HURLEY & HURLEY

[2016] FamCA 26

FAMILY COURT OF AUSTRALIA

HURLEY & HURLEY [2016] FamCA 26

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of case guardian – Where appointment of case guardian for the husband is made by consent – Where New South Wales Trustee and Guardian already appointed as case guardian for the wife – Where New South Wales Trustee and Guardian presently financial manager of the husband’s affairs – Where inappropriate for New South Wales Trustee and Guardian to be appointed as case guardian for the husband – Where appropriate for orders to be made appointing husband’s daughter as case guardian  for the husband.

Family Law Rules 2004 (Cth) rr 6.08, 6.10 

Guardianship Act 1987 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

APPLICANT: Mr Hurley

RESPONDENT: Ms Hurley by her Case Guardian the NSW Trustee and Guardian

FILE NUMBER: PAC 3724 of 2014

DATE DELIVERED: 19 January 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 January 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pigott Stinson Lawyers

SOLICITOR FOR THE RESPONDENT: Lamrocks Solicitors

Orders

BY CONSENT IT IS ORDERED THAT:

1. That Ms B be appointed case guardian for the applicant Mr Hurley.

IT IS NOTED THAT:

(A)These proceedings are listed for a Conciliation Conference at 9:15am on 29 January 2016 and proceedings are adjourned to that date.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3724 of 2014

Mr Hurley

Applicant

And

Ms Hurley by her Case Guardian the NSW Trustee and Guardian

Respondent

REASONS FOR JUDGMENT

1. In this matter the parties have provided to the Court a minute of consent orders signed by the respective solicitors that provided the following:

   (1)That Ms B be appointed case guardian for the applicant, Mr Hurley;  and

   (2)That it is noted that proceedings are listed for a conciliation conference at 9.15 am on 29 January 2016.

2. The primary proceedings relate to the question of property settlement as between the applicant wife and the respondent husband.  Circumstances relating to the appointment of Ms B as case guardian for the husband, notwithstanding the consent order, bear some explanation. 

3. The parties were married in 1990 and separated finally on 3 July 2013 in circumstances where at the time of separation, the applicant wife entered into a care facility by reason of her frail health.  The applicant wife was born in 1947 and thus she is presently almost 70 years of age.  The respondent husband was born in 1943 and he is presently 72 years of age and has been retired since 2008. 

4. In the context of these proceedings there was an earlier application for the appointment of a case guardian for the applicant wife by reason of the New South Wales Trustee and Guardian being appointed previously in other proceedings as her financial manager.  The New South Wales Trustee and Guardian was appointed case guardian for the wife in these proceedings. 

5. Subsequent to the appointment of the New South Wales Trustee and Guardian as case guardian for the wife, circumstances of the husband changed and on 16 October 2015, an application was filed seeking the appointment of the New South Wales Trustee and Guardian as case guardian for the husband. 

6. The inherent conflict in the nature of that appointment is readily apparent.  However, the New South Wales Trustee and Guardian was appointed financial manager for the husband by reason of orders made on 24 July 2015 under the provisions of the NSW Trustee and Guardian Act 2009 (NSW). The Family Law Rules 2004 (Cth) (“the Rules”) provide in rule 6.10(2) that:

   A person who is manager of the affairs of the party is taken to be appointed as the case guardian of that party if that person has filed:

   (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.

7. In the context of the interim application filed on 16 October 2015, an affidavit was provided by a senior legal officer for the New South Wales Trustee and Guardian providing evidence of that appointment and providing consent to the New South Wales Trustee and Guardian being appointed case guardian for the husband.  Upon the application coming before the Court, the inherent conflict in having the same department or same case guardian for each of the parties was readily apparent. 

8. The husband’s circumstances are such that there is no dispute between the parties that he is a person under a disability as referred to in the provisions of rule 6.08 of the Rules. That provides that:

   A child or person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.

9. A ‘person with a disability’ is defined in the Dictionary to the Rules:

   … in relation to a case, means a person who, because of a physical or mental disability:

   (a) does not understand the nature or possible consequences of the case;  or

   (b) is not capable of adequately conducting, or giving adequate instructions for the conduct of, the case.

10. In an affidavit filed by the senior legal officer of the New South Wales Trustee and Guardian on 26 October 2015 in relation to the application in the case filed on 16 October 2015, it is clear that the husband suffers a series of medical issues that bring him within the definition of a person with a disability.  On 5 June 2015, a financial management order was made under the provisions of the Guardianship Act 1987 (NSW) that provided for the New South Wales Trustee and Guardian to manage the estate of the husband and further ordered that Ms B of C Street, Suburb D be appointed as the financial manager of the state of her father, Mr Hurley. 

11. Subsequently, on 24 July 2015, the appointment of Ms B as the financial manager of the estate of the husband was revoked. 

12. On 15 December 2015, a further application in the case was filed on behalf of the husband seeking to have Ms B appointed as his case guardian for the purposes of these proceedings. In support of that application, Ms B provided a short affidavit indicating that she was the daughter of the husband in these proceedings and that she was aware that proceedings had been listed for a conciliation conference on 29 January 2016 and that she was aware that the New South Wales Trustee and Guardian had been appointed as case guardian for the wife. 

13. She provided her consent to her appointment as case guardian on behalf of her father. That consent and her appointment would resolve inherent conflict as between the New South Wales Trustee and Guardian being appointed for both parties. In the circumstances, it is readily apparent that it is appropriate for Ms B to be appointed as her father’s case guardian in order that some resolution can be brought to these outstanding property issues as between these elderly litigants. 

14. Accordingly, for the reasons set out above, it is appropriate to make the orders sought by consent by the parties.  Accordingly, orders are made as set out at the forefront of this judgment.

15. Otherwise the proceedings are adjourned to the conciliation conference, 9.15am on 29 January 2016.    

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 January 2016.

Associate: 

Date:  19 January 2016