Gilliam & Cantrell - [2022] FedCFamC2F 478

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gilliam & Cantrell [2022] FedCFamC2F 478

File number(s): MLC 4021 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 14 April 2022

Catchwords: FAMILY LAW – litigation guardian invalid proceedings – need for a litigation guardian – inadequate medical evidence

Legislation:
Evidence Act 1995: s 140

Family Law Act 1975 (Cth): ss 4AA, Part VIII, Part VIIIAB, 90SE(1), 90SM(1)

Family Law Rules 2004

Federal Circuit and Family Court of Australia (Family Law) Rules 2021: rr 1.31, 3.12-3.18

Federal Circuit Court Rules 2001: rr 1.06, 11.02, 11.08-11.13

Guardianship and Administration Act 2019 (Vic): ss 3, 30-32, 55

Power of Attorney Act 2014 (Vic): ss 21-26

Cases cited:
Banaszak and Executors of the Estate of Mr S Mandia and Norr (No 2) [2015] FamCA 235

EPG v KPZ [2019] VSC 630

Forster v Forster (2012) 47 Fam LR 77

Frost (Deceased) & Whooten (2018) FLC 93-860

Hayes & Eddington (No 3) [2014] FamCA 336

Lane & Nicols (2016) FLC 93-750

Makita (Aust) Pty Ltd v Sprowles (2021) 52 NSWLR 705

Stopford Malloy & Malloy (2021) 62 Fam LR 474

Division: Division 2 Family Law

Number of paragraphs: 110

Date of hearing: 31 January-1 February 2022

Counsel for the Applicant: Mr M O’Connor

Solicitor for the Applicant: Hunt Mccullough Kollias & Co

Counsel for the Respondent: Mr L Wraith

Solicitor for the Respondent: Mills Oakley Lawyers
ORDERS

MLC 4021 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GILLIAM

Applicant

AND:
MR CANTRELL

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

14 APRIL 2022

THE COURT ORDERS THAT:
1.All extant applications are dismissed.

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 a pseudonym Gilliam & Cantrell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
BACKGROUND

The matter of Gilliam and Cantrell came before me on 31 January 2022 and concluded on 1 Feb 2022. Originally listed as a final hearing on what was described as the threshold issue of whether or not the parties’ de facto relationship had ended, the hearing proceeded on submissions and no witness was cross examined.
Ms Gilliam (‘Ms Gilliam’) is 92 years old and now lives in an aged care facility. Mr Cantrell (‘Mr Cantrell’) is 93 years old and lives by himself in a home owned by him. It is common ground that Ms Gilliam and Mr Cantrell lived together in a de facto relationship within the meaning of section 4AA of the Family Law Act 1975 (Cth) (‘the Act’) from 1985 for many years.
Each of Ms Gilliam and Mr Cantrell have children, now adult, from the prior relationships of each. They did not have children together.
Ms Gilliam's son from her prior relationship, Mr B (‘the son’), alleges that the couple separated, and the de facto relationship ended, under the one roof in 2010 (see outline of case) or 4 years ago (see affidavit filed 13 April 2021 at [5]) and/or completely on 21 August 2019.
Mr Wraith of counsel appeared for Mr Cantrell and Mr O'Connor of counsel appeared for the son, or if the proceedings are valid, Ms Gilliam.
Mr Cantrell alleges that he and Ms Gilliam never separated and that their de facto relationship has not broken down and continues to this day and, although no longer living in the same dwelling due to the poor health of each of them, they continue to love and care for each other and to communicate very frequently by telephone. He further asserts that:
[56] I remain concerned that the actions of (Ms Gilliam's) family, and in particular of (the son), causing Ms Gilliam significant distress and confusion, and are not in Ms Gilliam's best interests.
…
[122] … I was totally unaware that (Ms Gilliam) wanted to leave me. I deny that (Ms Gilliam) wanted to leave and say that this was something made up by her children as a pretence to remove her from our home. (Ms Gilliam) and I continue to talk several times per week and she always tells me that she loves me, misses me so much and wants to come home to the way it was before she left.
The son's case asserts Ms Gilliam wanted to leave Mr Cantrell after considerable discussion with her daughter, Ms C, and that he and his siblings are acting in their mother's interests. As to the (not disputed) recent and current expressions of affection by Ms Gilliam to Mr Cantrell the son asserts in his reply affidavit:
[16 i.] …Mum now has no memory of her reasons for leaving due to her dementia. She has regressed to only recalling events from a long time in the past…
Mr Cantrell says Ms Gilliam was "removed" from their home by her children of her prior relationship. The son and his siblings assert she left the home and the relationship of her own accord due to her poor health and her unhappiness at her treatment by Mr Cantrell.
On either version, Ms Gilliam and Mr Cantrell have had, or still have, a very long de facto relationship.
When pressed about the significance of the noncontroversial telephone calls between Ms Gilliam and Mr Cantrell the son's counsel observed as follows;
HIS HONOUR: And then I’ve got her statement of 24 January. And what I’m – and I’m – as a matter of context in the overall dispute, where does that fit in the breakdown of the relationship case, even though I’m not hearing that?
MR O’CONNOR: Yes. Well, it’s hard without the medical evidence, but the position of the Gilliams is that their mother, her cognition has deteriorated, in their observations very significantly, to far more childlike and is accelerating. She has a rosy recollection of her long-term relationship, which she wasn’t recollecting rosily at the time in the leadup to the separation, but she certainly has a very rosy recollection of the relationship. But that’s in the Gilliams’ view, and there will need to be medical support as a result of her dementia, where she’s seeing things in – seeing the positives only of her relationship.
Enduring Power of Attorney
It is common ground that on 21 May 2019 Ms Gilliam executed an enduring Power of Attorney (the EPOA) appointing the son, and her daughter, Ms D (‘Ms D’)as her Attorneys. The terms of that POA are significant and will be recited later in these reasons.
The questions that must be answered
The questions I must answer in this application are as follows:
(1)Were these proceedings validly instituted or commenced by the son on 13 April 2021? And;
(2)If these proceedings were not validly instituted, have the defects been rectified or the proceedings been validated by subsequent events?
The subsequent events said by the son to validate the proceedings, if they were instituted invalidly, include;
(a)The letter or document or certificate signed by Dr E MBBS, FRACGP (‘Dr E’) on 6 December 2021, see page 16/32 of Mr Cantrell's tender bundle, (the 6 December 2021 Doctor's Letter); and/or
(b)the filing of a further affidavit by the son on 14 December 2021 (‘the consent affidavit’); and/or
(c)the application by Mr Cantrell to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of a guardian for Ms Gilliam (the VCAT Application).
LEGAL BACKGROUND
From 1 March 2009, by reason of the amendments to the Act by Act No 115 of 2008 that inserted Part VIIIAB of the Act, the law applicable to maintenance and property division of de facto partners, in what is known as the "referring states", is almost identical in scheme to that applicable to legally married couples contained in Part VIII of the Act. The referring states are Victoria, New South Wales, Queensland and Tasmania. The Act applies to the Commonwealth Territories. For property division or maintenance under the Act, parties must be, or have been, either married or have lived in a de facto relationship as defined in sec 4AA of the Act.
One significant difference between the scheme applicable to de facto couples and that applicable to legally married couples is that the power of the court to consider whether to divide or alter property interests exists, for legally married couples, whether separated or not, but for de facto couples the property division and maintenance power only exists after the breakdown of a de facto relationship, see section 90SE(1) for maintenance and section 90SM(1) for property settlement proceedings.
Mr B (‘the son’) and Mr Cantrell disagree about whether the de facto relationship of Ms Gilliam and Mr Cantrell has broken down. The parties do not require me to determine that question at this point.
Material relied upon.
Mr B, the son, relied upon the following material
(1)Initiating Application filed 13 April 2021.
(2)Affidavit of Mr B filed 13 April 2021.
(3)Affidavit of Mr B filed 14 December 2021 at 11.12 AM (the consent affidavit).
(4)Affidavit of Mr B also filed on 14 December 2021 but at 2.51 PM (the reply affidavit).
(5)Amended application filed 15 December 2021.
(6)The tender bundle of documents of Mr B (32 pages) that includes the 6 December 2021 Doctor's Letter and the VCAT Application.
(7)The affidavit of Ms D filed 13 April 2021.
(8)The affidavit of Mr F filed 14 December 2021.
(9)The affidavit of Ms C filed 27 January 2022.
(10)The order of this court made 16 June 2021.
(11)Outline of case dated 30 Jan 2022 emailed to court.
Mr Cantrell relied upon the following material.
(1)Exhibit R, VCAT order made 24 Jan 2022.
(2)Amended Response to Initiating Application filed 19 January 2022.
