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 long-standing conflict between the various family members concerned, it has become so.
One party contends that the only fair way to solve the dispute is to appoint an independent and impartial person to perform the task, in the form of the public trustee. From the other side’s perspective, such an outcome would be improper, as it would cast unwarranted aspersions on his capacity to safeguard the interests of his mother.
Needless to say, the issue has precipitated extreme emotion from those who are involved in the dispute and I am fearful that these emotions may have the unforeseen consequence of clouding the judgment of those involved. It is regrettable that the court must decide the issue.
Given the age and shared vulnerability of the parties concerned and the extent of the asset pool, it is in both their interests and in the interests of propriety generally that the case be resolved as quickly as possible and without the need for a contested hearing. Such a hearing has the obvious potential to be both extremely emotionally stressful and to consume significant sums of money in legal fees.

Background

Mr Nemeck “the husband” was born on … 1934. In recent times, he has suffered poor health, being admitted to hospital in respect of both gastro-intestinal and psychiatric issues.
Ms Nemeck “the wife” was born on … 1941. She suffers from depression and mild cognitive impairment. Her doctor, Dr C considers her incapable of instructing solicitors in court proceedings.[1]
[1] See annexure A to the affidavit of Mr A filed 3 May 2019.
In these circumstances, on 3 July 2019, Ms D, a member of the South Australian Civil and Administrative Tribunal, made an order pursuant to the provisions of the Guardianship & Administration Act 1993 (SA) that Ms Nemeck’s son, Mr A “Mr A” and her daughter Ms E “Ms E” be appointed as the administrators of their mother’s estate.
There appears to be no controversy that the husband and wife began a serious relationship together in the early 1990’s and married in 1994. Each has adult children from earlier relationships. The precise date of their separation is unclear but must have been in the later part of 2018. Accordingly, their relationship must be considered a significant one, being approximately 26 years in duration.
In November 2018, the husband left the home, which he had hitherto shared with the wife and moved in with his son, Mr B “Mr B”. Mr B is a professional by occupation and also holds an enduring power of attorney donated to him by his father. The home in which the husband and wife previously lived is located at F Street, Suburb G. The wife owned this property at the commencement of the relationship with the husband. It was subject to a mortgage.
The wife has been in receipt of a disability pension since 1992. The husband worked as a labourer, until he retired in 1998, at the age of 64. During their marriage, each received inheritances. The F Street, Suburb G mortgage was paid off and monies were invested in shares and placed in bank accounts.
The husband contends that he did much to improve the value of the F Street, Suburb G property and was also the wife’s carer for much of the marriage. The husband was born in the UK and, as a result, is entitled to receive a modest UK pension, as is the wife as a consequence of the marriage between them. In addition, each receives a small pension through their respective Australian based superannuation funds.
It would seem to be the case that the parties lived frugally, living off their combined pensions and the interest received from monies held in term deposits and small share dividends. In dollar terms, the most significant asset is the F Street, Suburb G property valued at around $345,000.00.
Mr B commenced these proceedings on 28 December 2018. At this stage, he sought to be appointed his father’s litigation guardian on the basis Mr Nemeck Senior was then hospitalised at the Hospital H. In general terms, Mr B also sought a just and equitable division of the parties’ non-superannuation assets and superannuation.
Since that time, the husband himself has filed two affidavits and a statement of financial circumstances. As a consequence, neither he nor Mr B believe that it is necessary for a litigation guardian to be appointed for Mr Nemeck Senior.
On 3 May 2019, Mr A filed an application in which he sought to be appointed litigation guardian on behalf of his mother. The application is supported by affidavit material filed on behalf of Ms E. The husband filed a response to this application on 19 June 2019, in which he seeks the dismissal of Mr A’s application to be litigation guardian and in lieu thereof the Public Trustee for South Australia be appointed.
