Denning and Denning (No. 3)

[2008] FamCA 780

FAMILY COURT OF AUSTRALIA

DENNING & DENNING (NO. 3) [2008] FamCA 780

FAMILY LAW - CASE MANAGEMENT ORDERS – Necessity to appoint case guardian - Service

Family Law Act 1975 (Cth)

APPLICANT: MR DENNING

RESPONDENT: MS DENNING

FILE NUMBER: MLC 463 of 2008

DATE DELIVERED: 15 SEPTEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 15 SEPTEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR WILSON

SOLICITOR FOR THE APPLICANT: MAEVE O'BRIEN & ASSOCIATES

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED:

1. THAT the further hearing of the application in a case filed 1 September 2008 be adjourned for hearing in the Judicial Duty List on 15 October 2008 at 10.00 a.m.

2. THAT the wife make, file and serve any response to that application or any affidavit upon which she intends to rely on or before Wednesday 8 October 2008.

3. THAT service upon the wife of this Order and the extempore reasons for judgment and the court documents relied upon by the husband in these interim proceedings be served on the wife by prepaid registered post to the following residential addresses:

   (a)         R property,  and

   (b)         G Street, T.

   and additionally all such documents are to be served by the husband’s solicitors upon the firm of solicitors, Scomparin & Bernardi.

4. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

5. THAT the costs of the husband of and incidental to this interim hearing and the application in a case now before the court be reserved.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the husband.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 463 of 2008

MR DENNING

Applicant

And

MS DENNING

Respondent

REASONS FOR JUDGMENT

1. The matter of Denning is before me in the Judicial Duty List.  Mr Wilson of counsel appears for the husband.  There is no appearance by or on behalf of the wife.

2. The application in a case before the court this day was filed 1 September 2008 by the solicitors on behalf of the husband.  Orders are sought therein for all times to be abridged to enable the hearing to proceed and otherwise for orders to be made to effect the sale of three residential properties.

3. The husband is the sole registered proprietor of unit 2/46 and unit 3/46.  Both of those properties are tenanted.  Notices to vacate have been provided to each of the tenants, either by the husband or by the mortgagee.

4. There are substantial liabilities, the exact quantum of which currently is unknown, which are required to be discharged on the sale of those two properties and the intention expressed by counsel on the instructions of the husband will be that any remaining balance be held in trust for the parties pending determination of section 79 proceedings.

5. The other property is situate at R2.  This is an investment property owned by E Pty Ltd, as trustee for the E Family Trust.  The husband and wife are the directors of that company.  Again, the husband's stated intention is to sell that property, discharge proper and secured liabilities and of course all costs of sale and for the balance to be held in trust pending order or determination by this court or agreement between he and his wife.

6. The wife has lodged caveats over these properties.  The present instructions provided to legal practitioners of the husband is to apply under the Transfer of Land Act and give appropriate notice to the wife and to the Registrar of Titles to have the caveats removed.  No particular order is sought from the court this day.

7. With that very limited background, I have read the order of Brown J pronounced 12 March 2008 and the reasons of her Honour and otherwise I understand the matter was before Registrar Riddiford and then finally before Dessau J on 2 June 2008.  I have read her Honour's reasons for decision.  They are currently not on the file.  I have directed that her Honour's extempore judgment be located and placed on the court file.

8. What her Honour ordered that day was for the execution of documents to facilitate the sale of three other residential properties at 2/46 and 3/46 and R2 and the moneys to discharge appropriate debt.  Subsequently there was a costs order made.

9. On 30 July 2008, a firm of solicitors, Scomparin and Bernardi, wrote to the husband's solicitors and there indicated that they had instructions to act for the father and brother of the wife.  They do not purport to act for the wife.  That letter is part of exhibit 7 to the affidavit of the husband filed 1 September 2008 and it is in that letter that concern is raised about the health problems of the wife. 

10. Very much it seems the point of that letter is to put in contention moneys that have been advanced or allegedly advanced by or on behalf of her family's trust to the wife.  I make no further finding or comment on those issues.  They will remain a matter of proof and determination hereafter.

11. Subsequently on 6 August 2008, those same solicitors again wrote to the husband's solicitors advising of the health and mental problems of the wife and indicating that the family had instructed them to seek the appointment of a trustee by the Guardianship Board and then for that trustee to take over the further conduct of the matrimonial dispute.  I have asked of Mr Wilson, but he does not know if any application has been made on behalf of the wife to the Guardianship Board.  There has been no particular follow-up of the letter of 6 August 2008.

12. Arising from issues disclosed by the family's solicitor, it would seem that there is a very real issue of the wife's mental capability to conduct her own legal proceedings and indeed to understand the various financial issues that are now requiring consideration. 