(3)Outline of case filed 25 Jan 2022.
(4)Affidavit of Mr Cantrell filed 19 Jan 2022.
(5)Tender bundle of documents.
Mr Cantrell did not rely on his affidavit filed on 7 June 2021 in the list of documents in his Outline of Case, but the son had replied to it paragraph by paragraph in his reply affidavit, and so it has been necessary to read it to make sense of the son's reply affidavit. Parts of that affidavit, with the consistency of the age of the word processor machine and computers, are reproduced exactly in Mr Cantrell's 19 January 2002 affidavit. Paragraphs 15 to 19 of the 7 June 2021 affidavit are identical to paragraphs 31 to 36 of Mr Cantrell's 19 January 2022 affidavit. This assists determine whether some events are disputed or not.
It was common ground that the only questions to be determined were about the validity of the proceedings, and not whether Mr B should remain as case guardian (if he actually is the case guardian). And not the subpoena dispute and not the question of whether the relationship had broken down.
The hearing was on the papers and neither party sought to cross examine any witness. The proceedings had been on foot since April of 2021 but the validity of the proceedings, also described as the jurisdiction issue, was only raised by the Amended Response filed by Mr Cantrell on 19 Jan 2022. Why that was raised relatively late was said to be because of the very recent disclosure of the actual terms of the EPOA.
Mr Cantrell described the issue as follows at 5 of his Outline of case:
Threshold Issues:
(a)Whether the proceeding purported to have been commenced by Mr B on behalf of the Wife has been validly instituted.
(b)Whether there is sufficient evidence before the Court that the Wife is a person in need of a litigation guardian.
(c)Whether Mr B has been instituted as litigation guardian by operation of law, and if so, whether he ought be removed as litigation guardian.
Substantive Issues:
(a)Whether the relationship between the husband and wife has broken down.
(b)Whether it is just and equitable for there to be orders made for division of property between the husband and wife, and, if so, the form of any orders to be made.
In Outline of case the son helpfully described the issues as follows:
(a) Is the amended initiating application invalid and if so, in what way and what other order, if any, are necessary to do justice between the parties?
…
(b) Was Mr B validly appointed Ms Gilliam's case guardian? And if not, should Mr B or someone else be appointed case guardian by the Court?
…
(c) Is there any basis to remove Mr B as case guardian?
As the parties refined the issues I am only asked to determine issues (a) and (b) of Mr Cantrell’s Outline of Case and issues (a) and the first part of (b) of the son’s Outline of Case.
It was not disputed that, although Mr B purported to rely upon the EPOA in April 2021 when he issued the proceedings, the actual EPOA was only revealed or disclosed to Mr Cantrell in December 2021.
On 1 September 2021, this court, previously the Federal Circuit Court of Australia, became Division 2 of the Federal Circuit and Family Court of Australia and the Federal Circuit and Family Court of Australia (Family Law)Rules2021 came into operation and the previously applicable Rules, being the Family Law Rules 2004 and the Federal Circuit Court Rules 2001, were repealed.
Mr Cantrell alleges that the proceedings were not validly instituted under the Rules of court applicable prior to 1 September 2021, or as applicable now under the "new" Rules. The son alleges they were validly instituted and, in any event, the events described above, or any of them, meant the proceedings, if invalid, were cured or made valid from when those events occurred.
In April 2021 the applicable Rules of the court provided as follows;
11.08 Person who needs a litigation guardian
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2)Unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
11.09 Starting, continuing, defending or inclusion in proceeding
(1)A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian.
(2)      The litigation guardian of a party to a proceeding:
(a)       must do anything required by these Rules to be done by the party; and
(b)       may do anything permitted by these Rules to be done by the party.
11.10 Who may be a litigation guardian
A person may be a litigation guardian in a proceeding if he or she is an adult and has no interest in the proceeding adverse to the interest of the person needing the litigation guardian.
11.11 Appointment of litigation guardian
(1)The Court may, at the request of a party or of its own motion, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.
(2)A person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding.
(3)The Court may remove a litigation guardian at the request of the litigation guardian.
11.12 Manager of the affairs of a party
(1)      In this rule:
manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.
(2)A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the authority extends.
(3)The Attorney‑General may appoint in writing a person to be a manager of the affairs of a party for this rule, either generally or for a particular person.
(4)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.
Hence if the son was the manager of the affairs of a party according to Rule 11.12, by Rule 11.12(4) he would have become, or be deemed to be, the litigation guardian when he filed an affidavit of consent (to being the litigation guardian in the proceedings).
There is no requirement in the Rules, then or now, that the actual document or extract of the relevant provisions of the document or order that demonstrates a person is the manager of the affairs (for example VCAT order or EPOA), be attached or annexed to an Initiating Application or exhibited or annexed to an affidavit filed as the same time as the Initiating Application. It maybe that there should be. In any event ordinary good practice would ensure that is the case. The “new” Rules of the court are to the same effect as the old. Those “new” Rules are:
3.12 Person who needs a litigation guardian
(1)    For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a)    does not understand the nature and possible consequences of the proceeding; or
(b)    is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2)    Unless the court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
3.13 Starting, continuing, defending or inclusion in proceeding
(1)    A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by the person’s litigation guardian.
(2)    The litigation guardian of a party to a proceeding:
(a)    must do anything required by these Rules to be done by the party; and
(b)    may, for the benefit of the party, do anything permitted by these Rules to be done by the party.
Note 1:      A person may apply for an interlocutory order to be appointed as a litigation guardian in relation to a prospective proceeding (see rule 5.02(2)(b)).
Note 2:      Rule 6.01(3) applies the duty of disclosure to a litigation guardian appointed under this Part.
Note 3:      Rule 10.04(3) requires a litigation guardian seeking a consent order to file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests.
3.14 Who may be a litigation guardian
A person may be a litigation guardian in a proceeding if the person:
(a)    is an adult; and
(b)    has no interest in the proceeding adverse to the interest of the person needing the litigation guardian; and
(c)    can fairly and competently conduct the proceeding for the person needing the litigation guardian.
3.15 Appointment of litigation guardian
(1)    A person may apply for the appointment, replacement or removal of a person as the litigation guardian of a party.
(2)    The court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian, or substitute another person as litigation guardian, in a proceeding in the interests of a person who needs a litigation guardian.
(3)    A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding.
(4)    The court may remove a litigation guardian at the request of the litigation guardian.
3.16 Manager of the affairs of a party
(1)    In this rule:
manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.
(2)    A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the person’s authority extends.
(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.
(4)    The Attorney‑General may appoint, in writing, a person to be a manager of the affairs of a party for the purposes of this rule, either generally or for a particular person.
(5)    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.
3.17 Notice of becoming litigation guardian
A person appointed as the litigation guardian of a party to a proceeding must, as soon as practicable after the appointment, give notice of the appointment to each other party and any independent children’s lawyer in the proceeding.
3.18 Costs and expenses of litigation guardian
The court may make orders for the payment of the costs and expenses of a litigation guardian (including the costs of an application for the appointment of the litigation guardian):
(a)    by a party; or
(b)    from the income or assets of the person for whom the litigation guardian is appointed.
THE TERMS OF THE EPOA

