Scott & Munayallan (No 7)
[2022] FedCFamC1F 944
Federal Circuit and Family Court of Australia
(DIVISION 1)
Scott & Munayallan (No 7) [2022] FedCFamC1F 944
File number: SYC 59 of 2010 Judgment of: HENDERSON J Date of judgment: 17 November 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Litigation guardian – Where the respondent’s mother has been joined as the third respondent to the proceeding – Where an adult child seeks to be appointed as her litigation guardian – Application granted.
FAMILY LAW – INJUNCTIONS – Preservation of property – Where a freezing order was made with respect to bank accounts of the third respondent – Application by litigation guardian to discharge injunction in respect of the third respondent’s pensioner account granted.
Division: Division 1 First Instance Number of paragraphs: 4 Date of hearing: 17 November 2022 Place: Sydney (via Microsoft Teams) The Applicant: Litigant in person The First Respondent: Litigant in person The Second Respondent: Litigant in person Counsel for the Third Respondent: Mr Rose Solicitor for the Third Respondent: ERA Legal, Commercial, Insolvency and Litigation Lawyers Solicitor Advocate for the Fourth Respondent: Mr Ardino Solicitor for the Fourth Applicant: Morgan Ardino & Co Solicitors The Fifth Respondent: No appearance Solicitor Advocate for the Intervener: Ms Au Solicitor for the Intervener: Mills Oakley Lawyers ORDERS
SYC 59 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCOTT AS CASE GUARDIAN FOR MS SCOTT
Applicant
AND: MS MUNAYALLAN
First Respondent
MR SCOTT
Second Respondent
MR AB IN HIS CAPACITY AS LIQUIDATOR OF I PTY LTD (and others named in the Schedule)
Third Respondent
MILLS OAKLEY LAWYERS
Intervener
order made by:
HENDERSON J
DATE OF ORDER:
17 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by Mr K Scott on 1 September 2022 be granted.
2.Mr K Scott be appointed the legal case guardian of Ms Scott to represent her interests and conduct the litigation in her stead in these proceedings.
3.The Orders made on 29 September 2021 restraining access to Ms Scott’s pension account …39 be discharged.
4.This matter remains listed for final hearing commencing at 10am on 20 February 2023 and will proceed in person, with all parties to appear in person other than Ms Scott.
5.The Liquidator is to file and serve any Application in a Proceeding seeking a special costs order against the respondent husband by no later than 4:00 pm on 25 November 2022.
6.By no later than 4:00 pm on 25 November 2022, the Liquidator is to notify all persons named in order 1 of the Application in a Proceeding filed 17 August 2022, being those persons who claim to be creditors of I Pty Ltd (in liquidation), of the Application in a Proceeding filed 17 August 2022.
7.Any of the persons referred to in order 6 above, who maintain their claim to be a creditor of I Pty Ltd (in liquidation), are to file and serve a Notice of Address for Service by no later than 4:00 pm on 2 December 2022.
8.The Liquidator is to file and serve any further evidence in support of the Application in a Proceeding filed 17 August 2022 and any further Application in a Proceeding filed in accordance with order 5 above, by no later than 4:00 pm on 9 December 2022.
9.Any of the persons referred to in order 6 above, who maintain their claim to be a creditor, are to file and serve any evidence, by way of one consolidated affidavit, in opposition to the Liquidator’s Application in a Proceeding filed 17 August 2022 by no later than 4:00 pm on 13 January 2023. Any evidence filed and served after such time is not to be relied upon without the leave of the Court.
10.Leave be granted to the respondent husband to file and serve:
(a)a Response to an Application in a Proceeding in relation to the Liquidators claim as filed and served in accordance with order 5 above;
(b)an Amended Response to an Initiating Application in relation to the Family Law proceedings setting out the Orders sought by him by no later than 4:00 pm on 13 January 2023.
11.The respondent husband file and serve one consolidated affidavit in support of all orders sought by him, by no later than 4:00 pm on 20 January 2023. Any evidence filed and served after such time is not to be relied upon without the leave of the Court.
12.The Liquidator is to file and serve any evidence in reply to evidence filed and served in accordance with orders 9, 10 and 11 above, by 3 February 2023.
13.The Liquidator may serve documents upon Ms Scott by serving documents upon Mr Scott, her case guardian, at AC Street, Suburb AD.
14.The Liquidator may serve documents upon Mr M and CC Pty Ltd by serving documents at AE Street, Suburb AF or any email addresses known to them.
15.The Liquidator may serve documents upon Ms L by serving documents upon whoever appears for her.
16.The Liquidator may serve documents upon Mr Scott by serving documents upon ...@....
17.Other than Ms Scott who appears by her case guardian, Mr K Scott, any person seeking to be heard at the final hearing must be physically present in court to present their case.
18.On or before 4.00 pm on 3 February 2023, each party is to notify the Liquidator of all Affidavits, upon which they will seek to rely, to be included in the joint Court Book.
19.On or before 4.00 pm on 8 February 2023, the Liquidator provide to the Court a paginated joint Court Book containing all documents to be relied upon at the hearing, which is to include an index.
20.It remains a matter for the Judge whether documents contained in the joint Court Book are admitted into evidence.
21.All parties file and serve a Case Outline document by no later than 4:00 pm on 13 February 2023, containing the following:
(a)List of documents to be relied upon;
(b)Minute of Orders sought;
(c)Agreed lists of assets and liabilities;
(d)Short chronology;
(e)The issues for trial; and
(f)Brief summary of argument and authorities.
22.Mr M, being a person named in the Liquidators Application in a Proceeding filed 17 August 2022, must comply with Orders 7, 9 and 17 of the Orders herein.
AND THE COURT NOTES THAT:
A.The wife advised that she will not be filing any further material in the Family Law proceedings.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Scott & Munayallan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE JUDGMENT
HENDERSON J
In these circumstances and:
(1)Having regard to the affidavit evidence and application filed by Mr K Scott; and
(2)Despite the objection of Mr Scott and the wife in these proceedings; and
(3)Noting that the liquidator neither consents nor objects to Mr K Scott being appointed as legal case guardian for Ms Scott; and
(4)There being no appearances by Ms L or Mr M, who have yet again sent a lawyer who is not on the record in their stead;
I propose to accede to the application made by Mr K Scott. I appoint him as the legal case guardian of Ms Scott to represent her interests and conduct the litigation in her stead, given she suffers from severe and late-stage onset dementia, as is clearly set out in the affidavit filed by him, being an affidavit from Dr AG, medical practitioner, who has prepared a report in respect to her medical condition.
Mr K Scott, you can now appear in your mother’s stead in this matter.
I also propose to discharge the injunction I issued against your mother’s bank account, in so far as it will be discharged in respect to the account into which her pension is paid, and from which you pay her aged care fees, and buy her clothes and the like, being her pension account, a copy of which you have attached to your affidavit, and you doing an extremely good job in this matter, account identification number …39. I discharge the injunctions issued in respect of that account.
These orders will be sent out to you Mr K Scott and that will allow you to access that account as you had been doing previously in respect of your mother.
I certify that the preceding four (4) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Henderson delivered on 17 November 2022. Associate:
Dated: 2 December 2022
SCHEDULE OF PARTIES
SYC 59 of 2010 Respondents
Fourth Respondent:
CC PTY LTD
Fifth Respondent:
MR PHONG
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