JOHNS & HIRST

[2014] FCCA 2675

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOHNS & HIRST [2014] FCCA 2675

Catchwords:
FAMILY LAW – Property.

PRACTICE AND PROCEDURE – Litigation guardian – appointment of litigation guardian – where respondent opposes appointment of litigation guardian – whether applicant needs a litigation guardian – test to be applied – where applicant held not to be capable of adequately conducting or giving adequate instruction for the conduct of the substantive proceeding.

Legislation:

Family Law Act 1975 (Cth), s.79

Federal Circuit Court Rules 2001, rr.11.08, 11.10, 11.11, 11.14

Applicant: MS JOHNS

Respondent: MR HIRST

File Number: SYC 5575 of 2013

Judgment of: Judge Scarlett

Hearing date: 12 November 2014

Date of Last Submission: 12 November 2014

Delivered at: Sydney

Delivered on: 19 November 2014

REPRESENTATION

Solicitor for the Applicant: Ms Davitt

Solicitors for the Applicant: S. Davitt Family Lawyers

Counsel for the Respondent: Mr Sansom (direct brief)

ORDERS

1. MS M born on (omitted) 1969 is appointed as Litigation Guardian for the Applicant in this proceeding.

IT IS NOTED that publication of this judgment under the pseudonym Johns & Hirst is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5575 of 2013

MS JOHNS

Applicant

And

MR HIRST

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case seeking to appoint the Wife’s sister, Ms M, as the Wife’s litigation guardian for the purpose of the substantive proceedings. The Wife is the Applicant in proceedings for property settlement under s.79 of the Family Law Act 1975 (Cth). The Application is opposed by the Husband on the basis that the evidence in support of the Application is insufficient.

Appointment of a Litigation Guardian

1. Division 11.2 of the Rules provides for the appointment of a litigation guardian for a party.

2. Sub-Rule 11.08(1) provides:

   For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of the proceeding.

3. Rule 11.10 prescribes who may be a litigation guardian:

   A person may be a litigation guardian in a proceeding if he or she is an adult and has no interest in the proceeding adverse to the interest of the person needing the litigation guardian.

4. Rule 11.11 provides, relevantly:

   (1)The Court may, at the request of a party or its own motion, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.

   (2)A person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding.

5. Interestingly, Rule 11.14 provides for the payment of the litigation guardian’s costs and expenses:

   The Court may make orders for the payment of the costs and expenses of a litigation guardian (including the costs of an application for the appointment of the litigation guardian):

   (a)     by a party; or

   (b)from the income or assets of the person for whom the litigation guardian is appointed.

Procedural History

1. The Applicant commenced these proceedings by filing an Initiating Application on 24^th September 2013, supported by a Financial Statement and an affidavit by the Applicant’s mother, Ms L, sworn or affirmed on 23^rd September 2013.

2. Sadly, Ms L died on 20^th November 2013.

3. On 13^th December 2013 the parties were directed to attend a Conciliation Conference with a Registrar on 17^th March 2014. The conference did not proceed on that day. The Registrar gave the reason for this in a memorandum to the Court:

   Mental health of W is such that her rep cannot get instructions…NOTE Solicitor for mother unable to obtain instructions – may need to appoint a next friend.

4. On 11^th June 2014 a further Conciliation Conference was appointed for 15^th August 2014. The conference proceeded but no resolution was reached. The Registrar noted in her memorandum to the Court:

   Further, I recommend that consideration be given to a case guardian being appointed for the wife.

Application to appoint a litigation guardian

1. The Applicant’s solicitor has brought an Application in a Case, seeking to appoint the Applicant’s sister, Ms M, as her litigation guardian. In her affidavit of 7^th  November 2014, Ms M deposed that:

   a)Her sister has been on a disability support pension since early 2000;

   b)Her sister has told her that she suffers for Post-Traumatic Stress Disorder;

   c)Her sister’s two children with the Respondent were removed from their care in about 2005;

   d)Her sister has lived in a number of boarding houses and hostels since 2005;

   e)Ms M has only seen her sister on about four occasions since 2005 and has not known exactly where she has been living;

   f)Ms M cares for her sister’s daughter aged five years since the child was about 8 weeks old, having been placed in her care by the NSW Department of Community Services;

   g)She is the executrix and trustee of the will of her late mother, Ms L;

   h)The will provided that Ms L’s home at (omitted) should be sold and that one third of the proceeds should be held on trust for the Applicant so that Ms M may purchase a mobile home or a caravan for the Applicant; and

   i)Ms M is looking for a property or a mobile home or caravan in which her sister can live.

2. Ms Davitt, solicitor for the Applicant, also relied on:

   a)A copy of an affidavit by the Respondent used in proceedings in the Children’s Court at Parramatta earlier this year;

   b)Various documents produced on subpoena by (omitted) Hospital at (omitted); and

   c)A copy of the Grant of Probate of Ms L’s will.