It is necessary to recite the provisions of the EPOA. The consequences of clause 6 are controversial.
ENDURING POWER OF ATTORNEY
This Enduring Power of Attorney is made under Part 3-of the Powers of Attorney Act 2014 and has effect as a deed under section 81 of the Act.
THIS ENDURING POWER OF ATTORNEY is made on the 21st day of August
Two thousand and Nineteen.
Name of Principal: MS GILLIAM
Address of principal: [omitted]
REVOCATION
1.I specify that all previous Enduring Powers of Attorney made by me under the Powers of Attorney Act 2014 are revoked.
APPOINTMENT
2.I appoint my son MR B [omitted] of [omitted] Victoria and my daughter MS D [omitted] of [omitted]Victoria to be my Attorneys.
3.I direct my Attorneys to act as joint and several Attorneys.
AUTHORISATION
4.I authorise my Attorneys to do anything on my behalf that I can lawfully do by an Attorney for financial matters.
COMMENCEMENT
5.The powers under this Enduring Power of Attorney for all matters are exercisable immediately on the making of this Enduring Power of Attorney.
CONDITIONS AND INSTRUCTIONS
6.The exercise of power under this Enduring Power of Attorney is subject to the following conditions and/or instructions (if any):
The powers under this Enduring Power of Attorney are exercisable only if a registered medical practitioner certifies in writing that I no longer have legal capacity.
…
(Emphasis in original)
It is not disputed that there is no evidence before me that as at the time of issue of the proceedings on 13 April 2021 that any "registered medical practitioner" had "certif(ied) in writing that (Ms Gilliam) no longer (had) legal capacity". It was not alleged that the son or anyone else in the family had ever sighted such a document.
It is controversial whether any of Ms Gilliam's children or their families ever directed the nursing home where Ms Gilliam resides to prevent communication and telephone calls between Ms Gilliam and Mr Cantrell.
Common ground or uncontested matters
Before setting out a summary of the competing submissions of the parties it is necessary to recite at least some of the common ground or not disputed assertions or facts to give context to those submissions. Although the respective chronologies or the parties are not entirely responsive to each other (and in due course a common chronology would assist), I understand the following recent matters are not controversial. I have not recorded the many other allegations that are controversial that would give colour to the competing versions of events of the parties if true.
In 1981 or 1985 Ms Gilliam and Mr Cantrell commenced to cohabit in a de facto relationship within the meaning of section 4AA of the Act.
On 17 June 2019 a Dr E (the report was read to me and was uncontroversial) stated:
(Ms Gilliam) has been known to me for five years and has been examined today. Despite her advanced age, she has good cognition and is competent to make decisions involving power of attorney and the like.
On 21 August 2019 the EPOA, recited above, was executed and contained the clauses as referred to.
On 22 Oct 2019, a geriatrician, Dr H (‘Dr H’), recorded Ms Gilliam as likely suffering some cognitive impairment and likely Alzheimer's dementia and ordered tests. The results, if the tests were ever undertaken, were not before me.
In April 2019 Ms Gilliam left the home to stay with her daughter Ms D and returned to the home some time after.
On 29 August 2020 (the day asserted in the original Initiating Application and the Amended Initiating Application as the "date of final separation") Ms Gilliam left the home with a grandson of Ms Gilliam (‘the grandson’). What Ms Gilliam's intention was then, and the degree of influence of the son and her other children, is controversial.
Later that day the grandson sent a text message to Mr Cantrell's daughter, Ms J, as follows:
Ms J. Ms Gilliam has moved out of K Street, Suburb L. She will not be returning to this address. You will be contacted in due course to collect the rest of her belongings. Please contact your father to make sure he is okay.
Mr Cantrell's daughter responded:
Who is this?
From this time it is common ground that that until moving to the aged care home Ms Gilliam stayed or lived at her daughter, Ms D's, home and had telephone contact with Mr Cantrell. Whether or not Ms D supported that communication is controversial.
At Christmas 2020 Ms Gilliam sent Mr Cantrell a Christmas card (-3), saying in her own handwriting:
To Dear Mr Cantrell, I still love you, but I don't seem to enjoy this Xmas, I don't feel the same, keep well I want you too, love Ms Gilliam x
On 13 April 2021 the son issued these proceedings asserting he is the case guardian in reliance on the EPOA. The jurat of that Initiating Application recited as being signed on 7 April 2021, "Signature of Applicant 1 by her attorney Mr B under power of attorney dated 21 August 2019". Ms Gilliam did not sign the initiating application.
On 7 June 2021 Mr Cantrell filed his Response, and his first affidavit, asserting the relationship had not broken down.
On 16 June 2021, in proceedings described as being between Ms Gilliam and Mr Cantrell, orders were made that adjourned the proceedings to 31 January 2022 for final hearing in relation to the threshold issue of the de facto relationship having ended or not and trial directions were made. Notation A to those orders states as follows:
The Registrar records that the issue of the appointment of a case guardian of the applicant may need to be contemplated in advance of the threshold hearing and counsel for the applicant has indicated that he will raise the matter with his instructor.
The notation was otiose. If the son was the manager of the affairs, he was the case guardian if he consented to be.
From at least 6 July 2021 to 6 December 2021 Ms Gilliam and Mr Cantrell spoke by telephone on 47 occasions, usually every few days or so, with Ms Gilliam calling Mr Cantrell on most of those occasions.
On 6 December 2021, Dr E, writes the 6 December 2021 Doctor's Letter, as follows:
To Whom it May Concern
Dear Sir/Madam
Regarding- Ms Gilliam
DOB 1929
Ms Gilliam , who is a patient of mine, is incapable of making her own decisions due to underlying medical conditions.
Yours sincerely,
Dr E
MBBS, FRACGP
On 14 December 2021, the son filed two affidavits, and one of those affidavits, the consent affidavit, annexed the 6 December 2021 Doctor's Letter and states, among other things:
[4] As joint and several attorney, I understand I am a "manager of the affairs" of my mother within the meaning of r 6.10(2) of the Rules [a reference to the now repealed rules of the Family Court of Australia].
…
[6] I consent to being appointed to act as case guardian for my mother.
Also on 14 December 2021, in the reply affidavit, he responded to paragraphs of Mr Cantrell's filed 7 June affidavit that at [15] and [16] (and that are identical to [31] & [32] of the 19 January 2022 affidavit) asserted that since the ‘removal’ or leaving on 29 August 2020, Ms Gilliam had contacted him at least once and sometimes twice a month by telephone and has told him she misses him and wants to come "home". The response, at [16. i.] was that Ms Gilliam now has no memory of her reasons for leaving due to her dementia and that she has regressed to only recalling events from a long time in the past.
Also at about this time, either by annexure to the reply affidavit, or by correspondence, the son disclosed the terms of the EPOA and Mr Cantrell learned for the first time of clause 6 of the EPOA.
On 22 December 2022 Mr Cantrell's lawyers complained to the aged care home that on 18 December 2021 he had been told by staff that Ms Gilliam would not be contacting him anymore in accordance with instructions from the son and Ms Gilliam's family.
On 23 December 2021 Mr Cantrell issued an application to VCAT, describing himself as Ms Gilliam's "Domestic partner" seeking an order that the Public Advocate be appointed as a guardian for Ms Gilliam, and referred to, or relied on, the 6 December 2021 Doctor's Letter. He asserted he had no way of communicating with Ms Gilliam and among other things asserted (as page 10 of the application):
To my knowledge (the son) and Ms D do not have the legal authority to make such decisions on Ms Gilliam's behalf, and if such authority existed such actions are not in Ms Gilliam's best interests and constitute elder abuse. I believe that Ms Gilliam would be very distressed with the above actions, as am I.
Also on 23 December 2021 the manager of the home advised Mr Cantrell's solicitors (in response to the letter of the day before) that, "…if Ms Gilliam wishes to continue to communicate with (Mr Cantrell), we will support her. I have clarified this with staff as well."…
On 29 December 2021 VCAT requested a standard form medical report be completed and that the VCAT application be brought to the attention of all concerned including Ms Gilliam.
On or about 6 January 2022 Mr Cantrell's solicitors emailed the VCAT application to the manager of the aged care home (cc'd to the son's solicitors) and requested it be brought to Ms Gilliam's attention and facilitate her attendance at the forthcoming VCAT hearing.
Also on 6 January 2022 Mr Cantrell's solicitors forwarded the VCAT application and standard VCAT form (also described of the VCAT required medical report to the doctor (cc'd to the son's solicitor) who wrote the 6 December 2021 Doctor's Letter (relied upon by the son in the proceedings before me and in his consent affidavit filed 14 December 2021) and requested that the doctor complete and return the VCAT form of the medical report about Ms Gilliam as a matter of urgency. The VCAT requirements of the necessary medical report were:
“Medical Report
You must provide us a recent medical report (within the last 3 months) that addresses Ms Gilliams’s capacity to make lifestyle and/or financial decisions. A medical practitioner involved in the care or treatment of Ms Gilliam can complete the medical report template attached.
Before making an order about a person, VCAT must be satisfied about the person’s capacity to make decisions. This information you provide is vital and if we do not receive the report prior to the hearing, VCAT may need to adjourn the hearing until the report can be provided.
If you have issues getting the medical report or the treating medical practitioner has refused to provide the report, please provide us with their name, the name of the practice and contact details so we can make this request directly with them.
…
On the following day, 7 January 2022, the doctor who wrote the 6 December 2021 Doctor's Letter emailed Mr Cantrell's solicitors (and cc'd the son's solicitors) and advised:
Thank you for sending me information about the VCAT application to appoint an administrator/guardian for Ms Gilliam .
I have checked the attached letter for the requirements for the medical report to assess the decision-making capacity of (Ms Gilliam) regarding her personal and financial matters. Unfortunately, I'm not in a position to assess (Ms Gilliam) for the level of decision-making capacity from my level of experience and knowledge.
I would strongly recommend she should be seen by her geriatrician, who has not seen her over 12 months for an assessment, who would be able to complete the report.
…
(Emphasis added)
On 10 January 2022 Mr Cantrell's solicitors wrote to the geriatrician requesting completion of the medical report in the form or template requested by VCAT. As at the time of the hearing before me such a report had not been completed.
On 24 January 2022 the VCAT hearing took place. Ms Gilliam participated in that hearing, at least to some extent, and I assume electronically from the aged care home (the following submissions and exchange about Ms Gilliam's participation in that hearing occurred before me and is recorded in the transcript at TP14 line 34 to TP15 line 7) as follows:
