KIGHT & KIGHT
[2010] FamCAFC 235
•15 November 2010
FAMILY COURT OF AUSTRALIA
| KIGHT & KIGHT | [2010] FamCAFC 235 |
| FAMILY LAW - APPEAL – Application for dismissal of the husband’s Case Guardian – Where the Case Guardian was appointed by the Federal Magistrates Court for the purposes of the parties’ property proceedings – Appeal filed by the Case Guardian in respect of the final property proceedings – Where the husband upon receiving independent legal advice was satisfied that there was no basis for an appeal – Where the Queensland Civil and Administrative Tribunal had already revoked the appointment of the Case Guardian for all other personal matters – Where the husband had followed the correct procedure in his application for removal of the Case Guardian – Where the Case Guardian’s ongoing role was adversely affecting family relationships – Where it would be wrong to place the husband in the position where an appeal is pursued – Should the appeal not succeed the husband’s property interests may be affected by an order for costs – Where the husband seeks to file a notice of discontinuance in relation to both appeals – Where there was no appearance from the Case Guardian but where it was found that the Case Guardian had been served – Application allowed FAMILY LAW - COSTS – Parties at liberty to file written submissions in relation to the costs of the appeals and the application for dismissal of the Case Guardian |
| Family Law Act 1975 (Cth) |
| In the Marriage of Kannis (2002) 30 Fam LR 83 |
| APPELLANT: | Mr Kight (by Case Guardian) |
| RESPONDENT: | Ms Kight |
| FILE NUMBER: | BRC | 10843 | of | 2008 |
| APPEAL NUMBER: | NA | 70 | of | 2009 |
| DATE DELIVERED: | 15 November 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 15 November 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 19 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1000 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Sykes Pearson & Miller |
Orders
That the Case Guardian appointed on 8 May 2009 be removed.
IT IS NOTED:-
That upon the husband filing a notice of discontinuance in the two appeals, NA 70/2009 and NA 116/2010, within seven days of today that the appeals will be dismissed.
Upon the filing of the notice of discontinuances the parties are at liberty to file written submissions with regard to the costs of the appeals and the application for dismissal of the Case Guardian, in accordance with the following timetable:
(a)On behalf of the respondent within 28 days of the date of discontinuance;
(b)On behalf of the applicant in reply thereto within seven days thereafter, and;
(c)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the pseudonym Kight & Kight is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 116 of 2010
File Number: BRC 10843 of 2008
| Mr Kight (by Case Guardian) |
Appellant
And
| Ms Kight |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
Two appeals have been filed. The first, NA 70 of 2009 (“the first appeal”), was filed on 11 September 2009, appealing orders made by Federal Magistrate Purdon-Sully on 17 August 2009. Those orders dealt with the sale of property pending trial and the disbursement of the sale proceeds. The second, NA 116 of 2010 (“the second appeal”), filed on 14 October 2010, appeals the final property orders made by Federal Magistrate Purdon-Sully on 16 September 2010.
This is an application in relation to both appeals filed by Mr Kight (“the husband”) on 19 October 2010. The husband seeks the removal of “the husband’s father” as Case Guardian, so that he can “assume ownership of the case”, as he describes it in his material. Should the husband’s application succeed he would then file a Notice of Discontinuance in relation to both appeals.
There is no appearance by or for the Case Guardian. I am satisfied that he has been served. The husband filed this morning an affidavit sworn by him on 10 November 2010 and an affidavit of service, filed on behalf of the husband sworn 18 October 2010.
In the affidavit the husband explains that he sent the application and supporting affidavit to his father on 3 November 2010. A confirmation of the service was received by the wife the next day. A document from Australia Post has confirmed that a letter sent to the Case Guardian was received by him and acknowledged. A document is attached to the affidavit showing that there was delivery by Registered Post.
It is appropriate in view of service on him and the nature of this application that it be heard in the absence of the Case Guardian.
Although the Case Guardian was originally appointed by the Federal Magistrates Court, the matter before me relates to the appeals to which I have referred. It seems that the Family Court Rules 2004 (“the Rules”) would allow me to deal with this application.
The husband’s affidavit
In support of the application, the husband filed an affidavit on 19 October 2010. The affidavit contains information about the circumstances surrounding the appointment of the Case Guardian and a brief history of the matter. It is appropriate to summarise the contents of that document.
On 27 December 2008 the husband suffered a traumatic brain injury. As a result of this injury and because the parties were separated, an application was made for guardianship to the Queensland Guardianship and Administration Tribunal by the husband’s father in January 2009. As a result of this application the Offices of Adult Guardian and Public Trustee were appointed to administer the husband’s affairs.
