Spears & Caro (No 2)
[2022] FedCFamC1F 880
Federal Circuit and Family Court of Australia
(DIVISION 1)
Spears & Caro (No 2) [2022] FedCFamC1F 880
File number: CAC 1318 of 2020 Judgment of: GILL J Date of judgment: 10 November 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the respondent seeks that the upcoming final hearing dates be vacated – Where the respondent has current mental health struggles and has given representation of the desire to self-harm and is presently at risk if matter continues to trial – Where the litigation guardian for the respondent seeks to be dismissed – Where the litigation guardian will be moving imminently to a remote part of the L Region and will no longer be able and willing to assist in the matter – Final hearing dates vacated – Litigation guardian discharged. Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 10 November 2022 Place: Canberra Solicitor for the Applicant: Mr Warren, Andrew Warren Associates Counsel for the Respondent: Dr Behrens Solicitor for the Respondent: Robinson McGuinness ORDERS
CAC 1318 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SPEARS FOR THE ESTATE
Applicant
AND: MS CARO
Respondent
order made by:
GILL J
DATE OF ORDER:
10 NOVEMBER 2022
THE COURT ORDERS THAT:
1.Ms M is discharged as litigation guardian for Ms Caro.
2.The final hearing dates allocated to this matter of 12 to 15 December 2022 are vacated.
3.The parties are directed to finalise and file a joint balance sheet by 20 January 2023.
4.The filing directions made 12 September 2022 are amended such that the wife file and serve her trial material by 4.00 pm on 31 January 2023 and the Estate file and serve its trial material by 4.00 pm on 14 February 2023.
5.The parties attend a mediation on or before 28 February 2023.
6.Any party is at liberty to seek the urgently listing in this matter, in particular in relation to the appointment of any further litigation guardian for Ms Caro.
7.The Estate’s costs of today are reserved.
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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
By Exhibit C1 of 3 November 2022, the respondent wife seeks a suite of orders in relation to the future conduct of the trial. At present, hearing dates have been allocated for this trial commencing on 12 December 2022.
The primary application made by the wife is that those dates be vacated. The wife advances a series of issues in support of the vacating of those trial dates. Principally, they involve firstly an issue arising as to the mental health of the wife.
It may be observed that she is represented by a litigation guardian due to her incapacity to give adequate instructions for the conduct of the case. She asserts that by virtue of her current mental health struggles, it is important that the dates be vacated. It is true that in making that application there is a lack of qualified medical evidence as to her current mental health state. However, the evidence is replete with representations by the wife of the desire to self-harm to such an extent as to identify that she is presently at risk if the matter continues to trial in the immediate future.
It is also true, as has been identified by the solicitor for the Estate, that there is no evidence that indicates a clear pathway to the amelioration of these mental health issues for the wife. It remains unclear whether an extension in the time to trial, as caused by vacating the trial, will make her situation worse or whether the move to an immediate trial would make her situation worse. Hence, it cannot be determined which will be most beneficial to her well-being.
However, what has become more obvious is that by virtue of her current mental state, at least insofar as has been described by the solicitor appearing for her, is that the proper preparation of the trial is prejudiced by that state, to such an extent as to mean that it should not proceed as listed. That is, as it stands I am unable to be satisfied that there are arrangements such as to mean that there can be adequate preparation for a fair trial to be given to the wife.
I accept that this is a matter that casts a significant burden on the estate in the delay of the trial and have weighed that into the mix. However, it is outweighed by the incapacity of the wife at present to receive a proper adjudication of her claims.
I note that questions were raised as to the availability of valuations for the trial as listed to occur on 12 to 15 December 2022. I would observe that these matters would not be sufficient to vacate the trial as I anticipate that the issues could be dealt with.
A second matter has arisen which is also fatal to the current trial dates and that is the loss of the litigation guardian. The litigation guardian has unfortunately become unavailable proximate to the commencement of the trial. She is to undertake work in a remote region of L Region, which practically means that she cannot participate as the litigation guardian. I do not consider that it is appropriate to force her to continue in that role, as at present she appears to be both unwilling and unavailable to continue to take on that role. It is commendable that she has taken on the role for the duration of the time that she has done so, under what must have been difficult circumstances.
In accordance with her application, she will be discharged.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 10 November 2022
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