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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Danine and Drew

Details

AGLC: Danine and Drew [2008] FamCA 1169
Case: [2008] FamCA 1169
Decision Date: 17 December 2008

CaseChat Overview and Summary

In the matter of Danine and Drew, heard before Murphy J, the applicant wife, Ms Danine, sought the appointment of a case guardian. The precise nature of the underlying dispute between Ms Danine and Mr Drew is not detailed in the provided extract, however, the application for a case guardian indicates a need for assistance in managing legal proceedings.

The central legal issue before the court was whether to appoint a case guardian for Ms Danine. This appointment is typically made when a party to proceedings is considered to be under a legal disability or otherwise unable to properly conduct their case. The court was required to determine if the circumstances warranted such an appointment to ensure Ms Danine's interests were adequately represented and her ability to participate in the proceedings was facilitated.

Murphy J ordered that Ms K of B Street, N, in the State of Queensland, be appointed as the case guardian for Ms Danine. Following this appointment, the court adjourned the matter to a Registrar for a future date to be advised. This suggests that the appointment of a case guardian was a necessary preliminary step before the substantive issues of the dispute could be addressed.

Orders

Orders of the court

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.

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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