Genesalio and Genesalio
[2019] FamCAFC 85
•24 May 2019
FAMILY COURT OF AUSTRALIA
| GENESALIO & GENESALIO | [2019] FamCAFC 85 |
| FAMILY LAW – APPLICATION IN A CASE – APPOINTMENT OF CASE GUARDIAN – Where the appellant’s brother seeks an order that he be appointed as the appellant’s Case Guardian – Where the application is made in the appeal proceedings and any order made can necessarily only be for the purposes of those proceedings – Where there is no dispute that the appellant’s brother is the manager of the affairs of the appellant and he consents to be appointed as Case Guardian – Where the issues raised by the respondent are whether the appellant has a disability that requires a Case Guardian, whether his brother has an adverse interest in the case and whether the brother can “fairly and competently” conduct the case for the appellant – Where the appellant has a disability which prevents him from adequately conducting the appeal proceedings and he requires a Case Guardian from that perspective – Where nothing was put to this Court to demonstrate that the appellant’s brother has an adverse interest to the appellant in the appeal proceedings and rule 6.09(b) of the Family Law Rules 2004 (Cth) is satisfied – Where the appellant’s brother can fairly and competently conduct the appeal proceedings for the husband – Appellant’s brother appointed as his Case Guardian but limited to the appeal proceedings. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 6.10(2), 6.08A, 6.09(b), 6.09(c) and Part 6.3 |
| Thorn & Thorn [2017] FamCA 950 |
| APPELLANT: | Mr Genesalio |
| RESPONDENT: | Ms Genesalio |
| FILE NUMBER: | MLC | 7657 | of | 2018 |
| APPEAL NUMBERS: | SOA | 83 & 88 | of | 2018 |
| DATE DELIVERED: | 24 May 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 1 May 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 October 2018 8 November 2018 |
| LOWER COURT MNC: | NA – Transcript only [2018] FCCA 3458 |
REPRESENTATION
| THE APPELLANT: | In person with the assistance of his brother Mr M Genesalio |
| COUNSEL FOR THE RESPONDENT: | Mr Puckey |
| SOLICITOR FOR THE RESPONDENT: | Mazzeo Lawyers |
Orders
Mr M Genesalio be appointed as the Case Guardian for the appellant husband in Notices of Appeal Nos SOA 83 and 88 of 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Genesalio & Genesalio has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Numbers: SOA 83 and 88 of 2019
File Number: MLC 7657 of 2018
| Mr Genesalio |
Appellant
And
| Ms Genesalio |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before the court is an Application in an Appeal filed on 24 April 2019 by Mr M Genesalio, the brother of Mr Genesalio (“the husband”), seeking an order that he be appointed as the Case Guardian of the husband.
The application is supported by an affidavit of the husband’s brother also filed on 24 April 2019.
The application is opposed by Ms Genesalio (“the wife”).
The application is made in the context of the husband having two appeals before this Court, one filed on 21 December 2018 appealing against an order for costs made by Judge Wilson on 22 October 2018, and the other also filed on 21 December 2018 appealing against certain of the orders made by his Honour on 8 November 2018, including an order for sole use and occupation of the former matrimonial home in favour of the wife.
The appeals have been consolidated, and they were due to be heard on 20 March 2019, but the Application in an Appeal has in effect overtaken that hearing, and it has been adjourned to a date to be fixed to await the outcome of the Application in an Appeal.
It must also be remembered that because the application is made in the appeal proceedings, any order that this Court makes can necessarily only be for the purposes of those appeal proceedings, and not for the purpose of the first instance proceedings. As will be seen, that is highly relevant to the fate of the application.
The applicable rules of court
Part 6.3 of the Family Law Rules 2004 (Cth) (“the Rules”) contains the rules relating to Case Guardians.
Relevantly, pursuant to rr 6.10(2) and 6.08A 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 Notice of Address for Service, filed an affidavit which provides evidence that the person has been appointed manager of the affairs of the party, and consents to the appointment as the Case Guardian.
There is no dispute here that the husband’s brother is the manager of the affairs of the husband, and that he consents to be appointed as the Case Guardian, but the issues are whether the husband suffers from a disability that requires a Case Guardian, whether the husband’s brother “has no interest in the case that is adverse” to the interest of the husband (r 6.09(b)), and whether the husband’s brother can “fairly and competently” conduct the case for the husband (r 6.09(c)). These are matters put in issue by the wife.