MR WRAITH:           I’m instructed that, during the VCAT hearing, the VCAT member spoke to Ms Gilliam. And we can get the transcript and this can be placed on affidavit in due course if it is necessary but, during the hearing, in the presence of all the parties, including my learned friend, that Ms Gilliam expressed a wish during that hearing to return to live with Mr Cantrell.
…
HIS HONOUR:          Mr O’Connor, is there any issue that the member – VCAT member spoke to Ms Gilliam and that’s what she said or that’s the substance of what she said?
MR O’CONNOR:     No, there’s no issue. And I think it’s from the position of Gilliams family that she’s certainly expressing those sentiments currently. There’s no – yes, no dispute about what her current sentiments are in that regard.
…
(Emphasis added)
On that day VCAT made the following order:
The application has been adjourned. You will be informed of a new date and time for the hearing as soon as possible. It will be held at Melbourne with M, Member if available.
VCAT makes this decision because:
VCAT refers this application to the Public Advocate for an investigation. The Public Advocate needs time to complete the investigation and report to VCAT. Once this report is complete VCAT will schedule a hearing and notify the parties. On receiving this hearing notice, anyone who wishes to receive a copy of the Public Advocate’s report ahead of the next hearing may request a copy from VCAT, who will consider whether or not to release it.
During the investigation, the Applicant, other parties and interested persons may furnish the Office of the Public Advocate with any historical information that they consider may assist that office in its investigation or the assessment of Ms Gilliams’s decision making capacity.
The Applicant has indicated an intention to file additional applications for administration and in relation to the enduring power of attorney granted to Mr B and Ms D. These applications will be included in the referral to the Public Advocate to investigate.
VCAT notes that:
Attorneys for Ms Gilliam have indicated to VCAT at the hearing today that there is no impediment to the Applicant, Mr Cantrell, visiting, calling or otherwise contacting by any medium, Ms Gilliam and that Ms Gilliam has not issues any instruction (personally or via her attorneys) that would prevent contact between Ms Gilliam and Mr Cantrell.
The Applicant has agreed to cover any reasonable costs associated with an assessment of Ms Gilliams’s decision making capacity as part of the investigation by the Office of the Public Advocate.
On the hearing before me Mr Wraith, counsel for Mr Cantrell, submitted in the alternative that if I ruled against his submissions as to the validity, I should adjourn the further hearing of the application pending further material and information.
Mr Cantrell's case
Mr Cantrell asserts the proceedings are invalid because (as he asserts in his Outline of Case):
Principal Submission: the proceeding has been invalidly commenced, and pursued, by Mr B .
3. As far as the proceeding in this court goes, following the filing of affidavit material by Mr B on 14 December 2021 a real issue has arisen as to whether the proceeding has been validly instituted, and therefore whether the jurisdiction of the court has been validly invoked.
4. Mr B purported to sign the Initiating Application on 7 April 2021 for Ms Gilliam “under Power of Attorney dated 21 August 2019”.
5. The relevant Enduring Power of Attorney Document (“EPA”) was disclosed in this proceeding as annexure “-2” the affidavit of Mr B (in respect of Guardianship) sworn by him on 14 December 2021 (“the Guardianship Affidavit”). That EPA appears to have been prepared by the firm of solicitors representing Mr B in these proceedings.
6. Paragraph 6 of the EPA provides, under the heading “CONDITIONS AND INSTRUCTIONS”:
“6. The exercise of power under this Enduring Power of Attorney is subject to the following conditions and/or instructions (if any):
The powers under this Enduring Power of Attorney are exercisable only if a registered medical practitioner certifies in writing that I no longer have legal capacity."
…
Consequences of failure to have obtained certification of legal capacity from a registered medical practitioner:
8.This proceeding was commenced under the former Federal Circuit Court Rules.
9. Rule 2.3(1) provides "a document to be filed (other than an affidavit, annexure or exhibit)" must be signed by a party or by a lawyer for the party unless the nature of the document is such that signature is inappropriate.”
10. Rule 4.01(1) provides "unless otherwise provided in these rules a proceeding must be started by filing an application in accordance with the approved form.”
11. The approved form for an initiating application provides for the document to be signed by the applicant.
12. So the Rules require that, unless otherwise provided for by the Rules, an initiating application must be signed by the party, or at least their lawyer on their behalf.
13. The Rules do however provide another avenue for commencing proceedings where a party lacks capacity. Rule 11.09 allows that "a person who needs a litigation guardian may start, continue, respond or seek to be included as a party to a proceeding only by his or her litigation guardian."
14. Pursuant to Rule 11.12 a "manager of the affairs of party" is entitled to be the litigation guardian for a party in a proceeding to which the authority extends (see Rule 11.12(2)).
15. As such, someone who is "the manager of the affairs of a party" within the meaning of the Rules, may commence a proceeding and, by necessary inference, sign the initiating application, on behalf of the person who needs a litigation guardian.
16. It is always open, and would usually be proper, for there to be an application to VCAT, or its interstate equivalents, for the appointment of an administrator, and approval by the Tribunal for the applicant to commence proceedings, prior to any proceedings being commenced on behalf of for a person in need of a litigation guardian. That would render the applicant a “manager of the affairs of a party” in accordance with the Rules, and afford them significant protection from potentially being ordered to pay costs personally in consequence of bringing such an application.
…
20.The present case has proceeded to date on the basis that Mr B was entitled to the presumptive appointment as litigation guardian under Rule 11.12 as at 13 April 2021 on the basis that at that time he was the manager of the affairs of Ms Gilliam under the EPA, as stated in the Initiating Application. There was no application in a case brought for Mr B’s appointment as litigation guardian prior to the filing of the Initiating Application, and nor did he seek appointment as litigation guardian in the Application itself.
21. However, as alluded to in paragraphs 6 and 7 above, the Guardianship Affidavit raises a real question as to his authority to act under the EPA in April 2021.
22. A manager of the affairs of a party is defined in inclusive terms as "a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian."
23. The provision in clause 6 of the EPA creates a clear condition precedent for the activation of any power under the document: “the powers under this Enduring Power of Attorney are exercisable only if a registered medical practitioner certifies…” [underline added]
24. There is no evidence before the court, nor is the Respondent otherwise aware, that as at 7 April 2021 when the Application was signed, or 13 April 2021 when it was filed, the condition precedent had been satisfied. Indeed, we specifically understand that it had not, and that the only report in existence in relation to the purported lack of capacity of Ms Gilliam is the one paragraph letter of doctor Dr E, dated 6 December 2021.
25. In the circumstances it appears that Mr B has assumed authority under the EPA document, without paying any regard whatsoever to the condition precedent contained in it with respect to its operation.
26. In the event that the requisite certification from a medical practitioner had not been obtained, Mr B’s powers under the EPA had not been enlivened, and the purported commencement of the proceeding appears to have been a nullity.
27. Unfortunately, the issue of the apparently invalid commencement of the proceeding only became apparent to the Respondent once a copy of the power of attorney document, and the letter from Dr E, became available to him following the filing of the Guardianship Affidavit.
28. As the full Court made clear in Frost (Deceased) & Whooten (2018) FLC ¶93-860 at [82] the jurisdiction of the court can only be invoked in accordance with the Rules. Lest it be felt that the defect in this case may be overcome post facto based on some amendment to the extant application, in the same paragraph of Frost the Full Court makes clear the Rules cannot be used to give the court jurisdiction where it is otherwise lacking.
29. It appears the proceeding was signed and filed by Mr B at a time when he had no authority to commence or conduct legal proceedings in the name of, or for, Ms Gilliam. Nor did he to apply to be appointed litigation guardian either prior to commencing the proceeding, or in the application itself. That, it is respectfully submitted, is the end of the matter: the jurisdiction of the court has not been properly engaged. The proceeding is a nullity.
In the alternative, there is insufficient evidence that Ms Gilliam requires a litigation guardian:
30. If, for any reason, the Court is against the Respondent in relation to the invalidity of the purported commencement of the proceeding, then it is submitted that the matter cannot, in any event, proceed at present as there is no adequate evidence that Ms Gilliam is not capable of adequately conducting the proceedings for the purposes of Rule 11.08.
31. It is coming up to 10 months since these proceedings were commenced. Mr B has had ample opportunity to file proper evidence to satisfy the court Ms Gilliam is a person in need of a litigation guardian.
32. The brief letter of Dr E, dated 6 December 2021 exhibited to the Guardianship Affidavit is grossly insufficient. It is well understood that legal capacity is decision specific. Whether someone is found to have capacity to appoint an attorney under enduring power, administer her own affairs, execute a will, or provide instructions for litigation, depends upon a consideration of the individual's mental capacity, relative to the requirements of the task at hand, and their wishes. There is simply nothing in that letter of Dr E to support the Court making the required finding that Ms Gilliam is in need to a litigation guardian in this proceeding other the bare assertion of the fact that Ms Gilliam is “incapable of making decisions due to underlying medical conditions” (whatever that might mean).
33. Further, and most significantly, when requested to prepare a report for VCAT concerning Ms Gilliam’s capacity, by email dated 7 January 2022 Dr E declined to give a report to VCAT saying she is “not in a position to assess Ms Gilliam for the level of decision making capacity from my level of experience and knowledge” and strongly recommends that Ms Gilliam be seen by a geriatrician (see Trial Affidavit of Mr Cantrell, dated 19 January 2022 and annexure “-10” thereto).
34.Under the circumstances it is submitted that on the state of the evidence it would be improper for the court proceed to hear the matter until proper evidence had been provided by Mr B to satisfy the Court that Ms Gilliam does require a litigation guardian.

