Palmer and Palmer
[2009] FamCAFC 9
•23 January 2009
FAMILY COURT OF AUSTRALIA
| PALMER & PALMER | [2009] FamCAFC 9 |
| FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Application by the wife to re-open the hearing of the appeal to adduce further evidence – Application by the wife for the appointment of a case guardian – Case guardian appointed for the purpose of applying to re-open the hearing of the appeal in order to seek leave to adduce further evidence in the appeal concerning the wife’s current state of health and likely future disabilities and needs. |
| Family Law Act 1975 (Cth) s 94(2D) Family Law Rules, Chapter 6 |
| LL & PL & SDP [2005] FamCA 715 |
| APPLICANT: | Ms Palmer |
| RESPONDENT: | Mr Palmer |
| FILE NUMBER: | BRC | 2059 | of | 2007 |
| APPEAL NUMBER: | NA | 18 | of | 2008 |
| ORDERS MADE: | 22 January 2009 |
| PLACE HEARD: | Canberra (by video link to Brisbane) |
| JUDGMENT OF: | Finn J |
| REASONS FOR ORDERS PUBLISHED: | 23 January 2009 |
| PLACE DELIVERED: | Canberra |
| HEARING DATE: | 22 January 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 February 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 86 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Harrington |
| SOLICITOR FOR THE APPELLANT: | Harrington Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway |
| SOLICITOR FOR THE RESPONDENT: | Reardon & Associates |
Orders made 22 january 2009
That [Ms J] be appointed as case guardian for the wife for the purpose of applying to re-open the hearing of the appeal in order to seek leave to adduce further evidence in the appeal concerning the wife’s current state of health and likely future disabilities and needs.
That the application filed by the wife on 18 December 2008 for leave to make an application to re-open the hearing of the appeal in order to seek leave to adduce further evidence, be treated as an application by the case guardian.
That the application of the case guardian for the hearing of the appeal to be re-opened in order to seek leave to adduce further evidence be adjourned for mention before the Full Court (being, the Honourable Chief Justice Bryant, the Honourable Justice Finn and the Honourable Justice May) in the Brisbane sittings commencing on 20 April 2009, but with liberty to both parties to apply to the Honourable Justice Finn, through the Brisbane Appeal Registrar, for an earlier mention of the matter before her Honour if necessary.
That the costs of the proceedings this day be reserved as costs in the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Palmer & Palmer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: NA 18 of 2008
File Number: BRC 2059 of 2007
| Ms Palmer |
Appellant
And
| Mr Palmer |
Respondent
REASONS FOR ORDERS MADE
These are reasons for orders which I made on 22 January 2009 and which included an order for the appointment of a case guardian for the wife, who is the respondent to an appeal by the husband against orders for property settlement made by Lucev FM on 8 February 2008. The orders made on 22 January 2009 are set out at the commencement of these reasons.
Background
There was a hearing of the husband’s appeal on 15 May 2008 by a Full Court comprising the Chief Justice, May J and myself. At the conclusion of the hearing on that day, the appeal was stood over, with directions being made for further written submissions from the parties directed to a possible re-exercise of the discretion by the Full Court in the event that the Full Court was minded to allow the appeal.
Such submissions were filed on behalf of the appellant husband on 6 June 2008, on behalf of the respondent wife on 21 July 2008, and in reply on behalf of the appellant husband on 1 August 2008.
However, on 28 July 2008 an application to re-open the hearing of the appeal was filed by the respondent wife, for the purpose of seeking leave “to produce fresh evidence”, being affidavits from the wife and a medical practitioner relevant to her state of health.
At a hearing on 6 August 2008, the Full Court ordered that the further evidence of the wife and the medical practitioner be received by the court (subject to certain passages being struck out). Also at the hearing on 6 August 2008, both sides continued to urge the Full Court to re-exercise the discretion in the event that the appeal was found to have substance.
On 29 November 2008 while the Full Court’s judgment remained reserved, the wife suffered what has been described by her doctor as “a significant stroke”.
On 18 December 2008 an application was filed by the wife seeking leave to re-open the appeal, the appointment for the purposes of the appeal of Ms J as case guardian for the wife, leave to adduce further evidence, and directions for the further conduct of the proceedings.
That application was supported by an affidavit from the wife’s solicitor annexing a draft affidavit from the wife’s doctor, Dr W, together with a letter from Dr W in which it was stated:
“[The wife] has suffered a significant stroke on the 29/11/2008 resulting in loss of power on the right side. She is currently undergoing rehabilitation in the geriatric rehabilitation unit. We anticipate that there would be some permanent disability as a result of this stroke which will require ongoing care.”
Subsequently on 7 January 2009, a sworn affidavit by Dr W (in the same terms as her draft affidavit) was filed.
In these circumstances, it was appropriate for the Full Court’s judgment in relation to the appeal to remain reserved, and for a directions hearing to be conducted to determine the future course of the appeal. Such a directions hearing was able to be conducted by me on 22 January 2009.
In anticipation of that directions hearing an affidavit was filed on 21 January 2009 by Ms J, who is a long-standing close friend of the wife, and who is prepared to act as case guardian for the wife.
