FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Holden & Holden [2023] FedCFamC1F 331
File number(s): CSC 699 of 2022 Judgment of: JARRETT J Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of litigation guardian – Where initiating application sought interlocutory order for the appointment of a litigation guardian – Where there is a dispute concurrently litigated in the Supreme Court of Queensland whether the proposed litigation guardian was the manager of the applicant’s affairs – Where the applicant died prior to the appointment of a litigation guardian – Whether the proceedings have been properly commenced Legislation: Family Law Act 1975 (Cth) ss 79, 79(8)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 66
Federal Court of Australia Act 1976 (Cth) s 51
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.12(1), 3.13(1), 3.14, 3.15(1), 3.15(2), 3.15(3), 3.16(1), 3.16(5), 5.02(2)(b)
Powers of Attorney Act 1998 (Qld) ss 111A, 114
Cases cited: Babbit & Babbit [2011] FamCAFC 151
Balloqui v Balloqui [1963] 3 All ER 989
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 226 FCR 240
Cusa & Cusa (1986) FLC 91-721
Danine & Drew [2008] FamCA 1169
Emanuele v Australian Securities Commission and Ors (1996-1997) 188 CLR 114
Ex parte Brocklebank; In re Brocklebank [1857] 6 Ch.D 358
Forster & Forster (No 3) [2012] FamCAFC 214
Frost (dec’d) v Whooten [2018] FamCAFC 177
Layton & Layton [2019] FCWA 145
Mewburn v Mewburn (1934) 51 WN (NSW) 170
Price & Underwood (Divorce Appeal) (2009) 41 Fam LR 614
Price & Underwood [2008] FamCA 267
Public Guardian (Queensland) & Beasley and Anor (No 2) (2015) 54 Fam LR 153,
Division: Division 1 First Instance Number of paragraphs: 45 Date of last submission/s: 6 April, 2023 Date of hearing: 6 April, 2023 Place: Brisbane Counsel for the Applicant: Mr Fellows Solicitor for the Applicant: Hadley Family Law Counsel for the Respondent: Mr Looney KC Solicitor for the Respondent: Newman Family Law ORDERS
CSC 699 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: ESTATE OF THE LATE MS HOLDEN
Applicant
AND: MR HOLDEN
Respondent
order made by:
JARRETT J
DATE OF ORDER:
3 May 2023
IN ANSWER TO THE TWO QUESTIONS RESERVED FOR CONSIDERATION ON 20 MARCH, 2023 THE COURT DECLARES THAT:
1.Subject to the answer to the issue identified in [46] of the reasons for judgment delivered with these orders, no order is necessary for the appointment of Mr C as the litigation guardian for the applicant in these proceedings, unless and until the enduring power of attorney executed by the deceased on 24 February, 2022 is set aside; and
2.The proceedings commenced by the filing of an Initiating Application on 18 August, 2022 have been commenced and are valid unless and until the enduring power of attorney executed by the deceased on 24 February, 2022 is set aside.
3.Subject to any application by either party made within the…
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CaseChat Overview and Summary
In the matter of Holden & Holden, the court was tasked with determining two critical questions related to property settlement proceedings under section 79 of the Family Law Act 1975 (Cth). The first issue was whether an order was necessary for the appointment of Mr C as the litigation guardian for the applicant, Ms Holden, in these proceedings. The second issue was whether the proceedings had been properly commenced and were valid. The case involved a long-married couple who had not been divorced. They separated in late 2021, with the applicant, Ms Holden, moving in with her family. The key dispute centered around Ms Holden's mental capacity at various points in time, particularly when she executed an enduring power of attorney in February 2022, revoking a prior one that appointed the respondent as her attorney.
The court examined the legal requirements for initiating proceedings under the Family Law Act, considering whether the application was validly commenced despite the absence of an order appointing a litigation guardian at the time. The court also addressed the implications of Ms Holden's death on the proceedings and the potential continuation by her legal personal representative. The court concluded that the proceedings were validly commenced and were not invalidated by the absence of a prior order for the appointment of a litigation guardian. The court left open the possibility of addressing the issue of the litigation guardian's appointment nunc pro tunc or whether such an order was necessary at all. The court found that the proceedings were valid unless and until the enduring power of attorney executed by Ms Holden on 24 February 2022 was set aside.
The court's decision affirmed that the proceedings were properly initiated and remained valid, subject to the outcome of any future challenges to the enduring power of attorney. The court's reasoning focused on longstanding practices in the family law court regarding the commencement of proceedings and the appointment of litigation guardians. The court also highlighted the potential impact of Ms Holden's death on the proceedings, which would need to be considered if the enduring power of attorney was set aside. The court's final orders reserved the question of costs for further application within the next 14 days, as prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
The court examined the legal requirements for initiating proceedings under the Family Law Act, considering whether the application was validly commenced despite the absence of an order appointing a litigation guardian at the time. The court also addressed the implications of Ms Holden's death on the proceedings and the potential continuation by her legal personal representative. The court concluded that the proceedings were validly commenced and were not invalidated by the absence of a prior order for the appointment of a litigation guardian. The court left open the possibility of addressing the issue of the litigation guardian's appointment nunc pro tunc or whether such an order was necessary at all. The court found that the proceedings were valid unless and until the enduring power of attorney executed by Ms Holden on 24 February 2022 was set aside.
