CHILTON & GORMAN

[2017] FamCA 705

FAMILY COURT OF AUSTRALIA

CHILTON & GORMAN [2017] FamCA 705

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of a Case Guardian – Where the Respondent’s daughter seeks to be appointed as Case Guardian – Where Queensland Civil and Administrative Tribunal appointed the Respondent’s daughter guardian for the Respondent’s personal matters and administrator for all financial matters – Where the Respondent remains living in a secure residential care home – Application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004

APPLICANT: Ms Chilton

RESPONDENT: Mr Gorman

FILE NUMBER: BRC 6335 of 2017

DATE DELIVERED: 8 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 8 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Phillips, Phillips Family Law

COUNSEL FOR THE CASE GUARDIAN FOR THE RESPONDENT: Ms Dart of Counsel

SOLICITOR FOR THE RESPONDENT: Wonderley & Hall

Orders

IT IS ORDERED THAT:

1. Pursuant to Rule 6.10 of the Family Law Rules 2004, Ms B is appointed Case Guardian for the Respondent in relation to the proceedings commenced by Initiating Application filed 21 June 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6335 of 2017

Ms Chilton

Applicant

And

Mr Gorman

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Initiating Application filed 21 June 2017, the Applicant seeks final orders for the enforcement and/or implementation of the terms of the Financial Agreement entered into between the parties, Ms Chilton and Mr Gorman, pursuant to s 90UC of the Family Law Act 1975 (Cth). The agreement is dated 6 July 2010.

2. In relation to the proceedings, one of the matters requiring attention is the application for an order pursuant to Rule 6.10 of the Family Law Rules appointing Ms B, Mr Gorman’s daughter, as his Case Guardian in these proceedings.

3. The Application falls to be considered in the following circumstances, by way of brief summary of relevant facts. 

4. The Applicant was born in 1952 and is currently 65 years of age.  Mr Gorman was born in 1952 and is nearly 65 years of age.  They commenced cohabitation in May 2008 and separated, finally, in June 2016. 

5. As I have already said, they entered into a Binding Financial Agreement on 6 July 2010. 

6. There is evidence before the Court from the Applicant that, since that date, she has not signed any termination agreement pursuant to s 90UJ of the Act.  No orders have been made setting aside the Binding Financial Agreement.

7. The Suburb C property, which is the subject of the Application for specific orders by way of enforcement, is property owned by Ms Chilton and Mr Gorman as tenants in common. 

8. In about mid-September 2016, it appears that Mr Gorman was admitted to the D Town Hospital, at which time he was diagnosed with alcohol-induced dementia.  The evidence is to the effect that he remains living, at present, in a secure residential care home and that he will continue to remain living there. 

9. As a consequence of these events, Ms B’s evidence is that, because of her father’s condition, he no longer has the capacity to make any decisions about financial matters:  she has taken up the responsibility of managing his financial affairs because he is no longer capable of doing so.

10. As a consequence of the diagnosis, Ms B was appointed by QCAT as her father’s guardian for personal matters and his administrator for all financial matters by an order made on 13 December 2016.  Her evidence is that both of these appointments are to be reviewed in two years. 

11. Ms B gives her consent to being appointed as the Case Guardian for her father, the Respondent in these proceedings. 

12. Her evidence, further, is that, since the initial diagnosis to which I have referred, her father’s condition has deteriorated and he is unable to provide her with any assistance in these proceedings.

13. It is integral to legal proceedings in any Court that parties before it have the capacity to present their case or to instruct a lawyer to do so. 

14. The Family Law Rules require the appointment of a Case Guardian for any party who is a person with a disability. They do so under Rule 6.08. Reference to the dictionary to the Rules provides the definition of “a person with a disability”.

15. Whilst there is no expert evidence before me in relation to those matters referred to in Rule 6.08 I have, of course, the evidence that Ms B is the recipient of an order made by QCAT by which she has been appointed her father’s guardian for personal matters and his administrator for all financial matters.  I consider the existence of that order and the direct evidence given by Ms B in her affidavit material in relation to her father’s condition and the impact of his condition on his capacity to assist her, (namely, that it has the consequence that he retains no capacity to assist her in the conduct of his case), is sufficient to discharge the presumption that a litigant of full age is competent to manage his or her affairs.  Therefore, I consider it is established that Mr Gorman is a person who meets the definition of “a person with a disability” as provided for under the Rules.

16. It is obvious that Ms B is an adult.  There is no evidence to suggest that she has an interest in the case that is adverse to that of her father.  There is nothing before me to suggest other than that she can fairly and competently conduct the case for him:  again, I note she is the beneficiary of an order made by QCAT.  It is also, as I have said, clear that she has consented to act as her father’s Case Guardian. 

17. On the basis of the material and evidence before me, and for the reasons I have outlined briefly orally, I have therefore made an order appointing Ms B as Case Guardian for Mr Gorman in relation to the proceedings commenced by the Initiating Application filed 21 June 2017. 

18. I intend, also, to make orders as I have outlined to the respective legal representatives during the course of our discourse.  I do so by way of enforcement of the terms of the Binding Financial Agreement entered into between Ms Chilton and Mr Gorman, dated 6 July 2010.  The orders made will issue to give effect to their agreement as to the manner by which those terms should be put into effect.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 September 2017.

Associate:                 

Date:    8 September 2017