The further submission that the son is not an appropriate person to act as litigation guardian was not pressed in the circumstances of the pending, VCAT ordered, investigation by the Public Advocate.
Mr Cantrell's counsel referred me to the Powers of Attorney Act 2014 (the POA Act) at sections 21-26. Those provisions are as follows:
21       Principles to be applied by persons acting under this Act or an enduring power of attorney
(1)       If a person is exercising a power, carrying out a function or performing a duty under this Act for a principal under an enduring power of attorney who does not have decision making capacity in relation to one or more matters, the person—
(a)       must do so in a way that is as least restrictive of the principal's ability to decide and act as is possible in the circumstances; and
(b)       in doing so must ensure that, the principal is given practicable and appropriate support to enable the principal to participate in decisions affecting the principal as much as possible in the circumstances.
(2)       If an attorney under an enduring power of attorney is making a decision about a matter on behalf of a principal who does not have decision making capacity in relation to that matter, the attorney must—
(a)       give all practicable and appropriate effect to the principal's wishes; and
(b)       take any steps that are reasonably available to encourage the principal to participate in decision making, even though the principal does not have decision making capacity; and
(c)       act in a way that promotes the personal and social wellbeing of the principal, including by—
(i)        recognising the inherent dignity of the principal; and
(ii)       having regard to the principal's existing supportive relationships, religion, values and cultural and linguistic environment; and
(iii)      respecting the confidentiality of confidential information relating to the principal.
Division 2—Scope of power
22       Enduring power of attorney
(1)By an enduring power of attorney a person may authorise an eligible attorney to do anything on behalf of the person that a person can lawfully do by an attorney.
(2)Without limiting subsection (1), a person may confine what is authorised to be done by an attorney—
(a)       to personal matters only; or
(b)       to financial matters only; or
(c)       to matters specified in the instrument of appointment.
(3)Despite any rule of law to the contrary an enduring power of attorney is not revoked by the principal, after making the power, becoming a person who does not have decision making capacity for any matters to which the power of attorney applies.
(4)       In this section—
eligible attorney means a person who is eligible under Division 3 to be appointed as an attorney under the power of attorney.
Note
See section 26 for matters for which power cannot be given under an enduring power of attorney.
23       Who may make an enduring power of attorney?
(1)       A person may not make an enduring power of attorney unless—
(a)       the person is of or over 18 years of age; and
(b)       the person has decision making capacity in relation to making the enduring power of attorney.
(2)For the purpose of section 4(1)(a), understanding the effect of the decision to make an enduring power of attorney includes understanding the following matters—
(a)that the principal may, in the power of attorney, place conditions on the power given to the attorney and give instructions to the attorney about the exercise of the power given to the attorney;
(b)       when the power of attorney commences;
(c)that once the power of attorney is exercisable in relation to a matter, the attorney has the same powers the principal has, when the principal has decision making capacity for that matter, to do anything for which the power for that matter is given;
(d)that the principal may revoke the power of attorney at any time when the principal has decision making capacity in relation to making the power of attorney;
(e)that the power of attorney continues even if the principal subsequently becomes a person who does not have decision making capacity for a matter in the power of attorney;
(f)that at any time when the principal does not have decision making capacity in relation to revoking the power of attorney, the principal is unable to effectively oversee the use of the power.
24       Conditions and instructions in an enduring power of attorney
A person making an enduring power of attorney may place conditions on the exercise of the power or give instructions about the exercise of the power.
25       Attorney not able to delegate power
An enduring power of attorney does not have the effect of empowering the attorney to delegate a power under the enduring power of attorney.
26Matters for which power cannot be given under an enduring power of attorney
To avoid doubt, despite section 22, a principal under an enduring power of attorney is not able to authorise an attorney under that power to—
(a)make or revoke a will for the principal; or
(b)make or revoke an enduring power of attorney for the principal; or
(c)vote on the principal's behalf in an election for the State or the Commonwealth or another State or a Territory of the Commonwealth or a local election or a referendum; or
(d)consent to the entering into or dissolution of a marriage of the principal or of a sexual relationship of the principal; or
(e)make or give effect to a decision—
(i)        about the care and wellbeing of any child of the principal; or
(ii)       about the adoption of a child under 18 years of age of the principal; or
(f)to enter into, or agree to enter into, a surrogacy arrangement, within the meaning of the Assisted Reproductive Treatment Act 2008, on the principal's behalf; or
(g)consent to the making or discharge of a substitute parentage order, within the meaning of the Status of Children Act 1974, on the principal's behalf; or
(h)manage the estate of the principal on the death of the principal; or
(i)consent to an unlawful act.
…
(Emphasis added)
The son's case
In a helpful outline of case counsel for the son put his case as follows.
(a) Is the amended initiating application invalid and if so, in what way and what other order, if any, are necessary to do justice between the parties?
6.There is an inconsistency in clauses 4, 5 and 6 of the EPA with clause 5 providing that the powers are exercisable immediately and clause 6 providing for a precondition to exercising power:
4. I authorise my Attorneys to do anything on my behalf that I can lawfully do by an Attorney for financial matters.
5. The powers under the EPA for all matters are exercisable immediately on the making of the EPA.
6. The exercise of power under this EPA is subject to the following conditions/and/or instructions (if any) exercisable:
... only if a registered medical practitioner certifies in writing that I no longer have legal capacity.
7.Clauses 1 to 6 are standard terms rather than specific terms. However clauses 5 and 6 are contradictory.
8.In resolving inconsistent provisions in and between contract documents, effect is given to that part of an agreement 'which is calculated to carry into effect the real intention of the parties as gathered from the instrument as a whole, and that part which would defeat it must be rejected' .
9.Requiring a medical certification of lack of capacity, before exercising the powers under the EPA, defeats the real intention of Ms Gilliam, as gathered from the instrument as a whole and must be rejected.
10.The instrument as a whole, is an enduring power of attorney, being an appointment which survives incapacity and is not preconditional upon incapacity. That is the whole point of the instrument. The instrument authorises Mr B to do anything that Ms Gilliam can do with respect to financial matters (clause 4). Clause 5 deals with commencement and provides that the powers for all matters are exercisable immediately. Clause 6 would defeat the intention of Ms Gilliam, gathered from the instrument as a whole and ought be rejected.
11.Further if the Court were to find to the contrary with respect to the applicant's interpretation of the EPA, it is unclear whether a medical certification of legal incapacity existed prior to at the date of issue of the proceedings, as neither party has been able to obtain the medical records of Ms Gilliam from her general practitioners or Geriatrician, Dr H, in the 12 days since the argument was first raised.
12.In any event, by the date the proceedings were amended by the duly appointed case guardian, Ms Gilliam had been certified as lacking legal capacity by virtue of Dr H certifying Ms Gilliam as "incapable of making her own decisions due to her underlying medical conditions".
13.Proceedings are broadly defined "whether between parties or not".
"proceedings" means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
14.The Proceedings are not invalid.
(b) Was Mr B validly appointed Ms Gilliam's case guardian? And if not, should Mr B or someone else be appointed case guardian by the Court?
Procedure for Appointment of Case Guardian
15.A person may apply for the appointment, replacement or removal of a person as a case guardian by making an application in a case (Family Law Rule 6.10, Federal Circuit Court Rule 11.11.).
16.An application in relation to a case guardian may be made by a party, a person seeking to be made the case guardian or by a person authorised to be a case guardian.
17.A 'manager of the affairs of a party' includes a person who has been appointed, in respect of the party, a trustee or guardian under a Commonwealth, State or Territory law. See Federal Circuit Court Rule 11.12.
18.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.a notice of address for service; and
b.an affidavit which:
i.provides evidence that the person has been appointed manager of the affairs of the party; and
ii.states that the person consents to being appointed as the case guardian of the party.
19.In Thorn & Thorn [2017] FamCA 950 (3 August 2017), Johns J found that an Enduring Power of Attorney was sufficient to satisfy the provisions in the Rules for appointed as "manager of the affairs" as follows:
24. Rule 6.08A of the Rules provides a definition of "a manager of the affairs of a party". That definition provides that a manager of the affairs of a party includes a person who has been appointed in respect of the party, a trustee or guardian under a Commonwealth, State or Territory law.
25. That provision was considered by the Full Court in the decision of Price & Underwood (Divorce appeal) {20091 FamCAFC 127: (2009) FLC 93-408 ("Price & Underwood''). That case considered the appointment of a case guardian who, like the husband's brother, had been appointed as an attorney pursuant to an Enduring Power of Attorney (Financial) made under the provisions of the Instruments Act 1958 (Vic). As in this case, the appointment of the attorney in Price & Underwood was expressed to be enduring and unlimited in terms. There the Full Court held that the appointment of the husband's adult daughter as an attorney for the husband in those proceedings pursuant to such Enduring Power of Attorney was sufficient to satisfy the provisions in the Rules that she had been appointed a "manager of the affairs" of the husband within the meaning of r 6. 10(2) of the Rules. As she had filed the requisite Notice of Address for Service and confirmed her consent to act as case guardian, the husband's daughter was deemed to be the husband's case guardian in those proceedings.
20.Mr B is a manager of Ms Gilliam's affairs within the meaning of r 6.10(2) being appointed with his sister, (Ms D) as Ms Gilliam's joint and several attorneys, pursuant to Enduring Power of Attorney (Financial) dated 21 August 2019.
21.Upon the filing of a Notice of Address for Service by Mr B and confirmation of his consent to be Ms Gilliam's case guardian by affidavit, he is deemed the appointed case guardian.
22.Mr B is validly appointed case guardian as:
a.Ms Gilliam needs a case guardian as she is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding. This is evidenced from Dr E's certification on 6 December 2021 that Ms Gilliam is "incapable of making her own decisions due to underling medical conditions".
b.Mr B is an adult with no interest in the proceeding, adverse to the interest of Ms Gilliam.
23.If Mr B is not the case guardian, either he or someone else need be appointed case guardian in order that justice can be done between the parties.
Early in the submissions of counsel for the son the following exchange occurred:
MR O’CONNOR:     Yes. Thank you, your Honour. The – I will rely upon the written submissions. The interpretation of the enduring power of attorney - - -
…
HIS HONOUR:        I interrupt you for a moment. I found your written submissions very helpful. I’m grateful to you for the work over the weekend to get that done. But that’s what barristers do. Thank you very much for that. I’m particularly interested in the point – it appears to me that, if Mr Wraith is right and that there is no conflict between the two provisions or that the – number 6 survives – I think he, sort of, put it on a number of bases. But, if number 6 survives, then the exercise of the power to issue the proceedings would not be valid, would it?
MR O’CONNOR:     It would – they – yes. If – there’s a precondition and that is not satisfied and if Mr B is not permitted to exercise power under the enduring power of attorney, he was not, at that point, empowered to issue the proceedings.
HIS HONOUR:        So it appears to me the central question boils down to this, at this point – or the first central question in the – as Mr Wraith put it: look, there’s two issues; firstly, the valid appointment of the manager, pursuant to the Rules which, as you’ve pointed out to me helpfully under 11.12, means you are the case guardian. But there’s – according to Mr Wraith, there is still the second continue that there must be – the court must be satisfied of the need. In principle, do you agree with those two steps?
MR O’CONNOR:        Yes.
I refer to section 22(2) of the POA Act and note the reference to "personal matters" separately to "financial matters'. Although Clause 4 of the EPOA restricted the power to "financial matters", in response to question from me, Mr O'Connor submitted that financial matters in the POA Act should be read consistently with the definition of "financial matters" in the Guardian and Administration Act 2019 (Vic) (the Guardian and Administration Act). It turns out "financial matter" is defined in the POA act, entirely consistently with the definition in the Guardianship and Administration Act2019 (Vic) and is as follows:
financial matter, in relation to a principal under an enduring Power of Attorney, or a supportive Attorney appointment, means any matter relating to the principles financial or property affairs, and includes any legal matter that relates to the financial or property affairs of the principal.
It was also submitted that on its face, "financial matters" is so wide that it would include proceedings following the breakdown of a de facto relationship for maintenance and property settlement or division.
I accept and find that the definition of financial matter in the POA Act including the reference to "any legal matter that relates to the financial property affairs of the principal" necessarily covers the institution of proceedings for maintenance and/or property settlement or division following the breakdown of a de facto relationship.
I note that there is no material difference between division 11.02 of the "old" Rules containing rule 11.08-11.13 and Rules 3.12-3.18 of the "new" Rules. Counsel for the son, in answer to Mr Cantrell's submission that the evidence before the court is inadequate to demonstrate the need for a litigation guardian pursuant to Rule 11.08, as applicable at the time of issue, made the following submissions.
MR WRAITH:         The former, your Honour, although, for practical purposes, it seems that the VCAT proceeding is likely to be a source of relevant material which will be prepared. But the principle point is that presently before the court the evidence of the need for a litigation guardian is inadequate and, in circumstances where it’s inadequate, in my submission, the court can’t proceed to determine or move to the question of whether Mr B is the appropriate person because the threshold requirement needs to find that she is a person who requires a litigation guardian has not been met.
HIS HONOUR:        Yes. Mr Wraith, I’ve got it. Thank you. Mr O’Connor, is it conceded that the information that I have in this proceeding is inadequate on that second limb of the inquiry of the need for a litigation guardian. I know it’s very much the opinion of the children of Mrs Gilliam, but do you concede that there is not adequate proper evidence before me of that need?
MR O’CONNOR:     No, no. I don’t – I don’t concede that. I say there is evidence of that need.
HIS HONOUR:        All right. Tell me, how do I get to that point because if there is, I don’t need to adjourn, do I.
MR O’CONNOR:        No.
…
The evidence of the need is based upon the, of course, the Federal Circuit Court Rule 11.08, sub-rule (1), the old rule.
…
11.08. Subsection (1), the criteria is set out there.
A person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequence of the proceeding or is not capable of adequately conducting or giving adequate instructions for the conduct of the proceeding.
That test, we say, is satisfied comfortably by the one line or the two line certification by the doctor.
…
On 6 December [the doctor] said that:
Ms Gilliam is incapable of making her own decisions due to underlying medical conditions.
It’s fairly basic but it has been, and notwithstanding the mention of the Harman restriction, I’m not raising that at this stage but that report then is accepted by all parties. It’s accepted by us. It’s also accepted by the respondent. The respondent then takes that report and uses it in an application for guardianship at VCAT on the basis – and an application for guardianship is, of course, on the basis that due to her incapacity, she is unable to make basic day-to-day decisions about her life so we would say that, in terms of satisfying the need, that report clearly supports the fact that Ms Gilliam can’t given … instructions in relation to conducting a proceeding. The respondents agree with that by virtue of them having made their applications to VCAT for both guardianship and administration.
…
MR O’CONNOR:     It may be of assistance or not, but certainly, the guardianship application was made. Subsequently, an administration application has also been made based upon the same report that we now rely upon, indicating that Ms Gilliam had a neurological condition, and on that basis they wanted to nominate two people... to act as the administrator of the affairs.
…
That’s Mr Cantrell’s further application that was filed… So they’ve added that application to the guardianship application, and also an application to make orders in relation to the existing and enduring power of attorney.
…
MR O’CONNOR:     That goes – all those matters go to the issue that the VCAT proceedings continued for both guardianship and administration on the basis that Ms Gilliam doesn’t have decision-making capacity on a wide range of issues. And, so, it confirms the validity of Ms Gilliam’s need for a litigation guardian. I don’t think it can be seriously questioned that she doesn’t need a litigation guardian in these proceedings based upon the doctor’s report and also the – obviously the continuation of the VCAT proceedings for guardianship administration. So that’s relevant.

