Mynatt and Siddall & Anor

[2019] FamCA 353

FAMILY COURT OF AUSTRALIA

MYNATT & SIDDALL AND ANOR [2019] FamCA 353

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of Case Guardian.

Family Law Act 1975 (Cth)
Family Law Rules

APPLICANT: Ms Mynatt

RESPONDENT: Mr Siddall

2^nd RESPONDENT: Mr G Siddall

FILE NUMBER: WOC 411 of 2014

DATE DELIVERED: 29 May 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 29 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rebecca Bailey & Associates

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE 2^ND RESPONDENT: Litigant in person

Orders

1. Ms B Mynatt be appointed as Ms Mynatt’s case guardian.

2. This matter be adjourned to 8 August 2019 at 2.15pm for mention by telephone. To participate in this mention by telephone please dial … and at prompt enter password ….

3. By 6 August 2019, Ms B is to file and serve any Amended Application for Final Orders and her affidavit in support of that Application.

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 Mynatt & Siddall 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 SYDNEY

FILE NUMBER: WOC 411 of 2014

Ms Mynatt

Applicant

And

Mr Siddall

Respondent

And

Mr G Siddall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Pursuant to rule 6.09 of the Family Law Rules 2004 (Cth) (“the Rules”), Ms B Mynatt has filed an Application in a Case for an order that she be appointed case guardian for Ms Mynatt in relation to these proceedings. That application is supported by two affidavits, one by Ms Bailey sworn 27 May 2019 and another by Ms B Mynatt sworn 27 May 2019.

2. The dictionary to the Rules defines a person with a disability as meaning:

   (a) a person who, because of a physical or mental disability does not understand the nature or possible consequences of the case; or

   (b)is not capable of adequately conducting or giving adequate instructions for the conduct of the case.

3. Ms Bailey’s affidavit discloses that she has been instructed as Ms Mynatt’s solicitor over a period of six years. During that period of time up until December 2018 she had been able to regularly obtain instructions from Ms Mynatt. The affidavit of Ms Bailey then goes on to detail the attempts that she has made since December 2018, to obtain instructions to enable her to comply with previous orders that I have made for the filing of Ms Mynatt’s primary affidavit.

4. I am satisfied on the evidence given by Ms Bailey that she has made extensive attempts to engage Ms Mynatt for the purposes of obtaining the necessary instructions to continue the case

5. Those attempts have also included an involvement with the Town C Information Service; Family and Community Services and Region K Community Mental Health Service. Ms Bailey caused a subpoena to issue to the Region J Health. She, this month, attended the Sydney Registry and inspected documents produced by that Service. On that file there were two particular documents which were of relevance. Firstly, a letter prepared by Dr L, psychiatrist, dated 22 January 2019 which he wrote following a home visit to Ms Mynatt on 18 January 2019. Without detailing the whole of what Dr M records, he concludes that Ms Mynatt is currently suffering from delusions of persecution. She has in the past had psychiatric treatment for depression and the possible previous diagnosis of schizoaffective disorder. His current diagnosis is that Ms Mynatt may have psychotic depression or schizoaffective disorder depressed phase with psychotic symptoms. He also records that Ms Mynatt is refusing treatment at the current time.

6. There was another document on the Service’s file which was a mental health assessment from a mental health worker who had attended the home of Ms Mynatt on 19 March 2019. Without detailing the entirety of that record, that worker formulated a diagnosis of persistent delusional disorder (unspecified).

7. Based on the information in those documents in particular, I have formed the view that Ms Mynatt satisfies the definition of a person with a disability pursuant to the Rules under both limbs of that definition.

8. Rule 6.09 of the Rules provides that a person may be case guardian if a person:

   (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 case guardian

9. The affidavit by Ms B Mynatt discloses that she is the 72 year old mother of Ms Mynatt and she consents to act as her case guardian. She deposes to the fact that she has no interest in the case that is adverse to the interests of her daughter. Having read her affidavit I conclude that she can fairly conduct the case for her daughter. She does note in her affidavit that she has been diagnosed with cancer and will be commencing radiation treatment for three weeks commencing Monday 3 June 2019 and would not be well enough to give evidence in that period or to provide instructions in that period, however, she is hopeful she will be in a position to do so in about eight weeks time. That casts some doubt as to whether or not she can competently conduct the case.

10. Ms Bailey has provided evidence that before she ceased to be able to obtain instructions from Ms Mynatt in December, she had taken a detailed proof of evidence in the case. Ms B Mynatt gives evidence that she has a comprehensive understanding of her daughter’s history relevant to the various applications before the court which are:

    a)A determination of whether or not a de facto relationship existed between the Ms Mynatt and Mr Siddall;

    b)A determination of whether or not an application for property adjustment should be allowed to proceed out of time;

    c)A determination of what property settlement order should be made if findings in respect of (a) and (b) allow a property settlement order to be contemplated.

11. Given the history and overall circumstances of the case and given that I have appointed Mr G Siddall who is aged 80 as the case guardian for his son (the first respondent), I am comfortably satisfied that Ms B Mynatt can competently conduct Ms Mynatt’s case.

12. I will make an order that Ms B Mynatt be appointed as Ms Mynatt’s case guardian.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 31 May 2019

Associate:   

Date:  29 May 2019