The appointment of the case guardian
I understood it to be common ground at the hearing on 22 January 2009, that it was necessary as a first step in the future progress of the appeal, for a case guardian to be appointed for the wife, and that I could do this as a single Judge under the provisions of the Family Law Rules concerning the appointment of case guardians (Chapter 6) and by an exercise of the powers of a single Judge to make procedural orders for the conduct of an appeal under s 94(2D) of the Family Law Act 1975 (Cth).
I mention here that counsel for the husband informed me that although he did not have instructions to consent to the appointment of a case guardian, he would not be making any submissions in opposition to that appointment, provided the appointment was for the limited purpose of the application to re-open the hearing of the appeal in order to seek leave to adduce further evidence concerning the wife’s state of health.
In my view, the provisions of the Family Law Rules concerning case guardians can be best understood and applied by referring first to the definitions of “case guardian” and “person with a disability” in the Dictionary in the Rules. Those definitions are as follows:
case guardian means a person appointed by the court under rule 6.10 to manage and conduct a case for a child or a person with a disability, and includes a next friend, guardian ad litem, tutor or litigation guardian (see Part 6.3).
person with a disability, in relation to a case, means a person who, because of a physical or mental disability:
(a) does not understand the nature or possible consequences of the case; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.
I observe at this point that I was satisfied that the wife in this case could be found to come within paragraph (b) of the definition of “person with a disability” on the basis of paragraph 7 of Dr W’s affidavit (thus permitting the court to appoint a case guardian for her). Paragraph 7 of the doctor’s affidavit reads as follows:
Although [the wife] has capacity to understand her legal rights and give verbal instructions, she may benefit from an appointment of a litigation guardian due to physical incapability and severe mental distress due to the stress of the court case. In her current condition, her stress of giving instructions may jeopardise her rehabilitation and recovery.
Sub-rule (1) of rule 6.10 (to which reference is made in the definition of “case guardian”) provides as follows:
(1) A person may apply for the appointment, replacement or removal of a person as the case guardian of a party.
Given Dr W’s evidence (earlier set out) concerning the wife’s capacity to provide instructions, there was no difficulty, in my opinion, occasioned by the fact that it was in the wife’s own application (filed on 18 December 2008) that the application for the appointment of Ms J as case guardian was made. (See by way of analogy the decision of the Full Court in LL & PL & SDP [2005] FamCA 715 concerning the right of a person to apply under rule 6.10 for the removal of his case guardian).
The qualifications, or criteria, for a person to be appointed as a case guardian are set out in rule 6.09 which is in the following terms:
A person may be a case guardian if the 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 the case guardian.
I was satisfied on the basis of Ms J’s affidavit, that she has all necessary qualifications, or satisfies all necessary criteria, for appointment as the wife’s case guardian, and that she had consented to that appointment. I was thus prepared to make the order appointing Ms J as the wife’s case guardian.
Counsel for the husband had sought that such an appointment should be limited to the making of an application for the re-opening of the appeal for the purpose of seeking leave to adduce further evidence concerning the wife’s current state of health and likely future prospects. The solicitor for the wife was prepared to accept such a limitation on the appointment. I note in this regard that the application for the appointment of the case guardian (filed on 18 December 2008) expressly sought that the appointment be made “for purposes of the appeal”. However, as I believe I observed during the directions hearing, there would be nothing to stop the case guardian applying for an extension of purposes of her appointment should the necessity arise in the future.
Given the purposes of the case guardian’s appointment, and also in the interests of resources, I considered it appropriate to make an order that the wife’s application to adduce further evidence contained in her application filed on 18 December 2008 should now be treated as the application of the case guardian.
Future course of the appeal
Having appointed the case guardian, I sought advice from the solicitor for the wife (then also the solicitor for the case guardian) as to what further evidence would be sought to be adduced and as to when such evidence would be available in order that the application to receive such evidence could be considered by the Full Court.
The solicitor referred me to the evidence of Dr W to the effect that the wife would be in hospital for a period of approximately three months (that is, to the end of February 2009) and that at the end of that period the doctor would be better able to assess her likely future prospects and needs. The solicitor also informed me that there may be a need to obtain, in addition to medical evidence, other evidence relating to practical matters concerning the wife’s living arrangements.
I did not understand counsel for the husband to be unduly concerned regarding this delay in obtaining the further evidence. Rather his concern was that there should be more specific evidence obtained concerning the wife’s condition, although he also emphasised the need for finality to be achieved in this litigation.
Perhaps more importantly, however, counsel for the husband considered that the appointment of the case guardian would now permit some discussions to take place between the parties and/or their representatives, which apparently has not been possible since the wife suffered her stroke.
By way of providing some timetable for the continuation of the appeal proceedings, it was agreed with the representatives of both parties that I would list the appeal (at least for mention) in the Full Court sittings in Brisbane in the week commencing 20 April 2009, on which sittings the Chief Justice, May J and myself are all scheduled to sit.
I also gave the parties liberty to apply to the Brisbane Appeal Registrar for a further mention before myself, should it be required.
With the agreement of both sides I reserved the costs of the directions hearing as costs in the appeal.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn
Associate:
Date: 23 January 2009