TOSCANI & TOSCANI - [2019] FamCA 581

FAMILY COURT OF AUSTRALIA

TOSCANI & TOSCANI

[2019] FamCA 581

FAMILY LAW – PRACTICE AND PROCEDURE – application for the appointment of a case guardian for the husband pursuant to rule 6.10 of the Family Law Rules 2004 (Cth) – where the husband lacks capacity to make decisions and understand the proceedings – application not opposed – case guardian appointed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 6.09, 6.10

APPLICANT:

Ms Toscani

RESPONDENT:

Mr Toscani

FILE NUMBER:

MLC

10120

2016

DATE DELIVERED:

25 July 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

25 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schmidt

SOLICITOR FOR THE APPLICANT:

Clancy & Triado

COUNSEL FOR THE RESPONDENT:

Ms Renwick

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

Orders

That pursuant to Rule 6.10 of the Family Law Rules 2004 (“the Rules”) Mr B born … 1949 be appointed as Case Guardian for the respondent husband in these proceedings.
That pursuant to Rule 6.14 of the Rules the costs and expenses of the Case Guardian, including those of this application, be met by the respondent husband.
That the Application in a Case filed 24 July 2019 be otherwise dismissed.

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 Toscani & Toscani 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 10120 of 2016

Ms Toscani

Applicant

And

Mr Toscani

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This matter comes before the Court today for mention in anticipation of a final hearing.
Also before the court today is an Application in a Case filed on behalf of the husband on 24 July 2019. The application is supported by an affidavit of Mr B, filed the same date. Application is made pursuant to Rule 6.10 of the Family Law Rules 2004 (Cth) (“the Rules”) for the appointment of a case guardian, Mr B, to represent the husband in these proceedings.
The basis for that application is that it has been assessed by the husband’s medical practitioner that he no longer has capacity to provide instructions and to conduct the proceedings. In support of the application, there is a report from Professor C, who is a consultant neuropsychiatrist. That report is dated 22 July 2019 and is annexed to Mr B’s affidavit at pages 24 to 28.
Professor C interviewed the husband on 25 May 2019. He conducted further interviews on 18 July and 22 July 2019. He sets out in detail,…

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.

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Details

Case: [2019] FamCA 581
Decision Date: 25 July 2019

CaseChat Overview and Summary

In the matter of *Toscani & Toscani*, Johns J of the Family Court of Australia considered an application for the appointment of a case guardian for the respondent husband. The wife sought the appointment of a case guardian on the basis that the husband lacked the capacity to make decisions and understand the proceedings before the court. The application was not opposed by the husband.

The central legal issue before the court was whether to appoint a case guardian for the respondent husband pursuant to rule 6.10 of the *Family Law Rules 2004* (Cth). This rule permits the court to appoint a case guardian for a party who lacks the capacity to conduct proceedings.

Johns J found that the husband lacked the requisite capacity to understand the proceedings and make decisions concerning them. Applying rule 6.10, the court determined that the appointment of a case guardian was appropriate in the circumstances. The court also considered the costs associated with the appointment, ordering that the husband bear these expenses pursuant to rule 6.14 of the Rules.

Consequently, Johns J ordered the appointment of Mr B as Case Guardian for the respondent husband. The court further ordered that the costs and expenses of the Case Guardian, including those of the application, be met by the respondent husband. The application in a case filed on 24 July 2019 was otherwise dismissed.

Orders

Orders of the court

That pursuant to Rule 6.10 of the Family Law Rules 2004 (“the Rules”) Mr B born … 1949 be appointed as Case Guardian for the respondent husband in these proceedings.

That pursuant to Rule 6.14 of the Rules the costs and expenses of the Case Guardian, including those of this application, be met by the respondent husband.

That the Application in a Case filed 24 July 2019 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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