Keir & Ramsay (No 2) - [2022] FedCFamC1F 730

Federal Circuit and Family Court of Australia
(DIVISION 1)
Keir & Ramsay (No 2) [2022] FedCFamC1F 730

File number(s): CRC 8 of 2020

Judgment of: CAMPTON J

Date of judgment: 20 September 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge a litigation guardian – Where the respondent was an inpatient in a psychiatric ward but has since been discharged – Where the Court is satisfied that the respondent understands the nature and possible consequences of the proceedings, and is capable of conducting the proceedings – Order for the appointment of a litigation guardian discharged – Further Application to shift monies held in the trust account of the respondent’s former solicitors to the applicant’s current solicitors – Where it is sensible and practical for solicitors with some connection to the litigation to hold the funds.

Legislation:
Family Law Act 1975 (Cth) s 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.08, 3.12, 6.37

Cases cited: Keir & Ramsay [2022] FedCFamC1F 362

Division: Division 1 First Instance

Number of paragraphs: 23

Date of hearing: 20 September 2022

Place: Sydney

Solicitor for the Applicant: J Lawyers

Solicitor for the Respondent: Litigant in person
ORDERS

CRC 8 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KEIR

Applicant

AND:
MR RAMSAY

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

20 September 2022

THE COURT ORDERS THAT:
1.I discharge Orders 1 to 9 as made on 25 May 2022.
2.The parties are to forthwith and within 7 days do all such things as are necessary to cause the balance of funds held on trust for the respondent with T Lawyers to be transferred to the trust account of the applicant solicitors J Lawyers to be held thereafter on trust for the respondent.
3.Save and except by way of agreement in writing between the parties for orders of Court, each party are restrained from withdrawing, transferring, dealing with or otherwise adversely affecting the monies held on behalf of the respondent in the trust account of J Lawyers.
4.I otherwise reserve the costs of the applicant in relation to her Application in a Proceeding as filed 13 May 2022, the costs of the respondent in replying to that Application in a Proceeding, the costs of the respondent to his Application in a Proceeding filed 12 September 2022 and the applicants Response to that Application in a Proceeding to the trial.
5.Upon noting that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in these proceedings, the respondent Husband must not cross-examine the applicant Wife personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the respondent Husband.
6.Within seven days of the date of these orders, the respondent Husband is to complete the "Scheme Application Form" and provide that form to Legal Aid NSW (…@...) for the allocation of a legal practitioner.

IT IS NOTED THAT
7.Pursuant to…

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 Keir & Ramsay (No 2)

Details

AGLC: Keir & Ramsay (No 2) [2022] FedCFamC1F 730
Case: [2022] FedCFamC1F 730
Decision Date

CaseChat Overview and Summary

Keir & Ramsay (No 2) was a case in the Federal Circuit and Family Court of Australia involving a dispute between Ms Keir and Mr Ramsay. The case revolved around the discharge of a litigation guardian appointed for Mr Ramsay and the transfer of funds held in trust for him. The court was required to decide whether Mr Ramsay was capable of conducting the proceedings without a litigation guardian and whether it was appropriate for the funds to be transferred to the trust account of Ms Keir's solicitors.

The court found that Mr Ramsay had demonstrated an intelligent and structured approach to problem-solving, used coherent language, and followed a logical sequence of thought. The psychologist's report indicated that Mr Ramsay's symptoms had significantly resolved, and he had insight and decision-making capacities. Based on this evidence, the court concluded that Mr Ramsay understood the nature and possible consequences of the proceedings and was capable of adequately conducting or giving instructions for the conduct of the proceedings. Consequently, the orders appointing a litigation guardian for Mr Ramsay were discharged.

Regarding the transfer of funds, the court considered the absence of legal representation for Mr Ramsay and the practical benefits of having the funds held by solicitors connected to the litigation. The court found it appropriate for the funds to be transferred to the trust account of Ms Keir's solicitors, J Lawyers, to be held on trust for Mr Ramsay. The court also made orders to restrain the parties from withdrawing, transferring, dealing with, or otherwise adversely affecting the monies held on behalf of Mr Ramsay in the trust account of J Lawyers.

In summary, the Federal Circuit and Family Court of Australia decided to discharge the orders appointing a litigation guardian for Mr Ramsay, as he was capable of conducting the proceedings without one. Additionally, the court ordered the transfer of funds held in trust for Mr Ramsay to the trust account of Ms Keir's solicitors, J Lawyers, with restraints on the parties from adversely affecting the funds.

Orders