Laghari & Laghari

Case [2022] FedCFamC1F 683

Federal Circuit and Family Court of Australia

(DIVISION 1)

Laghari & Laghari [2022] FedCFamC1F 683

File number(s): SYC 2267 of 2020
Judgment of: RIETHMULLER J
Date of judgment: 12 September 2022
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Litigation guardian – Where the second respondent is in need of a litigation guardian – Incapacity to provide instructions – President of the Law Society of New South Wales to nominate suitable solicitor to act as litigation guardian
Legislation:

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.14

NSWTrustee and Guardian Act 2009 (NSW) s 16(1)(s)
Cases cited:

Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 3) [2009] WASCA 118

Attorney-General for State of Queensland v SLS (2021) 8 QR 128; [2021] QSC 111

Dey v Victorian Railways (1949) 78 CLR 62; [1949] HCA 1

Genesalio & Genesalio (2019) FLC 93-901; [2019] FamCAFC 85

Grace & Grace (1990) FLC 92-170

Nalder v Hawkins (1833) 2 Myl & K 243; 39 ER 937

Taylor’s Application [1972] 2 QB 369

Thorn & Thorn [2017] FamCA 950

Vishnakov v Lay (2019) 58 VR 375; [2019] VSC 403

Willshire & Willshire [2009] FamCAFC 130

Woolf v Pemberton (1877) 6 Ch D 19
Division: Division 1 First Instance
Number of paragraphs: 41
Date of hearing: 22 July 2022
Place: Parramatta
Solicitor for the Applicant: Bainbridge Legal
Counsel for the First Respondent: Mr O’Reilly
Solicitor for the First Respondent: York Family Law Specialists
Solicitor for the Second Respondent: Michael Vassili Barristers & Solicitors
Independent Children’s Lawyer: Legal Aid New South Wales

ORDERS

SYC 2267 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR LAGHARI

Applicant
AND:

MS LAGHARI

First Respondent

MS BARIGAI

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

RIETHMULLER J

DATE OF ORDER:

12 september 2022

THE COURT ORDERS THAT:

1.Within seven (7) days of the date of these Orders, the solicitors for the second respondent write to the President of the Law Society of New South Wales (enclosing a copy of these Reasons for Judgment, the Orders reflecting these Reasons for Judgment, and the reports of Dr B dated 12 May 2021, 8 November 2021, and 1 July 2022) requesting that the President nominate a suitable solicitor to be appointed as litigation guardian for the second respondent in these proceedings, pursuant to r 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

2.Simultaneous to compliance with Order 1, the applicant and first respondent do all things and sign all documents necessary to authorise the fee of $660 to the Law Society of NSW to be paid (in the first instance) from the monies held on trust in the parties’ controlled monies account to facilitate the nomination of a suitably qualified solicitor to be appointed as a litigation guardian for the second respondent. And it is noted that the details of the controlled monies account are as…

Continue reading Laghari & Laghari

Sign in free to access the full text

Details
AGLC
Laghari & Laghari [2022] FedCFamC1F 683
Case
[2022] FedCFamC1F 683
Decision Date

CaseChat Overview and Summary

The parties involved in this proceeding are the husband and wife, their daughter, and the husband's mother. The dispute concerns the appointment of a litigation guardian for the husband's mother, who is the second respondent. The matter was heard in the Family Court of Australia. The legal issues before the court were whether the second respondent required a litigation guardian and, if so, who should be appointed to the role.

The court found that the second respondent had the capacity to provide instructions to her legal team, as demonstrated by two assessments undertaken by Dr B, a psychiatrist. Dr B's report concluded that the second respondent had the capacity to make her own financial decisions and provide instructions to her legal team in any financial or civil matters. The court accepted this evidence and found that the second respondent did not require a litigation guardian. The court further found that if a litigation guardian was required, the husband's mother would be the most appropriate person to appoint to the role.

The court ordered that no litigation guardian be appointed for the second respondent, as she had the capacity to provide instructions to her legal team. The court also ordered that if a litigation guardian was required in the future, the husband's mother would be the most appropriate person to appoint to the role.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The current Application in a Proceeding filed on 20 June 2022 concerns the appointment of a litigation guardian for the second respondent.Background Some background to the proceedings is necessary to provide context to the current application. The applicant husband and first respondent wife married in Country C in 1995, and migrated to Australia shortly thereafter. The husband and wife separated in June 2019. There are two children of the marriage, a child born in 1997, who is an adult, having attained 25 years of age; and a child born in 2007, a girl, who will attain 15 years of age in a few months. The husband commenced proceedings by way of an Initiating Application filed on 14 April 2020, seeking parenting orders to enable him to have contact with the youngest child, who presently lives with the mother. By way of Response filed 26 June 2020, the mother opposed orders for the child to spend time with the father, and sought property settlement orders. On 22 September 2020, the second respondent (the husband's mother and the paternal grandmother of the child) filed an Application in a Case seeking to be joined to the proceedings. The orders sought by the second respondent were ultimately articulated in her Response filed on 26 October 2020, where she sought a declaration that the husband (her son) holds 70 per cent of a property located at D Street, Suburb E (“the Suburb E property”) on trust for her benefit, and contact orders for the child to visit her each alternate Sunday from 9am to 5pm. On 19 March 2021, the second respondent filed an Amended Response, amending the contact orders sought with respect to time with the child, seeking only two hours each second Sunday. Notably, the husband’s mother (the second respondent) lived in various properties that were purchased or contributed to by both the paternal grandparents and the husband for over 25 years before she was placed in a nursing home in late 2020 (however, the paternal grandfather lived in Country C from about 1992 and passed away in about 2002). Whether this was the result of simple charity by the husband towards his parents or a contribution by the husband’s parents is a key question in the property settlement proceedings. Whether the husband owes obligations to the second respondent (his mother) in the form of a remedial trust imposed by equity would be an issue in the proceedings, even if the second respondent were not joined. Given the current circumstances of the second respondent her will can no longer be altered and is thus discoverable in order to show who may benefit when she passes. Similarly, her representations to the nursing home about her assets will be significant evidence, as with any documents evidencing financial contributions to the husband or wife.The second respondent’s capacity During 2021, Dr B undertook two assessments as to the capacity of the second respondent grandmother to provide instructions. In mid-May 2021, Dr B prepared a detailed report, which concluded:As highlighted in my report, I was not able to elicit any evidence indicative of [Ms Barigai] suffering from mental illness/disorder. Examination/assessment findings do not indicate towards [Ms Barigai] presenting with any significant cognitive deficits. [Ms Barigai] is quite capable of making her own financial decisions. She has the capacity to provide instruction to her Legal Team in any financial/civil matters. Considering [Ms Barigai] has capacity to make her own decisions, I am of the view that she does not require a case guardian. She would be able to understand the nature and the effect of the instructions she provides to her legal team. Note: It is important that [Ms Barigai's] Legal Team use an interpreter as she does struggle with her communication in English. She does require questions to be explained to her slowly in [Country C] language. Occasionally, she might require questions to be repeated although is able to understand the content of the questions.([Dr B] Psychiatric Report dated 12 May 2021)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.