Thorn and Thorn
[2017] FamCA 950
•3 August 2017
FAMILY COURT OF AUSTRALIA
| THORN & THORN | [2017] FamCA 950 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Case guardian – where the husband’s brother is a case guardian within the meaning of r 6.10(2) of the Family Law Rules 2004 (Cth) – whether the husband’s brother should be removed as case guardian – where the case guardian is a director of an entity which forms part of the parties’ asset pool – where the case guardian is allegedly owed money from the entity – where the husband’s brother has a potential interest in the proceedings – where the interests of case guardian and the husband may be adverse – order that a lawyer nominated by the husband be appointed as case guardian. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 6.08, 6.08A, 6.09, 6.10 |
| Grace & Grace (1990) FLC 92-170 |
| APPLICANT: | Mr Thorn |
| RESPONDENT: | Ms Thorn |
| FILE NUMBER: | MLC | 8823 | of | 2016 |
| DATE DELIVERED: | 3 August 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 22 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wraith |
| SOLICITOR FOR THE APPLICANT: | Kenna Teasdale |
| COUNSEL FOR THE RESPONDENT: | Ms Paterson |
| SOLICITOR FOR THE RESPONDENT: | Resolve Conflict |
Orders
That Mr B be appointed case guardian for the respondent husband.
That the Application in a Case filed 12 May 2017 and response to Application in a Case filed 2 June 2017 be otherwise dismissed.
That all extant applications be placed in the list of cases awaiting allocation to a judicial docket.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thorn & Thorn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8823 of 2016
| Mr Thorn |
Applicant
And
| Ms Thorn |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed 12 May 2017 the applicant husband seeks orders for the appointment of his brother, Mr C Thorn as his case guardian in these proceedings. That application is made as a result of the effects of the husband’s condition, Progressive Supranuclear Palsy, which affects his speech and ability to communicate.
The husband is under the care of Associate Professor D, a physician and behavioural neurologist. The evidence of Associate Professor D confirms the husband’s diagnosis and that the husband suffers from slowed and slurring speech as a result of that condition. In his letter dated 10 April 2017 (Annexure DGG-2 to his affidavit filed 21 June 2017) Associate Professor D made the following assessment of the husband:-
[The husband] had deteriorated further in his speech, mental slowing and postural stability with even more frequent falls reported over the past 3 months. He is embroiled in separation proceedings and his son committed suicide about two months ago, making him more emotionally fragile at present. His short term memory is also impaired with retrieval difficulties which will make it harder for him to retain the court proceedings in order to understand completely what is going on. In addition, his already mildly impaired insight is likely to complicate his understanding of all the ramifications of various court outcomes (as demonstrated in the Assessment Hearing and today), even though he appears to understand most of what is happening. In addition, his speech remains very slurred and is hard to understand at times, and he tends to talk in more succinct phrases which may need further interpretation. Furthermore, he appears to still be somewhat more emotional at present following the suicide of his son. Hence, it is my opinion that it would be helpful for him if he had a Litigation Guardian to assist him in his court proceedings.
The wife does not oppose the appointment of a case guardian for the husband.
The issue between the parties is whether the husband’s brother is the appropriate person to fulfil that role. It was common ground between the parties that in the event of a finding that the husband’s brother should not be appointed as case guardian, a lawyer, Mr B should be appointed in his stead.
For the reasons that follow, I am satisfied on the balance of probabilities that Mr B should be appointed as the husband’s case guardian.
Background
The wife is the applicant in the principal proceedings. She is aged 76 years and resides in the former matrimonial home with the husband at E Town. She is retired.
The husband is aged 73 years and is also retired.
The parties commenced cohabitation in January 1994 and married later that year. The wife alleges that the parties separated under the one roof in July 2016. The parties continue to reside under the same roof at the former matrimonial home.
The wife filed an Initiating Application in September 2016 in which she sought orders for final property settlement and spousal maintenance. The husband filed a Response to Initiating Application in November 2016 in which he sought that the wife’s Initiating Application be dismissed.
A Case Assessment Conference was convened in the Family Court in December 2016. That day the husband represented himself with the assistance of his brother who is now the proposed case guardian. Orders were made at that conference with respect to disclosure and valuation of the parties’ interests. Otherwise the matter was listed for a Conciliation Conference in April 2017.
By the time of the Conciliation Conference in April 2017, the husband had engaged lawyers to represent him in these proceedings. At that conference the issue of the husband’s capacity to provide instructions was raised and his intention to file an application for the appointment of a case guardian was noted.
The application for the appointment of a case guardian was listed before Senior Registrar Fitzgibbon on 8 June 2017. That day, the Senior Registrar made directions with respect to the preparation of the matter for a hearing. The hearing proceeded before me on 22 June 2017.