It would seem to be the case that there is little love lost between Mr B and the husband, on the one hand and Mr A and Ms E, on the other. It is also the case that the various aspects of the family assert that the other half has acted with some form of impropriety in respect of monies held by the husband and wife, involving the siphoning off of money.
These assertions are coloured by imputations that actions have been taken to preserve potential inheritance rights. Other obvious complexities arise as a consequence of the F Street, Suburb G property being registered in the wife’s sole name and therefore the husband currently having no legal claim on it and being without a permanent place of abode.
For obvious reasons, these circumstances have precipitated extreme emotional responses from all concerned and the issue of the appointment of a litigation guardian, for the wife, has become emblematic of the discord between the paternal and maternal aspects of the family.

Legal considerations

These are interim proceedings. As such, it is not possible for the court to resolve factual issues arising in the case. If necessary, any factual controversies will be decided at a final hearing, which will involve cross-examination of the various witnesses concerned and the close examination of all relevant documents.
In these circumstances, I am at pains to point out to all concerned, that I am simply not able to make any findings of fact concerning the allegations of any impropriety in respect of how the funds available to the husband and wife have been dealt with in the period leading up to the commencement of these proceedings.
However, these allegations and the strong emotions which they have precipitated, in my view, cannot be ignored in the resolution of the current issue before the court for determination. In addition, in my view, the matter must be resolved by reference to what is in the overall interests of justice, not necessarily just the interests of the various parties and individuals concerned.
In my view, the court has inherent jurisdiction to protect the integrity of its own processes, which include those involved in the appointment of litigation guardians. The underlying principle being that justice should not only be done but be seen to be done.
The appointment of litigation guardians is mandated by Division 11.2 of the Federal Circuit Court Rules 2001. In particular rule 11.08(1) reads as follows:
“(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.”
On the basis of Dr C’s report and the order of SACAT it seems uncontroversial the wife is in need of a litigation guardian for these proceedings. The controversy being should it be a person who is involved in the factual issues arising in the case – Mr A – or one who enjoys a statutorily based position of impartiality – the Public Trustee.
It should be noted that the Public Trustee does not charge in the event it is appointed to be a litigation guardian. However, the Public Trustee is apparently also careful to avoid being appointed if other candidates are available to undertake the role. In this context, an officer of the Public Trustee has written to Mr B’s solicitors in the following terms:
“I am concerned that it would not be appropriate that the Public Trustee be appointed as Litigation Guardian where it is apparent that another close family member is willing and able to act in that capacity, noting that she had appointed him as joint attorney in her Enduring Power of Attorney.”[2]
[2] See affidavit of Mr A filed 21 October 2019
The qualifications required to be a litigation guardian, under the Rules, are specified in rule 11.10, which reads as follows:
“A person may be a litigation guardian in a proceeding if he or she is an adult and has no interest in the proceeding adverse to the interest of the person needing the litigation guardian.”
It is Mr B’s position that he has no interest adverse to that of his mother and it is immaterial if he does or does not have an interest which is not consistent with that of either the husband or Mr B, given that litigation, under the Family Law Act 1975, conducted in this court, is invariably adversarial in nature, with each party concerned striving to gain advantage over the other side.
However, it is also clear from rule 11.11(1) that the court retains a discretion in respect of both the appointment, substitution and removal of a litigation guardian. The rule reads as follows:
“(1) The Court may, at the request of a party or of its own motion, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.”
The Rules are silent in respect of the considerations which are relevant to how the discretion is to be exercised. In this context, Ms Lewis, counsel for Mr A, relies on what was said by the Full Court of the Family Court in Kannis & Kannis.[3]
[3] Kannis & Kannis [2002] FamCA 1150 at [70]
In the case, which concerned issues as to whether a next friend (the legal precursor to a litigation guardian) should have been removed, on the motion of the trial judge concerned, because of non-disclosure of relevant assets, the Full Court noted that there were other safeguards available to the court to control the behavior of such individuals other than removal.
