Sung and Sung

[2014] FamCA 637

FAMILY COURT OF AUSTRALIA

SUNG & SUNG [2014] FamCA 637

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of case guardian – consideration of the wife’s ability to conduct the proceedings and the stress for her associated with doing so – where the husband does not oppose the appointment.

Family Law Rules 2004 (Cth)

Palmer & Palmer [2009] FamCAFC 9

APPLICANT: Mr Sung

RESPONDENT: Ms Sung by her proposed case guardian Mr Johns

FILE NUMBER: MLC 10241 of 2010

DATE DELIVERED: 7 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 2 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr MacFarlane

SOLICITOR FOR THE APPLICANT: Harwood Andrews Lawyers

COUNSEL FOR THE RESPONDENT: Mr Werner for the proposed case guardian for the wife

SOLICITOR FOR THE RESPONDENT: D Lawyers

ORDERS

IT IS ORDERED BY THE COURT THAT

1. Leave be granted to the applicant MR JOHNS, the proposed case guardian for the wife, to file:

   a)   a response to the initiating application;

   b)     an affidavit of the proposed case guardian for the wife sworn 30 June 2014;

   c)     the affidavit of Mr B sworn 30 June 2014; and

   d)     the affidavit of Mr C sworn 30 June 2014.

2. Pursuant to Rule 6.08 and 6.10 of the Family Law Rules 2004 (Cth) MR JOHNS be appointed case guardian for the wife.

3. Subject to further order the legal costs and disbursements of the case guardian for the wife be paid from the property or income of the wife.

4. Reasons with respect to the appointment of the case guardian be delivered as soon as practicable.

IT IS ORDERED BY CONSENT THAT

1. Within 7 days the husband shall provide the wife’s solicitors with copies of the following:

   a)   a current member benefit statement as at 30 June 2014 of his AMP superannuation interest;

   b)     a current statement of the NAB account of the Mr Sung Superannuation Fund as at 30 June 2014; and

   c)     any document he would like the wife to sign in order to give effect to paragraphs 21 to 23 of the final orders made 6 September 2011 (“the Final Orders”).

2. Within 21 days the wife shall file and serve an amended response particularising any orders she seeks by way of enforcement of paragraphs 19 to 20 of the final orders, together with all affidavits in support.

3. Within 14 days thereafter the husband shall file and serve a reply, together with all affidavits upon which he seeks to rely.

IT IS FURTHER ORDERED BY THE COURT THAT

1. All extant applications be adjourned to the Judicial Duty List at 10.00 am on 6 August 2014.

IT IS NOTED THAT
The parties intend that within 21 days the case guardian will review all source documents pertaining to the current asset balance of the Mr Sung Superannuation Fund and advise the husband’s accountant of any irregularities or differences of opinion he perceives.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sung & Sung has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10241 of 2010

Mr Sung

Applicant

And

Ms Sung

Respondent

REASONS

1. On 2 July 2014 I gave leave to the applicant Mr Johns, the proposed case guardian, to file and serve a response to the husband’s initiating application seeking his appointment as case guardian for the wife, his affidavit in support of that application, an affidavit of Mr B sworn 30 June 2014, and an affidavit of Mr C sworn 30 June 2014. On that date, I made orders appointing Mr Johns as case guardian for the wife and orders by consent with respect to the ongoing conduct of the matter. The husband supported the appointment of Mr Johns as case guardian. I further ordered that reasons with respect to the appointment of the case guardian be delivered as soon as practicable. These are those reasons.

2. In his initiating application filed on 15 April 2014 the husband sought orders, inter alia, that a Registrar of this Court be appointed to do all acts and things and execute all necessary documents on behalf of the wife to effect compliance with paragraphs 8 and 22 to 30 inclusive of the orders for final property settlement made by Young J on 6 September 2011, namely the superannuation splitting orders.

3. A case guardian is defined in the Family Law Rules 2004 (Cth) (“the Rules”) as ‘a person appointed by the court under rule 6.10 to manage and conduct a case for a child or a person with a disability, and includes a next friend, guardian ad litem, tutor or litigation guardian (see Part 6.3).’

4. A person with a disability is defined in the Rules as ‘a person who, because of a physical or mental disability:

   (a)     does not understand the nature or possible consequences of the case; or

   (b)    is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.’

5. Rule 6.10(1) of the Rules provides as follows:

   A person may apply for the appointment, replacement or removal of a person as the case guardian of a party.