Material Relied Upon
The husband relied upon the following material:-
·Application in a Case filed 12 May 2017;
·Affidavit of Ms F filed 12 May 2017;
·Affidavit of Mr C Thorn filed 16 June 2017;
·Affidavit pf Associate Professor D filed 21 June 2017;
·Affidavit of Mr B filed 21 June 2017; and
·Affidavit of the husband filed 22 June 2017.
The wife relied upon the following material:-
·Response to application in a Case filed 2 June 2017;
·Affidavit of the wife filed 2 June 2017;
·Affidavit of Antony Hill filed 7 June 2017; and
·Affidavit of the wife filed 20 June 2017.
Legal Principles
The process for conducting a case by a case guardian is set out at Part 6.3 of the Family Law Rules 2004 (Cth) (“the Rules”).
Rule 6.08 of the Rules provides that:-
(1)A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.
(2)Subrule (1) does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case.
The question of who may be a case guardian is set out at r 6.09 of the Rules. It 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 6.10 of the Rules deals with the appointment, replacement or removal of a case guardian. It provides as follows:-
(1)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.
(2)A person who is a manager of the affairs of a party is taken to be appointed as the case guardian of the party if the person has filed:
(a)a notice of address for service; and
(b)an affidavit which:
(i) provides evidence that the person has been appointed manager of the affairs of the party; and
(ii) States that the person consents to being appointed as the case guardian of the party.
The dictionary to the Rules defines a “person with a disability” 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.
As noted earlier, it was common ground between the parties that the husband is a person with a disability and therefore requires the assistance of a case guardian.
THE ISSUES
The matters for determination are as follows:-
·Whether the husband’s brother is a case guardian within the meaning of r 6.10(2) of the Rules;
·If so, whether the husband’s brother should be removed as case guardian for the husband; and
·If r 6.10(2) of the Rules is not engaged, whether the husband’s brother or Mr B should be appointed as the husband’s case guardian.
Is the husband’s brother deemed to be the Case Guardian pursuant to r 6.10(2) of the Rules?
It was submitted on behalf of the husband that his brother, Mr C Thorn is a manager of the husband’s affairs within the meaning of r 6.10(2) of the Rules and therefore that rule is engaged. Accordingly, it was submitted that upon the filing of a Notice of Address for Service by the husband’s brother and confirmation of his consent to be the husband’s case guardian in his affidavit, he should be deemed the husband’s appointed case guardian.
In support of the submission that the husband’s brother is the manager of the husband’s affairs, the husband relied upon the affidavit of his brother filed 16 June 2017. At paragraph 3 of that affidavit the husband’s brother deposed that he was appointed as the husband’s attorney pursuant to an Enduring Power of Attorney (Financial) dated 19 March 2015. At paragraph 5 of that affidavit the husband’s brother confirmed that he had filed a Notice of Address for Service and that he consented to being appointed as the case guardian for the husband. Accordingly, it was submitted on behalf of the husband that having regard to those matters, the husband’s brother is taken to be appointed as the husband’s case guardian pursuant to the provisions of r 6.10(2) of the Rules.
Rule 6.08A of the Rules provides a definition of “a manager of the affairs of a party”. That definition provides that a manager of the affairs of a party includes a person who has been appointed in respect of the party, a trustee or guardian under a Commonwealth, State or Territory law.
That provision was considered by the Full Court in the decision of Price & Underwood (Divorce appeal) (2009) FLC 93-408 (“Price & Underwood”). That case considered the appointment of a case guardian who, like the husband’s brother, had been appointed as an attorney pursuant to an Enduring Power of Attorney (Financial) made under the provisions of the Instruments Act 1958 (Vic). As in this case, the appointment of the attorney in Price & Underwood was expressed to be enduring and unlimited in terms. There the Full Court held that the appointment of the husband’s adult daughter as an attorney for the husband in those proceedings pursuant to such Enduring Power of Attorney was sufficient to satisfy the provisions in the Rules that she had been appointed a “manager of the affairs” of the husband within the meaning of r 6.10(2) of the Rules. As she had filed the requisite Notice of Address for Service and confirmed her consent to act as case guardian, the husband’s daughter was deemed to be the husband’s case guardian in those proceedings.
Accordingly, having regard to the evidence of the husband’s brother as to his appointment as the husband’s attorney pursuant to the Enduring Power of Attorney (Financial), coupled with the filing on his behalf of a Notice of Address for Service and confirmation of his willingness to act as the husband’s case guardian in his affidavit, I am satisfied that the deeming provisions of r 6.10(2) of the Rules apply.
Should the husband’s brother be removed as Case Guardian?
Therefore, the question squarely raised in the proceedings is whether the husband’s brother should be removed as a case guardian.
