Ly & Bui (No 2)

Case [2022] FedCFamC1F 871

Federal Circuit and Family Court of Australia

(DIVISION 1)

Ly & Bui (No 2) [2022] FedCFamC1F 871

File number(s): SYC 7794 of 2018
Judgment of: SCHONELL J
Date of judgment: 11 November 2022
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the second respondent sought for a litigation guardian to be appointed on his behalf – Where the wife opposed the appointment – Where the evidence demonstrates that there is a limitation on the second respondent’s capacity – Litigation guardian appointed.     
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.12, 3.15

Cases cited: Stokes v McCourt [2014] NSWSC 61
Division: Division 1 First Instance
Number of paragraphs: 19
Date of hearing: 4 November 2022
Place: Sydney
Counsel for the Applicant: Mr McGovern SC with Mr Battley
Solicitor for the Applicant: Panacea Lawyers
Counsel for the First Respondent: Ms Murphy
Solicitor for the First Respondent: Atkinson Vinden
Counsel for the Second Respondent: Mr Young SC
Solicitor for the Second Respondent: Bangroves Lawyers
Solicitor for the Third Respondent: Edmond Khoury Solicitors

ORDERS

SYC 7794 of 2018

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

MS LY

Applicant
AND:

MR BUI

First Respondent

MR BELSKY

Second Respondent

B PTY LTD

Third Respondent

order made by:

SCHONELL J

DATE OF ORDER:

11 NOVEMBER 2022

THE COURT ORDERS THAT:

1.Pursuant to r 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Mr T be appointed as the litigation guardian for the second respondent Mr Belsky.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

SCHONELL J:

  1. By Amended Application in a Proceeding filed 28 October 2022, the second respondent to financial proceedings sought orders for the appointment of a litigation guardian. Having heard submissions from the parties, I indicated that I intended to make the order for appointment of a litigation guardian and would deliver reasons in due course. These are those reasons.

  2. The proceedings are part of wider financial proceedings that commenced in December 2018.  They arise out of a marriage between the parties in 2006 that concluded with separation of the parties, according to…

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AGLC
Ly & Bui (No 2) [2022] FedCFamC1F 871
Case
[2022] FedCFamC1F 871
Decision Date

CaseChat Overview and Summary

In the case of Ly & Bui (No 2), the second respondent, Mr Belsky, sought the appointment of a litigation guardian due to limitations on his capacity to manage his legal matters. The wife opposed the appointment. The court had to decide whether a litigation guardian should be appointed for Mr Belsky given the evidence of his incapacity and the need to expedite the proceedings. The court considered the medical evidence, the observations of the proposed litigation guardian, and the evidence that Mr Belsky's solicitor was unable to obtain instructions from him. The court also took into account the lengthy duration of the proceedings, which had already spanned four years and were scheduled to extend to nearly five years. The court concluded that the appointment of a litigation guardian was necessary to ensure the proceedings were brought to a timely and efficient conclusion, in line with the overarching purpose of family law practice and procedure.

The court determined that the evidence supported the conclusion that Mr Belsky had limitations on his capacity, including his ability to deal with legal matters. The medical evidence and the observations of the proposed litigation guardian, combined with the solicitor's inability to obtain instructions, supported the need for a litigation guardian. The court found that the appointment was necessary to facilitate the just resolution of the dispute and to avoid further unnecessary delay. The court emphasised that the overarching purpose of family law practice and procedure is to achieve timely, cost-effective, and efficient resolution of disputes. Given these considerations, the court ruled that Mr T should be appointed as the litigation guardian for Mr Belsky.

In conclusion, the court ordered the appointment of Mr T as the litigation guardian for Mr Belsky under rule 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The decision underscores the importance of appointing litigation guardians where necessary to ensure the efficient and just resolution of family law disputes, especially when proceedings have been prolonged.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Pursuant to r 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Mr T be appointed as the litigation guardian for the second respondent Mr Belsky.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Senior counsel for the second respondent in reply submitted that it would not be appropriate to make such orders at this stage as it may be that the second respondent is able, in due course, to provide instructions such that he no longer needs a litigation guardian. He contended the making of an order at this stage was premature and it is a matter that the Court can address at a later date.Conclusion In relation to the proposal of senior counsel for the wife that the appointment be conditional upon the making of orders as proposed by him, I do not propose to make such orders. The refusal to make those orders, however, is without prejudice to the wife renewing her application at a subsequent time should she consider it appropriate to do so. At this stage, there remains a degree of fluidity in relation to the second respondent’s health. It may be that he recovers, it may be that he does not. In the event that he does recover, then he will not need a litigation guardian. The wife is at liberty to make her application at a time closer to the hearing if she so instructs. I have reached the conclusion supporting the appointment of a litigation guardian as a consequence of a combination of the medical evidence, which demonstrates that there are limitations on his capacity, including his capacity to deal with legal things, the evidence of the proposed litigation guardian as to his observations to understand issues as well as the evidence, albeit provided from the bar table by the second respondent’s solicitor, that she is unable to get instructions. I also have regard to the fact that these proceedings have been before this Court for four years. The Court is unable to provide an early hearing date and indeed has made out directions for trial, including providing a hearing date in September next year. By that time, the proceedings will have been before the Court for nearly five years. This is a situation that cannot be permitted to continue. I am also of the view that consistent with s 67(3) of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”) that it is necessary and consistent with the overarching purpose of family law practice and procedure that these proceedings be brought to an end as expeditiously as possible. In that respect, s 67(3) imposes the following duties on the Court:67 Overarching purpose of family law practice and procedure provisions ...(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. The overarching purpose objectives are set out under s 67(1) and (2) of the FCFCOA Act as follows:67 Overarching purpose of family law practice and procedure provisions (1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:(a) according to law; and (b) as quickly, inexpensively and efficiently as possible.Note 1: See also paragraphs 5(a) and (b).Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.(2) Without limiting subsection (1), the overarching purpose includes the following objectives:(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;(c) the efficient disposal of the Court’s overall caseload;(d) the disposal of all proceedings in a timely manner;(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

Ratio Decidendi

Legal Principle Established

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