Kearns and Kearns

[2017] FCCA 1025

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEARNS & KEARNS [2017] FCCA 1025

Catchwords:
FAMILY LAW – Interlocutory – appointment of a litigation guardian.

Legislation:

Federal Circuit Court Rules 2001, Rule 11.11

Applicant: MR KEARNS

Respondent: MS KEARNS

File Number: SYC 3082 of 2014

Judgment of: Judge Henderson

Hearing date: 27 April 2017

Date of Last Submission: 27 April 2017

Delivered at: Sydney

Delivered on: 27 April 2017

REPRESENTATION

Counsel for the Applicant: Ms Kennedy

Solicitors for the Applicant: Watts McCray Lawyers

Counsel for the Respondent: Mr Campton SC

Solicitors for the Respondent: Cominos Family Lawyers

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Bankstown

ORDERS

1. Pursuant to Rule 11.11 of the Federal Circuit Court Rules 2001, Mr A be appointed litigation guardian for the wife, Ms Kearns.

2. A case outline consisting of a short chronology, minute of the orders sought, a list of assets and liabilities and a list of documents relied on is to be filed by 15 May 2017.

3. The date of filing one consolidated trial affidavit, the affidavits of any witnesses and updated financial statements be extended to 10 May 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3082 of 2014

MR KEARNS

Applicant

And

MS KEARNS

Respondent

REASONS FOR JUDGMENT

1. This is an application in the matter Kearns to appoint a litigation guardian, one of the parties’ adult sons, to represent the interests of his mother. 

2. The material I have read is quite extensive and was helpful. I have read the response of the husband and his affidavit filed 26 April 2017 in response to the mother’s material.

3. The wife’s martial is her application in a case, affidavit of her son, the putative case guardian; affidavit of her current psychologist, Ms M; a prior affidavit of Ms M from 2014 and the report of Dr C, released in 2014. 

4. Ms Kennedy of Counsel acted for the husband and Mr Campton SC for the wife.

5. As I said to Ms Kennedy in response to her very helpful submissions in her case outline document, these parties have had a difficult time in this court. The matter has, in my view, not been managed in a way that assisted them to get out of the court system quicker rather than later.  They are still here three years later, with the youngest child of the relationship having no time with or relationship with his older siblings, and particularly his mother and the father not having a relationship with his older boys. That is a significant tragedy. 

6. There are allegations flying backward and forward about parties’ behaviour and the like. Even despite this time and the very helpful report of Dr C, the matter is still very raw and fresh for the husband and wife. Which leads me to agree with the view of Ms M, the mother’s psychologist, that the mother who has significant emotional and psychological vulnerability for whatever reason, is simply now three years after the matter commenced getting to the point where she is incapable of giving instructions. 

7. I say that this application has significant merit and must be correct for the following. Appointing a case guardian in a property matter, where a significant part of the allegations and the reason for a greater percentage of matrimonial property to be awarded to the wife are allegations that the husband perpetrated domestic violence upon the her making her role of parent and homemaker more arduous, may well be compromised by the appointment of the guardian. It is certainly not going to assist the mother in the presentation and acceptance by me of her evidence on this very important aspect of her case. Thus I accept that this is not an application brought lightly by the mother’s lawyer.

8. I accept what the mother’s psychologist, who perhaps knows the mother better than any of us, says which is that she really is now at a stage where she would not be able to withstand cross-examination. Reading from her report at page 11:

   Given the intensity of the current divorce proceedings, as Ms Kearns has been separated from and maintained minimal contact with her son, she may , in my  clinical opinion, not be able to manage her emotional response whilst be cross-examined, thereby impacting on her capacity to appropriately respond to questions. 

   It is my clinical opinion that the stress of the proceedings, and particularly the outcome, may adversely impact on her psychological wellbeing. Ms Kearns has therefore commenced physchopharmacological intervention and agreed to participate in more intensive and long term treatment in an effort to obtain support and care for her psychological health.

9. Her functioning has caused her solicitor significant difficulties in obtaining instructions. The mother’s capacity in this regard was referred to in Dr C’s report at page 10:

   Ms Kearns presented as an anxious 50-year-old who denied significant symptoms of mood disorder. She had a reactive effect, congruent with her narrative, and reportedly becomes teary and emotional about once a week when she thinks of what has happened.  She was a poor historian, scattered and disorganised, raising her voice and talking loudly when animated. 

10. Dr C observed that behaviour in 2015, and the evidence is consistent with a deterioration in functioning given it is now 2 years since that report was prepared and proceedings are still on foot.

11. Therefore, I make a finding, as I must, on the evidence presented to me that the respondent wife is a person in need of a litigation guardian. Having so found, I must now appoint a litigation guardian, otherwise I cannot do anything with the proceedings and they cannot be continued.

12. There is a final hearing in May 2017. Now, the person put forward is the parties’ adult son, Mr A, who lives with his mother. He and his wife live with his mother. He is involved with her day to day and also clearly has knowledge of his mother and father’s relationship.

13. It is clear he and his father have virtually a non-existent relationship - a significant sadness for both. There are allegations in Dr C’s report, or references in Dr C’s report and the father’s affidavit that Mr A is not a suitable person because he had a gambling problem during his parents’ marriage, that the mother’s reaction to that, and the way she protected her son, caused significant difficulty in the party’s relationship, and he is not someone who can properly manage his mother’s affairs and is an inappropriate person.

14. When I go to the rules that relate to the appointment of case guardians, rule 11.10 says this:

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

15. Mr A is an adult and has no interest adverse to his mother at all.  He is here to represent her position. He has no interest adverse to his father. He gains nothing from this litigation other than assisting the Court to make a just and equitable division of the parties’ property having regard to their long-term marriage and contribution-based entitlements, being direct financial, indirect, parent and homemaking and the care arrangements for the younger child who is now approaching adulthood himself. That is the task that Mr A says he can carry out on his mother’s behalf and is well-placed to do that, having lived in the home with his mother and father. 

16. The mother has confidence in her son, and that is the difficulty for this lady because that is one of the issues referred to by Dr C and by her own psychologist – her significant distrust and lack of trust of people in her life. Dr C opined in her report, the mother’s lack of insight into her own culpability for the very sad situation she found herself in, particularly with her son X is also a deficit for her.

17. I find there are real issues why there must be a litigation guardian appointed. I cannot see today nor am I satisfied, on the evidence presented by the father that their son, Mr A, is anything other than a person suitable to be a litigation guardian for his mother, and I will appoint him as such.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 18 May 2017