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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scott & Munayallan (No 7)

Details

AGLC: Scott & Munayallan (No 7) [2022] FedCFamC1F 944
Case: [2022] FedCFamC1F 944
Decision Date

CaseChat Overview and Summary

In the case of Scott & Munayallan (No 7), the Federal Circuit and Family Court of Australia (Division 1) heard an application made by Mr K Scott to be appointed as the litigation guardian for his mother, Ms Scott, who suffers from severe and late-stage onset dementia. The application was made as part of ongoing family law proceedings between the parties. The central legal issues before the court were whether Mr K Scott should be appointed as the litigation guardian for his mother and whether the freezing order on Ms Scott's pension account should be discharged.

Justice Henderson determined that Mr K Scott should be appointed as the litigation guardian for his mother due to her severe and late-stage onset dementia, as evidenced by the affidavit filed by Dr AG, a medical practitioner. The court found that appointing Mr K Scott as the litigation guardian was in Ms Scott's best interests, as he was already managing her financial affairs and was able to effectively represent her interests in the litigation. The court also granted the application to discharge the freezing order on Ms Scott's pension account, as it was necessary for her daily living expenses and aged care fees.

The court's decision was based on the evidence presented and the best interests of the party in question, ultimately finding that appointing Mr K Scott as the litigation guardian and discharging the freezing order on Ms Scott's pension account were in the best interests of the parties involved. The matter was subsequently listed for a final hearing, with specific directions given to the parties for the preparation of the case and the filing of relevant documents and evidence.

Orders