Kapilla and Kapilla
[2008] FamCA 210
•28 March 2008
FAMILY COURT OF AUSTRALIA
| KAPILLA & KAPILLA | [2008] FamCA 210 |
| FAMILY LAW – PRACTICE AND PROCEDURE - Case Guardian |
| Family Law Act 1975 (Cth) s 113 Marriage Act 1961 s 23B(1)(d)(iii) |
| Kannis and Kannis (2003) FLC 93-135 T [2005] FamCA 302 |
| APPLICANT: | Mr Kapilla |
| RESPONDENT: | Ms Kapilla |
| FILE NUMBER: | SYC | 6133 | of | 2007 |
| DATE DELIVERED: | 28 March 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston JR |
| HEARING DATE: | 21 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cook |
| SOLICITOR FOR THE APPLICANT: | Clinch Neville Long Letherbarrow, Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Dupree |
| SOLICITOR FOR THE RESPONDENT: | Goldbergs, Solicitors |
Notations
The Court has been informed today, immediately prior to handing down reasons for judgment, that Mr Kapilla (snr) has passed away since the hearing of the Application for Appointment of a Case Guardian.
That in these circumstances there is no purpose in making the orders the subject of the Application.
Orders
That the applicant file and serve any Amended Application for Final Orders not later than 11 April 2008.
That these proceedings be adjourned for directions to the Judicial Registrar's Duty List at 10:00 am on 16 April 2008.
IT IS NOTED that publication of this judgment under the pseudonym KAPILLA is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6133 of 2007
| Mr Kapilla |
Applicant
And
| Ms Kapilla |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Kapilla and Ms Kapilla are son and mother respectively. They are unable to agree on the appointment of a case guardian for Mr Kapilla’s father, Mr Kapilla (snr).
For convenience, I shall refer to them as “the applicant”, “the respondent” and “Mr Kapilla (snr)”.
The respondent and Mr Kapilla (snr) are married, having been married twice. There are questions about the validity of their current marriage.
Issues
The main issues in these proceedings are as follows.
·Is there a “case” which might be started within the meaning of Rule 6.08 of the Family Law Rules?
·Is Mr Kapilla (snr) a person in need of a case guardian?
·If so, is the applicant an appropriate person, in all the circumstances of this case, to be appointed as Mr Kapilla (snr)’s case guardian?
Applications
The applicant seeks orders to the effect that he be appointed case guardian for his father and that the respondent be restrained from corresponding with O Nursing Home in any form pending further order.
On the other hand, the respondent seeks orders to the effect that if the Court determines that a case guardian should be appointed for Mr Kapilla (snr), that the Honourable John Dowd, AO, QC be appointed in this capacity.
Background
Mr Kapilla (snr) was born in 1923 and he is therefore 85 years of age. The respondent was born in 1932 and she is therefore 75 years of age. They married for the first time in Hungary in November 1948. They were divorced in November 1984.
On 18 April 1997, Mr Kapilla (snr) made a will the beneficiaries of his estate being the applicant and the respondent in equal shares.
On 17 August 1998 the New South Wales Guardianship Tribunal found Mr Kapilla (snr) to be in need of a guardian and appointed the Public Guardian in this capacity.
In April 2000, Dr K, a physician specialising in geriatric medicine, prepared a report on Mr Kapilla (snr) describing a background history of dementia. She said that he was severely impaired with dysphasia, agnosia, apraxia and confabulation. At the time Mr Kapilla (snr) was living at W Nursing Home.
In approximately 2001, the applicant assisted his father to take up permanent residency at O Nursing Home. Both the applicant and the respondent were in the habit of visiting Mr Kapilla (snr). The applicant visits his father at least once a fortnight and discusses his ongoing care with the appropriate professionals at the Nursing Home.
In January 2006, the respondent sought to review the decision by Mr Kapilla (snr)’s guardian that he remain living at O Nursing Home on a permanent basis. The respondent wanted him to be relocated to a culturally specific aged care facility. The review was rejected and Mr Kapilla (snr)’s permanent residence at O Nursing Home was confirmed.
In November 2006, Mr Kapilla (snr) and the respondent remarried. Apparently this marriage ceremony took place without Mr Kapilla (snr)’s guardian, his sons or anyone else involved in Mr Kapilla (snr)’s care being informed.
The applicant subsequently requested the Protective Commissioner to make an application for a decree of nullity of the marriage. But the Protective Commissioner has declined to take such action.
Accordingly, the applicant is seeking to be appointed case guardian for Mr Kapilla so that he can file such an application for a decree of nullity.
Is there a “case” which might be started within the meaning of Rule 6.08 of the Rules?
Rule 6.08(1) provides as follows:
A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.
It was submitted on behalf of the respondent that the applicant has not put evidence even of a prima facie case for the substantive relief sought. It was submitted that the medical evidence is either so objectionable or wanting that it could not support the necessary finding under s 23B(1)(d)(iii) of the Marriage Act 1961, namely, that Mr Kapilla (snr) was mentally incapable of understanding the nature and effect of the marriage ceremony.
