Peele & Minney (No 2)
[2024] FedCFamC1F 910
•17 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Peele & Minney (No 2) [2024] FedCFamC1F 910
File number(s): ADC 1649 of 2021 Judgment of: KARI J Date of judgment: 17 December 2024 Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE - Ex Tempore Reasons – Appointment of a litigation guardian Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.12, Pt 3.5 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 17 December 2024 Place: Adelaide Counsel for the Applicant: Ms Conduit Solicitor for the Applicant: Marciano Lawyers Counsel for the Respondent: Ms Robertson-Clark Solicitor for the Respondent: Belperio Connell Lawyers ORDERS
ADC 1649 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PEELE
Applicant
AND: MR MINNEY
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
17 DECEMBER 2024
THE COURT ORDERS THAT:
1.Ms N of O Lawyers be appointed for and on behalf of the respondent, Mr Minney, as Litigation Guardian in these proceedings.
2.No later than 4.00 pm on 5 March 2025 the parties do by way of joint communication advise the court whether the matter has resolved or not.
3.The proceedings be adjourned for further case management to 11 March 2025 at 4.30 pm.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peele & Minney has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
I have before the Court today an Application in a Proceeding filed on 1 November 2024 on behalf of the respondent seeking orders for the appointment of a litigation guardian and, in particular, nominating the appointment of the respondent’s daughter, Ms P, to be appointed as the litigation guardian for the respondent.
The application is formally opposed pursuant to the orders sought in the Response to the Application in a Proceeding filed by the applicant in the substantive proceedings on 3 December 2024.
The parties are engaged in litigation and the substantive issue at this stage is the threshold question of whether or not the parties were in a de facto relationship. The determination of that threshold question will either open the door to jurisdiction and likely litigation with respect to the question of property settlement between the parties or, alternatively, if the declaration that a de facto relationship did not exist is made, then the door is shut to any further litigation in this jurisdiction as the Court would lack jurisdiction to hear any dispute between the parties.
Simultaneous with the litigation in this Court, there are also proceedings pending in the State Court in relation to a dispute between the parties regarding a property legally owned by the applicant in these proceedings, over which the respondent makes an ownership claim.
The proceedings in this Court were listed for trial and indeed the trial commenced before me on 16 October 2024. During the course of the final hearing, the applicant gave evidence and was cross-examined. The proceedings were adjourned partway through the cross-examination of the respondent.
From the court’s perspective it is a little unclear as to exactly what has occurred, however ultimately the respondent’s solicitors formed a concern as to the capacity of the respondent. It appears from the material now filed in relation to the Application in a Proceeding, that in part, the solicitor’s concern was as a result of the respondent’s presentation in the witness box during the course of his cross-examination. The concern is said to have arisen as early as the moment that the respondent was sworn in to give his evidence in these proceedings.
Ultimately, those concerns found their way to an assessment being undertaken of the respondent. I have, in support of the Application in a Proceeding, a number of documents, but importantly a report prepared by Dr Q. That report is annexed to the affidavit of Ms P filed on 1 November 2024.
I have had regard to that report. In particular, I have had regard to the fact that Dr Q was conscious of the requirements pursuant to Part 3.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and in particular r 3.12, which sets out the requirements for a person who needs a litigation guardian as follows:
3.12 Person who needs a litigation guardian
(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a) does not understand the nature and possible consequences of the proceeding; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2) Unless the court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
I have had regard to the report of Dr Q, and I am satisfied that the respondent is a person who is in need of a litigation guardian.
While the application has been opposed by the applicant, the applicant has today identified an agreement that has been brokered with the respondent and the litigation guardian proposed in the application, Ms P.
The agreement that has been brokered is that it is appropriate to appoint a litigation guardian for the respondent, and that rather than Ms P being appointed to undertake that role, that an independent person, namely, a solicitor, be appointed to fulfil that role. I am satisfied that the proposed independent solicitor (Ms N) is an appropriate person to be appointed as the respondent’s litigation guardian in these proceedings.
It is an agreed position at this stage, to the extent that it is possible for the respondents to agree to the same, that Ms N be appointed the litigation guardian in order to, in a timely way, progress the litigation towards a mediation and, if unable to be resolved, a final hearing.
It is equally an agreed position between the parties that any final hearing will need to proceed before a judicial officer other than me, given the events which have transpired. To that extent, the Court will conduct a case management hearing following the proposed mediation to determine the path forward.
There is also an extant costs application that has been filed by the applicant in the substantive proceedings on 3 December 2024. That application relates to the costs effectively thrown away in relation to the trial that proceeded before me and possibly some steps taken earlier in the proceedings. That application can and will be listed before me if the parties are unable to reach a resolution of that application at any mediation.
NOTE:
These reasons have been corrected from the transcript. Grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 23 January 2025
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