For the purposes of the parties’ property proceedings in the Federal Magistrates Court of Australia, the husband’s father was appointed as Case Guardian on 8 May 2009.
On 16 March 2010 the husband was discharged from hospital to a hostel and it seems from 30 May 2010 he has lived independently.
Federal Magistrate Purdon-Sully delivered judgment in the parties’ property proceedings on 11 June 2010. The husband explains that he was initially dissatisfied with the judgment and sought legal advice. That legal advice was said to be that there was no basis for an appeal. After considering this advice the husband said, and I quote from his affidavit, that he was “convinced that an appeal should not be pursued”.
The husband explains that his father disagreed with his decision and sought his own independent advice. The husband said that he had discussions with the principal and the family expert of the firm engaged by his father and that they too were of the view that there was no basis for an appeal.
A hearing was held by the Queensland Civil and Administrative Tribunal (“QCAT”). The decision made by QCAT annexed to the husband’s affidavit was made in September 2010:
DECLARATION ABOUT CAPACITY
1.[Mr Kight] has capacity for all personal and financial matters.
GUARDIANSHIP
2.The appointment of the Adult Guardian as guardian for [Mr Kight] for decisions about the following personal matters is revoked:
(a) Accommodation;
(b) Health care;
(c) Provision of services;
(d)Legal matters not relating to the adult’s financial or property matters;
ADMINISTRATION
3.The appointment of The Public Trustee of Queensland as administrator for [Mr Kight] for all financial matters is revoked.
The husband in his affidavit explains that contrary to his wishes and the legal advice which was received, the husband’s father filed a notice of appeal on 14 October 2010. The husband expresses his concern for his father not considering his wishes and seeks that his father, similarly to the QCAT decision, be discharged as Case Guardian. It is the husband’s view that such an order would also be in the interests of his father. In that respect in the last paragraph of the husband’s affidavit he states:
7.[His father’s] ongoing role would also continue to adversely affect family relationships particularly if [the father] persists with an appeal. If pursued an appeal with a stay would only impact myself as court orders have been implemented and assets dispersed.
In relation to the husband’s capacity to make his own legal decisions, reference is made to a report characterised as “Report by medial and related health professionals- Guardianship and Administration Act 2000”. The report is annexed to his affidavit and has been completed by Dr W, a general practitioner.
It is stated in the report that the husband’s “disabilities associated with the brain injury has reduced significantly” and that the husband “has had negligible signs of brain injury in the past 4 mths”. Dr W states that the husband “has been a communicative, independent person” who “has been compliant with all medical advice” and deposes that the husband is “[f]ully capable of making an informed decision”.
In evidencing the husband’s ability to make decisions in relation to his affairs, the doctor said:
Since leaving [an] Aged Care Facility, [Mr Kight] has negotiated a rental property with real estate agency, arranged financial support with guardian, informed Centrelink re change of address and circumstances. He has budgetted and paid bills over past 2 mths…
In response to the question “[w]hat restrictive practices are being used, or are intended to be used?” Dr W replied “Nil. (although I have not cleared him to resume driving as yet.)”.
Relevant law
Rule 6.10 of the Rules prescribes how a Case Guardian can be appointed, replaced or removed:
Appointment, replacement or removal of case guardian
(1)A person may apply for the appointment, replacement or removal of a person as the case guardian of a party.
Note 1 Chapter 5 sets out the procedure for making an Application in a Case.
Note 2 An application in relation to a case guardian may be made by a party or a person seeking to be made the case guardian or by a person authorised to be a case guardian.
(2)A person who is a manager of the affairs of a party is taken to be appointed as the case guardian of the party if the person has filed:
(a) a notice of address for service; and
(b) an affidavit which:
(i)provides evidence that the person has been appointed manager of the affairs of the party; and
(ii) states that the person consents to being appointed as the case guardian of the party.
The husband has followed the correct procedure in his application for removal of the Case Guardian. He has filed an application in a case with an affidavit in support.
In relation to the grounds for removal of a Case Guardian the Full Court’s decision (Nicholson CJ, Buckley and Kay JJ) in In the Marriage of Kannis (2002) 30 Fam LR 83 is of some assistance. The grounds for removal it seems are at large. In particular, such grounds would include where the “next friend”, as it was described in the previous legislation, is damaging the interests of a party.
Where the husband does not wish to pursue the appeal, having obtained proper legal advice it would be wrong to place him in the position where an appeal is pursued based on the opinion of his father. The decision of the Case Guardian would be binding on the husband and should the appeal not succeed then the husband’s property interests may be affected by orders for costs.
For those reasons an order will be made that the appointment of the Case Guardian on 8 May 2009 be removed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 15 November 2010.
Associate:
Date: 19 November 2010
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