REID & HANLON

[2020] FamCA 868

FAMILY COURT OF AUSTRALIA

REID & HANLON [2020] FamCA 868

FAMILY LAW – PRACTICE AND PROCEDURE – Where there is an application by the husband that the parties’ daughter be appointed as his case guardian – Where the parties are elderly – Where the husband is struggling with the stress of the proceedings – Case guardian appointed – Ex-tempore reasons given.

Family Law Rules 2004 (Cth) rr 6.08, 6.09

APPLICANT: Mr Reid

RESPONDENT: Ms Hanlan

FILE NUMBER: SYC 398 of 2020

DATE DELIVERED: 17 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: York Law

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Beswick Lynch Lawyers

Orders

1. Ms B Reid, care of F Street, Suburb G in the State of New South Wales be appointed as case guardian for the respondent husband in these proceedings.

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 Reid & Hanlon 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:

Mr Reid

Applicant

And

Ms Hanlan

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Yesterday (16 September 2020), the lawyers for the husband filed an Application in a Case seeking an order that Ms B Reid be appointed as a case guardian for the husband in the proceedings (the application).

2. The husband is currently 87 years of age and the wife is 78 years of age respectively.

3. The husband and wife were married 1961 and have two children. Ms B Reid is one of those children. The parties divorced for the first time in July 1975. The husband and wife recommenced cohabitation in 1989/1990 as a de facto couple and remarried in May 2015. The parties divorced for a second time in October 2019.

4. The parties’ applications for competing property settlement orders have been expedited and are set down for hearing before me commencing 12 October 2020.

5. Mr Gould of counsel appears on behalf of the wife today. Counsel for the wife has made it clear that he does not wish to jeopardise the scheduled hearing dates nor in those circumstances, does he seek an adjournment for the purposes of putting on any evidence opposing this application. He was granted leave to make oral submissions setting out matters that the wife wanted to draw to the court’s attention.

6. The application is supported by an affidavit of Ms B Reid sworn 16 September 2020. Ms B Reid is the daughter of the parties.

7. Ms B Reid is 58 years of age; was admitted as a solicitor in the Supreme Court of New South Wales in 1994 and practised as a solicitor up until her retirement in 2017. She is currently financially independent.

8. Ms B Reid has been providing some assistance to her father during the course of this litigation. In particular she has been taking him to appointments with his lawyers and assisting him in collating documents that his lawyers have requested, including obtaining documents from banks.

9. There are two main assets held by the parties. One at C Town in which the husband lives and one at Suburb D which is where the wife lives.

10. The husband appointed Ms B Reid to be his power of attorney pursuant to a general power of attorney on 9 December 2019.

11. Ms B Reid says she has always been close to her father and is conversant with his financial affairs, particularly since these proceedings commenced. She says she is familiar with the purchases and sales of properties that her parents have undertaken during their first and second marriages to one another.

12. In the period between July 2017 and March 2019, Ms B Reid resided at the Suburb D property before her parents’ final separation.

13. Ms B Reid said that when she was staying in the Suburb D property with her parents prior to their final separation, she was involved to a degree at the request of her mother, in assisting her mother in various banking activities. During that time, Ms B Reid became alarmed at large amounts of monies that were being transferred from of her parents’ account. In August 2019 her father showed her a cheque butt which evidenced a payment out to some third person of whom they had no knowledge.

14. Mr Gould has mentioned this morning that the wife has some disquiet about the fact that her daughter is now going to be assisting the husband run his case but this is not a situation where there is any privileges involved and Mr Gould did not make any application resisting the application for Ms B Reid to be appointed as a case guardian on the basis of any conflict of interest. In any event, the conflict would need to be between Ms B Reid and her father for it to be relevant to the application.

15. Ms B Reid gives evidence that in the last few months the husband has been finding it increasingly difficult to understand the documentation compiled by his family lawyer or the advice that he has been receiving. She says there have been conversations between her and the husband about the wife’s withdrawal of funds. Ms B Reid says she has observed her father becoming easily confused and overwhelmed. She says on occasions the husband has become anxious and upset about the content of legal correspondence.