With respect to learned counsel for the respondent, I am not persuaded to this submission. Clearly this is the issue which will be before the Court in the substantive hearing. There is the expert evidence to which I have referred, which as I have said has been the subject of objection. Perhaps the substantive case will stand or fall on a testing of this evidence. But that is a matter for another day. Clearly there is a case to be started.
Is Mr Kapilla (snr) a person in need of a case guardian?
As indicated above, in August 1998 the New South Wales Guardianship Tribunal found Mr Kapilla (snr) to be in need of a guardian and appointed the Public Guardian as his guardian.
In April 2000, Dr K described Mr Kapilla (snr)’s background history as consisting of dementia of mixed aetiology – possibly vascular, alcohol and trauma and that he had suffered a head injury 30 years previously. Dr K reported that Mr Kapilla (snr) was severely impaired in his speech (dysphasia), in his ability to perform simple tasks (apraxia), in his ability to recognise objects (agnosia) and confabulation.
Dr F has been Mr Kapilla (snr)’s doctor since December 2004. He speaks Mr Kapilla (snr)’s original language, Hungarian. Dr F said that in December 2004 Mr Kapilla was diagnosed as suffering from advanced Alzheimer’s Dementia. He said that Mr Kapilla was unable to communicate verbally in English or Hungarian at that time. He did not carry out even simple commands. Dr F said that between then and January 2008 Mr Kapilla (snr)’s cognitive impairment has deteriorated further. Dr F said that he had consultation records at approx the time of the November 2006 marriage and expressed the opinion that Mr Kapilla (snr) would have had no understanding of the concept of a marriage ceremony or of the necessary intention to marry the respondent and other relevant matters.
Strong objection was taken in relation to Dr F’s affidavit on several bases. Firstly, it was submitted that there was no opportunity to cross-examine Dr F. But learned counsel for the respondent subsequently conceded that in the circumstances of progressing the hearing he would not insist on cross-examining Dr F at this point. A further basis of objection was that in an earlier report (Exhibit 6), Dr F said that, based on numerous contacts with the respondent he had formed the opinion that she suffers from a mental illness. This and various comments in the report about the respondent were described by learned counsel as “almost hysterical”. The affidavit was also served late.
While it is true that the reports by Dr F in evidence in these proceedings on the state of mental health of Mr Kapilla (snr) have been prepared for these proceedings and that there has been no opportunity for cross-examination of Dr F, in my view, some weight should be afforded to the material for the purposes of these interlocutory proceedings.
There was also a report by Dr K about Mr Kapilla (snr) also prepared for these proceedings and dated 20 February 2008. Dr K made reference to her earlier involvement with Mr Kapilla (snr). Dr K also saw Mr Kapilla (snr) on 8 February 2008. She said that he did not respond to her in English or Hungarian or to his name.
Dr K said in summary that Mr Kapilla (snr) is severely impaired and that his cognition can no longer be formally assessed. Dr K said his gradual decline over the last 14 years from about 1994 is consistent with a slowly progressive dementing illness.
Dr K said that she was unable to specifically comment on Mr Kapilla (snr)’s capacity at the time of his re-marriage to the respondent and said he was not assessed in relation to that. But Dr K said that she thought it would be extremely unlikely for Mr Kapilla (snr) to have had a brief period of lucidity in November 2006 because his dementia would have been too advanced. Dr K said that even in 2000 Mr Kapilla (snr) was severely impaired and she would have said he was incompetent to make any legal or lifestyle decisions. In fact he was under a public guardian at the time. Dr K does not believe Mr Kapilla (snr) could have initiated or been an active informed participant to marriage.
There was also an objection to Dr K’s recent report on the basis that this was also served late.
While some criticism can be made of the fact that this material was late, in my view the Court is entitled to take this evidence into account. Learned counsel for the respondent informed the Court that for pragmatic reasons and bearing in mind the ages of the parties and the need to endeavour to keep costs at a level which could be afforded the respondent would not seek an adjournment nor seek to cross-examine the witnesses.
In my view, it needs to be kept in mind that these are interlocutory proceedings. The substantive issue is not being determined at this time.
Accordingly, I propose also to give weight to Dr K’s reports.
The applicant made the following observations about his father since 1998 as set out in his affidavit:
a)That my Father is unable to recognise me since about 2005 or other persons. He does not recognise any of his grand-children;
b)He cannot feed himself and requires active assistance to eat
c)He cannot go to the toilet and needs assistance to be toileted;
d)He cannot put two words together, let alone construct a phrase or sentence.
e)He is unable to communicate in any meaningful way, at all.
f)He has been unable to write for some years;
g)He responds in a positive manner to anyone who assists him or does a kindness.
h)I do not believe that he recognises my Mother.
i)He can only walk with assistance and has increasing need of a wheel chair.
j)He increasingly reaches for objects that are not there.
In my view, therefore, there is ample evidence before the Court to enable the finding that Mr Kapilla (snr) is a person in need of a case guardian.
Is the applicant an appropriate person to be appointed as case guardian?
