Richardson and Richardson

[2010] FamCA 275

FAMILY COURT OF AUSTRALIA

RICHARDSON & RICHARDSON [2010] FamCA 275

FAMILY LAW – PRACTICE AND PROCEDURE – appointment of case guardian

Family Law Rules Rules 6.09; 6.10

APPLICANT: Mr C on behalf of Ms Richardson

RESPONDENT: Mr Richardson

FILE NUMBER: PAF 5698 of 1991

DATE DELIVERED: 29 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 29 March 2010

REPRESENTATION

REPRESENTATIVE FOR THE APPLICANT: Mr C

COUNSEL FOR THE RESPONDENT: Mr Richardson, senior counsel

SOLICITOR FOR THE RESPONDENT: Atkinson Viden Heazlewoods

Orders

1. Mr C be granted leave to make an oral application to be appointed as case guardian for the wife.

2. Mr C be appointed case guardian for the wife pursuant to rule 6.10 Family Law Rules 2004.

3. Leave be granted to the case guardian to make an application for an adjournment of the proceedings and the proceedings be adjourned to 9am on 16 April 2010 for further mention.

4. The husband pay the costs of Mr C having a conference with lawyers and their preparation and attendance before me on 16 April 2010. 

5. The lawyers for the case guardian provide to the lawyers for the husband as soon as is practicable an outline of their anticipated costs and disbursements to complete the hearing.

6. The case guardian provide to the husband’s lawyers as soon as is practicable, notice as to the lawyer’s retained by the case guardian.

7. The husband’s lawyers provide to the lawyers for the case guardian as soon as practicable a statement of proposed agreed facts and issues.

IT IS NOTED THAT:

1. Two days have been reserved for the hearing of this matter.  The days reserved are 9 - 10 August 2010. 

2. The following issues will be dealt with on 16 April 2010:

   9.1.The case guardian’s application for the husband to pay the case guardian’s lawyer for the preparation and conduct of the hearing, including any application by the husband in the event that any order is made that those costs be capped in some manner.

   9.2.The husband’s application to discharge the current interim spousal maintenance order.

   9.3.The husband’s application for a sale of the property in which the wife currently resides.

   9.4.Whether or not the statement of agreed facts and issues prepared by the husband’s lawyers contain any matters of controversy. 

   9.5.What further evidence the case guardian wishes to file and serve, if any.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 5698 of 1991

MR C on behalf of MS RICHARDSON

Applicant

And

MR RICHARDSON

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, Mr C, who is the step-father of the wife in the proceedings, has made an application orally today that he be appointed case guardian for Ms Richardson, and that appointment may be made pursuant to rule 6.10 of the Family Law Rules. Rule 6.09 of the Family Law Rules provides that for a person to be appointed case guardian, they have to be an adult, they have to have no interest in the case that is adverse to the interests of the person needing a case guardian, they have to be able to fairly and competently conduct the case for the person needing the case guardian, and they have to have consented to act as the case guardian.

2. In relation to all of those matters, I am satisfied that Mr C can qualify as an appropriate person to be appointed as the case guardian. 

3. In relation to him being able to fairly and competently conduct the case, he indicates that he would, once appointed, need an opportunity to seek and obtain appropriate legal advice and he intends, he tells me, to have further conversations with the previous lawyers who prepared a prior application that he had made to be appointed as case guardian on 23 September 2009.

4. That application was withdrawn by him in circumstances where he tells me that Newnhams Solicitors, who acted for him and had previously acted for the wife and subsequently acted for the wife in these proceedings, had formed the view that the wife was capable of giving instructions for the purposes of conducting her case.  The wife subsequently sacked Newnhams Solicitors.

5. Last Thursday I heard evidence from Dr B.  She told me that earlier that week, the wife, for a second time, had become the subject of a community treatment order.  The doctor gave evidence that the wife has a serious mental illness which is an illness that, in that doctor’s view, has been a condition that the wife has suffered from for some considerable time, possibly for most of the marriage.  That evidence provides some explanation as to why the wife was unable to comply with previous directions I had made in relation to the filing of material.  The second community treatment order was made on 22 March 2010, and there had been a previous one made six months earlier, which would have meant that the previous order had been made some time towards the middle of September 2009.

6. The order itself was required because the wife’s mental condition is such that she refuses to go to a clinic to receive regular medication and a professional has to attend at her home in order to give her an injection every fortnight so that she takes her medication.  She is forcibly made to take her medication in that way.

7. I had initially considered proceeding with this matter on an ex parte basis. 

8. I have decided however that it is appropriate to give a disabled person an opportunity to be represented by a case guardian. 

9. I understand the arguments that senior counsel for the husband has put as to why this order should not be made.  He submits that if the husband is entirely successful in his application, then the wife will not get anything and any application he makes for costs against the wife, at least, would be a meaningless and negatory application.  Mr C, however, has indicated that he has his own home and he is prepared, at this point, at least, to take the risk that the wife will not get absolutely nothing out of this litigation and accordingly legal costs will be covered. 

10. I think it is appropriate for me to make an order appointing Mr C as case guardian for the wife in this matter.

11. Mr C has made an application that his lawyers’ fees be paid by the husband.  That is an order that had been made in this matter on a previous occasion.  Apart from having the husband cover certain of Mr C’s legal fees until the next day, I will defer that issue for determination. 

12. I note that counsel for the husband, Mr Richardson, has also made an application of the current order for the payment of periodic spousal maintenance be discharged, on an interim basis at least, and I will deal with that matter on the next occasion as well.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  12 April 2010