In this context, it is asserted that Mr A will retain solicitors and counsel, who are subject to the strictures of professional discipline and, in the event of other forms of potential impropriety, arising in the conduct of the proceedings, Mr A himself will be subject to costs orders under section 117(2) of the Family Law Act. Axiomatically, all litigation is to be conducted in accordance with the rules of court.
The Full Court of the Federal Court considered the practice and procedure underlying the appointment of litigation guardians, in this court, in L v Human Rights & Equal Opportunity Commission.[4]The Full Court (Black CJ, Moore & Finkelstein JJ) said as follows:
“The law relating to the appointment of a litigation guardian for a person who lacks the requisite capacity to conduct litigation or the capacity to give instructions to a person conducting litigation on their behalf, has a long history. Its origins can be traced back to the prerogative power of the Crown to protect those in need of protection on account of mental incapacity.
The law developed in the context of property disputes. In 1891, Kekewich J observed that it was ‘undoubted’ that the Chancery Division of the High Court had jurisdiction ‘to protect the estates of those who, though not found lunatic, are yet incompetent, by reason of a weakness of intellect, to take proceedings themselves – that is to say, to instruct their solicitors to take proceedings on their behalf’…”[5]
[4] L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114
[5] Ibid at [23]–[24]
The Full Court also approved statements of Kennedy & Chadwick LJJ in Mastermann-Lister v Brutton & Co (Nos 1 & 2)[6] in which the former said as follows:
“In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained”.[7]
And the latter said:
“The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend.”[8]
[6] Mastermann-Lister v Brutton & Co (Nos 1 & 2) [2003] 1 WLR 1511
[7] Ibid at 1525 [31]
[8] Ibid at 1536 [65]
Given the emphasis placed, in these passages, on the desirability of the court protecting its own processes, in my view, the situation in which a person wishes to restrain a firm of solicitors acting for another party in a relevant piece of litigation is broadly analogous to the situation arising in the current matter.
In such cases, the court must attempt to balance competing interests and considerations. It is desirous that individuals be entitled to retain the legal counsel of their preference in whom they hold confidence and trust. In a case, such as the present one, it is also desirous that the wife have as her litigation guardian a person whom she knows well and with whom she shares ties of affection and of blood.
On the other hand, in some cases involving confidential material which has been reposited, by several parties, into the hands of a particular lawyer, at an earlier stage, it may offend considerations of justice, if that lawyer is subsequently able to be retained by one party against the other in later proceedings.
In such cases, it is clear that the court has jurisdiction to grant an injunction restraining a particular solicitor from acting. In general terms, the authority to make such an injunction arises in any one of the following situations:
·a solicitor acting for one party holds confidential information, relating to the other party, creating competing fiduciary obligations in the solicitor, which are irreconcilable;
·the court has jurisdiction to protect the confidences of a former client of a solicitor, provided prior to the termination of the solicitor’s retainer, in circumstances where the solicitor concerned has been retained, by another person, for subsequent litigation involving the former client; and
·the court has authority to restrain a solicitor from acting in a particular case, as an incident of its inherent jurisdiction to control its processes and provide oversight of its officers, in aid of the administration of justice.[9]
[9] See Kalinicos v Hunt (2005) 64 NSWLR 561 at 582 [76] per Brereton J
In my view, it is the last of these considerations which is potentially applicable to the court’s discretion arising under rule 11.11 of the Rules. In the control of its procedures, the court may both appoint or remove a particular litigation guardian, if it is necessary to ensure the proper and efficient administration of justice.
The relevant authorities applicable to the court’s power to overrule one party’s entitlement to have the legal practitioner of his/her choice in proceedings is that the applicable discretion arising is one which must be exercised extremely carefully.[10] The freedom to select a lawyer, without fear of favour, being inherent in the principle of justice being not only done but being seen to be done.
