Dalley and Dalley and Anor

Case [2021] FCCA 34

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALLEY & DALLEY & ANOR [2021] FCCA 34
Catchwords:
FAMILY LAW – Property – application for the appointment of a litigation guardian – insufficient medical evidence – application dismissed - application for the revocation of an Enduring Power of Attorney – lack of jurisdiction – concession made – application for injunctive relief restraining power of attorney dealing with property in certain circumstances – application granted.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.11.08

Cases cited:

L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, (2006) 233 ALR 432
Masterman-Lister v Brutton & Co (Nos 1 & 2) [2003] 1 WLR 1511, [2003] 3 All ER 162, 188
Murphy v Doman [2003] NSWCA 249
Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398, 414
AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd [2005] NSWSC 709
Forster v Forster (2012) 47 Fam LR 77
Slaveski v State of Victoria & Ors [2009] VSC 596
Goddard Elliot v Fritsch [2012] VSC 87
Krnjic v Bunnings Group Ltd. (No. 2) [2018] FCCA 1609
Materanzi v Suskain (No. 2) [2011] FamCA 276
Applicant: MS DALLEY
First Respondent: MR DALLEY
Second Respondent: MR B DALLEY
File Number: BRC 14170 of 2019
Judgment of: Judge Lapthorn
Hearing date: 8 July 2020
Date of Last Submission: 8 July 2020
Delivered at: Brisbane
Delivered on: 20 January 2021

REPRESENTATION

Solicitors for the Applicant: Pearson & Associates Solicitors
Counsel for the First Respondent: Mr Byrne
Solicitors for the First Respondent: Conroy Stewart Spagnolo
Solicitors for the Second Respondent: Self represented

ORDERS

  1. That the Application in a Case filed 31 March 2020 be dismissed.

  2. That, until further order, the second respondent, Mr B Dalley be restrained and an injunction issue restraining him from dealing with any and all property of the first respondent Mr Dalley save for paying for the expenses directly concerning the first respondent’s welfare, treatment and care within the care facility in which the first respondent is residing from time to time.

  3. That the application for the revocation of the second respondent’s appointment as the Enduring Power of Attorney of the first respondent dated 1 February 2018 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 14170 of 2019

MS DALLEY

Applicant

And

MR DALLEY

First Respondent

And

MR B DALLEY

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. Substantive proceedings for property division were filed by Ms Dalley on 21 November 2019.  In that application she named her husband, Mr Dalley, as the first respondent and her son, Mr B Dalley, the second Respondent.  Mr B Dalley has been appointed an Enduring Power of Attorney for Mr Dalley who lives in a care facility. 

  2. On 31 March 2020 an Application in a Case was filed seeking the appointment of the second respondent as the first respondent’s…

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AGLC
Dalley & Dalley & Anor [2021] FCCA 34
Case
[2021] FCCA 34
Decision Date

CaseChat Overview and Summary

The parties before the court were Mr Dalley (the first respondent) and Mr B Dalley (the second respondent), who was acting as the first respondent's litigation guardian and attorney under an Enduring Power of Attorney. The dispute involved applications concerning the first respondent's property and personal affairs, including an application for the appointment of a litigation guardian, an application for the revocation of an Enduring Power of Attorney, and an application for injunctive relief. The matter was heard by Judge Lapthorn.

The court was required to determine several legal issues. Firstly, whether sufficient medical evidence had been presented to warrant the appointment of a litigation guardian for the first respondent. Secondly, whether the court possessed the jurisdiction to revoke the Enduring Power of Attorney granted to the second respondent. Thirdly, whether injunctive relief should be granted to restrain the second respondent from dealing with the first respondent's property in certain circumstances.

In relation to the application for a litigation guardian, the court found that the medical evidence was insufficient to establish the necessity for such an appointment and therefore dismissed this application. The application for the revocation of the Enduring Power of Attorney was also dismissed, with a concession being made by one party, indicating a lack of jurisdiction or a basis for revocation. However, the court granted the application for injunctive relief, restraining the second respondent from dealing with the first respondent's property, except for expenses directly related to the first respondent's welfare, treatment, and care within his residential facility.

Orders

Orders of the court

1.

That the Application in a Case filed 31 March 2020 be dismissed.

2.

That, until further order, the second respondent, Mr B Dalley be restrained and an injunction issue restraining him from dealing with any and all property of the first respondent Mr Dalley save for paying for the expenses directly concerning the first respondent’s welfare, treatment and care within the care facility in which the first respondent is residing from time to time.

3.

That the application for the revocation of the second respondent’s appointment as the Enduring Power of Attorney of the first respondent dated 1 February 2018 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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