16. Mr Gould has pointed to the fact that the husband filed three affidavits between February and July this year. Ms Parks has indicated that she does not intend to rely on any of those affidavits and in fact, if Ms B Reid is appointed as a case guardian, she will not be tendering any evidence to the court sworn by the husband in the case that she presents to the court.

17. Ms B Reid is concerned that her father is not understanding the advice that he is being given and she talks of the stress that she observes that he is under as a result of being involved not only in these proceedings but also apparently in apprehended domestic violence proceedings in a Local Court. She says he is struggling to sleep and she has observed him to be “grey and tired”.

18. Ms B Reid has expressed the opinion that the husband has an excellent long-term memory but problems with his short-term memory. She gives hearsay evidence about opinions expressed by the husband’s general practitioner who was satisfied that the husband was not suffering from any cognitive decline but he is concerned about his physical deterioration, including loss of weight and the consequences of the stress of the two sets of legal proceedings.

19. Ms B Reid says that her father cannot talk easily on the telephone because of him suffering from industrial deafness and that hearing aids do not help. She asserts that to communicate more effectively with his lawyers he must see them face to face and she has concerns the trip that he has to make from C Town in the current environment of the pandemic.

20. Ms B Reid relates a conversation she had with her father on 11 September 2020 where he expressed the view to her that he didn’t think he could see the litigation through given his age and Ms B Reid expresses the view that her father would have difficulty giving evidence or giving instructions at a final hearing over any period that extended more than one hour. At the moment, this hearing is scheduled for two days.

21. Ms B Reid says that when she discussed the option of making this application with her father, her father indicated that he would be so relieved if she did so.

22. Ms B Reid says that she is prepared to consent to act as case guardian; that she would secure legal representation and meet the amended directions for the timing of the filing of evidence in the case.

23. The husband’s current family lawyer has filed an affidavit making a general assertion that the wife has failed to provide financial disclosure of dealings and that the matter is complex and that she has had to issue 16 subpoenas. She expresses the concern that her client has been overwhelmed by what she refers to as the pace of the proceedings but also their complexity. She confirms that she has had difficulty taking instructions because of the husband’s industrial deafness and she has observed the husband’s tiredness when he arrives for face to face meetings and what she opines is his struggle maintaining concentration over an extended period of time. She gives as an example events that took place on 10 and 11 September 2020 where the husband could only maintain attention for about an hour then he had to leave the lawyer’s offices, find some accommodation in the city, have a sleep and come back again and when he did he didn’t recall matters that had been discussed earlier that morning. It is Ms Parks’ view on the following morning, 11 September 2020, whilst he had a clear recollection of the early years of the marriage, he struggled to remember more recent events and struggled to understand legal advice that was being provided. Ms Parks formed the view that the husband did not have the capacity to sign the trial affidavit.

24. Ms Parks also opines that it is unlikely that the husband will have the physical stamina to provide instructions over the two days of the final hearing and that he may struggle with extended cross examination.

25. Ms Parks also observes that Ms B Reid has attended appointments and court events with her father throughout and that in Ms Parks’ view, they have a close and loving relationship with one another.

26. Rule 6.08(1) Family Law Rules provides that a person with a disability may continue a case only by a case guardian. The dictionary to the Rules defines a “person with a disability” as meaning 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 instructions for the conduct of, the case.

27. I am satisfied on the evidence that the husband satisfies the definition of being a person with a disability.

28. Rule 6.09 provides that a person may be a case guardian if the person is an adult, has no interest in the case that is adverse to the interest of the person needing the case guardian, can fairly and completely conduct the case for the person needing the case guardian and has consented to act as the case guardian.

29. Counsel for the wife does not make any submission that Ms B Reid does not fulfil all of those criteria but rather, as I have said, refers to his client’s disquiet, as a matter of morality, at the position her daughter is taking.

30. I am satisfied that Ms B Reid fulfils the requirements of Rule 6.09 and I am satisfied that I should make the order that is sought.

I certify that the preceding thirty (30) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 17 September 2020.

Associate: 

Date:  24.9.2020