Strictly, given the way that the Rules are constructed, upon filing a Notice of Address for Service, filing an affidavit as referred to above, and providing the necessary consent, as is the case here, the husband’s brother is taken to be the Case Guardian without more, and the wife’s position can be seen as seeking to revoke that “appointment” (see Thorn & Thorn [2017] FamCA 950).
Disability
Plainly a party only requires a Case Guardian if that party is suffering from a relevant disability.
The dictionary to the Rules defines “a person with a disability” as follows:
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 no suggestion that the husband is suffering from a mental disability, or that (a) applies, but there is a real issue as to whether (b) applies, or more specifically, whether the husband “is not capable of adequately conducting … the case”. There is no suggestion that the husband cannot give “adequate instruction for the conduct” of the case.
The unchallenged evidence, as set out in paragraph 5 of the affidavit of the husband’s brother filed on 24 April 2019, is as follows:
The [husband] has been diagnosed with multiple medical co-morbidities, including:
a. End stage kidney disease
b.Ischaemic (Coronary) heart disease (reduces blood supply to the heart)
c. Hypertension
d. Type 2 diabetes mellitus
e. Renal anaemia
f. Obstructive sleep apnoea and
g. Major depression
Further, the major issues with the husband’s health are his heart disease and his kidney disease. His kidney disease requires him to attend hospital for dialysis every second day. However, it is his heart disease which is said to provide the primary basis for the need for a Case Guardian. It is claimed that appearing in court causes him to become stressed and anxious, and that puts a strain on his heart which has minimal ability to cope, and that may lead to a heart attack. Indeed, it is submitted that that occurred when he attended a hearing on 8 November 2018, and he then spent six days in hospital with heart attack symptoms.
However, the medical evidence before the court is ambiguous as to the link between an appearance in court and the risk of a heart attack, and also whether that is currently an issue for the husband. On the one hand, there is a report from the husband’s general practitioner of 1 September 2017, indicating that he needs to avoid stress to prevent a heart attack. Yet, after another admission to hospital in September 2018 following a court hearing, that same general practitioner provided a report dated 14 September 2018 which concluded as follows:
In my medical opinion, Mr Genesalio risks Heart Attack or Stroke by being in court at this point. He has no capacity engage in Court Requirements at this point, and I would ask that any Court proceedings be delayed until his condition stabilises medically – I cannot state when this will be, but anticipate weeks to months as his Dialysis ‘Beds in’. He requires Haemodialysis 3x weekly, and once he stabilises and his body gets used to this, I anticipate he will be able to participate with court safely.
(As per original)
Then in a report provided on 3 October 2018, that same general practitioner said this:
In my opinion, Mr Genesalio is currently unable to participate in any litigation or attend court, in that the stress related to attending in court is hazardous to [his] Health.
The Physiologic impact of Stress on r Genesalio is to elevate Blood Pressure, which in turn places significant strain on [his] Heart. Due the nature of his Ischaemic Heart disease, he has no function or reserve to cope with this and as evidenced by recent events and hospitalisations, he remains at risk of further Acute Myocardial Infarctions or Strokes in the context of elevations in blood pressure beyond 200 mm Hg systolic.
In the past following attendance in a court on the 15/8/17, Mr Genesalio has been hospitalised for the investigation of chest pain and high blood pressure. I have been imploring Mr Genesalio since February 2017 to avoid stress as he can, and he has experienced what can be Life threatening Cardiac complications multiple times already now. I would advise strongly that Mr Genesalio avoid stress and stressful situations. In my opinion there enough risk of Death for Mr Genesalio by attending court that I would advise that he avoid court appearances for the indefinite future.
(As per original)
However, in a report dated 18 October 2018 Dr O opined as follows:
With respect to Mr Genesalio’s ability to engage in his court proceedings, I believe that dialysis and his other comorbidities, as I understand them, should not impact [his] cognitive capacity nor ability to give instructions to a legal practitioner to act on his behalf at this present time. It should also not impact his physical ability to ambulate or transport himself to court. However, dialysis can be physically taxing for people so dialysis may affect his ability to physically endure long court proceedings. Dialysis hours and days are also often inflexible and non-negotiable, given the limited availability of dialysis chairs in the … suburbs, so [his] ability to attend legal meetings or court proceedings may well be likely to be impacted because of this.
