Starkey and Starkey - [2008] FamCA 962

FAMILY COURT OF AUSTRALIA

STARKEY & STARKEY

[2008] FamCA 962

FAMILY LAW – APPLICATION IN A CASE – Appointment of Case Guardians in financial matter – Application to remove Case Guardians – Alleged breach of duties - Dismissed

Family Law Act 1975 (Cth)

Protective Estates Act 1983 (NSW)

Holt v Protective Commissioner (1993) 31 NSWLR 227
K and K [2002] FamCA 1150

APPLICANT:

Ms Starkey

RESPONDENT:

Mr Starkey

by his Case Guardians
Mr T & Mr C

FILE NUMBER:

LEC

245

2007

DATE DELIVERED:

12 November 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

16 October 2008

WRITTEN SUBMISSIONS:

Respondent: 22/10/2008

Applicant in Reply: 23/10/2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Burridge

SOLICITOR FOR THE APPLICANT:

Somerville Laundry Lomax

SOLICITOR FOR THE RESPONDENT:

Mr Cowley/
Mr Cameron of Counsel
Stone & Partners

Orders

The Application in a Case filed by the Wife on 25 August 2008 be dismissed.
Any submissions by either party seeking an order as to costs other than that each party’s costs be reserved to the trial, be submitted in writing by email to my associate within 14 days from the date of these orders.
In default of any written submissions being received by that day, the question of the costs of each party of an incidental to this application be reserved to the trial of the substantive proceedings between the parties.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 245 of 2007

MS STARKEY

Applicant

And

MR STARKEY

Respondent
By his Case Guardians Mr T & Mr C

REASONS FOR JUDGMENT

The wife submits, in her Application in a Case filed on 25 August 2008, that the respondent husband’s case guardians be removed, alleging that they are in breach of their obligations to the husband, the court and herself. The wife contends that they should be replaced by an appointment made by the Attorney-General.
The husband and wife were married in 1959. For many years, they ran in partnership a company in northern New South Wales. Sadly, the husband’s incapacity resulting from advanced Parkinson’s Disease has resulted in him being admitted to a nursing home last year.
On 27 March 2007, the husband appointed two long-time friends, the respondents to the instant application, as his attorneys and conferred various powers upon them in and about his affairs as a result, including the power to commence proceedings in this court.
Proceedings seeking relief pursuant to s 79 of the Family Law Act in which the company will, apparently, be a major asset, were filed by the husband’s attorneys on 18 April 2007.
On 4 June 2007 Mr D Starkey, the parties’ adult son, applied to the Guardianship Tribunal NSW for the appointment of a guardian and financial manager in respect of his father. On 10 October 2007 he also applied to review 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.

Keep reading for free

Create a free CaseChat account to read Starkey and Starkey and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] FamCA 962
Decision Date: 12 November 2008

CaseChat Overview and Summary

In the matter of *Starkey and Starkey*, heard by Murphy J, the wife had filed an Application in a Case on 25 August 2008. The specific nature of the dispute between the parties is not detailed in the provided text, beyond the fact that it concerns an application made by the wife.

The primary legal issue before the court was the determination of the wife's application filed on 25 August 2008. The court was also required to consider the appropriate orders regarding the costs associated with this application.

Murphy J ordered that the wife's Application in a Case filed on 25 August 2008 be dismissed. The court further directed that any submissions from either party concerning costs, other than the reservation of costs to the trial, were to be submitted in writing via email within 14 days. In the absence of such submissions, the costs of and incidental to the application would be reserved to the trial of the substantive proceedings.

Orders

Orders of the court

The Application in a Case filed by the Wife on 25 August 2008 be dismissed.

Any submissions by either party seeking an order as to costs other than that each party’s costs be reserved to the trial, be submitted in writing by email to my associate within 14 days from the date of these orders.

In default of any written submissions being received by that day, the question of the costs of each party of an incidental to this application be reserved to the trial of the substantive proceedings between the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.