Mr Cantrell's counsel, in oral submission on this inadequate evidence of need point, also referred me to sections 30 - 32 of the Guardian and Administration Act. Those provisions are as follows:
30 VCAT may make a guardianship order or administration order
(1)After considering an application made under Division 1—
(a)    VCAT may make one or more of the following orders—
(i)a guardianship order, subject to subsection (2);
(ii)an administration order, subject to subsection (2);
(iii)a supportive guardianship order under section 87, subject to Part 4;
(iv)(iv) supportive administration order under section 87, subject to Part 4; or
(b)    VCAT may make no order under this Act.
Note
See sections 34(1)(f) and 36 in relation to guardianship orders and administration orders that are urgent orders.
(2)VCAT may only make a guardianship order or an administration order under this Division if satisfied that—
(a)    because of the proposed represented person's disability, the person does not have decision-making capacity in relation to—
(i)in the case of a guardianship order, the personal matter in relation to which the order is sought; or
(ii)in the case of an administration order, the financial matter in relation to which the order is sought; and
(b)    the proposed represented person is in need of a guardian or administrator, as the case requires; and
Note
Section 31 sets out factors to consider in determining whether a person is in need of a guardian or an administrator.
(c)    the guardianship order or administration order, as the case requires, will promote the proposed represented person's personal and social wellbeing; and
(d) in the case of an application for an administration order for a proposed represented person who does not reside in Victoria, State Trustees has not been authorised under section 12 of the State Trustees (State Owned Company) Act 1994 to collect, manage, sell or otherwise dispose of or administer any property in Victoria in relation to which the administration order is sought.
31 Factors to consider in determining need for guardian or administrator
For the purposes of section 30(2)(b), in determining whether a person is in need of a guardian or administrator, VCAT must consider the following—
(a)    the will and preferences of the proposed represented person (so far as they can be ascertained);
(b)    whether decisions in relation to the personal or financial matter for which the order is sought—
(i)may more suitably be made by informal means; or
(ii)may reasonably be made through negotiation, mediation or similar means;
(c)    the wishes of any primary carer or relative of the proposed represented person or other person with a direct interest in the application;
(d)    the desirability of preserving existing relationships that are important to the proposed represented person.
32 Persons eligible as guardians or administrators
(1)VCAT may appoint as a guardian any individual who is of or over the age of 18 years and who consents to act as guardian if VCAT is satisfied that the individual—
(a)    will act in accordance with the duties set out in Division 4; and
(b)    is not in a position where the individual's interests conflict, or may conflict, with the interests of the proposed represented person; and
(c)    is a suitable person to act as the guardian for the proposed represented person.
(2)VCAT may appoint as an administrator any person (individual or body corporate) which, in the case of an individual, is of or over the age of 18 years and which consents to act as administrator if VCAT is satisfied that the person—
(a)    will act in accordance with the duties set out in Division 7; and
(b)    is not in a position where the person's interests conflict, or may conflict, with the interests of the proposed represented person; and
(c)    is a suitable person to act as the administrator in relation to the proposed represented person; and
(d)    has sufficient expertise to make decisions about any financial matter to be specified in the administration order.
(3)In determining whether a person is a suitable person to act as a guardian or administrator for a proposed represented person, VCAT must take into account the following—
(a)    the will and preferences of the proposed represented person (so far as they can be ascertained);
(b)    the desirability of preserving existing relationships that are important to the proposed represented person;
(c)    the desirability of appointing a person who is a relative of the proposed represented person, or who has a personal relationship with the proposed represented person, rather than appointing a person with no such relationship;
(d)    whether the person will be available to the proposed represented person and able to meet and communicate with the proposed represented person;
(e)    whether the person will act cooperatively with any current guardian or administrator for the proposed represented person (as the case requires);
(f)     whether, in the case of an administration order, the person proposed as administrator is or was a member of VCAT as constituted for a proceeding under this Act.
(4)VCAT may appoint as an administrator a person who was at any time a member of VCAT as constituted for a proceeding under this Act if VCAT considers that in the circumstances it is appropriate for the person to act as an administrator.
(5)VCAT must not assume without any evidence that a proposed represented person's relative who is proposed as the guardian or administrator—
(a)    has interests that conflict, or may conflict, with those of the proposed represented person merely because the proposed guardian or administrator is a relative of the proposed represented person; or
(b)    is not suitable to be appointed as the guardian or administrator merely because that relative disagrees with another relative of the proposed represented person about a matter pertaining to the proposed represented person.
(6)If a statement of wishes for a future appointment was lodged under section 35, VCAT must consider that statement.
The gist of the son’s submission was that I can, and should, place significant weight on the 6 December 2021 Doctor's Letter in circumstances where Mr Cantrell relied on it in VCAT proceedings, where he was the applicant, where an essential ingredient of the jurisdiction he was invoking was that the person did not have decision-making capacity and is in need of a guardian or administrator and that was so notwithstanding that subsequent to the application, and very recently, that doctor had described him or herself as, not having "the experience and knowledge" necessary "to assess (Ms Gilliam) for the level of decision-making capacity".
In discussion, counsel for the son, on the same point of the weight to be given to the 6 December 2021 Doctor's Letter, made two further points to the effect that the test of need as provided in rule 11.08 (and now rule 3.12(1)) would not require as high a level of impairment as that required for VCAT to make a guardianship or administration order, and in any event if the son can't bring the application then no one can or will and Ms Gilliam is left without support and, I infer, remedy.
Those submissions are best put in counsel's own words and are as follows:
HIS HONOUR:        …But what I’m getting at is, I can’t see a way around, for the purposes of VCAT, on 24 January, whether it was in relation to the particular form that Dr E couldn’t fill in, but the end result was, VCAT determined, albeit in accordance with the Rules, that it didn’t have sufficient information to deal with the matter and adjourned it.
…
Now, the irony for me is the certificate that wasn’t good enough for VCAT, you tell me, is good enough for me.
MR O’CONNOR:     Yes. I do. And I do that, your Honour, because it’s a different test. I mean, VCAT are looking to make an order with respect to personal decisions and financial matters and they have set up a requirement that a certificate is not sufficient. They require a detailed medical report. We are – and that is – to make an administration order or a personal – to make a guardianship order in relation to personal matters with respect to where and who someone lives is a very intimate and detailed – and would require an understanding of the levels of impairment. To – to contrast that, the Rules requiring somebody to understand the nature of legal proceedings is not – is not as – wouldn’t require as high level of an impairment, should I say, because it’s a more sophisticated concept to deal with litigation.
…
MR O’CONNOR:       In this case, it’s unclear at what point she actually lost that capacity. But the report is clear that she can’t make decisions – fundamental decisions and this is a fundamental decision. It needs to be made by somebody else and the report provides that evidence as a basis to do so regardless of what VCAT requires. And if – if Mr Gilliam – assuming their relationship has broken down, if Mr Gilliam can’t bring an application to get spousal maintenance then Ms Gilliam – if Mr B can’t bring the application then no one can or will. She’s left without support. So it’s an important requirement but it is nothing more than that. …
Dr E’s report satisfies that test in showing that Ms Gilliam does not have the capacity to give adequate instructions.… So it’s … almost a factual estoppel issue that – very hard for the respondents to deny her clear need for the appointment of a litigation guardian.
HIS HONOUR:        And Mr O’Connor, you would say whether or not it’s a factual estoppel issue, it goes to the weight to be given to that?
MR O’CONNOR:        Yes. Yes.
HIS HONOUR:        And that whilst the two statements from Dr E must go together, what fits in the middle is the very detailed VCAT request that wasn’t able to be complied with.
MR O’CONNOR:        Yes.
HIS HONOUR:           It wasn’t a recanting of the original position?
MR O’CONNOR:        No. That’s right.
Both parties had proceeded on the basis that it was necessary for the son to have filed an affidavit expressly consenting to act as litigation guardian. The son's argument was that as he had done so on 14 December 2021 the proceedings were valid from that time. Mr O’Connor submitted that if invalid, the proceedings could be cured or made valid by that filing. And he put it thus:
MR O’CONNOR:     …if it’s a precondition to exercising power, and Mr Gilliam hasn’t exercised that power, then he didn’t have authority to issue the proceedings. Doesn’t make the proceedings a nullity, though. And we say that can be cured by his appointment as the case guardian and by the amended application having been filed. Because a nullity only relates where there’s no cause of action or the parties are dead.
…
HIS HONOUR:        …by an explicit appointment or by reliance upon a VCAT appointment.
MR O’CONNOR:     …our position would be it is cured …by the becoming of the litigation guardian in the proceedings.
HIS HONOUR:        Yes, what event did that?
MR O’CONNOR:     By filing the affidavit of consent with supporting material, as the manager. So in proceedings that could have been potentially dismissed because of the lack of authority, active authority. He subsequently cured that by filing the affidavit and becoming the case manager in the proceedings. Because there was never a problem with jurisdiction in the sense of the cause, or of the existence of the parties, both the – appointed. Because Mr B has always been the appointed attorney. He has always been the appointed – it’s whether it was active, whether he was able to act on the power. So he has been a – he has been the attorney since he was appointed back in 2019. It’s simply a question of the activation of those powers. And those powers are certainly now – are – have now been activated.
Counsel for Mr Cantrell also raised the issue that if a person had lost the capacity to form an intention to end the relationship then an attorney could not subsequently form that intention for that person. It is unnecessary that I deal with that issue in determining the questions I have to decide at this point. There was also discussion of the prudent attorney and the course available under section 55 of the Guardian and Administration Act and circumstances where an administrator should not have brought a proceeding in EPG v KPZ [2019] VSC 630. It is unnecessary that I deal with those arguments or issues as they touch on the issue of whether the son is an appropriate person to act as attorney and to act as litigation guardian and it was agreed that that issue was not to be determined by me at this point.
In responding to some points of the construction argument, that is clauses 5 and 6 cannot sit together and hence clause 6 should be omitted or left out of consideration, Mr Wraith, counsel for Mr Cantrell submitted as follows:
MR WRAITH: But, in any event, I think it’s clear that the proper approach to bring to the question of construction in this case is, firstly, that the overarching task of the court is to give effect to the intention of Mrs Gilliam as evidenced through the words that she has used in the document, and that in doing so, your Honour should have regard to the document as a whole and that your Honour should prefer a reasonable meaning to an unreasonable meaning where there are two competing interpretations available, and although I admire my learned friend’s ingenuity and diligence with the force with which he has sought to prosecute his argument, in my submission, it is clear on the face of this document immediately above the deponent’s signature is the phrase – the last thing that appears before her signature is the phrase:
“The powers under this enduring power of attorney are exercisable only if a registered medical practitioner certifies in writing that I no longer have legal capacity.”
What did Mrs Gilliam intend when she executed that document? In my submission, it was just fanciful to construe the document in any way which does not give effect to the clear meaning of those words as contained in that provision. It is significant, in my submission, that the words appear in the context of a power of attorney document in which she is acceding to another person the power to enter into legal relations on her behalf and do all things, including commencing proceedings on her behalf. Now, she embeds in that document a qualification or a condition upon the exercise of the powers under it. The court should give full effect to the ordinary meaning of the words with which she does so. In my submission, there is simply no basis at all on a proper consideration of the case and the document for the contention urged by my learned friend.
So I would say it is clear that a condition to the exercise of this power of attorney document is the certification of a medical practitioner that she no longer has legal capacity. In that regard, your Honour, I note that the applicant’s case, at its highest, does not assert that there is any evidence in existence that at the time the application was signed or at the time that it was filed there was any such evidence. In my submission, it clearly follows from that that there is no evidence before the court that the power conferred by that document had been conferred upon Mr B. It, therefore, follows that the purported commencement by him of this proceeding was not within his power and was void.
Mr Wraith responded to the argument that the 6 December 2021 Doctor's Letter together with the fact that it was relied upon or cited by Mr Cantrell in 23 December 2021 VCAT application provided proper evidence for me to find that either the old Rule 11.08 or the new Rule 3.12, "needs a litigation guardian" were satisfied, as follows.
MR WRAITH:           So whatever she meant by that letter of 6 December, but [on] 7 January she is positively asserting that she is not able to assess Ms Gilliam for her level of decision-making capacity. I ask rhetorically, if she herself says she’s not capable of making that assessment, how can the court rely upon what purports to be an assessment of that very thing made by her a month earlier.
…
your Honour, in my submission, the words:
“Unfortunately, I’m not in a position to assess Ms Gilliam for the level of decision-making capacity from my level of experience and knowledge.”
Speak for itself and currently the court has no, in my submission, proper evidence before it of her decision-specific capacity in relation to the commencement and the continuation of these proceedings, and that’s the question. Is there evidence before the court, or material upon which the court can be satisfied that in relation to the particular decisions apposite to the commencement and the continuation of these proceedings she lacks capacity, and there simply isn’t, your Honour.
HIS HONOUR:        The only reason I raise the issue of the template, Mr Wraith, is that it’s part of the context of the reply:
“I have checked the attached letter for the requirements for the medical report to assess the decision-making capacity.”
Which seems to refer, to me, to the template that’s attached:
“Unfortunately, I’m not in a position to assess Ms Gilliam for the level of decision-making capacity from my level of experience and knowledge.”
Now, “the level”. The level for what? The level contemplated – one possibility is the level contemplated by the template. That’s all.
MR WRAITH:         And I don’t have an issue with that, your Honour, but, clearly, once one
HIS HONOUR:        And it’s just that you’re relying on this as a retraction of 6 December.
MR WRAITH:         Well, it’s not a retraction, although it does seem to be. It’s certainly an overt and very significant qualification, and who knows what 6 December meant in light of this, and the question is can the court, with the evidence currently before it, be satisfied that the serious step of Ms Gilliam being deprived of the right to commence and conduct her own proceeding ought to be taken away from her on the evidence before it, and the applicant’s evidence, at its highest, currently, is that one line letter in circumstances where a month later the doctor makes that statement that she makes.
Now, if one has regard to the fact that the question of whether she had the capacity to decide whether these proceedings ought to be commenced and whether they should continue, whether she had that capacity, that’s a very specific consideration of capacity relative to a particular decision. The 6 December letter simply – I don’t know what it means, but it certainly, in my submission, could not satisfy your Honour, on its face, in and of itself, that your Honour should determine on the balance of probabilities that she does lack capacity and that she ought to have her right to conduct or decide whether litigation ought to be conducted taken away from her.
Conclusion as to clause 6
I do not accept the "omit clause 6" submission. Clause 5, under the heading, COMMENCEMENT, states, "The powers under this enduring Power of Attorney for all matters are exercisable immediately on the making of this enduring Power of Attorney." That is, subject to the actual terms of the EPOA, the power existed or could be exercised immediately upon the execution of the EPOA. But subject to the terms of the deed of EPOA.
Clause 6, under the heading, CONDITIONS AND INSTRUCTIONS, states, "The exercise of power under this enduring Power of Attorney is subject to the following conditions and/or instructions (if any): The powers under this enduring Power of Attorney are exercisable only if a registered medical practitioner certifies in writing that I no longer have legal capacity."
Hence the power conferred by clauses 2, 3 and 4, commenced immediately on the execution of the actual EPOA document but that power was subject to, and constrained by, clause 6.

