Danine and Drew - [2008] FamCA 1169

FAMILY COURT OF AUSTRALIA

DANINE & DREW

[2008] FamCA 1169

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of Case Guardian – Meaning of “manager of the affairs of a party” – meaning of “trustee or guardian” – Whether holder of enduring power of attorney is a “trustee or guardian appointed under Commonwealth or State Law”

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), Rule 6.10
Guardianship and Administration Act 2000 (Qld)
Powers of Attorney Act 1998 (Qld)

Price & Underwood [2008] FamCA 267

APPLICANT:

Ms Danine

RESPONDENT:

Mr Drew

FILE NUMBER:

BRC

11384

2008

DATE DELIVERED:

17 December 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

17 December 2008

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Mr Page

Harrington Family Lawyers

SOLICITORS FOR THE RESPONDENT:

Mr Gibson

South Burnett Lawyers

Orders

IT IS ORDERED THAT

Ms K of B Street, N, in the State of Queensland is hereby appointed to be the case guardian for Ms Danine, the applicant wife for this case.
The matter be adjourned to a Registrar on a date to be advised.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC11384 of 2008

MS DANINE

Applicant

And

MR DREW

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By an initiating application filed on 15 December 2008 the wife seeks orders for settlement of property. By way of interim relief the wife seeks an order that her sister, Ms K be and is hereby appointed to “be the case guardian for the wife”.
For reasons which will emerge, the matter was brought on urgently. As a consequence of that, material in support of the interim application was served only very recently on Mr Gibson, the solicitor who acts for the husband.
Mr Gibson has made a number of attempts today, including consultations with his firm’s N office, to contact the husband. He has been unable to do so.
Mr Gibson informs the Court that, by reason of the correspondence sent by the wife’s solicitor, Mr Page, to the husband indicating the prospect of s 79 proceedings being brought, the husband consulted with Mr Gibson.
Mr Gibson indicates that at that time no instructions were received by him to indicate that the husband knew of the wife’s medical condition to which I will make more detailed reference in a moment.
Mr Gibson’s consultation with the husband was confined to the substantive application and Mr Gibson has been unable to obtain any instructions at all with respect to the interim application.
Although Mr Gibson made submissions, in effect, on behalf of the husband, he was, of course, in the position of doing so in circumstances where he had received no specific instructions from his client with respect to the application and in circumstances where he is not even aware of whether his client knows of the wife’s medical condition.
Nevertheless, Mr Page argues that the proceedings should be heard because real urgency attends them.
I have determined to hear those proceedings albeit in the absence of the physical presence of the husband and in the absence of Mr Gibson having received specific instructions on his behalf for the reasons which follow.
I have also determined to appoint a case guardian on behalf of the wife and my reasons for that order also follow.
The Family Law Rules operate in what might initially seem to be a curious way with respect to the appointment of case guardians. I say “curious” because the relevant rule 6.10 is expressed, in effect, as a deeming provision. It provides:
“A person who is a manager of the affairs of a party is taken to be appointed as the case guardian of the party if the person has filed
(a) a notice of address for service, and
(b) an affidavit which
(i) provides evidence that the person has been appointed manager of the affairs of the party, and
(ii) states that the person consents to being appointed as the case guardian of the party.”
In terms of this application the prospective case guardian has filed a notice of address for service and has filed an affidavit which states that she consents to being appointed as the case guardian of the wife.
It is not suggested, and no evidence before me would suggest, that the wife’s sister is anything other than an entirely appropriate person to be the case guardian.
In that respect the evidence before me reveals that the wife had appointed her sister, the prospective case guardian as her enduring power of attorney, pursuant to the Powers of Attorneys Act 1998 (Qld) which governs that appointment.
That being so, the issue which arises in respect of the “deeming rule” is whether the sister is a “manager of the affairs of a party” within the meaning of the Rule.
That expression is defined in the dictionary as follows:
“A manager of the affairs of a party includes a person who has been appointed in respect of the party, a trustee or guardian under a Commonwealth, State or Territory Law”.
Needless to say, the basis for the appointment of a case guardian is that the wife is a person with a disability. That expression, too, is defined:
“A person with a disability in relation to a case means a person who, because of a physical or mental disability
(a) does not understand the nature or possible consequences of the case; or
(b) is not capable of adequately conducting or giving adequate instruction for the conduct of the case.”
There is little doubt on the evidence before me that the wife is a person with a disability.
Specifically, the wife has a terminal illness and is currently a patient at the P Hospital. Mr Page, the wife’s solicitor, deposes to a visit with the wife very recently and of the requirements made of him in order to effect that visit. He observed that the wife appeared “gaunt and weak”. He deposes:
“Despite her room being somewhat warm, my client was bunched up under a blanket on a chair and complained of the cold. She appeared quite clearly to have relevant mental capacity.”
Mr Page deposes to receiving instructions at that time to institute proceedings for settlement of property. Evidence has been obtained on behalf of the wife from a medical practitioner.
Of direct relevance to the instant application is a report from Dr T who is a hepatology Fellow at the P Hospital. Dr T reports, in a report dated 16 December 2008.
“This letter is to inform that the above-mentioned is currently a patient of the Hepatology Unit at the [P] Hospital and is critically ill. Her clinical condition has deteriorated rapidly in the last 72 hours and there is a very high likelihood that [the wife’s] life span is now measured in days to weeks …”
Mr Page points out, correctly as it seems to me, that, with such a dire prognosis, the wife’s life expectancy may indeed be shorter than that, particularly given what Dr T describes as the rapid deterioration in her condition in the last 72 hours. That report provides the basis for the urgency of this application.
Because r 6.10 is, as it were, a deeming provision it would be open, as it seems to me, for the wife to simply commence proceedings through a case guardian and for the point, if raised at all, to be dealt with at a later time.
