JINSON & FLETCHER - [2015] FamCA 890

FAMILY COURT OF AUSTRALIA

JINSON & FLETCHER

[2015] FamCA 890

FAMILY LAW – Case Guardian – Where the wife as applicant in the substantive proceedings is in and out of hospital for surgery and unable to give instructions but able to do so at the time the husband seeks the appointment of a case guardian – No order made.

FAMILY LAW – COSTS – Where costs are awarded because the evidentiary basis for an adjournment is not satisfactory and the wife in seeking an adjournment of a trial, is wholly unsuccessful.

Family Law Act 1975 (Cth)

Collins and Collins (1985) FLC 91-603
Fitzgerald v Fish (2005) 33 Fam LR 123
Forster & Forster [2012] FamCAFC; (2012) 47 FamLR 77
I and I (No 2) (1995) FLC 92-625
L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114
Minister for Immigration and Multicultural Affairs v Vadarlis (No 2) (2001) 188 ALR 143 citing with approval Cretazzo v Lombardi [1975] 13 SASR 4 and Chilli v Abbott (1981) 53 FLR 108

APPLICANT:

Ms Jinson

RESPONDENT:

Mr Fletcher

FILE NUMBER:

MLC

3123

2014

DATE DELIVERED:

23 October 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Marks Qc With Mr Hall

SOLICITOR FOR THE APPLICANT:

O'Hanlon Foster Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Strum

SOLICITOR FOR THE RESPONDENT:

Goldhirsch & Shnider

Orders

That the application in a case filed by the husband on 20 October 2015 is dismissed.
That the husband’s application for costs in respect of the hearings on 8 October 2015 and 22 October 2015 are both dismissed.
That the wife pay the husband’s costs on a party and party basis associated with the hearing on 24 September 2015, such costs be by agreement and failing agreement as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jinson & Fletcher 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 MELBOURNE

FILE NUMBER: MLC 3123 of 2014

Ms Jinson

Applicant

And

Mr Fletcher

Respondent

REASONS FOR JUDGMENT

These interlocutory proceedings raised two unusual issues. First, should the Court order the appointment of a case guardian for a litigant (represented by legal practitioners) who wants to participate but who, from time to time is incapacitated by physical illness?
Secondly, is incapacity because of illness (which causes an adjournment of a trial) a justifiable reason to depart from the primary legislative principle in s 117 of the Family Law Act 1975 (Cth) that each party pay their own costs?
For the reasons that follow, each of those questions requires an examination of the peculiar facts of this case. It is not appropriate at this time, to appoint a case guardian. It is appropriate to make an order for some of the husband’s costs.

Brief background

Although at first blush, the initiating application of the applicant wife filed in…

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.

Continue reading JINSON & FLETCHER

Details

AGLC: JINSON & FLETCHER [2015] FamCA 890
Case: [2015] FamCA 890
Decision Date: 23 October 2015

CaseChat Overview and Summary

In the matter of JINSON & FLETCHER, the husband applied to the court for the appointment of a case guardian for the wife, who was the applicant in the substantive proceedings. The wife had been experiencing significant health issues, requiring hospitalisation and surgery, which at times rendered her unable to give instructions to her legal representatives. However, at the time the husband sought the appointment of a case guardian, the wife was capable of providing instructions. The court was presided over by Cronin J.

The primary legal issue before the court was whether it was necessary or appropriate to appoint a case guardian for the wife, given her fluctuating capacity to provide instructions. A secondary issue arose concerning costs, specifically in relation to the wife's unsuccessful application for an adjournment of a trial, which the court found lacked a satisfactory evidentiary basis.

Cronin J dismissed the husband's application for the appointment of a case guardian. The court reasoned that the wife was able to give instructions at the time the application was made, rendering the appointment of a case guardian unnecessary. Regarding costs, the court ordered that the wife pay the husband's costs on a party and party basis for the hearing on 24 September 2015, with such costs to be agreed or assessed. The husband's applications for costs concerning hearings on 8 October 2015 and 22 October 2015 were dismissed.

Orders

Orders of the court

That the application in a case filed by the husband on 20 October 2015 is dismissed.

That the husband’s application for costs in respect of the hearings on 8 October 2015 and 22 October 2015 are both dismissed.

That the wife pay the husband’s costs on a party and party basis associated with the hearing on 24 September 2015, such costs be by agreement and failing agreement as assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.