NEMECK & NEMECK - [2019] FCCA 3205

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEMECK & NEMECK

[2019] FCCA 3205

Catchwords:
FAMILY LAW – Property settlement – dispute concerning appointment of litigation guardian – both parties elderly and vulnerable.

Legislation:

Family Law Act 1975 (Cth), ss.17A, 117(2)

Federal Circuit Court Rules 2001 (Cth), rr.11.08(1), 11.10, 11.11, 13.10

Cases cited:

Kalinicos v Hunt (2005) 64 NSWLR 561

Kannis & Kannis [2002] FamCA 1150

L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114

Mastermann-Lister v Brutton & Co (Nos 1 & 2) [2003] 1 WLR 1511

Applicant:

MR NEMECK

Respondent:

MS NEMECK

File Number:

ADC 5350 of 2018

Judgment of:

Judge Brown

Hearing date:

30 October 2019

Date of Last Submission:

30 October 2019

Delivered at:

Adelaide

Delivered on:

8 November 2019

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Tindall Gask Bentley

Counsel for the Respondent:

Ms Lewis

Solicitors for the Respondent:

Andersons Solicitors

ORDERS

That pursuant to Rule 11.11 of the Federal Circuit Court Rules that Mr A be appointed as Litigation Guardian for the Respondent, Ms Nemeck, in these proceedings.
That Mr A be granted leave to file on the Respondent’s behalf, a Response to the Initiating Application, an Affidavit in support and a Financial Statement within twenty eight (28) days of today’s date.
Pursuant to Section 26 of the Federal Circuit Court of Australia Act 1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 12 February 2020 at 9.15am.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
No later than 28 days prior to the Conference, the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.
No later than 28 days prior to the Conference, the parties exchange all valuations or appraisals of any assets of property in dispute between them both real and personal together with all relevant financial documents as specified in Rule 24.03 of the Federal Circuit Court Rules.
Further consideration of the matter is adjourned to 13 March 2020 at 9.30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym Nemeck & Nemeck is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5350 of 2018

MR NEMECK

Applicant

And

MS NEMECK

Respondent

REASONS FOR JUDGMENT

Introduction

These are matrimonial property proceedings, which arise following a lengthy marriage between two individuals, who are each now of advanced years and in poor health. In net terms, although it cannot be established with any degree of exactitude, the pool of property available to be divided is around $600,000.00.
This case concerns controversies arising in respect of the appointment of a litigation guardian for one of the parties concerned. Commonly, this is not a contentious issue but due to…

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 NEMECK & NEMECK

Details

AGLC: Nemeck and Nemeck [2019] FCCA 3205
Case: [2019] FCCA 3205
Decision Date: 8 November 2019

CaseChat Overview and Summary

In the matter of *Nemeck & Nemeck*, heard in the Federal Circuit Court of Australia before Judge Brown, the dispute concerned the appointment of a litigation guardian for the Respondent, Ms Nemeck, who, along with the Applicant, was elderly and vulnerable.

The primary legal issue before the Court was whether it was appropriate to appoint a litigation guardian for Ms Nemeck to enable her to participate effectively in the property settlement proceedings. The Court was also required to consider the procedural steps necessary to advance the property settlement itself, given the parties' circumstances.

Judge Brown reasoned that the appointment of a litigation guardian was necessary to ensure that Ms Nemeck's interests were properly represented and that she could participate in the proceedings. The Court applied Rule 11.11 of the Federal Circuit Court Rules, which permits the appointment of a litigation guardian for a party who is unable to manage their own affairs. The Court also made orders for the filing of a Response, an Affidavit, and a Financial Statement by the Respondent, and directed the parties to attend a Conciliation Conference. Further orders were made regarding informal discovery, exchange of valuations and financial documents, and adjourned the matter for further directions.

Orders

Orders of the court

That pursuant to Rule 11.11 of the Federal Circuit Court Rules that Mr A be appointed as Litigation Guardian for the Respondent, Ms Nemeck, in these proceedings.

That Mr A be granted leave to file on the Respondent’s behalf, a Response to the Initiating Application, an Affidavit in support and a Financial Statement within twenty eight (28) days of today’s date.

Pursuant to Section 26 of the Federal Circuit Court of Australia Act 1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 12 February 2020 at 9.15am.

Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.

No later than 28 days prior to the Conference, the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.

No later than 28 days prior to the Conference, the parties exchange all valuations or appraisals of any assets of property in dispute between them both real and personal together with all relevant financial documents as specified in Rule 24.03 of the Federal Circuit Court Rules.

Further consideration of the matter is adjourned to 13 March 2020 at 9.30am for directions.

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.