   Note 1: Chapter 5 sets out the procedure for making an Application in a Case.

   Note 2: An application in relation to a case guardian may be made by a party or a person seeking to be made the case guardian or by a person authorised to be a case guardian.

6. Pursuant to r 6.09 of the Rules a person may be a case guardian if they are an adult, have no interest in the case that is adverse to the interest of the person needing the case guardian, can fairly and competently conduct the case for the person needing the case guardian, and have consented to acting as the case guardian.

7. The proposed case guardian in this case, Mr Johns, deposed that he has known the wife for 33 years and that during this period the wife informed him that she suffers from Bipolar Disorder. Mr Johns is currently 61 years of age. He is a Chartered Accountant and has conducted his own practice since 1992. The wife has asked Mr Johns to act as her case guardian and I accept his evidence that he has no interest in the case adverse to the wife’s interest.

8. Mr Johns deposed that on or about 5 May 2014 the wife advised him that the husband had filed an application seeking to enforce the final orders and that she ‘was upset and distressed, and told me she could not deal with the Initiating Application.’ He said that the wife asked him to read the documents and recommend a course of action to her. He further deposes that on 30 May 2014 he received an email from the wife, which was also copied to her solicitor Mr C, which ‘stated that she had been extremely unwell and suffered from what she described as “another manic episode” due [to] the stress of her work and “divorce”.’ The wife advised that a Crisis Assessment Team were attending upon her on a daily basis to check on her wellbeing and to ensure that she was taking lithium and respiridone, being drugs prescribed for the treatment of Bipolar Disorder or Schizophrenia. Mr Johns also deposed that the wife had further stated that she could not provide Mr C with instructions with respect to the enforcement proceedings.

9. Mr Johns relied upon the report prepared by Mr B and annexed to his affidavit sworn 30 June 2014. Mr B, who is a psychologist, reported that he has known the wife for some five years, having worked with her in therapy groups at The Melbourne Clinic and then, at her request, for private therapy sessions during the last three years. It was his assessment that the wife ‘has no cognitive impairment issues and is certainly able to make decisions. She has a comprehensive understanding of the separation and legal matters before her at present … I believe [the wife] is quite capable of understanding her current situation and making decisions for the benefit of herself and her children.’  

10. Whilst this might suggest that the wife may not be in need of a case guardian, Mr B also reported that the wife has ‘serious concerns that she will be subjected to subtle bullying through intimidation from [the husband] even during the court proceedings. She says that he only needs to look at her in certain ways or hold his body in a particular manner for her to be reminded of what she endured during the marriage and this interferes with her thinking rationally and logically.’

11. Mr C, who is a principal of the law firm D Lawyers, deposed that the late Mr D QC had acted on behalf of the wife in the proceedings which culminated in the final orders made by Young J, the subject of these enforcement proceedings. He deposed that the wife and Mr Johns attended a conference with him on 21 May 2014, during which the wife indicated that she wanted him to act on her behalf in these proceedings. Mr C also received a copy of the email referred to in Mr Johns’ affidavit from the wife and he concluded that based upon that email and the evidence contained in Mr B’s report he would be unable to fulfil his duty to the wife and the Court should a case guardian not be appointed.

12. Mr Werner who appeared on behalf of Mr Johns referred me to the decision of Finn J in Palmer & Palmer [2009] FamCAFC 9. In that case, the wife had suffered a significant stroke and the doctor who gave evidence in support of the application for the appointment of a case guardian said in his affidavit as follows:

    Although [the wife] has capacity to understand her legal rights and give verbal instructions, she may benefit from an appointment of a litigation guardian due to physical incapability and severe mental distress due to the stress of the court case. In her current condition, her stress of giving instructions may jeopardise her rehabilitation and recovery.

13. Although in the case before me the wife suffers from mental health issues rather than a physical disability, the circumstances are otherwise not dissimilar to those considered by Finn J insofar as they relate to a party’s ability to conduct the proceedings and the stress likely to be associated with them doing so.  As submitted by Mr MacFarlane on behalf of the husband, the fact that the wife’s fear of being bullied by the husband may be unfounded only serves to highlight the issues in this case.

14. In all of the circumstances I am satisfied that the wife is a person with a disability who is not capable of adequately conducting her case and that Mr Johns should be appointed as her case guardian.   

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 7 August 2014.

Associate: 

Date:  7 August 2014