FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR DOBKOWSKI
Applicant
AND:
MS DOBKOWSKI
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
3 MARCH 2022
THE COURT ORDERS THAT:
1.A litigation guardian be appointed pursuant to Rule 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) for the Respondent Wife MS DOBKOWSKI born in 1943 (‘the Wife’) in these proceedings.
2.Pursuant to Rule 3.16(3) of the Rules, the Attorney-General for the Commonwealth is requested to exercise the Attorney-General’s powers in relation to Rule 3.16(4) in her discretion to appoint in writing a person to be a manager of the affairs of the Wife in these proceedings.
3.Pursuant to Rule 15.13, leave is granted to any litigation guardian appointed in writing by the Attorney-General for the Commonwealth pursuant to the request in these orders to have a copy of all Court documents filed in these proceedings together with a copy of all orders made in these proceedings.
4.Within seven (7) days, the parties are to do all things and sign all documents necessary to release
(a)The sum of $25,000 from the Commonwealth Bank of Australia with account number …67 to the Husband and the Husband is ordered to forthwith upon receipt of such sum pay the whole of that sum of $25,000 to the B Aged Care for the Wife’s outstanding debt for accommodation customer number …; and
(b)The sum of $25,000 from the Commonwealth Bank of Australia with account number …68 to the Husband (or his nominee) for the payment of his legal fees, his legal fees to be incurred, and other living expenses.
5.That each party pay his or her own costs of these interim proceedings.
6.The proceedings are listed for further mention and directions at 9:30AM on…
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.
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AGLC
Dobkowski & Dobkowski [2022] FedCFamC2F 369
Case
[2022] FedCFamC2F 369
Decision Date
CaseChat Overview and Summary
The case of Dobkowski & Dobkowski is an application for interim orders made by the husband in the context of a property settlement matter between the parties. The husband sought orders that a litigation guardian be appointed for the wife, that sums of money be released from two bank accounts, and that the wife pay his costs. The wife opposed the husband's application in its entirety. The Court made orders appointing a litigation guardian for the wife, releasing sums of money from the bank accounts, and ordered that each party bear their own costs. The Court found that the wife was not capable of understanding the nature and possible consequences of the proceedings, or adequately conducting or giving adequate instructions for the conduct of the proceedings. The Court found that it was in the interests of justice to release sums of money from the bank accounts for the purposes of the wife's outstanding debt for accommodation and the husband's legal fees and living expenses.