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 of 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

1. 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.

2. 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.

3. 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

1. This matter comes before the Court today for mention in anticipation of a final hearing. 

2. 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.

3. 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. 

4. 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, particularly at pages 25 and 26 of the report as annexed to that affidavit, details of his interview with the husband on 18 July 2019.  It is evident from his report that at times the husband was confused as to the purpose of his attendance on that medical practitioner and that he had little understanding of the legal issues that are currently before this Court. 

5. Towards the conclusion of that report, Professor C expresses the following opinion with respect to the husband:

   …I am of the opinion that [the husband] has a dementia with significant cognitive impairment, with deficits across all cognitive domains.  He could only discuss the legal issues in very general terms and did not appear to have a grasp of the breadth of his financial affairs.  He often stated that he had not come prepared for the interview.  I believe that he would find a court case difficult to follow and would be unable to provide evidence on the stand.  He can provide instructions at a general level but tends to defer to those people he trusts. 

6. As to the husband’s capacity to negotiate the following legal scenarios, whether under time pressure or free of pressure, the assessment by the doctor was that the husband did not have the capacity to make decisions concerning the conduct of the Family Court proceedings, that he did not have the capacity to consider offers of settlement, that he did not understand legal advice and that he did not understand the contents of settlement documents. There is no challenge to that evidence.  I accept Professor C’ assessment of the husband.

7. Mr B, in his affidavit, confirms that he is an adult, that he has no interest in the case that is adverse to the interest of the husband and that he has the capacity to fairly and competently conduct the case for the husband.  Further, he provides his consent to act as case guardian.  Mr B is one of the husband’s attorneys pursuant to an enduring power of attorney that was granted on 13 July 2016.  Further, he is a chartered accountant and has acted in that role on behalf of the husband since 1981.

8. Mr B, as a result, has considerable knowledge and understanding of the husband’s financial circumstances.  He confirms in his affidavit that he has no interest in any of the corporate entities in which the husband has an interest.  I accept Mr B’s unchallenged evidence.  Again, I note there is no opposition to his appointment to the position and role of the husband’s case guardian.

9. Having regard to all of those matters, I am satisfied that it is appropriate that Mr B be so appointed as the case guardian. In doing so, I have had regard to rule 6.09 of the Rules, which addresses the issue of who may be a case guardian. It is clear from Mr B’s evidence that he meets the relevant criteria set out in the Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 25 July 2019.

Associate: 

Date:  25 July 2019