HUNTER & FILMORE

[2017] FamCA 661

FAMILY COURT OF AUSTRALIA

HUNTER & FILMORE [2017] FamCA 661

FAMILY LAW – PROPERTY – Final orders – By consent – Appointment of Case Guardian to represent the wife – Consideration of whether orders are just and equitable – Orders made.

Family Law Rules 2004 (Cth) r 6.10

Harris & Caladine (1991) 172 CLR 84
K & K (2003) FLC 93-135

APPLICANT: Ms Hunter
(by her Case Guardian Mr Hunter)

RESPONDENT: Mr Filmore

FILE NUMBER: ADC 2588 of 2017

DATE DELIVERED: 28 August 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 28 August 2017 in Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Scammell & Co

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Warwick McCarthy & Co

Orders

1. Orders made in terms of the Minute of Order dated 28 August 2017.

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 Hunter & Filmore 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).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2588  of 2017

Ms Hunter

(by her Case Guardian Mr Hunter)

Applicant

And

Mr Filmore

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Application for Consent Orders filed 27 June 2017, Ms Hunter (“the applicant”) by her Case Guardian Mr Hunter seeks orders for settlement of property following the breakdown of her relationship with Mr Filmore (“the respondent”).

2. The application seeks consent orders in terms of a draft Minute of Order as filed.

3. Contemporaneously with the application for consent orders, an application in a case supported by affidavit seeks the appointment of Mr Hunter as case guardian.

BACKGROUND

1. The parties commenced cohabitation in February 1997 and separated in 2015 representing a period in excess of 18 years.

2. There are two adult children of the relationship who continue to reside with the respondent.

3. The property of the parties is modest with the applicant having net assets of $249,071 and the respondent $136,922.

4. The respondent has a superannuation entitlement with B Super in the sum of $70,000 ($55,000 of which was accumulated during the course of the relationship). 

5. The effect of the proposed orders is that the property of the parties would be divided as to $199,889 to the applicant and $183,104 to the respondent.  In addition it is proposed that there will be a superannuation split in respect of the respondent’s entitlement in favour of the applicant of $35,000.  Attached to the application is a letter from the trustee of the respondent’s superannuation fund acknowledging that they have received the draft order and raise no objection to the transfer of entitlement.

CASE GUARDIAN

1. The applicant suffers from a cerebral leak and has apparent difficulties in managing her financial affairs.  On 4 August 2016 the South Australian Civil and Administrative Tribunal (“SACAT”) found that the applicant has a mental incapacity and that an administration order in favour of her father Mr Hunter should be made.

2. The order is current as at the date of the application.

3. There is no affidavit from the applicant and the case guardian advises that the applicant wishes to finalise division of property and consents to her father acting as a case guardian in the proceedings.

4. The rules that deal with the appointment and powers of a case guardian at rule 6.10 of the Family Law Rules 2004 (Cth) (“the Rules”):-

   A person can be appointed as a case guardian or can be taken to be a case guardian for another person (the protected person) upon the filing of an application in a case with an affidavit in support which satisfies the requirements under the rules.

5. I am satisfied that the proposed case guardian does not have an interest in the proceedings.

6. In K & K (2003) FLC 93-135 the Full Court considered the duties of a case guardian (referred to therein as “next friend”) at [59] –[60]:-

   The role of the next friend is to conduct litigation and provide appropriate instructions to so do.  The appointment of a next friend is also necessary to enable a decision to be given which will be binding on the person under a disability: Dey v Victorian Railways Commissioners (1949) 78 CLF 62 at pp 83, 88 and 100.

   The responsibilities of a guardian ad litem for what was then known as a person with a mental defect are discussed in Read v Read [1944] SASR 26 at 28-29:

   “[A] person who accepts the duties of guardian ad litem does not do so…as a matter of form.  A guardian ad litem on behalf of an insane person or an infant represents that person before the Court, and it is his duty to see that every proper and legitimate step for that person’s representation is taken.  He has got to give his mind to it, and decide for himself upon the material put before him what course of action to take…”

IS THE PROPOSED ORDER JUST AND EQUITABLE?

1. The parties are each represented.

2. I consider that the consent to the proposed orders by the case guardian on behalf of the applicant and the respondent is informed consent.  In the decision of Harris & Caladine (1991) 172 CLR 84 the following is said:-

   [25]In considering what order, if any, should be made under section 79, the court is required under sub-s.(4) of that section to take a number of matters into account, including the various financial contributions made by the parties to the marriage.  And sub-s.(2) provides that a court shall not make an order under the section unless it is satisfied that, in all the circumstances, it is just and equitable to do so.  The fact that an order is sought by consent does not relieve the court or a registrar from compliance with the requirements of the section, but it may render compliance much less demanding.  Provided that a court or a registrar, is adequately informed where the parties are at arms-length and are properly represented little more than consent may be needed to establish that the requirement of the section has been met…

CONCLUSION

1. In the circumstances of this case I am satisfied that it is just and equitable to make orders which will alter the legal and equitable interests of the parties and to vest by way of a superannuation split a lump sum entitlement to the applicant.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 28 August 2017.

Associate: 

Date:  28 August 2017