Cassell and Cassell

[2015] FamCA 1070

FAMILY COURT OF AUSTRALIA

CASSELL & CASSELL [2015] FamCA 1070

FAMILY LAW – PRACTICE AND PROCEDURE - Appointment of Case Guardian – Property proceedings – where the husband seeks the appointment of a case guardian –Whether the husband meets the threshold required for a case guardian to be appointed – Where the husband’s case is that he is a person with a mental disability and not capable of adequately conducting or giving adequate instructions for the conduct of the case – insufficient evidence for the appointment of a case guardian.

Family Law Rules 2004 (Cth) r 6.08

APPLICANT: Ms Cassell

RESPONDENT: Mr Cassell

FILE NUMBER: PAC 3561 of 2015

DATE DELIVERED: 23 November 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 23 November 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Claire Heaton Solicitor

COUNSEL FOR THE RESPONDENT: Mr Shaw

SOLICITOR FOR THE RESPONDENT: Henry Family Lawyers

Orders

1. The Application in a Case filed on 9 October 2015 for a case guardian to be appointed is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Cassell & Cassell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3561  of 2015

Ms Cassell

Applicant

And

Mr Cassell

Respondent

REASONS FOR JUDGMENT

1. This is an application for the appointment of a case guardian in very straightforward property proceedings in which, as I understand it, the total property pool for distribution consists of the former matrimonial home, proceeds in a bank account and a small amount in superannuation.  The proceedings were commenced by the wife in July 2015 and she seeks orders for the sale of the former matrimonial home and a 50 per cent split of the proceeds of the sale of that home and the balance of the bank account.  The respondent filed his Response to Initiating Application on 2 October 2015, seeking orders for the sale of the home and with 75 per cent of the proceeds to himself and 25 per cent to the wife, and the same adjustment over the other assets, being the amount in the bank account and including the superannuation.

2. The application before me today is for the appointment of a case guardian for the husband.  The proposed guardian is the husband’s brother, who has consented to that appointment.  It is not suggested that the brother is not an appropriate person, if he is appointed to fulfil the role, and the sole issue to be determined by me today is whether the husband is a person with a disability, as defined in the Family Law Rules 2004 (Cth). The Rules provide that such a person may only start or continue proceedings by a case guardian unless the Court is satisfied that the party understands the nature and possible consequences of the case and is capable of conducting the case.[1] 

   [1] Family Law Rules 2004 (Cth) r 6.08.

3. The husband’s case is that he is a person with a disability as, due to his mental disability he is not capable of adequately conducting or giving adequate instructions for the conduct of the case.  The husband relies upon the report of a treating psychologist, an affidavit from his solicitor and an affidavit from the proposed guardian.  The psychological report has been provided by the husband’s treating psychologist Ms B.  That report attached to her affidavit is undated, though the affidavit sworn on 31 October 2015 indicates that that report was issued by her on 29 October 2015. 

4. In that report the psychologist says that she began treating the husband in January 2014 for depression and anxiety, and that he has attended 42 sessions in total.  However, it is not known when she last saw the husband or when he reported the various matters to her.  The psychologist gives a diagnosis of major depressive disorder and says that the husband is also predisposed to experiencing anxiety, and also refers to him suffering from chronic pain.  Although the psychologist states that the husband reports that he is “struggling to make decisions” based on his current symptoms, the only opinion expressed by the psychologist is that the husband is “not in a fit state to make big and complex decisions at this time.” 

5. The psychologist gives no indication what meaning is to be attached to the words “big and complex” and expressed no opinion as to whether he has the capacity to conduct the case.  It is clear on the face of it that she herself does not understand what sorts of issues are involved in the case or in giving instructions.

6. Secondly, the husband relies on the affidavit of his current solicitor, who refers to a single conference on 23 July 2015 with the husband and his brother in order to take instructions in the proceedings.  She describes the husband as visibly distressed and said he found it difficult to answer questions.  The solicitor said she didn’t think it was appropriate to continue with the conference and foresees that she will have difficulties fulfilling her duty to her client and to the Court without a case guardian.

7. The husband’s proposed case guardian, his brother, describes the husband as first engaging a different solicitor some time in March 2015 but being unable to “face” providing instructions to that solicitor.

8. The wife opposes the appointment of a case guardian, and it is her case that there is insufficient evidence, in particular in the psychological report, to demonstrate his incapacity.

9. The wife also relies on the fact that the husband executed a Power of Attorney in favour of the proposed case guardian on 29 July 2015, that is, after the interview with the solicitor, and says that he was clearly capable of making that appointment on that date.  That Power of Attorney is a general Power of Attorney which ceases to be effective if the husband loses mental capacity after execution, and it is noted by the wife that there is no evidence before the Court that that has occurred.

10. The wife does not dispute that the husband has had significant health problems, including as a result of two serious motor vehicle accidents, and has also had some mental health issues.

11. In my view, the husband does not meet the test which is required to be established for a person to be found to be a person with a disability.  The only expert evidence is that he suffers from a major depressive disorder and is predisposed to anxiety and also that he suffers from chronic pain, and that as a result he’s not what is described as “in a fit state to make big and complex decisions” at the time due to his illness.  However, there is no dispute that he had the capacity to execute a Power of Attorney in late July 2015, and on 2 October 2015 a Response was filed on his behalf.

12. I have to, of course, consider the nature of the proceedings.  As I have indicated, there is no dispute about the limited asset pool.  Each party has proposed a split and there is very little to be determined.  In relation to matters to go to contributions, it is unlikely, in my view, to be complex.  It is clear that the husband is clearly distressed by the proceedings.  It is also clear that he did not give instructions to the previous solicitor.  It is also very clear that he would prefer the brother to act on his behalf.  Although it is also clear that he has depression, there is simply insufficient evidence to meet the threshold in terms of his incapacity which is required in order for a case guardian to be appointed.

13. For those reasons I dismiss the application for a case guardian to be appointed, and the matter will simply proceed in accordance with the other orders, including the attendance at the conciliation conference. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 November 2015.

Legal Associate: 

Date: 3 December 2015