MALKIN & MALKIN

[2014] FamCA 463

FAMILY COURT OF AUSTRALIA

MALKIN & MALKIN [2014] FamCA 463

FAMILY LAW – PRACTICE AND PROCEDURE – Case guardian order.

Family Law Act 1975 (Cth)

APPLICANT: Mr Malkin

RESPONDENT: Mr Regan as Case Guardian for Ms Malkin

FILE NUMBER: MLC 1709 of 2014

DATE DELIVERED: 27 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE:

27 June 2014

in Chambers

REPRESENTATION

Orders

1. That Mr Regan be appointed the case guardian for the wife.

IT IS ORDERED BY CONSENT:

1. That the wife’s application in a case filed 11 June 2014 be otherwise dismissed.

2. That by not later than 4.00pm on 14 July 2014, each party exchange written appraisals in relation to the following real properties:

   (a)    P Street, Suburb M;

   (b)    G Street, Suburb N; and

   (c)    C Street, Suburb O.

3. That B Valuers be appointed as a single expert valuer by the parties for the purpose of valuing all real property for which the parties have been unable to agree in writing by 4.00pm on 21 July 2013, a value.

4. That by no later than 4.00pm on 21 July 2014, both parties exchange full and frank financial disclosure pursuant to Rule 13.04 and 12.02 of the Family Law Rules 2004 including but not limited to all outstanding bank statements and credit card statements to date.

5. That the matter be otherwise adjourned for further mention in the Registrar’s Directions List at 10.30am on 26 September 2014.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

AND THE COURT NOTES:

1. Mr Regan has been advised of the implied undertakings regarding confidentiality and the actual provisions of s 121 of the Family Law Act 1975 (Cth); and

2. The parties intend participating in a private mediation with Mr Martin Bartfeld QC as mediator.  Such mediation to be arranged in the second half of August 2014.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1709 of 2014

Mr Malkin

Applicant

And

Mr Regan as Case Guardian for Ms Malkin

Respondent

REASONS FOR JUDGMENT

1. Mr Malkin and Ms Malkin have proceedings before the Court relating to the alteration of property. The issue brought to my attention and upon which there is common ground, relates to the wife having a case guardian.

2. Chapter 6 of the Family Law Rules 2004 provides for situations where proceedings involve a person who requires assistance because of a disability. The dictionary to the rules describes a person with a disability as someone who, because of mental or physical disability does not understand the nature or possible consequences of the case or is not capable of adequately conducting, or giving, adequate instruction for the conduct of the case.

3. In that situation and relevantly in this case, a person with a disability may continue a case only by a case guardian. An appointed case guardian is someone who:

   (a)Is an adult;

   (b)Has no interest in the case that is adverse to the interest of the person needing the case guardian;

   (c)Can fairly and competently conduct the case for the person needing the case guardian; and

   (d)Has consented to act as the case guardian.

4. It is important to observe that a person appointed as the case guardian is bound by the rules of the Court. That obviously includes the duty of disclosure.

5. To the extent that a matter is settled before trial, the case guardian must, if seeking a consent order, file an affidavit setting out the facts relied on to satisfy the court that the order is in the party's best interests.

6. The practitioners properly sought an order in this case.

7. Consultant psychiatrist Dr A said in his affidavit evidence that he had authority from the wife to provide a report about her. He set out her current and past medical condition. He detailed her medical history and said:

   (w)hilst she cross-sectionally at present is able to instruct and is competent on her family law matters, this is likely to change when brought back into the maelstrom of the legal proceedings, which would most likely see her relapse in her Melancholic Depression once again. At that point, she would once again become not competent to instruct.

   Dr A therefore supported the application for the appointment of a case guardian.

8. In the circumstances of the background after separation, Dr A concluded that the problems had sent the wife into depression and although now out of that state, she would likely descend again if required to participate in the proceedings.  It seems that the husband and his advisers had that evidence and so were aware of the concern of Dr A that might arise from the wife’s involvement beyond this point. I can safely conclude therefore that whilst the wife may not have fitted the definition of person with a disability at the end of May when she saw Dr A, there is little doubt that as these proceedings progress, the process will be fraught with difficulty if the prognosis of Dr A is right. As the husband did not challenge that evidence, I should accept it.

9. I am therefore satisfied that the wife cannot adequately give instructions for the conduct of the case.

10. Having said that, there are other criteria to be met.

11. Mr Regan filed an affidavit indicating that he had known the wife for a long time and was willing to take on the case guardian role. He was present with the wife at the time she was assessed by Dr A.

12. I again note that the husband and his practitioners had the evidence and chose not to challenge it. Mr Regan’s statements show therefore that the husband accepts that Mr Regan is an adult, that he has no interest in the case that is adverse to the interest of the wife and that he can fairly and competently conduct the case for the wife.

13. Mr Regan has consented to act as the case guardian.

14. It is appropriate in the circumstances to make that order.

15. The parties sought an order that no fee or remuneration be paid to the case guardian. As there was no evidence that would enable me to make that order, I decline to do so.

16. I will adjourn the matter back to the Registrar.

I certify that the preceding Sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 June 2014.

Associate: 

Date:  27 June 2014