Clause 6 is not a provision incompatible with clause 5, rather a qualification or restraint or restriction on not only clause 5 but clauses 2, 3, 4 and 5. Not only is clause 6 compatible with clause 5, and not inconsistent with it, but can be seen to be, in some circumstances, sensible and the sort of qualification or restriction that a principal may sensibly wish to include in an EPOA.
For example, if the principal was in a car accident on the way home from the solicitor's office after executing the deed, and unable to communicate, the attorneys would not have authority to so act until, "a registered medical practitioner certify(ied) in writing that the principal no longer (had) legal capacity": but nothing further would be needed.
I accept the submissions of Mr Wraith to the effect that the interpretation of clauses 5 & 6 should be looked at from the position of Ms Gilliam's purpose at the time of making the EPOA.
There is no contention that a registered medical practitioner at or prior to the issue of the proceedings had certified in writing that Ms Gilliam no longer had legal capacity. On the information available to me the only certificate or document in writing at that time, is the 2019 document that asserted, or certified to use the language of the EPOA, that Ms Gilliam had capacity to execute a document as serious as the EPOA.
Hence it follows that at the time of the commencement of the proceedings, the son was not a person who was authorised by, or under, a Commonwealth, State or Territory Law to conduct legal proceedings in the name of Ms Gilliam and hence was not a manager as defined by the Rules and absent an order appointing him as a litigation guardian had no authority to initiate or continue these proceedings.
The authority to conduct serious proceedings in the name of another person should be clear and transparent. In an emergency such requirements may be less stringent.
To conduct any legal proceedings in the name of another person is a most serious endeavour. To conduct legal proceedings, as applicant, and to assert that another person's relationship, as serious as a de facto relationship within the meaning of section 4AA, has broken down and seek an order for division of property and/or maintenance against the person who was, or is, that person's de facto partner, are very serious proceedings. The proceedings are no less serious because the person in whose name the proceedings will be conducted is elderly or frail or lives in an aged care home. The proceedings are no less serious because the person who purports to conduct the proceedings is a close relative and/or someone very concerned with the best interests of the elderly or frail person.
I do not make any findings as to the motivation of the son in starting and continuing the proceedings.
Conclusion re: strict compliance: not invalid on this ground
Some time was also taken in discussing whether or not the form of the proceedings were strictly in accordance with the then applicable Rules of court and hence whether or not the proceedings were invalid and of no effect because of that circumstance. Substantial argument was put to me as to whether or not the proceedings were a nullity and various fine points of distinction between void and voidable were addressed. Even if, apart from the manager point, pursuant to Rule 1.06 of the "old" Rules and/or Rule 1.31 of the "new" Rules I have the power in an appropriate case and, in the interests of justice, to dispense with strict compliance of any of the Rules at any time. I do not rule that the proceedings are invalid and of no effect on this point. Had it merely been a matter of form, I may have dispensed with compliance with the Rules so that the matter could proceed if it was in the interests of justice for that to occur. For example, the affidavit filed to start the proceedings did not expressly and explicitly state that the son consented to act as the litigation guardian. However, in circumstances where he had signed the initiating application purporting to be as the attorney under the EPOA, it is difficult to avoid the necessary implication that he did in fact so consent. Such a circumstance may in an appropriate case mean that the Rules should be put dispensed with so that an affidavit of consent, said to be necessary by the provisions of Rule 3.15(4), could be dispensed with.
In any event I am unconvinced, without ruling on the point, that the scheme of the Rules is such that, a manager of the affairs of a party swearing an affidavit or application to commence a proceeding would need to expressly file "an affidavit of consent'. However, where the manager of the affairs of the party is to be a litigation guardian for a respondent, then the requirement of an affidavit of consent makes perfect sense. In the case of a manager as applicant swearing an application the consent may be, or would be, implicit. Different circumstances may apply where the person is the manager of the affairs of a party who is a respondent. In that case a court could not assume, and should not assume, that a person consented to be a litigation guardian merely because they were a manager of the affairs of a party. Further, the provisions of Rule 11.12(4) of the "old" Rules and Rule 3.15(3) of the "new" Rules appear on their face to be permissive rather than mandatory.
Insufficient evidence of need for a litigation guardian
In the circumstances of finding that clause 6 should not be omitted from consideration or ignored, but was and is an integral part of the EPOA, it is not necessary that I determine the further or alternative argument of Mr Wraith about need for a litigation guardian. However, in the event I am wrong about that I now set out my findings on the separate "needs a litigation guardian" controversy.
There may be cases, particularly in cases of emergency, where proper medical evidence is not available and the court is asked to rely upon circumstances other than a medical report about capacity. In this case the son asks that I rely upon the 6 December 2021 Doctors Letter and the affidavit of consent as validating the proceedings from 14 December 2021.
Mr Wraith argues that the 6 December 2021 Doctor’s Letter could not validate what were otherwise invalid proceedings and that in any event the 6 December 2021 Doctor’s Letter when combined with the 7 January 2022 statement about the knowledge and experience of that very same doctor means that there is no evidence of sufficient weight to persuade me that Ms Gilliam is a person who needs a litigation guardian.
Any finding in these proceedings must be in accordance with section 140 of the Evidence Act 1995 (The Evidence Act).
140 Civil proceedings: standard of proof
(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)    the nature of the cause of action or defence; and
(b)    the nature of the subject‑matter of the proceeding; and
(c)    the gravity of the matters alleged.
Two statements of doctor must be taken together
The 6 December 2021 Doctor's Letter must be looked at together with the 7 January 2022 statement of the doctor recited above in these reasons. It is a statement by the same doctor. It is a statement by the same doctor after receiving a formal request from a court to make a report about Ms Gilliam. I do not have any evidence as to what the doctor who wrote the 6 December 2021 Doctor’s Letter was told with the request to write such a letter, or how that doctor came to write that letter, or what knowledge or examination of Ms Gilliam was relied upon to express the opinion contained in the letter or to what purpose the doctor understood the letter would be used. The letter purports to be an expression of an expert opinion albeit an expression of opinion of a treating doctor. The letter falls far short of the requirements for an expert report on the usual Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’) principles, and see the discussion in Lane & Nichols (2016) FLC 93-750 at [43-53]. However, such requirements are not necessary to qualify clause 6 of the EPOA. But such requirements, save in emergency or where there is agreement (assuming it is admissible), would go to wait. I am not dealing with the matter on an emergency basis. The proceedings were listed for final hearing on 31 January 2022 having been commenced in the previous April.
However, assuming that when all of those matters are examined it turns out that the obtaining of the letter and the motivation to write it are all entirely proper, the 6 December 2021 Doctor’s Letter must be looked at together with and at the same time as the 7 January 2022 statement. When those two documents are taken together two things are clear. Firstly, it would be a mistake to have regard to only the first document without having regard to the second. Secondly, that no weight, or alternatively very little weight, can be attached to the first document, that is the 6 December 2021 Doctor’s Letter. When both documents are looked at together I cannot be satisfied, now that it is under challenge, that Ms Gilliam actually needs a litigation guardian.
The circumstance that Ms Gilliam resides in an aged care facility, although relevant, does not determine, without appropriate medical evidence, in the circumstances of this case, that Ms Gilliam needs a litigation guardian.
Further, I do not accept Mr O'Connor's submission that the "need for a litigation guardian" is a lower test than the requirements of a guardian or administrator before VCAT. It may be a different test but it is not a test lightly satisfied, particularly where the party said to need a litigation guardian does not consent and, on one view, opposes an essential factual finding necessary for jurisdiction, the breakdown of the de facto relationship.
Further, the circumstance that Ms Gilliam is in frequent and regular and affectionate contact with Mr Cantrell means that, save in emergency or other compelling circumstance, clear and proper medical evidence as to the need for a litigation guardian should be before the court. This is because of section 140 of The Evidence Act and just how serious proceedings such as these are and what a serious wrong would be done to Ms Gilliam if she did not need a litigation guardian.
I am not satisfied, on the evidence before me, on the balance of probabilities, and taking into account the seriousness of the nature of an allegation of the need for a litigation guardian, that there is such a need.
6 December 2021 Doctor’s Letter does not satisfy clause 6
In circumstances where I have found that there was not a document from a registered medical practitioner that satisfied clause 6 of the EPOA at the time of the issue of the proceedings I also indicate my findings in regard to whether the 6 December 2021 Doctor’s Letter, enlivens or cures the invalidity of the proceedings commenced in April 2021 (assuming there was evidence of a need). For the same reasons as when dealing with the need of a litigation guardian question, I find that the two documents must be read together. I find that when read together, those documents do not satisfy the conditions and/or overcome the restrictions of clause 6 for the continuation or curing of the otherwise invalid proceedings.
Were I satisfied that clause 6 should be omitted, or is satisfied by the evidence, and that Ms Gilliam needs a litigation guardian, then the issue of whether the son is an appropriate person to be litigation guardian would arise. The parties have agreed that I need not determine that controversy, and it does not arise in my findings. That controversy will likely be dealt with by the enquiry ordered to be undertaken by the Public Advocate in the VCAT proceedings.
The appeal to the interests of justice and the assertion of a lack of remedy do not provide power or validate invalid proceedings.
Mr Wraith had sought in the alternative, in the event that I was satisfied that the proceedings were valid and that Ms Gilliam was in need of a litigation guardian, that I should adjourn the further hearing of the proceedings to facilitate the provision of further information by way of proper medical report and the determination and/or report of the public advocate and/or the decision of VCAT. Such circumstances do not arise.
The proceedings should be dismissed as invalid. When read together with the subsequent 7 January 2022 statement the 6 December 2021 Doctor's Letter does not satisfy clause 6 of the EPOA or demonstrate the need for a litigation guardian.
I will order that all extant applications (that includes the Amended Initiating Application) be, and are, dismissed on the basis that the son, who brought the proceedings in his mother's name, did not, and does not, have authority to do so. All extant applications will be otherwise dismissed. Mr Cantrell seeks costs and I will hear the parties as to costs.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 14 April 2022