13. From the bar table, Mr Wilson has advised that the local police have told the husband that the wife has been returned to the Melbourne Clinic for further treatment or assessment or otherwise as may be proved in evidence.  That is particularly important because the husband has the ongoing primary parental role for the child of the marriage.  This judgment does not in any way touch upon children or parenting issues but merely focuses on procedural issues and injunctive and other financial orders that will hereafter be sought by the husband.

14. The wife was not at court this day.  I was provided with three affidavits of attempted service.  Leave is given to file those affidavits and on the content thereof and a fair reading, it is clear that many and varied attempts have been made to appropriately serve the wife, either at the former matrimonial home or more particularly at the address of her parents, G Street, T. 

15. On the basis of those affidavits of service and given no substantial orders are required of the court today, I have deemed it appropriate to proceed with the interim limited hearing and make these orders that have the effect of adjourning until 15 October 2008 the issues before the court in relation to the sale of the three investment properties and the appointment of a case guardian on behalf of the wife.

16. I might add that that particular date was requested, in part for the reason that the husband is to enjoy the school holiday period with the child and is otherwise not available until on or after 10 October 2008. 

17. As to issues of the case guardian, these are dealt with in the Family Law Rules in chapter 6, Part 6.3.   It is unfortunate that the court does not know of any other steps that may now have been put in place by or on behalf of the wife's family.

18. Clearly, pursuant to Rule 6.10, a member of her family may apply for the appointment of a case guardian and in this case logically it would seem that either the father or the brother of the wife would volunteer to accept that appointment.  It may be that some other person is more appropriate, given the alleged financial interests of the father and/or brother, but I make no further comment or finding in that regard.

19. The alternative is provided for in Rule 6.11 that, if in the opinion of the court, a suitable person is not available for appointment as a case guardian of a person with a disability, the court may then request the attorney-general to nominate a person to be case guardian. 

20. Mr Wilson has highlighted on instructions that action to be taken under that sub-rule may be a real and valid option for the court.  Again, I make no finding at this stage, but I merely highlight on the current evidence before the court and the case history as I read the previous orders that the wife may well need an urgently appointed case guardian.  I leave with her family the option of that immediate decision but otherwise this court would and should not be backwards in considering a request to the Attorney-General for such an appointment to be made.

21. On all that I have seen and read in this case and that which I have heard from counsel, the appointment of a case guardian is likely required and would be a cost‑efficient and appropriate manner in better dealing with this case and will move the matter forward and hopefully reduce cost and expense.

22. I am not asked to make any such appointment today and would not do so until the outcome of the family's considerations are known and indeed a proper investigation is undertaken of any action which may now before the Guardianship Board.

23. As to the issue of ongoing service, I will require the wife to be served by registered post of all required documents and orders both to the former matrimonial home in R and also to her parents' address at G Street, T.  Additionally, there will be service of all documents required to be made by the husband's solicitors upon the firm of solicitors, Scomparin and Bernardi.  

24. I have heard generally from Mr Wilson that his client intends to put in place appropriate steps to sell the three investment properties.  That will involve tenants vacating the properties and the properties being restored to a saleable condition.  Generally, that seems appropriate and though I make no specific orders, it does seem in the unique circumstances of this case that the husband is the only person who could or should have the proper conduct of sale. 

25. I will make no order under section 106A at this stage, nor was I asked to make any such order today.

26. What is required and it would seem from what I have read to date, the husband's solicitors have made a real and proper endeavour to ensure that the wife and generally her family are aware of the intended actions and sales of the properties by the husband.  The overview, as has been explained to me, is to reduce debt and to hold the balance of moneys in trust pending determination by the court for consent of the parties.

27. With that overview expressed in these extempore reasons which I will have transcribed and made available to the parties, I am asked today therefore to adjourn these proceedings to the judicial duty list on 15 October 2008 at 10.00 a.m. and otherwise to provide for appropriate orders for service. 

28. What must be clearly understood by the wife and members of her family is that there must be either a financial and commonsense discussion on the assets of the parties, a discharge of debt and dealing with investment properties, or otherwise there must be a court hearing.

29. I would certainly require the family and/or legal representatives of the family on behalf of the wife to be at court on the adjourned hearing date.  That date should not be ignored and there must be proper and informed representation at court to deal with issues of the appointment of any required case guardian, the sale of investment properties and otherwise issues that may arise on all aspects of this family.

30. With that background that I have considered and without the necessity of noting all of these matters on the short court orders that I will soon announce, I will have these reasons transcribed and they will need to also be served upon the wife, together with orders of the court.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: