO was granted, and certain injunctions were made directed towards the preservation of property and the maintenance of control of certain entities. In particular, injunctions were made to secure funds anticipated to be received by an entity under the control of the husband in settlement of other court proceedings. Procedural orders were made requiring the husband to file responding documents within 28 days after being served. He was served on 24 January 2024. The required responding documents have not yet been filed.

The basis of the present application

7The present application is supported by an affidavit sworn by Mr A. He says that the husband is currently an inpatient at a [hospital] under the care of a psychiatrist. Email correspondence between the hospital and the husband’s lawyer, exhibited to the affidavit, confirms that the husband "has a long history of mental health issues" and was recently admitted to hospital "on an urgent basis due to feelings of severe depression, suicide ideation and a history of psychotic symptomatology." The relevant consultant psychiatrist confirmed that at present his "capacity to participate in legal proceedings is impaired", and that it is expected that the "full admission and initial treatment phase will take approximately eight weeks".

8Mr A says that the husband has asked him to act as his Case Guardian. He says that he is willing to be appointed "on a limited basis", saying that his role is to be "limited to ascertaining the financial position of [the husband] and [the relevant company]". He says that the documents he will be able to file in his proposed limited capacity will themselves be limited to an affidavit in respect of financial matters and a Form 13 Financial Statement.

9Mr A goes on to say that while he is a Chartered Accountant he works in the field of [business management], rather than in practice. He says further that he will be going overseas this month for two weeks and has "several heavy work commitments" such that he does not anticipate that if appointed he would be able to file the affidavit and Financial Statement until 15 April 2024.

10While there is nothing to indicate that Mr A is in any way unsuitable for appointment as the husband’s Case Guardian, it may fairly be observed that his affidavit does not address his suitability or the question of whether he has any interest in the case adverse to that of the husband. As will be seen, that omission does not matter for present purposes.

The relevant legal principles

11A person who, because of a physical or mental disability does not understand the nature or possible consequences of a case, or is not capable of adequately conducting, or giving adequate instruction for the conduct of the case, is by definition a person with a disability.[1]

[1] Family Court Rules 2021 (WA) r 4 (definition of 'person with a disability').

12A person with a disability may only conduct the case by a Case Guardian.[2]

[2] Ibid r 103.

13Any adult person who has no interest in the case adverse to the interest of the person with a disability, who can fairly and competently conduct the case for that person, and who has consented to be appointed, may be appointed as Case Guardian.[3]

[3] Ibid r 104.

14Once appointed, a Case Guardian is bound by the Family Court Rules 2021 (WA) ("the rules"), must do anything required by those rules to be done by the party, and may for the benefit of the party do anything permitted by the rules.[4]

[4] Ibid r 109.

15Relevantly for present purposes, the duties of a Case Guardian once appointed are comprehensive. They must conduct the litigation and provide appropriate instructions to do so. They cannot accept the duties simply as a matter of form. Their duties extend to seeing "that every proper and legitimate step for that person’s representation is taken", which requires that they "give [their] mind to it, and decide for [themselves]… what course of action to take."[5]

[5] Kannis v Kannis (2003) FLC 93-135, 78,261 [60], quoting Read v Read [1944] SASR 26, 28-29.

16Self-evidently, the role is important and carries significant responsibility. It is necessary not only to protect the interests of the person with a disability, but also to ensure that the court can make decisions and orders binding on that person.

Disposition

17Once the role, duties and responsibilities of a Case Guardian as just briefly summarised are considered, it is clear that the proposition that a Case Guardian can properly be appointed with those duties and responsibilities expressly limited to the making of initial enquiries and the filing of affidavit material, to set out the financial circumstances of the husband and the basic elements of his evidence in relation to the matter more generally, cannot be supported. The role of the Case Guardian is comprehensive. Put colloquially, a person considering accepting appointment as a Case Guardian is either "all in" or "all out".

18In reaching that conclusion I do not ignore the hope expressed on behalf of the husband that his asserted present disability will be only temporary, and that in due course he will be capable in the relevant sense. The solution presently proposed in that regard is unsuitable. The proper course is for a Case Guardian to be appointed without artificial limitation, acknowledging that if the husband regains capacity, an application for discharge of that appointment can readily be made.[6]

[6] Family Court Rules 2021 (WA) r 105(1).

19For those reasons, the Form 2 application filed on 20 February 2024 insofar as it sought the appointment of Mr A on limited terms must be dismissed, without the need for further consideration of whether the evidence is sufficient to establish the alleged disability, and without finding as to whether Mr A is a suitable person and has no relevant interest adverse to that of the husband. In saying that, I acknowledge that the proposal advanced was intended to assist both parties and the Court, and that the limitations suggested were reflective of Mr A’s other commitments and availability.

Other matters raised

20The application otherwise sought an extension of time for the husband to file his documents pursuant to the orders made on 17 January 2024. Given the husband’s current circumstances, an extension of time is clearly appropriate and counsel for the wife did not suggest otherwise.

21The timeframe of the proposed extension, however, is problematic. It was proposed on two bases - first, that Mr A would be appointed as Case Guardian on the proposed limited basis and secondly, that the only documents to be filed would be an affidavit and a Form 13 Financial Statement, but not a substantive response to the wife’s application.

22In the circumstances I propose to leave that aspect of the Form 2 Application open at this stage, so that the solicitors representing the husband may regroup and consider what approach is appropriate moving forward. To limit any perceived prejudice to the wife, I will bring the matter back before myself for a monitoring hearing. If matters develop in the meantime such that an appropriate timeframe for the filing of the husband’s documents can be agreed between the parties, that hearing can be vacated by consent, if required.

23The other order sought on behalf of the husband was an interim injunction restraining the wife from "encumbering, dissipating, disposing of or dealing in any way whatsoever" with [Property A] in which she presently resides with the children, and which she seeks to retain as part of the overall alteration of property interests. The wife did not respond to that aspect of the application in her response filed on Friday, 1 March 2024. When I enquired at today’s hearing as to her position, I was told that the making of the injunction is opposed, but counsel placed on record that his client (who was present in court) will give reasonable notice of any intended dealing with the Property A. Counsel for the husband did not press for the injunction to be made.

Orders

24There will be the following orders:

1.The Form 2 Application filed on behalf of the husband on 20 February 2024 insofar as it sought the appointment of Mr A as his Case Guardian is dismissed, without prejudice to the making of any further such application.

2.The said Form 2 Application is otherwise adjourned to 9.30 am on [redacted] for monitoring and directions only.

3.Costs be reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

5 MARCH 2024