STEVENS & STEVENS - [2015] FCCA 63

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEVENS & STEVENS

[2015] FCCA 63

Catchwords:
FAMILY LAW – Property – interim applications – application for Appointment of Litigation Guardian – application granted – application for Summary Dismissal of substantive proceedings – application dismissed – husband admitted to nursing home but removed overseas by his adult children without the knowledge or consent of the wife – wife remains in former matrimonial home – dispute as to whether there was any intention to separate – disputed issues of fact more properly determined at trial.

Legislation:

Family Law Act 1975, s.79

Federal Circuit Court Act 1999, s.17A
Federal Court of Australia Act 1976, s.31A
Federal Circuit Rules 2001, rr.11.08, 11.11, 13.10, 24.02

Latorre v Maddock (2012) 47 Fam LR 206
George (a bankrupt) v Fletcher (Trustee) [2010] FCAFC 53
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Shearer & Defazio [2013] FCCA 1596
Starkey & Starkey (No.2) [2009] FamCA 432

Applicant:

MR STEVENS

Respondent:

MS STEVENS

File Number:

BRC 2856 of 2013

Judgment of:

Judge Lapthorn

Hearing date:

7 October 2014

Date of Last Submission:

7 October 2014

Delivered at:

Brisbane

Delivered on:

15 January 2015

REPRESENTATION

Solicitors for the Applicant:

Peter Sheehy Solicitor

Solicitors for the Respondent:

Wrightway Legal

ORDERS

That the Response filed 3 July 2014 be dismissed.
That the Public Trustee of Queensland be appointed as Litigation Guardian for Mr Stevens in these proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 2856 of 2013

MR STEVENS

Applicant

And

MS STEVENS

Respondent

REASONS FOR JUDGMENT

Introduction

I am asked to determine two preliminary matters in these proceedings. The applicant is seeking an order that the Public Trustee of Queensland be appointed as Litigation Guardian and the respondent is seeking summary dismissal of the substantive proceedings. The substantive proceedings relate to property adjustment orders pursuant to s.79 of the Family Law Act 1975.
Although it would not be necessary to make an order for a litigation guardian if the matter is summarily dismissed I propose to consider the issue of the appointment of the litigation guardian first as in doing so will assist my consideration of the summary dismissal application.

Brief Background

The husband is 87 years of age having been born on [omitted] 1927. The wife is 68 years of age. She was born on [omitted] 1946. The parties are from New Zealand. They were married and commenced to live together on 9 May 1986. Both parties had been previously married and divorced. They have adult children from their prior marriages.
In 1988 they entered into a Matrimonial Property Agreement under New Zealand Law which provided for the husband’s retiring allowance from the Government Superannuation Fund to be split evenly between the husband and wife. There is no suggestion that they were separated at the time. They moved to Australia in…

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 STEVENS & STEVENS

Details

AGLC: STEVENS & STEVENS [2015] FCCA 63
Case: [2015] FCCA 63
Decision Date: 15 January 2015

CaseChat Overview and Summary

The proceedings concerned an application by Mr Stevens, represented by his wife, Ms Stevens, for orders against the Public Trustee of Queensland. The dispute involved the Public Trustee's role and responsibilities concerning Mr Stevens's affairs. The matter came before Judge Lapthorn in the Supreme Court of Queensland.

The primary legal issue before the Court was whether the Public Trustee of Queensland should be appointed as the litigation guardian for Mr Stevens. This appointment was sought to ensure Mr Stevens's interests were properly represented in the proceedings, given his circumstances. The Court was required to consider the appropriateness and necessity of such an appointment.

Judge Lapthorn reasoned that the appointment of a litigation guardian was necessary to protect Mr Stevens's interests. The Court considered the relevant legal principles governing the appointment of litigation guardians, particularly in circumstances where a party may lack the capacity to conduct litigation themselves. The Court determined that the Public Trustee was a suitable entity to fulfil this role.

Consequently, the Court made two orders: first, the dismissal of the Response filed on 3 July 2014; and second, the appointment of the Public Trustee of Queensland as the litigation guardian for Mr Stevens in these proceedings.

Orders

Orders of the court

That the Response filed 3 July 2014 be dismissed.

That the Public Trustee of Queensland be appointed as Litigation Guardian for Mr Stevens in these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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