[10] See Kalinicos v Hunt (supra)
In my view, similar considerations must apply to the exercise of the discretion to decline to appoint a litigation guardian on behalf of one party in circumstances in which the potential guardian is likely to have the confidence and trust of the person whom he or she will represent as a consequence of a long-standing familial relationship.
The test to be applied in respect of the removal of a legal practitioner is usually expressed in the following terms:
“whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice would require that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.”
In my view, it is considerations of this kind which should guide the exercise of the court’s discretion as to whether or not to approve the appointment of Mr A as the wife’s litigation guardian. Essentially, is it in the interest of justice, as objectively viewed, for him to be prevented from performing this role, notwithstanding his willingness to do so, given his mother’s proven incapacity?

The relevant considerations germane to this issue are likely to include the following factors:
·Will the appointment of the Public Trustee vis-à-vis Mr A ensure that the rights of the wife are adequately protected in the proceedings;
·What appointment will best ensure the protection of the integrity of the court’s processes and the advancement of the perception that justice has been done between the two elderly and vulnerable parties concerned in the case; and
·What appointment will best ensure the expeditious advancement of the case and that neither of the parties concerned is subject to what Kennedy LJ characterised as unnecessary pestering.

The husband’s case

It is significant, in my view, that it was Mr B, rather than Mr Nemeck himself who commenced these proceedings, which he did on 28 December 2018. At this stage, Mr B deposed that his father was then in hospital and in poor health. In these circumstances, Mr B sought to be appointed his father’s litigation guardian.
From Mr B’s perspective, the urgency of the situation was that his father had no permanent place of accommodation and had limited funds to rent a suitable place in which to live. He deposed that his father’s income was around $400.00 per month.
In these circumstances, Mr B complained, on his father’s behalf, that the wife was in control of the majority of the parties’ marital assets, particularly the F Street, Suburb G property, to which it was asserted Mr Nemeck Senior had made significant contributions.
Mr B also deposed that his father had received an inheritance, in the sum of $207,000.00 from the estate of his (Mr B’s) grandmother in 2016, which had been deposited into a term deposit. He also asserted that the wife had also received an inheritance, in an amount unknown to him, in 1997/98.
On 22 February 2019, the husband filed his own affidavit in which he indicated his view that he did not require a litigation guardian. He confirmed much of Mr B’s evidence but provided some detail of his medical issues, which included a history of rectal bleeding leading to hospitalisation in late 2018.
Significantly, the husband alleged that between December 2017 and November 2018, the wife and Ms E had removed the sum of $80,000.00, in five discrete transactions, from the parties’ joint bank account without consultation with him. He provided receipts to this effect, some of which apparently bear Ms E’s signature.[11]
[11] See affidavit of the husband filed 22 February 2019 at [22.2] & Annexure N1
In this context, he also deposed that he had been accused himself of withdrawing large sums by persons associated with the wife, a scenario which he resolutely refuted. In these circumstances, it is hardly surprising that a conciliation conference, ordered to take place on 8 May 2019, failed to resolve the issues outstanding between the husband and wife. A few days before the abortive conciliation conference, Mr A applied to be appointed his mother’s litigation guardian. The firm of solicitors, previously acting for the wife, withdrew from the proceedings on 19 June 2019.
