Sutcliffe and Watkins
[2016] FamCA 64
•11 February 2016
FAMILY COURT OF AUSTRALIA
| SUTCLIFFE & WATKINS | [2016] FamCA 64 |
| FAMILY LAW – Case guardian – respondent (deceased estate) acknowledges the applicant wife satisfies the rules for an appointment but disputes the applicant’s nominee because she is also a claimant under testator’s family maintenance legislation – applicant seeks orders made in 2011 be set aside under s 79A – if successful, case guardian’s interests would be prejudiced not those of the wife – no alternative proposed other than State Trustee organisation – no apparent adverse interest found. |
| Administration and Probate Act 1958 (Vic) Family Law Act 1975 (Cth) |
| Kannis and Kannis (2003) FLC 93-135 |
| APPLICANT: | Ms Sutcliffe |
| RESPONDENT: | Mr Watkins |
| FILE NUMBER: | MLC | 11236 | of | 2010 |
| DATE DELIVERED: | 11 February 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 3 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Swann |
| SOLICITOR FOR THE APPLICANT: | Hartwell Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Fridey |
| SOLICITOR FOR THE RESPONDENT: | Wightons Lawyers |
Orders
That Ms Ridley be appointed as the case guardian for Ms Sutcliffe.
That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.
That the solicitor for the applicant engross the minutes and deliver them by electronic transmission to my Associate within 7 days.
That the application in a case filed 6 January 2016 is dismissed.
That all outstanding applications for final relief are adjourned to the Registrar for directions at 10.00am on 4 March 2016.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sutcliffe & Watkins 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 11236 of 2010
| Ms Sutcliffe |
Applicant
And
| Mr Watkins |
Respondent
REASONS FOR JUDGMENT
This is a discrete issue arising out of an application in the Judicial Duty List that was heard late on the afternoon of 3 February 2016. The substantive proceedings are between the Estate of Mr Watkins (Deceased) conducted by his legal personal representatives and Ms Sutcliffe (to whom I shall refer in these reasons as “the wife”).
Notwithstanding my descriptions above, Mr Watkins and the wife had been separated for a long time when final property orders were made in the Federal Magistrates Court of Australia on 7 March 2011.
Subsequent to those orders, Mr Watkins died.
Subsequent to the death of Mr Watkins, the wife brought an application filed 6 January 2016 in which she sought an order that paragraph 5 of the orders of 7 March 2011 be set aside “on the basis that there has been a miscarriage of justice by reason of a failure” by the husband to disclose relevant information.
Albeit that pleading would suggest that the issue is narrowly confined, counsel for the wife was candid in indicating that until discovery occurs, the wife will not know her correct position. It appears that the substance of her concern is that in 2011, by affidavit filed in the Federal Magistrates Court, Mr Watkins was said to have only had just over $300,000 in assets but the probate application some four years later said that the husband had over $1 million in assets. The wife is curious as to how such a meteoric rise could occur but has started from the presumption that what the Court was told in 2011 was not right. As the parties have agreed to the discovery process, it is unnecessary for me to delve further.
The issue for the Court concerns the appointment of a case guardian for the wife. It was not disputed by the legal personal representative of the husband that the wife qualified as a person entitled to such a guardian. Both parties agreed that the evidence supported such an order. The discrete issue is who should undertake that task.
The wife’s position is that she should be represented by her daughter (and as an absolute fall-back position, her granddaughter). The legal personal representatives of the husband object to the daughter on the basis that she is currently an applicant in the Supreme Court of Victoria under Part IV of the Administration and Probate Act 1958 (Vic). In other words, the daughter is seeking to claim a share of her late father’s estate. There is some evidence of unpleasantness in the relationship but the dispute here concerns the question of the appropriateness of the daughter being appointed in this Court having regard to the fact that she is a litigant. The solicitor for the estate submitted there may be a “conflict of interest”.
