Logan & Anor and Logan & Anor

[2016] FamCA 649

FAMILY COURT OF AUSTRALIA

LOGAN AND ANOR & LOGAN AND ANOR [2016] FamCA 649

FAMILY LAW – CASE GUARDIAN – where the wife seeks an order removing the husband’s case guardian – where the application is opposed – where the wife alleges a conflict of interest – where the order for appointment of the case guardian is discharged.

Family Law Rules 2004 (Cth) r 6.10(1)

Kannis & Kannis (2003) FLC 93-135
Nalder v Hawkins (1833) 2 My & K 243; 39 ER 937

APPLICANT: Mr Logan

CASE GUARDIAN FOR APPLICANT: Mr Patterson

RESPONDENT: Ms Logan

INTERVENOR: Mr Kirk

FILE NUMBER: ADC 1196 of 2013

DATE DELIVERED: 11 August 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 5 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Byrne

SOLICITOR FOR THE APPLICANT: A D Byrne Lawyer

COUNSEL FOR THE CASE GUARDIAN: Mr Byrne

SOLICTOR FOR THE CASE GUARDIAN:  A D Byrne Lawyers

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Tindall Gask Bentley

COUNSEL FOR THE INTERVENOR: Ms O'Toole

SOLICITOR FOR THE INTERVENOR: O’Toole Lawyers

Orders

1. That the order made on 17 March 2015 appointing Mr Patterson as the case guardian is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Logan and Anor & Logan and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1196  of 2013

Mr Logan

Applicant

And

Mr Patterson
Case Guardian for Applicant

And

Ms Logan

Respondent

And

Mr Kirk
Intervenor

REASONS FOR JUDGMENT

INTRODUCTION

1. By Initiating Application filed 20 June 2014, Mr Logan (“the husband”) seeks general orders in respect of property settlement.

2. By Response filed 27 November 2014, Ms Logan (“the wife”) joins with the orders sought by the husband for settlement of property with the provision that would transfer for consideration the farming properties together with plant, equipment, debtors and the stock of Logan Pty Ltd to the parties’ children.

3. It is not contentious that the husband suffers from advanced dementia. Following application on behalf of the husband, an order was made by consent that Mr Patterson be appointed as a litigation guardian for the husband pursuant to r 11.11 of the Federal Circuit Court Rules 2001 (Cth) (as amended).

4. Mr Patterson was well known to the parties and is represented as having been a friend of the husband for many years.

5. It was generally agreed by the parties that their financial circumstances were parlous and that the sensible way forward would be to cause…