Masters and Parsons & Ors - [2013] FamCA 916

FAMILY COURT OF AUSTRALIA

MASTERS & PARSONS AND ORS

[2013] FamCA 916

FAMILY LAW – APPOINTMENT OF A CASE GUARDIAN – property settlement proceedings – physical incapacity - application by the wife for the appointment of a case guardian - whether a case guardian should be appointed – whether husband is fit and able to give instructions - where husband’s physical health is considered

Family Law Rules (Cth) 2004 – R. 6.08

APPLICANT:	Ms Parsons
RESPONDENT:	Mr Masters
FIRST INTERVENERS:	Anthony Arnold Cheney & Peter Neil Wilson
SECOND INTERVENER:	Mr H

FILE NUMBER:	SYF	3340	of	2006
DATE DELIVERED:	26 November 2013
PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney
JUDGMENT OF:	Loughnan J
HEARING DATE:	13 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Batey
SOLICITOR FOR THE APPLICANT:	Champion Legal
RESPONDENT HUSBAND IN PERSON:	Mr Masters
FIRST INTERVENERS:	No appearance (excused)
SECOND INTERVENER:	No appearance (excused)

Orders

IT IS ORDERED

As to the orders sought at paragraphs (6)(1) and (2) of the wife’s Application in a Case filed 31 July 2013, the application is dismissed.
The proceedings shall be listed on a date convenient to all parties for directions in relation to all outstanding interlocutory issues and leave is granted to any party to attend on that date by telephone.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Masters and Parsons and Ors 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 SYDNEY

FILE NUMBER: SYF 3340 of 2006

Ms Parsons

Applicant Wife

And

Mr Masters

Respondent Husband

Anthony Arnold Cheney and Peter Neil Wilson

First Interveners

Mr H

Second Intervener

REASONS FOR JUDGMENT

INTRODUCTION

These are contested proceedings for the appointment of a case guardian for the husband for the purposes of proceedings which involve settlement of property between husband and wife and related litigation involving third parties.
The wife seeks and the husband opposes the appointment of a case guardian for him. The substantive proceedings involve third parties who do not wish to be heard in relation to this issue and who were excused for the purposes of this interlocutory hearing.
The wife’s application is without merit and will be dismissed for the following reasons.

THE HEARING

On 20 September 2013 an order was made fixing the matter for hearing of the wife’s application for the appointment of a case guardian for the husband on 13 November 2013. The order appointing the hearing also referred to the hearing of any application for interim costs filed and served within seven days from 20 September 2013. No such application was filed although on 5 November 2013 the husband did file an application seeking interim costs, among other orders.
On 12 November 2013, the matter was briefly mentioned at the husband’s request pursuant to a direction I had made that any party who became aware of something that would prevent the hearing commencing or being completed on 13 November 2013, should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Masters and Parsons & Ors

Details

AGLC: Masters and Parsons & Ors [2013] FamCA 916
Case: [2013] FamCA 916
Decision Date: 26 November 2013

CaseChat Overview and Summary

In the Family Court of Australia, Justice Loughnan considered an application by the wife for the appointment of a case guardian for the husband in property settlement proceedings. The wife's application was based on concerns regarding the husband's physical health and his alleged inability to give instructions.

The central legal issue before the Court was whether the husband was fit and able to give instructions, and consequently, whether a case guardian should be appointed to represent his interests in the ongoing property settlement proceedings.

Justice Loughnan dismissed the wife's application for the appointment of a case guardian. The Court found that the husband was sufficiently fit and able to give instructions, despite his physical health considerations. The Court did not consider it necessary to appoint a case guardian in these circumstances.

The proceedings were subsequently listed for directions regarding outstanding interlocutory issues, with leave granted for any party to attend by telephone.

Orders

Orders of the court

IT IS ORDERED

As to the orders sought at paragraphs (6)(1) and (2) of the wife’s Application in a Case filed 31 July 2013, the application is dismissed.

The proceedings shall be listed on a date convenient to all parties for directions in relation to all outstanding interlocutory issues and leave is granted to any party to attend on that date by telephone.

Background

Background to the litigation

Full text does not contain this section.

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.