IBSEN & IBSEN - [2021] FCCA 660

FEDERAL CIRCUIT COURT OF AUSTRALIA

IBSEN & IBSEN

[2021] FCCA 660

Catchwords:

FAMILY LAW – interim hearing - appointment of litigation guardian – Rule 11.11 of the Federal Circuit Court Rules 2001

Legislation:

Federal Circuit Court Rules2001 (Cth) rr 11.08, 11.11

Cases cited:

Oliver & Gall [2008] FMCAfam 164

Applicant:

MS IBSEN

Respondent:

MR IBSEN

File Number:

ADC 4154 of 2020

Judgment of:

Judge Kari

Hearing date:

18 March 2021

Date of Last Submission:

18 March 2021

Delivered at:

Adelaide

Delivered on:

18 March 2021

REPRESENTATION

Counsel for the Applicant:

Mr Tredrea

Solicitors for the Applicant:

Carmen Wood & Associates

Solicitors for the Respondent:

Tessa Hume of Tessa Hume Barrister & Solicitor

UPON NOTING:

(A)Exhibit W1 is an un-redacted letter of instruction to the wife’s psychiatrist dated 15 March 2021.

THE COURT ORDERS:

That Mr A of B Lawyers to be appointed to act as litigation guardian on behalf of the Applicant Wife.
That the Application in a Case sealed on 23 December 2020 and the Application in a Case filed on 9 March 2021 be dismissed save and except any application for costs.
That no later than 4.00pm on 19 March 2021 the wife’s solicitors do provide a redacted copy of Exhibit W1 NOTING that the document is to be redacted so far as the identity of the wife’s treating psychiatrist and the medical facilities is concerned.
That until further order the husband’s legal representative is restrained and an injunction is granted restraining the husband’s legal representative from providing a copy of the un-redacted Exhibit W1 to the husband and/or any other person NOTING that the Court has indicated a preparedness to hear argument in relation to the same in due course at the request of the husband and/or his legal representative.
That no later than 4.00pm on 9 April 2021 the wife’s solicitors do file and serve any Affidavit that they intend to rely on with respect to the wife’s Application for costs both personally against the husband’s former legal representatives and any application against the husband personally.
That the husband and/or his former legal representatives file an Affidavit in reply by no later than 4.00pm on 20 April 2021.
That the wife’s solicitor serve a copy of the orders made this day upon Messrs E Lawyers and Mr F of Counsel together with a copy of the orders made on 11 March 2021 and in addition a copy of today’s reasons once they are published.
During the period of the adjournment each the husband and the wife are restrained and an injunction is granted restraining each of them from disposing transferring or otherwise dealing with assets and in addition, using any funds held in any bank accounts either in their joint or sole names in excess of the sum of $50,000.00 unless otherwise ordered by the court NOTING the orders made on 21 September 2020 which deals with the use of the partial property settlement funds by the wife.
That the costs applications be listed for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: IBSEN & IBSEN [2021] FCCA 660
Case: [2021] FCCA 660
Decision Date: 18 March 2021

CaseChat Overview and Summary

In the matter of *Ibsen & Ibsen*, the Federal Circuit Court of Australia considered an application for the appointment of a litigation guardian. The dispute concerned the capacity of one of the parties to conduct litigation.

The central legal issue before the Court was whether it was necessary to appoint a litigation guardian for a party pursuant to Rule 11.11 of the *Federal Circuit Court Rules 2001* (Cth). This rule governs the appointment of litigation guardians for persons who are under a disability.

Kari J applied the principles established in case law regarding the assessment of a party's capacity to understand the nature and consequences of the proceedings, and to instruct their legal representatives. The Court considered evidence relating to the party's medical condition and its impact on their ability to participate effectively in the litigation. The Court determined that the party lacked the requisite capacity and that the appointment of a litigation guardian was therefore necessary to ensure the proper conduct of the proceedings and the protection of the party's interests.

The Court ordered that a litigation guardian be appointed for the party.

Orders