However that risks the possibly of a determination of the issue at a later time when the wife is likely to have passed away in which case, of course, the application would lapse. That is obviously a very significant potential detriment.
Mr Gibson, who, I reiterate, appears as a courtesy without specific instructions with respect to the application, is not in a position to either consent to or object to the application.
He, though, in the context just described, points to no prejudice suffered by the husband if a case guardian is appointed today.
I have determined in those circumstances to, as it were, eliminate the risk of a proceedings by the case guardian lapsing for want of a proper party at a later time by conducting these proceedings today and making a determination on that issue today.
It is for that reason, combined, obviously enough, with the wife’s medical condition, that I have determined to hear and determine the application albeit that the husband is unaware of the precise terms of the current application.
The sole issue relevant to whether r 6.10 applies to the position of the sister in this case is whether she is a “manager of the affairs of a party” within the meaning of the rule.
If she is, then by reason of the wife being a person with a disability, and the procedural requirements of the rule with respect to the filing of a notice of address for service and affidavit otherwise having been met, Ms K will by reason of the rule itself, be deemed to be the wife’s case guardian.
Mr Page, helpfully, provides to the Court a summary of relevant legislative provisions together with authorities of both the Full Court and other Judges of this Court.
It will be recalled that in order to satisfy the definition of “manager of affairs of a party” a person needs to have been appointed a “trustee or guardian” under a Commonwealth, State or Territory Law.
The wife’s sister has not been appointed as such, in terms, under any such law. However, it is submitted by Mr Page that the fact that Ms K is the wife’s attorney pursuant to an enduring power of attorney duly executed by the wife, brings her within the definition of “a manager of the affairs of a party”.
The Guardianship and Administration Act 2000 (Qld) does not define either “guardian” or “trustee”, the expressions used in the dictionary to which I have earlier made reference.
However, s 9 of that Act makes it clear that “this Act and the Powers of Attorney Act 1998 authorise the exercise of power for a matter for an adult with impaired capacity for the matter”. The section then goes on to provide a number of ways in which that may be done.
In overview, it may be done in two broad ways, one informal and the other formal, pursuant to a number of listed possibilities. Relevant to this application sub-s 9(2)(b)(ii) provides that this may be done by:
“An attorney for financial matters appointed by the adult under the enduring power of attorney under the Powers of Attorney Act 1998.”
Section 8 of that Act makes it clear that it is to be read in conjunction with the Powers of Attorney Act 1998 (Qld).
In Price & Underwood [2008] FamCA267, a decision of Watts J handed down on 16 April 2008, his Honour held:
“Ms N Underwood has made an oral application to be appointed as case guardian for the purposes of conducting an application for divorce on behalf of the husband, Mr Underwood. On 18 May 2007 the husband provided to Ms Underwood an enduring power of attorney. The power of attorney authorises Ms Underwood to do on behalf of the husband anything he may lawfully authorise an attorney to do. It has no condition or limitation and endures, even after the husband becomes legally incapable. Senior Counsel for the wife tells me that the husband has been unconscious since Monday. I am satisfied Ms Underwood is a person who has been appointed to manage the affairs of the husband. Senior Counsel for the wife submits that a person holding a financial enduring power of attorney does not have the required standing to make an application for divorce. I find that is not so.
The application for Ms Underwood to be appointed as case guardian is, in the first instance, based on r 6.10(2) Family Law Rules. Ms Underwood has filed an affidavit sworn 14 April 2008 and a notice of address for service. Her affidavit says the husband is terminally ill and has, on medical advice provided to her, up to three days to live. Ms Underwood consents to being appointed as case guardian. Counsel for the wife submits that the wife wishes time to make a response including to seek to have this enduring power of attorney revoked in another place. In my view it is not appropriate to delay the matter. Ms Underwood cannot proceed with the proposed application for divorce in the event her father dies. Ms Underwood has filed the necessary documents under r 6.10(2) Family Law Rules and accordingly is taken to be appointed as the husband’s case guardian and can pursue the husband’s application for divorce.”
It will be apparent that there are significant factual similarities between that case and this. I note that his Honour found that a person “holding a financial enduring power of attorney” has the required standing to make the application for divorce.
I would, with respect, go further and find that a person who holds an enduring power of attorney pursuant to the Powers of Attorney Act1998 (Qld) is a “manager of the affairs of a party” by reason of satisfying the definition of that expression in the Family Law Rules2004.
The definition is inclusive but it seems, to me in any event, that, although the wife’s sister is not appointed a “trustee” or “guardian” in terms, under a Commonwealth, State or Territory law, she is nevertheless appointed to a position of that type and one contemplated by that definition.
In my view s 9 of the Guardianship and Administration Act 2000 (Qld) read in conjunction with the Powers of Attorney Act1998 (Qld) (which is what the former Act envisages) contemplates a number of ways in which parties can act in the stead of another in circumstances where that other person is disabled or incapable of doing so.
That is also, in my view, the intention in having a case guardian conduct proceedings in this Court on behalf of a party. Equally, it seems to me that is the intention of the definition of “manager of the affairs of a party” within the rules and, specifically, the intention of r 6.10 which, by reason of being a deeming provision, ensures that such a process can occur without undue formality, technicality, delay or expense in the sad circumstances necessarily there contemplated.
In case it is unclear from my earlier reasons, I find that the wife is clearly a person with a disability by reason of her physical incapacity which, on the medical evidence before me, is highly likely, within a very short space of time, to become worse.
For those reasons, albeit in the absence of the husband being aware of the proceedings, I make an order in terms of the interim orders sought in the Form 1 application earlier referred to.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 27 January 2009