The husband filed his response to Mr B’s application on 19 June 2019 supported by a further affidavit deposed by him. In his affidavit, he accepted the decline of his wife’s health and indicated his agreement to the appointment of a litigation guardian on her behalf. However, he opposes Mr A undertaking this role for the following reasons:
·Mr A (and indeed his siblings) have a vested interest in the outcome of the proceedings as any property settlement to be received by the wife will form part of her estate and they are her likely beneficiaries;
·Mr A and his siblings had threatened him if he (the husband) tried to take their inheritance;
·He also alleged that Mr A and Ms E had behaved aggressively towards him in respect of how he had spent money from the joint account he held with the wife and Ms E had chastised him in this regard;
·Mr A had referred to him as a snake in the context of the withdrawal of money;
·It was the wife rather than he who had withdrawn money from the joint account;
·He felt bullied by Ms E and Mr A to such an extent that he did not believe he could access the joint account;
·Ms E had demanded that he sign a document renouncing any interest in the F Street, Suburb G property notwithstanding he had lived in it for 26 years;
·He believed that he was a frugal person and had only withdrawn money from the joint account for living expenses;
·On 21 November 2018 he had felt bullied and badgered to such an extent by Mr A and Ms E that he had attempted suicide by drowning but had been rescued from the sea by two members of the public;
·Thereafter he had been admitted to hospital and placed under the care of a psychiatrist and later released into the care of Mr B;
·Six days after his suicide attempt, the wife’s children had advised Mr B that his (the husband’s) possessions could be collected from the F Street, Suburb G property;
·As a consequence, the husband perceived that he had been wrongfully evicted from his home; and
·On 26 November 2018, Ms E had withdrawn $12,000.00 from the parties’ joint account.
In all these circumstances, the husband has deposed as follows:
“In light of Mr A’s behaviour individually and with his siblings … I have a genuine concern that his vested interest in being a beneficiary of the wife’s estate will prevent him from undertaking the role of litigation guardian for the wife impartially and ensuring that the wife’s interests remain his primary concern.”[12]
[12] See Affidavit of the husband filed 19 June 2019 at [24]

Mr A and Ms E’s case

Due to her situation, the wife has not, as yet, filed any material setting out her own financial circumstances. The evidence of these matters comes exclusively from Mr A and Ms E. Initially, Mr A opposed the appointment of Mr B as his father’s litigation guardian, as he did not believe that sufficient evidence had been provided to establish the husband was not capable of providing instructions to his solicitor.
As previously indicated, Mr A deposed as to his mother’s medical situation and to the fact he and his mother have a close and loving relationship. He confirmed his mother had received an inheritance of $54,920.00, which had been paid into the parties’ joint account.
Mr A further denied actual knowledge of the inheritance asserted by Mr B but indicated his scrutiny of a bank statement indicated that a sum of $202,809.23 had been received in late December of 2016 but largely withdrawn a few days later.
It is Mr A’s position that, in the later part of the parties’ relationship, the husband controlled their finances and his mother had a limited knowledge in respect of them. In this context, Mr A alleged as follows:
“I am concerned that the applicant may have diverted significant amounts of the parties’ joint income from around 2014 until separation, without giving any account to my mother. I have seen documentation which shows from 4 March 2015 to 24 August 2018 there were teller machine withdrawals from the parties’ Pensioner Security Account with CBA totalling $84,950.00. I have been told that those withdrawals were made by the applicant. Further, during that period there were branch withdrawals for the same account totalling $48,100.00. I am concerned that these sums may have been placed in other accounts to which my mother has no access. Further, there have been significant and regular withdrawals from the joint CBA passbook account, for which there seems to be no account.” [13]
[13] See affidavit of Mr A filed 3 May 2019 at [31]
In an affidavit filed on 1 August 2018, Mr A denied ever having threatened or bullied the husband. He acknowledged that the two had had a falling out over issues to do with the purchase of a mobility aid for the wife. In this context only, he acknowledged referring to the husband as a snake.
He denied being the agency of any eviction of the husband from the F Street, Suburb G property asserting that it was Mr Nemeck who had initiated the parties’ separation and Mr B who had instigated the collection of his father’s possessions from the former matrimonial home.
It is Mr A’s evidence that it was the husband rather than the wife, who controlled the parties’ finances, of which his mother had limited knowledge. In early December 2017, the husband was admitted to hospital because of a fall. As a consequence, he and Ms E began to examine the parties’ joint bank account and noticed that large sums of money were missing.
The implication of this evidence being that the monies had been removed by the husband to the detriment of his mother. This state of affairs led to he and Ms E being appointed as the wife’s power of attorney in early 2018.
