Harris and Harris and Anor

[2017] FamCAFC 221

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS AND ANOR [2017] FamCAFC 221

FAMILY LAW – PRACTICE AND PROCEDURE – Where there is an application to appoint a case guardian pursuant to r 6.10 of the Family Law Rules 2004 (Cth) - Where the applicant is the cross-second respondent in appeal proceedings that are part heard – Where the applicant has a clinical diagnosis of cognitive impairment and currently requires assistance with decision-making – Where the application is granted with costs paid on an indemnity basis by the applicant.

Family Law Rules 2004 (Cth) rr 6.09, 6.10

APPLICANT:	Mr A Harris
FIRST RESPONDENT:	Mr Harris

SECOND RESPONDENT: Ms Dewell

FILE NUMBER: SYC 5809 of 2011

APPEAL NUMBER: EA 194 of 2016

DATE DELIVERED: 13 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 13 September 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 4 November 2016

LOWER COURT MNC: [2016] FamCA 938

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Milevski Family Lawyers

SOLICITOR FOR THE FIRST RESPONDENT: Horton Rhodes Legal

SOLICITOR FOR THE SECOND RESPONDENT: Karras Partners Lawyers

Orders

1. That orders be made in accordance with paragraphs 1 and 2 of the Application in an Appeal filed on 4 September 2017 as set out hereunder:

   1.That pursuant to Rule 6.10(1) of the Family Law Rules, Ms R Harris be appointed as the Case Guardian of the Applicant/Cross-Second Respondent, Mr A Harris in these proceedings.

   2.That the costs of Ms R Harris as the appointed Case Guardian in these proceedings, including this application, be paid on an indemnity basis from the income or property of the Applicant/Cross-Second Respondent.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 194 of 2016
File Number: SYC 5809 of 2011

Mr A Harris

Applicant

And

Mr Harris
First Respondent

And

Ms Dewell

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application in an appeal for the appointment of a case guardian for one of the parties in these appeal proceedings, Mr A Harris.  Mr A Harris is the cross-second respondent in the appeal proceedings.  The appeal proceedings are currently part heard.  The order sought is that Ms R Harris be appointed as the case guardian of Mr A Harris.  There is also another order sought, being that the costs of the case guardian be paid on an indemnity basis from the income or property of Mr A Harris. 

2. The proposed case guardian is the adult daughter of Mr A Harris.  She is the sister of the appellant husband in the proceedings, Mr Harris.  Ms R Harris has been closely involved in the care of her father, communicating with him each evening, taking him to his medical appointments and visiting him each Saturday and Sunday.

3. Mr A Harris has reached advanced years.  Although having been actively engaged in planning the arrangements for his birthday party and having enjoyed the celebration, more recently, Mr A Harris has appeared to be increasingly confused, disorientated and unwell.  He has been becoming more forgetful.

4. In July it became clear that Mr A Harris could not understand a bank statement.  His general medical practitioner, Dr K, has expressed the opinion that Mr A Harris is no longer physically and mentally able to look after his legal and financial affairs.  Recently, unfortunately, he was admitted to hospital, initially for a respiratory tract virus and a fall.  But his recovery has been complicated by a bacteraemia, which has required intravenous antibiotic therapy.  Unfortunately, he is suffering acute delirium and urinary retention.

5. Dr C, who is the Registrar at Hospital B where Mr A Harris is an inpatient, has reported that he has a clinical diagnosis of cognitive impairment and delirium with a fluctuating course and that he currently requires assistance with decision-making.  Sadly, it appears that Mr A Harris’ health is deteriorating.  Ms R Harris is very concerned about his mental and physical condition. 

6. Rule 6.09 of the Family Law Rules 2004 (Cth) provides that a person may be a case guardian if the person:

   (a)  is an adult;

   (b)  has no interest in the case that is adverse to the interest of the person requiring a case guardian;

   (c)  can fairly and competently conduct the case for the person requiring a case guardian; and

   (d)  has consented to act as the case guardian.

7. Clearly, Ms R Harris is an adult and she has consented to act as her father’s case guardian.  I am satisfied that she has no interest in the proceedings adverse to his interests.  And I am satisfied that she could fairly and competently conduct her father’s case by continuing to instruct her father’s solicitors and senior counsel. 

8. I note that the application for appointment of Ms R Harris as case guardian is not opposed by either of the other parties in the proceedings.   I propose to make the orders sought.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 13 September 2017.

Associate:     

Date:  16 October 2017