Rule 6.09 of the Family Law Rules is as follows:
A person may be a case guardian if the person:
(a) is an adult;
(b)has no interest in the case that is adverse to the interest of the person needing the case guardian;
(c)can fairly and competently conduct the case for the person needing the case guardian; and
(d) has consented to act as the case guardian.
It was submitted on behalf of the respondent that the interests of the applicant are adverse to the interest of Mr Kapilla (snr). This was submitted to be on the basis that the proceedings for a decree of nullity of the marriage between the respondent and Mr Kapilla (snr) could have the effect of disturbing a testamentary set of circumstances, that is, disturbing the consequences which would flow from Mr Kapilla (snr) dying intestate. These consequences would be that the respondent would inherit the whole of Mr Kapilla (snr)’s estate rather than share such estate equally with the applicant under the will if the marriage was declared to be void. This is because the effect of a valid marriage on the will, as a matter of law, would be to revoke it. It is said that to disturb the consequences of Mr Kapilla (snr) dying intestate would be adverse to Mr Kapilla (snr)’s interest.
With respect to learned counsel for the respondent, this is a creative submission. But in my view it confuses the interests of the respondent with those of the applicant. Disturbing the consequences which would flow from Mr Kapilla (snr) dying intestate would appear to be adverse to the respondent’s interest. But I am at a loss to see how such could be adverse to Mr Kapilla (snr)’s interest.
In my view, to take action to ensure the proper status of Mr Kapilla (snr) and to endeavour to achieve his wishes concerning the distribution of his estate would be consistent with, not adverse to, his interest.
Accordingly, I am satisfied that the applicant does not have an interest in the case that is adverse to the interest of Mr Kapilla (snr).
The second stream of the submission by learned counsel for the respondent is that the applicant cannot fairly and competently conduct the case for Mr Kapilla (snr). This is on the basis that it is submitted that the applicant has an interest in the outcome of the nullity proceedings because if the marriage is declared to be void, Mr Kapilla (snr)’s will would not have been revoked and therefore the applicant would be expected to inherit one-half of Mr Kapilla (snr)’s estate upon his death. It is submitted that for this reason the applicant would not be able to act impartially and objectively and that, rather, he would bring a subjective approach to his responsibilities as case guardian for his father. It is further submitted that, on the other hand, Mr Dowd would be able to fairly and competently conduct the case for Mr Kapilla (snr) because he could be objective, having no interest in the outcome of the proceedings.
In my view, it is clear from the decision of the Full Court of his Court in the case of Kannis and Kannis (2003) FLC 93-135 that having an interest in the outcome of proceedings does not render a person unsuitable as a case guardian. In that case the son of the parties to property proceedings was case guardian (called Next Friend under the Rules in operation at the time). At paragraph 61, page 78,262 the Full Court said as follows:
In this case the parties’ son John was appointed as Next Friend of the husband. He had no interest in the proceedings adverse to the husband. Indeed as it transpired his interests in the proceedings appeared to coincide with that of the husband in that he was a beneficiary under the husband’s will. The husband apparently lacked any further testamentary capacity and accordingly, providing that John outlived his father, he would in due course inherit a share of his father’s estate. The greater that estate the more valuable John’s interest would become.
And at paragraph 71, page 78,263 the Full Court went on to say as follows:
… The fact that the Next Friend for the husband stood to gain if his father obtained a more favourable result than that sought by the wife could not be seen as a reason to remove him. Indeed to the contrary. There was some communality of interest between the Next Friend and his father.
Accordingly, I am not persuaded that the applicant would not be able to fairly and competently conduct the case for Mr Kapilla (snr). In my view, he would have every reason to do this.
There is no issue that the applicant has consented to act as case guardian.
Conclusion
In my view, the applicant satisfies all of the requirements under the Rules for appointment as case guardian for his father Mr Kapilla (snr).
But even if I am wrong in my conclusion, it would appear that there is another avenue under which the validity of the marriage might be open for examination. This is because any person would appear to have the right to make an application under s 113 of the Family Law Act 1975 for a declaration as to the validity of a marriage.
I note that in the unreported case of T [2005] FamCA 302, Le Poer Trench J. had this to say at paragraph 15 page 6:
The Family Law Act 1975 (Cth) provides two different means of addressing the question of whether there subsists a valid marriage. Only the parties to a marriage can apply for a nullity decree pursuant to s 51, however the applicant (not being a party to the marriage) appears to have standing to seek a declaration of invalidity of a marriage pursuant to s 113 as a person with a genuine interest.
I note also that his Honour referred to commentary about this subject at Volume 2 of the CCH Australian Family Law and Practice at paragraph 49-050 page 37,771. The conclusion of the learned author to this paragraph is as follows:
It is submitted [AFD] that, by virtue of “matrimonial cause” (b), anyone may commence proceedings for a declaration under sec 113, even after the death of a party to the marriage concerned, provided that he or she can show a reasonable interest in obtaining the declaration.
The injunction
The application for an injunction to restrain the respondent from corresponding with the Nursing Home in which Mr Kapilla (snr) is resident was not agitated.
In any event, I accept the submission on behalf of the respondent that the evidence does not support the making of such an order.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.
Associate: ___________________________
Date: 28 March 2008
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Procedural Fairness
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