Ms E confirms her brother’s evidence. She asserts that her scrutiny of the parties’ joint bank account indicates that small withdrawals had been made at the F Street, Suburb G branch of the CBA from 2015 onwards, which inquiries at the bank indicated emanated from the husband. When challenged by her, she alleges the husband indicated to her that the sums were referable to his inheritance.
This state of affairs had led to Ms E and the wife withdrawing a further sum of $60,000.00 and placing it into an account in the wife’s sole name. Ms E also confirmed that she and the husband had disagreed about the appropriateness of the wife been provided with a mobility scooter.
She further asserts that she attempted to discuss with the husband the issues surrounding the withdrawals but found him to be evasive and defensive about the matter. She denies any suggestion that she has behaved in an aggressive or threatening manner towards Mr Nemeck Senior about these issues or any other.
It is further Ms E’s opinion, as a consequence of having read an undated letter, written by Mr B to his father, that there is bad blood between the husband and his two sons (Mr B and Mr J) regarding what the latter will receive from the former’s estate. In these circumstances, Ms E deposes as follows:
“Mr A and I have become increasingly concerned that as a result of pressure from Mr B and Mr J about their expected inheritance under the husband’s estate, the husband has been syphoning money from the parties’ joint funds for his own benefit.”[14]
[14] See affidavit of Ms E filed 1 August 2019 at [43]

Conclusions

I am not in a position to make concluded findings of fact in respect of the conflicting allegations regarding the misappropriation of monies from the parties’ joint account. On the one hand, the husband asserts that it is the wife, in concert with Mr A and Ms E, who have withdrawn monies and acted toward him in a cavalier and intimidating fashion, which have driven him to the brink of suicide.
On the other hand, Mr A and Ms E allege that they have evidence which indicates that it has been the husband who has acted surreptitiously and unilaterally in respect of withdrawing a significant sum of money, in small increments, over time and when they have been involved in moving money, to their mother’s sole account, it has been done protectively.
As the matter proceeds to resolution, issues are likely to arise regarding how each party’s inheritance is to be approached. This, in turn, has the potential to raise ramifications regarding estate management from both the husband’s and the wife’s perspective. Mr B and Mr J, on the one hand and Mr A and Ms E, on the other are likely to have some interest in such issues.
In addition, at this juncture, it seems inevitable that both Ms E and Mr A will be witnesses in the proceedings, if it goes to trial, which I hasten to add, should be an outcome all involved in the case should try and avoid.
This is a case which involves two elderly and vulnerable individuals, who do not enjoy good health. The husband was hospitalised due to an attempt on his life; the wife is suffering from depression and some form of cognitive impairment. In these circumstances, it is to be anticipated that those who love them, chiefly their now adult children, will wish to be protective of the parent concerned. Such circumstances are also liable to raise strong emotions in the individuals concerned and in general terms not to be helpful to the maintenance of objectivity.
However, it is also the case that very many family law cases, certainly those that proceed to trial, precipitate powerful passions in those involved in them. It is difficult to see that a strong alignment between a party and a litigation guardian is, of itself, a ground for dismissal or non-appointment.
It is also a case in which those same individuals have made serious allegations of what is often referred to as elder abuse against, in effect, their siblings in law. On any view, these circumstances have the potential to become emotionally fraught and perhaps lead to the prolongation rather than curtailment of litigation.
In my view, although the court cannot resolve these issues of alleged abuse, both financial and physical, at this interim stage, it is obliged to give them some credence, given the established vulnerability of each party. In my view, the public has an interest in ensuring elderly litigants are safeguarded from the worst aspect of adversarial litigation, if at all possible.
In specific terms, I accept that there is no evidence to indicate that Mr A has an interest adverse to that of his mother. No doubt he wishes her to be able to resolve these proceedings and retain her share of the parties’ matrimonial estate as is just and equitable in all the circumstances. There is no evidence to indicate he would want his mother to receive less than her proper entitlements. In this sense their interests align. It would seem axiomatic that both would want to retain as much as possible of the matrimonial property.