The question of when a case guardian should be removed was considered by the Full Court in the decision of Kannis & Kannis (2002) FLC 93-135 (“Kannis & Kannis”). There the Full Court noted that in making an appointment for a next friend, as it then was, the Court must be satisfied that the person so appointed has no interest in the proceedings adverse to the party. That a case guardian should have no interest in the proceedings adverse to the party whom they assist is confirmed at r 6.09 of the Rules. The Full Court confirmed that the Court has the discretion to appoint or remove a case guardian.
It is the wife who bears the onus of establishing that the husband’s brother should be removed as the husband’s case guardian.
The wife opposes the husband’s brother assuming the role of case guardian in these proceedings. Her objection to him assuming that role is made as a result of:-
·His brother’s failure to ensure the husband’s compliance with orders for discovery; and
·The potential for the interests of the husband’s brother to be in conflict with those of the husband, thereby giving rise to the possibility that his interests will be adverse to those of the husband as set out in r 6.09(b) of the Rules.
Relying upon the decision in Kannis & Kannis it was submitted on behalf of the husband that there was no allegation that the husband’s brother had acted contrary to the husband’s interests. It was submitted that the only criticism levelled against the husband’s brother was the role played by him in the husband’s failure to comply with orders for disclosure. Given that the husband’s brother was not then acting as a case guardian, it was submitted by the husband that responsibility for the husband’s non-compliance with orders for disclosure could not be sheeted home to the husband’s brother.
I do not accept that submission. The husband’s brother attended Court to assist the husband at the Case Assessment Conference on 5 December 2016. He was present when orders were made by consent with respect to the exchange of documents by each party. That order provides that documents were to be exchanged by 1 March 2017.
The orders made at the Conciliation Conference on 13 April 2017 include a Notation that:-
The Applicant has some concerns regarding the mental health of the Respondent. It is intended that an application for the appointment of a litigation guardian be made.
That application was filed on 12 May 2017 and sought that the husband’s brother be appointed as the case guardian for the husband. The affidavit in support of that application sworn by the husband’s then solicitor, Ms F, filed 12 May 2017 confirms that:-
4.[She has] made [the husband’s brother] aware of his obligations and responsibilities should he be appointed Litigation Guardian.
5.[The husband’s brother] has advised me that he is prepared to consent to act as [the husband’s] Litigation Guardian…
Annexed to that affidavit at DD-2 is a letter to those solicitors from the husband’s brother dated 2 May 2017 confirming the husband’s brother’s preparedness to act as case guardian for the husband. Further, the husband’s brother has been acting as the husband’s attorney pursuant to the Enduring Power of Attorney (Financial) dated 19 March 2015. Notwithstanding all of those matters, it was conceded that the husband’s non-compliance with the orders for disclosure has been ongoing. Given that the husband relies on the deeming provisions of r 6.10(2) of the Rules the ongoing nature of the non-disclosure since 1 March 2017 (being the date by which the exchange of documents was to have occurred), this raises concern that the husband’s brother has failed in his capacity as attorney to competently assist the husband in the conduct of his case.
Whilst the husband’s brother was not subject to the orders for disclosure, the reality of the situation is that he was present when those orders were made, having attended Court to assist the husband who was then self-represented, and has actively sought to be appointed as case guardian since at least 2 May 2017 when he provided a letter to the husband’s former solicitor confirming his willingness to act in that capacity. Notwithstanding his awareness of the husband’s obligations with respect to disclosure, it would appear that the husband’s brother has taken no steps to cure the husband’s non-compliance with those orders. Given that he is the husband’s attorney pursuant to the Enduring Power of Attorney (Financial), his apparent failure to assist the husband in the discharge of those obligations is significant.
In support of the submission that the husband’s brother be the husband’s case guardian, counsel for the husband emphasised the importance of the case guardian being one of the husband’s choosing.
In support of that proposition reliance was placed on the decision of O’Reilly J in Stellard & Dresdon-Stellard [2010] FamCA 971. At paragraph 26 of that decision her Honour stated:-
In my view it is important in this particular case that the wife enjoy the trust of and confidence in any person who is to have the role of giving instructions on her behalf to a lawyer. Whilst [the proposed lawyer] enjoys the trust and confidence of the Court, and is very well qualified ably to assist the wife, I am not inclined to oust the wife’s choice, as it were, for her own case guardian.
It was submitted that significant weight should be attributed to the husband’s choice of case guardian in the proceedings. In his affidavit sworn and filed 22 June 2017 the husband’s position was set out at paragraph 6 wherein he deposed:-
I ask this Honourable Court to appoint my brother …as my case guardian. [My brother] understands me and I trust him. He has a detailed understanding of my financial affairs, and I appointed him as my attorney in an Enduring Power of Attorney (Financial) made by me on 19 May 2015. I have also appointed him the executor in my Will, by agent in an Enduring Power of Attorney (Medical Treatment) and my guardian in an Enduring Power of Guardianship.