File number(s):	MLC 4021 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	14 April 2022
Catchwords:	FAMILY LAW – litigation guardian invalid proceedings – need for a litigation guardian – inadequate medical evidence
Legislation:	Evidence Act 1995: s 140 Family Law Act 1975 (Cth): ss 4AA, Part VIII, Part VIIIAB, 90SE(1), 90SM(1) Family Law Rules 2004 Federal Circuit and Family Court of Australia (Family Law) Rules 2021: rr 1.31, 3.12-3.18 Federal Circuit Court Rules 2001: rr 1.06, 11.02, 11.08-11.13 Guardianship and Administration Act 2019 (Vic): ss 3, 30-32, 55 Power of Attorney Act 2014 (Vic): ss 21-26
Cases cited:	Banaszak and Executors of the Estate of Mr S Mandia and Norr (No 2) [2015] FamCA 235 EPG v KPZ [2019] VSC 630 Forster v Forster (2012) 47 Fam LR 77 Frost (Deceased) & Whooten (2018) FLC 93-860 Hayes & Eddington (No 3) [2014] FamCA 336 Lane & Nicols (2016) FLC 93-750 Makita (Aust) Pty Ltd v Sprowles (2021) 52 NSWLR 705 Stopford Malloy & Malloy (2021) 62 Fam LR 474
Division:	Division 2 Family Law
Number of paragraphs:	110
Date of hearing:	31 January-1 February 2022
Counsel for the Applicant:	Mr M O’Connor
Solicitor for the Applicant:	Hunt Mccullough Kollias & Co
Counsel for the Respondent:	Mr L Wraith
Solicitor for the Respondent:	Mills Oakley Lawyers

MLC 4021 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS GILLIAM Applicant
AND:	MR CANTRELL Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	14 APRIL 2022