The concerns raised by Mr Nemeck that, in some way, Mr A will lack objectivity about his mother’s affairs because of his animosity for him personally or his desire to maximise his own future entitlements are, in my view, largely conjectural. In addition, apart from the fact that it is not likely to be helpful to the wife’s psychological equilibrium for the proceedings to be unduly protracted, these are not necessarily factors adverse to her interests.
The court has at its disposal, in the form of the application of its rules, mechanisms to control potential misconduct by the parties in the proceedings which come before it. The most obvious is the power to dismiss aspects of a party’s case that have no reasonable prospects of being successfully prosecuted. [see: Federal Circuit Court of Australia Act 1999 at section 17A and the Federal Circuit Court Rules 2001 at rule 13.10]
It also has the power to make awards of costs, arising from any deficits in how a party conducts proceedings or unreasonably rejects an offer of settlement. Although I acknowledge it is a somewhat trite statement, it is a not uncommon phenomenon that the court has to deal with litigants who present as being objectively unreasonable as a consequence of being subject to powerful emotional currents, in proceedings arising under the Family Law Act.
The question remaining is whether the protection of the integrity of the court’s processes, in a case involving vulnerable litigants who are each the subjects of elder abuse, mandates the appointment of a person as litigation guardian who is demonstrably independent and at arm’s length from the person being represented.
Counter to this contention is the fact that it is also likely to be in the public interest that elderly litigants are represented by their kith and kin because of the warmth and trust that should naturally arise between parent and child. There is nothing to indicate that the wife does not wish to be represented by Mr B or that she does not trust him.
In Masterman-Lister Kennedy LJ spoke of parties being protected from being pestered by other parties through the appropriate appointment of a litigation guardian. Up to this stage, it has been the case that each party has been legally represented. Members of the legal profession are subject to professional rules of conduct, which are directed to the avoidance of litigants, including unrepresented ones, being subject to such badgering.
In addition, the court itself, in the conduct of its processes, is able to control the conduct of parties coming before it. This would include any process of court ordered conciliation, which is ordinarily mandated before cases come to trial.
I appreciate the sensitivities likely to be provoked by a case of this kind, which has quite obviously driven a wedge between the two sides concerned. It is in the public interest that there be no perception that the law condones the bullying of elderly or vulnerable litigants.
However, having attempted, as best I can, to balance these factors against one another, I have concluded that Mr A does not have any interest adverse to that of his mother and although the case has created many powerful and conflicting emotional currents, it is not in the overall interests of justice that he should be prevented from being his mother’s litigation guardian. To the contrary, it is in the public interest that, wherever possible, relatives should perform this function.
Finally, it is to be hoped that the institutions of the court itself will provide an appropriate level of protection to all who are involved in the case. That is not to say that there is not a significant possibility that the emotions unleashed by the case will not lead it to become unduly protracted and an early and appropriate resolution avoided.
However, in my view, given such circumstances are the corollary of many family law proceedings that is not sufficient justification to appoint the public trustee, notwithstanding the involvement of elderly and vulnerable litigants in the case.
For all these reasons, I propose to make orders in terms of the application in a case filed on 3 May 2019 and appoint Mr A as litigation guardian for the wife.
The normal rule in family law proceedings is that each party should bear their own costs. However, pursuant to section 117(2) of the Act, the court is authorised to make any order for costs as it considers just.
I view the issue which I have had to adjudicate in this case as being a difficult and finely balanced one. I do not doubt the motivations of either side in this emotionally replete matter. Each side, in the stance adopted by him, has wished to afford protection to an elderly and vulnerable litigant – in Mr A’s case, his mother; and in the husband’s case, himself.
In these circumstances, I do not propose to make any order for costs. I will, however, appoint a date for a conciliation conference and make the normal orders which are related to that.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 8 November 2019