3. The Respondent’s affidavit related to proceedings in the Children’s Court concerning the parties’ children, two boys born on (omitted) 2001 and (omitted) 2003. The two children were taken into care by the NSW Department of Family and Community Services in proceedings under s.46 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) at Woy Woy Children’s Court in 2006.

4. On 16^th August 2007 orders were made under s.81 of that Act, allocating parental responsibility for the children to the Minister and to the Applicant’s mother jointly. The Respondent’s Appeal to the District Court was dismissed. The children were placed with the applicant’s mother and each parent was to have supervised contact with the children for a minimum of two hours once a fortnight.

5. The Respondent’s affidavit was prepared in support of his application to the Children’s Court for the two children to be returned to his care. The purpose of the tender of the affidavit in this proceeding is that the Respondent referred to the mother’s mental health in paragraphs [13], [15], [29] and [37], as follows:

   13.I say that the circumstances that led to the mother’s removal were alleged domestic violence between the mother and myself, the mother’s mental health issues which included paranoid psychosis with post traumatic stress disorder, depression and cluster B borderline personality traits.

   …

   15.…I maintain to this day that there was no violence in our relationship and I say that the mother, due to her mental health issues, made up allegations of domestic violence on a regular basis during our relationship. The domestic violence is disputed but the mother’s mental health issues, I say, were the significant basis for the removal of the children.

   …

   29.I do not believe that the mother is in a position to be able to provide any form of care for the children.

   …

   37.The mother is not in a position to be able to provide day-to-day care for these children…

6. The documents produced on subpoena from (omitted) Hospital range in dates from 17^th June 2012 to 14^th May 2013. In particular, there is a note from Dr K, a psychiatric registrar for Homeless Health service dated 26^th April 2013, who saw the Applicant for a mental health assessment on 16^th April and saw her again for review on 23^rd and 26^thApril.

7. Dr K stated:

   My assessment is that Ms Johns suffers from Bipolar Affective Disorder, currently in a hypermanic phase. She has started treatment with sodium valproate, a mood stabilizer. It is vital that Ms Johns is housed so she can achieve regular sleep patterns which are a vital part of managing this illness. Stable accommodation will help ensure medication will help ensure medication compliance.

8. The other documents produced on this subpoena consist of nurses’ notes describing the Applicant’s symptoms and behaviour at various times.

9. The Applicant’s mother, in her will, appointed her daughter Ms M as her sole Executrix and Trustee. The balance of the Mother’s estate, after certain cash legacies, was to be divided into three equal shares for the Mother’s son and two daughters, but the Applicant’s share of the proceeds of sale of the Mother’s home at (omitted) were to be held in trust to provide her with stable accommodation:

   As to 1/3 thereof to be held in Trust by my Trustee to purchase for my daughter the said MS N[1] a mobile home or caravan of her choice and thereafter pay any remaining monies from her 1/3/ share to the said MS N for her own use absolutely…

   [1] The Applicant’s original name was Ms N but she subsequently changed her name to Ms Johns

Conclusions

1. It is clear that the Applicant’s sister has no interest in the proceedings adverse to the interest of the Applicant. She has filed an affidavit indicating her consent to being appointed as a litigation guardian for her sister.

2. In my view, the issue in this matter is whether the applicant needs a litigation guardian in this case. The test is set out in Sub-Rule 11.08(1):

   …a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

3. To my mind, the relevant limb of the test is the second limb, whether or not the Applicant is capable of adequately conducting, or giving adequate instructions for the conduct of the matter.

4. The evidence of the Applicant’s history of homelessness and her difficulty in caring for her children, leading to the involvement of the Department of Family and Community Services, are relevant but not determinative of the issue.

5. More importantly, there is a diagnosis of a mental illness by a psychiatrist, Dr K, on 26^th April 2013, coupled with a lengthy history of the Applicant’s involvement with mental health services through (omitted) Hospital.

6. It is also relevant to consider the history of the substantive Application before the Court. The affidavit in support of her original Application was sworn by her mother, Ms L, now deceased. The Applicant swore an affidavit on 24^th September 2013.  

7. Significantly, the Court can take notice of the comments of the two Registrars who conducted the Conciliation Conferences in this matter, on 17^th March and 15^th August 2014.

8. On 17^th March 2014 Registrar Bastiani noted that the Applicant’s solicitor at the time was unable to obtain instructions from his client and suggested “may need to appoint a next friend”.

9. Again, on 15^th August 2014, after the second conference, Registrar Crawford stated:

   Further, I recommend that consideration be given to a case guardian being appointed for the wife.

10. I give considerable weight to the comments of the two learned Registrars, who are, of course, entirely independent of the parties.

11. The totality of the evidence leads me to the firm view that the Applicant herself is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

12. Accordingly, I propose to appoint the Applicant’s sister, Ms M, as her Litigation Guardian. In the circumstances, it may assist the parties to resolve the matter to appoint a further Conciliation Conference, as the Litigation Guardian will no doubt be able to give instructions to the Applicant’s solicitor at a conference.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  19 November 2014