I accept that the husband wishes that his brother be appointed as his case guardian. However that is not the only matter to which I must have regard to in determining this issue. The evidence of the husband’s treating doctor is that the husband has mildly impaired insight which is likely to complicate his understanding of the ramifications of various court outcomes.[1] I must have regard to that evidence in considering the wishes of the husband as contained in his affidavit filed 22 June 2017.
[1] Affidavit of Associate Professor D filed 21 June 2017, p 32.
The matters relied upon by the wife in support of her contention that the husband’s brother’s interests may be adverse to those of the husband are contained at paragraphs 7 and 8 of the husband’s affidavit filed 22 June 2017. There the husband deposes as follows:-
7.[My brother] was appointed as a director of [G] Pty Ltd in May 2015. Since that time, he has been involved in the operation of the business and provided support and guidance to the manager… I am aware that [my brother] is paid a fee of $500 per seek, although that amount has not in fact been paid to him and is owing. I acknowledge that it is a debt of the business, and will need to be paid to my brother in due course.
8.I am also aware that [my brother] advanced funds to the business by way of loans in March 2015 of $50,000 and in September 2015 of $30,000, i.e. a total amount of $80,000. These loans were not secured, but I acknowledge them as debts of the business that will need to be repaid to my brother in due course.
That evidence discloses that the husband’s brother is a director of G Pty Ltd, an entity which forms part of the parties’ asset pool. Further, it discloses that the husband’s brother is paid a director’s fee from that entity although that fee is currently not paid and is owing to him. Finally, the husband discloses that his brother has advanced loans to that entity totalling approximately $80,000. They are said to be debts of the business. It was submitted on behalf of the wife that she was unaware of those arrangements until receipt of the affidavit of the husband’s brother filed 16 June 2017. Those matters were disclosed by the husband’s brother at paragraph 12 of that affidavit. That those matters were not disclosed to the wife until the filing of that affidavit was not challenged. The proceedings had been on foot for a period of approximately nine months by the time those matters were disclosed to the wife.
It was submitted on behalf of the wife that there was a significant risk that the husband’s interests would conflict with those of his brother to whom money is allegedly owed. It was submitted that there is potential that the husband’s brother may become a third party in the proceedings as a result of the role he has undertaken as director and debtor of G Pty Ltd. Whilst the husband acknowledges the debts to his brother in his most recent affidavit, those liabilities are not conceded by the wife.
The wife was also critical of the position adopted by the husband’s brother to date. It is alleged that he has failed to facilitate disclosure between the parties either in his role as assistant to the husband or in his role as a director of G Pty Ltd.
In reply to those allegations, counsel for the husband asserted there was no current conflict between the brothers and in those circumstances the submissions of the wife that the husband’s brother has an interest in the case adverse to the interests of the husband must fail.
I do not accept that position. The issues in this case are similar to those contemplated by Ross-Jones J in the decision of Grace & Grace (1990) FLC 92-170. In that matter his Honour had to determine whether the proposed next friend, as it then was, who held directorship and shares in the parties’ entities was an appropriate person to act as next friend for the husband in the proceedings. At page 78,165 of the judgment his Honour concluded that the proposed next friend should have no interest in the proceedings adverse to the husband. In determining that issue his Honour found that the next friend should have nothing to gain personally from the litigation and that the proposed next friend may possibly breach that requirement due to her involvement in at least two of the entities relevant to the property proceedings, in her capacity as director and shareholder. I respectfully agree with his Honour.
I am satisfied that the husband’s brother has a potential interest in the proceedings due to his role as director of an entity the subject of the proceedings and further in his position as alleged debtor of that entity. There is conflict between the husband and the wife as to the existence of debts allegedly owing to the husband’s brother; clearly the husband’s brother has an interest in the outcome of that dispute. In the circumstances, I am satisfied that the interests of the husband’s brother in the proceedings may be adverse to the husband.
Whilst the husband has deposed that he seeks orders that his brother act as his case guardian, the evidence of his treating doctor raises concern as to the husband’s ability to understand completely the ramifications of his brother’s interest in G Pty Ltd, both as director and debtor in the context of these proceedings. Accordingly, in my view, the husband’s wish that his brother be appointed as his case guardian should be treated cautiously.
Having regard to those matters, I am satisfied that the husband’s brother should not be deemed as the husband’s case guardian. As noted earlier, it is common ground between the parties that Mr B should be appointed as case guardian in his stead.
Accordingly, I order as follows:-
1.That Mr B be appointed case guardian for the respondent husband.
2.That the Application in a Case filed 12 May 2017 and response to Application in a Case filed 2 June 2017 be otherwise dismissed.
3.That all extant applications be placed in the list of cases awaiting allocation to a judicial docket.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 3 August 2017.
Associate:
Date: 3 August 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Costs
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