Rule 6.09 of the Family Law Rules 2004 provides:
A person may be a case guardian if the person:
(a) is an adult;
(b) has no interest in the case that is adverse to the interest of the person needing the case guardian;
(c) can fairly and competently conduct the case for the person needing the case guardian; and
(d) has consented to act as the case guardian.
Rule 6.13 provides:
(1) A person appointed as the case guardian of a party:
(a) is bound by these Rules;
(b) must do anything required by these Rules to be done by the party;
(c) may, for the benefit of the party, do anything permitted by these Rules to be done by the party; and
(d) if seeking a consent order (other than an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court that the order is in the party's best interests.
(2) The duty of disclosure applies to a case guardian for a child and a person with a disability.
In Kannis and Kannis (2003) FLC 93-135 a case under the former court rules, the Full Court described the role of the case guardian (who was then described as a “next friend”) as follows:
The role of the Next Friend is to conduct litigation and provide appropriate instructions to do so. The appointment of a Next Friend is also necessary to enable a decision to be given which will be binding on the person under a disability.
It is also relevant to observe that the role of the case guardian includes pursuing all of the legal and equitable interests of the represented person as well as their entitlements not so recognised by such an interest. In doing so, the guardian must ensure that the costs incurred are not unnecessarily wasted. It is the responsibility of a case guardian to consider settlement options properly because the financial interests of the litigant are at stake (see Masling and Motor Hire Company (Manchester Limited) [1919] 2 KB 538 at 541 and Stevenson and State of Tasmania [2005] TASSC 33).
The discrete issue here must also be seen in the context of the substantive application before the Court. It is an application to set aside the 2011 property orders and to have the property of the husband’s estate divided if successful. The wife’s position is that the orders should be set aside and that she should have “half of” the assets. No basis was given for that assertion and it is a curious one having regard to the lengthy period of separation prior to the making of the orders in 2011 anyway. There were solicitors acting for both parties (and not those now representing anyone) and indeed, on the day that the orders were made by the Federal Magistrates Court, both parties were represented by counsel. The discrete issue will therefore be whether the husband had deliberately or otherwise misled the wife as well as the Court.
Section 79A of the Family Law Act 1975 (Cth) (“the Act”) requires a party to set out the relevant ground so that the evidence can be targeted to that particular issue. The estate cannot be divided amongst the beneficiaries until such time as the determination is made as to whether there is ultimately any alteration to the property owned by the deceased. If indeed there was such an order made, it would presumably reduce the quantum in the estate and logically, reduce the amount divisible in the Part IV application. Conversely, if the wife’s application was unsuccessful, the daughter would be entitled to pursue her Part IV application in the Supreme Court of Victoria without having to contemplate what had happened to the s 79A application.
Albeit there was some suggestion of “bad blood” between all of the relatives, it was not suggested that there was any conspiracy between the wife and the proposed case guardian such that the Court would be discomforted about the nature of the relationship and the focus of the proposed case guardian.
The issue in this case is whether or not the daughter has an interest in the litigation in this Court adverse to the interests of the wife. The proceedings in the Supreme Court will probably have to be held up pending the determination of the s 79A application (if those are not somehow transferred to this Court) and it is hard to see where the interests of the mother and daughter clash.
It is quite clear that the daughter has her claim in her own right but the pursuit of the s 79A application may prejudice her own application in the Supreme Court.
In my view, these proposed case guardian satisfies rule 6.09. I am not prepared to find that there is an interest which she has which is adverse to the interests of the wife and there is no other suggestion that she cannot fairly and competently conduct the case for the wife. She has consented to act as the case guardian.
Notwithstanding this order, should the evidence indicate that the concern of the estate is well founded, a further application can be made. Accordingly, I direct that Ms Ridley is forthwith appointed as the case guardian for Ms Sutcliffe.
The parties have not resolved any other interlocutory processes and a directions hearing is needed for a registrar to determine what should happen next. Accordingly I make that order.
I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 February 2016.
Associate:
Date: 11 February 2016
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