The court's decision affirmed that the proceedings were properly initiated and remained valid, subject to the outcome of any future challenges to the enduring power of attorney. The court's reasoning focused on longstanding practices in the family law court regarding the commencement of proceedings and the appointment of litigation guardians. The court also highlighted the potential impact of Ms Holden's death on the proceedings, which would need to be considered if the enduring power of attorney was set aside. The court's final orders reserved the question of costs for further application within the next 14 days, as prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Orders
Orders of the court
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Background
Background to the litigation
This is an application for property settlement under s 79 of the Family Law Act 1975 (Cth) which was listed for hearing to determine two separate questions, namely:(a)whether any order is necessary for the appointment of Mr C as the litigation guardian for the applicant in these proceedings; and(b)whether the proceedings have been properly commenced and are valid. BACKGROUND The respondent was born in 1942 and was 80 years old at the time of the hearing. The applicant was born in 1945. She passed away in 2023 prior to this hearing, but after these proceedings were commenced in 2022. The parties were married in 1968. They had no children together. They were married for a day short of 55 years when the applicant passed away. The parties were never divorced. The applicant and respondent lived together until late 2021. The circumstances of their separation are a matter of some dispute. It is agreed that the applicant’s health was declining. The case of the applicant (as expressed through her brother, Mr C) attributes some of her failing health to poor care by the respondent. The respondent’s case is that her deterioration was the result of the natural progression of her age. In any event, the applicant ceased living with the respondent in late 2021 and began living with her family, first her brother Mr D, then her brother Mr C, and finally in respite care. There is no dispute that when these proceedings were commenced on 18 August, 2022 the applicant did not have sufficient mental capacity to make decisions on her own behalf. But there is a significant dispute about when the applicant lost capacity. The respondent’s evidence is that her capacity was already failing prior to separation. The applicant’s case is that she still retained legal capacity as at 24 February, 2022. This is a matter of some importance because on 24 February, 2022 by a fresh enduring power of attorney executed at that time pursuant to the Powers of Attorney Act 1998 (Qld), the applicant revoked a power of attorney executed by her in 2008 in which she had made the respondent her attorney and in the case of his inability or unwillingness to act, her brothers Mr D and Mr C. By the 24 February, 2022 document, she appointed Mr C and Mr D as her attorneys (to act successively) and excluded the respondent. She also executed a new will which is not in evidence before me. The issue of the applicant’s capacity to execute the documents that she did on 24 February, 2022 is being litigated in the Supreme Court of Queensland. The parties agree that by reason of her lack of capacity, on 18 August, 2022 the applicant was a person in need of a litigation guardian within the definition of that phrase in r 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“FLR”). Rule 3.13(1) provides that a person who needs a litigation guardian may start a proceeding only by the person’s litigation guardian. The following observations can be made about the initiating application filed in August, 2022:(a)the applicant is described as “[Ms Holden]” on the second page of the cover sheet to the application;(b)the applicant is described as “[Ms Holden] by her Litigation Guardian [Mr C]” on the front page of the Initiating Application proper;(c)as part of the interim relief sought, the following orders are sought:1.That pursuant to Rule 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 [Mr C] is appointed to act as litigation guardian for the wife in these proceedings.2.That the costs and expenses of the litigation guardian be paid from the income or property of the wife [Ms Holden].(d)In Part B of the form, the details of Ms Holden are given as the details for Applicant 1; and(e)the application is signed by Mr C as Ms Holden’s “proposed litigation guardian”.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Another interesting question necessarily arises. Now that Ms Holden has died, the proceedings that have been commenced might be taken up by her legal personal representative: s 79(8) of the Act. Arguably, that might occur without the need to cure the irregularity the might arise if the enduring power of attorney is set aside. The proceedings, stayed until the irregularity is cured, might arguably be continued pursuant to s 79(8) of the Act. Notwithstanding that this impacts directly upon question 1 reserved for separate determination, it was not the subject of any argument before me and so I refrain from any further discussion of it.CONCLUSIONS I cannot accept the respondent’s contention that the proceedings filed in August, 2022 by Mr C for Ms Holden was not the commencement of proceedings for her for property adjustment orders pursuant to s 79 of the Family Law Act 1975 (Cth). If the enduring power of attorney executed by the deceased in February, 2022 is not impeachable, he was her litigation guardian by force of FLR 3.16(5). If he was not, the procedure adopted was consistent with longstanding practice in this court for the commencement of proceedings coincident with an application for the appointment of a litigation guardian. At best, to fail to secure an order for the appointment as such prior to the institution of proceedings is a mere irregularity. I leave open for further argument, if necessary, whether such an order can be made nunc pro tunc in the circumstances of this case or whether such an order is necessary at all. I answer the two questions reserved for consideration as follows:(a)subject to the answer to the issue identified in [46] of these reasons, no order is necessary for the appointment of Mr C as the litigation guardian for the applicant in these proceedings, unless and until the enduring power of attorney executed by the deceased on 24 February, 2022 is set aside; and(b)the proceedings commenced by the filing of an Initiating Application in 18 August, 2022 have been commenced and are valid unless and until the enduring power of attorney executed by the deceased on 24 February, 2022 is set aside. Subject to any application by either party made within the next 14 days in the way prescribed by the FLR, any question of costs will be reserved to the disposition of the Initiating Application commencing these proceedings.
Ratio Decidendi
Legal Principle Established
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