Spears & Caro
[2022] FedCFamC1F 694
•12 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Spears & Caro [2022] FedCFamC1F 694
File number: CAC 1318 of 2020 Judgment of: GILL J Date of judgment: 12 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant has been diagnosed with a serious illness - Where the applicant, in their current state of physical and cognitive constraints, falls into the description of rule 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the applicant seeks to appoint his son as a litigation guardian for the proceedings – Where the applicant’s son also holds enduring power of attorney for the father – Where the son has consented to the appointment of litigation guardian – Where the respondent did not mount strong opposition to the appointment – Litigation guardian appointment granted. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 3.5, r 3.12 and r 3.16 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 12 September 2022 Place: Canberra Counsel for the Applicant: Mr Warren Solicitor for the Applicant: Andrew Warren Associates Counsel for the Respondent: Dr Behrens Solicitor for the Respondent: Robinson + McGuinness Family Law ORDERS
CAC 1318 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SPEARS
Applicant
AND: MS CARO
Respondent
order made by:
GILL J
DATE OF ORDER:
12 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Mr E is appointed as litigation guardian for Mr Spears, pursuant to Part 3.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED THAT:
2.Mr E does not assert an interest in any assets on the balance sheet, unless such an assertion is supported by evidence from Mr Spears.
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 Spears & Caro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J:
In this matter, an application is made by Mr Spears for the appointment of Mr E to be appointed as a litigation guardian. This appointment occurs in the non-controversial context that Mr Spears has been diagnosed with a serious illness and has been undergoing treatment for some period of time. I am advised orally from the bar table, that it appears that even with the serious description of his illness, as set out in the affidavits of Mr Spears and Mr E (exhibit H1) that in fact Mr Spears’ condition has worsened. However, there is no evidence to establish that at present.
The nature of the treatment and medical condition is such that it has practically prevented Mr Spears from adequately being able to engage with his lawyers in the preparation of the case, with an expectation that that is the situation that will continue, given the nature of his illness, and the treatments operate as a barrier to enable sufficient free flow of information between Mr Spears and his lawyers for the preparation of the case.
It was initially under those circumstances that the application was made for Mr E to be appointed as the litigation guardian. That is, due to the physical constraints upon Mr Spears, pursuant to rule 3.12(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), he could be considered as not capable of adequately conducting or giving adequate instruction for the conduct of the proceedings as the matter comes before me today. By consent, exhibit H1 was tendered before the Court, which is a short report by Dr H, who currently treats Mr Spears at Hospital J. That report dated 30 August 2022 indicated that Mr Spears is:
delirious (suffering from fluctuation in cognitive / conscious state) as a result of the infection and does not currently have decision-making capacity.
The report goes on to say:
His prognosis is guarded, and his condition is currently expected improve with therapy but can sometimes take weeks for full resolution of cognitive abilities.
While Mr Spears is suffering such a condition, he also falls into the description at rule 3.12 (1)(a), as a person who does not understand the nature and possible consequences of the proceeding.
Either of these would form an adequate basis for the appointment of a litigation guardian.
It may also be seen that Mr E is the subject of an enduring power of attorney executed under the law of the K Region, which has the effect that while Mr Spears lacks capacity, Mr E has the authority to conduct litigation on behalf of Mr Spears, bringing him within the description of rule 3.16, being a manager of the affairs of a party. This means that for periods of time, in which Mr Spears lacks capacity and thereby Mr E derives authority, he is entitled to be appointed as litigation guardian.
It may be seen that given the prognosis set out in exhibit H1, that forms a transient basis for the appointment under circumstances where Mr Spears sought the appointment, while apparently holding capacity on a broader basis, which dealt with his physical incapacity to adequately engage with his lawyers.
In any event, having formed the conclusion that Mr Spears is not capable of adequately conducting and giving adequate instruction for the conduct of the proceedings, I have determined that the circumstances are such as to warrant the appointment of a litigation guardian.
Mr E has been nominated by Mr Spears, and has consented to such an appointment.
Two possible barriers were indicated to that appointment under circumstances where the wife did not mount any strong opposition to an appointment taking place.
The first is that there has previously been an assertion by Mr E that he holds the ownership of a number of vehicles that are the subject of the putative pool of property held by the parties. That is, that he has an interest in a number of expensive motor vehicles currently held by Mr Spears. Under those circumstances, while he had asserted that he had no interest adverse to that of Mr Spears, there is potential for that not to be the case.
In order to ameliorate that concern, Mr E has asserted to the Court that he will not assert an interest in any assets on the balance sheet, unless such an assertion is supported by evidence provided by Mr Spears. Given that concession, it was accepted that this adequately deals with the potential criticism that he may hold an interest adverse to those of Mr Spears.
Secondly, it was suggested that affidavit evidence given by Mr E is controversial and may mean that he is the subject of criticism, including as to his credibility, such as to cause him to wish to defend himself in the proceedings. While arguably this could potentially cause a person to hold an interest adverse to those of the person for whom they are a litigation guardian, at present given that a party may be the subject to such criticism in their own case, given the litigation guardian does not form a function of a lawyer in the proceedings and is so not the subject of the same constraints, and given the mechanisms contained in the rules, should the specific circumstances rise to a level where any critique of Mr E is such as to cause him to have an interest adverse to those of Mr Spears this is not sufficient to forestall his appointment as a litigation guardian.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 12 September 2022
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