That report of course primarily addresses the effect of the husband’s kidney disease, but unfortunately there is no more recent medical evidence than this, and no evidence of any hospitalisation following any court hearing, since November 2018.
It is in this context that the wife challenges that the husband has a disability that requires a Case Guardian.
Having reflected on the evidence and the submissions made to the court, I consider that although there is no more recent medical evidence than that identified above, and despite a question mark being raised about whether the husband continues to suffer the difficulties which he experienced, for example, in 2018, I consider that it is open to this Court to find that the stress and anxiety that would be caused by the husband having to appear in the appeal proceedings and conduct his case himself, has the possible consequence of the husband suffering a heart attack, or even just resulting in his hospitalisation. It would be naïve to proceed on the basis that the husband no longer suffered from the medical conditions referred to above, or that the effect of them on his daily existence has improved. It is also noteworthy that there have been no appearances in court by the husband of recent times that would have been as stressful as the appearance in November 2018, and indeed, in the only directions hearing that has been held in relation to the appeals, the husband was represented.
Accordingly, I find that the husband suffers from a disability that prevents him from adequately conducting the appeal proceedings, and a Case Guardian is required from that perspective.
Adverse interest
It is submitted that the husband’s brother has an adverse interest to the husband because of their respective interests in certain trusts and pieces of real estate. It is said that depending on what position they each take in relation to those interests, the husband’s brother may become a party to the property settlement proceedings which are currently before the Federal Circuit Court of Australia.
There are two particular trusts involving two pieces of real estate which would appear to be in play. The first is a commercial property that is registered in the name of the husband, but which he is said to hold on trust for a unit trust of which the husband, his brother, their parents, and another family trust hold the units. The second is a residential property which is in the name of the husband’s father’s estate, and of which estate the sole beneficiary is a trust where the husband’s brother is the appointor and the sole director of the trustee company. However, the beneficiaries of that trust include the husband and his brother.
It is plain that if the husband and his brother take a united position in relation to the above trusts and/or properties, it is unlikely that in the property settlement proceedings the husband’s brother will have an adverse interest to the husband’s interest, but otherwise if they part company. However, that is not yet known, and it may also depend on whether the husband’s brother is made a party to those proceedings.
Clearly, that can only be determined as the property settlement proceedings unfold, and those issues have no relevance to the appeal proceedings. Indeed, nothing was put before this Court to suggest that in the appeal proceedings the husband’s brother has an adverse interest to the interest of the husband. Thus, for the purposes of those proceedings r 6.09(b) is satisfied.
The conduct of the case
The two issues raised here are first, the fact that the husband asked his brother to be his Case Guardian as long ago as October 2018, but no application was made until 24 April 2019. Secondly, there has been a failure by the husband’s brother to file documents that he has prepared on behalf of the husband within time.
Delay is always an issue in any proceedings, but the delays here have been adequately explained by the husband’s brother. The delay in seeking an appointment was because a number of attempts were made to arrange legal representation for the husband before deciding to make the application. As the husband’s brother submitted, a Case Guardian may not have been necessary if the husband was able to secure legal representation.
In relation to the delays in filing documents, they were not so great as to be relevant, bearing in mind that the husband’s brother is not a legal practitioner.
In any event, the husband’s brother has indicated that even if he is appointed or remains as Case Guardian, he will be engaging a solicitor and instructing a barrister to represent the husband in the appeal proceedings.
Further, having now heard from the husband’s brother, and read the documents that he has prepared, I am satisfied that he can fairly and competently conduct the appeal proceedings for the husband, if legal representation is unable to be arranged.
Conclusion
Bearing in mind that the application is only made in the appeal proceedings, I am satisfied that:
a)the husband has a physical disability such that he is not capable of adequately conducting those proceedings;
b)in those proceedings the husband’s brother has no interest that is adverse to the husband’s interest; and
c)the husband’s brother is able to fairly and competently conduct those proceedings for the husband.
Thus, although it may be unnecessary given that rr 6.10(2) and 6.08A apply here, I propose to make an order that the husband’s brother be appointed as the Case Guardian of the husband, but limited to the appeal proceedings.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Strickland J delivered on 24 May 2019.
Associate:
Date: 24 May 2019
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