Dervis & Dervis

[2022] FedCFamC2F 283

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Dervis & Dervis [2022] FedCFamC2F 283  

File number(s):	PAC 1664 of 2016
Judgment of:	JUDGE NEWBRUN
Date of judgment:	3 March 2022
Catchwords:	FAMILY LAW – Request to Federal Attorney-General to appoint a manager of the affairs of the First Respondent Husband - Rule 3.16(3)
Legislation:	Federal Circuit and Family Court of Australia Rules 2021,  rule 3.16(3), 3.16(5)
Division:	Division 2 Family Law
Number of paragraphs:	6
Date of last submission/s:	3 March 2022
Date of hearing:	3 March 2022
Place:	Parramatta
Counsel for the Applicant	No appearance by the Applicant
Counsel for the Respondents	No appearance by the Respondents

ORDERS

PAC 1664 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DERVIS

Applicant

AND:

MR DERVIS

First Respondent

MS B DERVIS

Second Respondent

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	3 MARCH 2022

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1.Pursuant to rule 3.16(3) of the Federal Circuit and Family Court of Australia Rules 2021, the Court requests the Attorney-General (Commonwealth) to appoint a person to be a manager of the affairs of the First Respondent Husband in these property proceedings.

2.The proceedings are adjourned for mention to 9.30am, 18 May 2022.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE NEWBRUN:

1. In this matter of Dervis, the Court proposes, pursuant to rule 3.16, subsection (3), to request that the Federal Attorney-General appoint a person to be the manager of the affairs of the First Respondent Husband.  The Court will now give brief reasons as to why it proposes to make that request to the Attorney-General.  In these proceedings, being property proceedings, the Applicant Wife seeks a property order in her favour in the sum of $200,000.  The Respondent Husband and his new wife, the Second Respondent, oppose any order being made in the Applicant Wife’s favour.  The Court is of the view, having spoken to the Respondent Husband over the telephone during the COVID pandemic on numerous occasions that he requires a litigation guardian because it appears he is still suffering the effects of a serious acquired brain injury from a motor vehicle accident.

2. The Court is of the view and is satisfied that the First Respondent Husband requires a litigation guardian in relation to these proceedings because he does not understand the nature and possible consequences of the proceedings, and further, he is not capable of adequately conducting or giving adequate instruction for the conduct of these property proceedings.  The Court has considered whether the Second Respondent, the First Respondent Husband’s new wife, may possibly be appointed a litigation guardian, however, the Court is of the view that the Second Respondent probably has an interest in the proceedings adverse to the interests of the First Respondent Husband, who requires and needs a litigation guardian.

3. By way of background, the Second Respondent is the First Respondent Husband’s new wife.  She was joined to the proceedings because she is a joint owner of the subject property at C Street, Suburb D.  As to the Court’s view that the Second Respondent probably has an interest in the proceedings adverse to the interests of the Respondent Husband who needs a litigation guardian and that she would not be a suitable litigation guardian accordingly, the Court provides the example that if the Applicant Wife made an offer of settlement to the First Respondent Husband to settle these property proceedings on a compromised basis and the Respondent Husband wished to borrow money against the subject property to meet the proposed compromised claim, the Second Respondent might well oppose the subject property being further encumbered.

4. Generally, the Second Respondent may well seek to oppose any order sought by the First Respondent Husband, whether through settlement of the proceedings with the Applicant Wife or otherwise, having the effect of diminishing her joint interest in the subject property.  The Court should state that the Respondent Husband and the Second Respondent are joint owners of the subject property as joint tenants.  The parties, that is, the Applicant Wife, the Respondent Husband and the Second Respondent are unable to identify themselves a suitable person who could appropriately be a litigation guardian for the husband.  The Court observes that the Respondent Husband and the Second Respondent are legally unrepresented in these property proceedings. 

5. Pursuant to rule 3.16 of the Court’s rules, headed “Manager of the affairs of a party”, subsection (3):

   If, in the opinion of the Court, a suitable person is not available for appointment as a litigation guardian for a person who needs a litigation guardian, the Court may request that the Attorney-General appoint a person to be a manager of the affairs of the party.

   The Court observes that under subsection (5) of rule 3.16, that:

   A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person.

6. Again, the Court is of the view that the Respondent Husband needs a litigation guardian in these property proceedings.  The Second Respondent is not a suitable person to act as a litigation guardian for the Respondent Husband because she probably has an adverse interest to the interests of the Respondent Husband who needs a litigation guardian.  Accordingly, the Court will make a request to the Attorney-General to appoint a person to be a manager of the affairs of the Respondent Husband. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.

Associate:

Dated:       15 March 2022