Valdo & Samburg
[2021] FedCFamC2F 559
•23 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Valdo & Samburg [2021] FedCFamC2F 559
File number(s): ADC 2100 of 2019 Judgment of: JUDGE McGINN Date of judgment: 23 December 2021 Catchwords: FAMILY LAW – Litigation guardian – need for consent before appointment – release of materials on file – application to State Tribunal – adjournment for outcome. Legislation: Guardianship And Administration Act 1993 (SA)
Federal Circuit Court Rules 2001
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Division: Division 2 Family Law Number of paragraphs: 16 Date of hearing: 9 December 2021 Place: Adelaide Solicitor for the Applicant: Duncan Basheer Hannon Counsel for the Applicant: Mr Lewis The Respondent: Mr Samburg present in person ORDERS
ADC 2100 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VALDO
Applicant
AND: MR SAMBURG
Respondent
ORDER MADE BY:
JUDGE McGINN
DATE OF ORDER:
9 DECEMBER 2021
THE COURT ORDERS THAT:
1.Liberty will be granted to the de facto Wife’s Counsel to forward a letter to Judge McGinn’s Associate requesting that an order be made in chambers for the release of material from the Court file for the purposes of enabling that material to be used only for the purpose of any application that may be made to South Australian Civil and Administrative Tribunal under the Guardianship and Administration Act 1993 (SA) and that such liberty may be exercised on more than one occasion and that the Court shall make such orders in chambers as it considers fit without hearing further from the parties.
2.That there shall be liberty granted to the Applicant de facto Wife to otherwise seek to have the matter relisted at short notice upon written request to the Associate for Judge McGinn.
3.That this matter is otherwise adjourned for mention to 1 March 2022 at 10.00am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Valdo & Samburg has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN:
In this matter, there are two orders of the Court that are of significance, being a final order for property settlement made on an undefended basis on 28 August 2020 and an order for the appointment of a litigation guardian for the respondent de facto husband made on 20 August 2021.
The Court have had the matter called back before me today so that it might have the assistance of the applicant de facto wife’s counsel by way of submissions as to the next or further procedural steps in this matter.
The respondent de facto husband, Mr Samburg, has attended at the courtroom today and the Court has invited him to and he has remained seated at the back of the Court.
The Court has determined that Mr Samburg is a person who needs a litigation guardian and that no such litigation guardian has been appointed as yet.
The order for the litigation guardian of 20 August 2021 was made in the course of an application for enforcement brought by the applicant de facto wife on 3 March 2021 in respect of the order for property settlement made on 28 August 2020.
The order for property settlement of 28 August 2020 was made on an undefended basis in the absence of the de facto husband and any revision of that order by appeal or otherwise has not been sought by or on behalf of any party.
The order for property settlement casts certain obligations upon the parties to sell the home in the course of certain events. The home is one in which the respondent de facto husband continues to reside but which under the terms of the order for property settlement he must relinquish in default of payment to the de facto wife.
On the last occasion this matter was before the Court, the Court indicated that a request had been made consequent upon the order of 20 August 2021 to the Attorney-General for the making of an appointment under subrule 11.12(3) of the then Federal Circuit Court Rules 2001 to appoint a manager of the affairs of the de facto husband so that that appointed manager could file an affidavit of consent and so become the litigation guardian of the de facto husband and the Honourable Attorney-General has advised by an officer of her department, however, the Honourable Attorney-General was unable to locate any person to undertake the requested role of manager and so the appointment of a litigation guardian has not been complete.
In the light of that response, the Court indicated it would invite submissions from the applicant de facto wife as to the next steps to be taken in this matter, including the submissions directed as to whether the applicant de facto wife could be directed to seek steps to seek the appointment of someone to give consent to act as a litigation guardian under State legislation or whether this Court otherwise had power to do so.
Order 2 of the orders of 20 August 2021 by its terms “appoints” a litigation guardian for the respondent de facto husband in these proceedings. However, there is a difference between the “appointment” of and the creation of a litigation guardian. The appointment of a litigation guardian cannot take place without the necessary consent of a person to be the litigation guardian. In this sense, a litigation guardian is created by the filing of an affidavit of consent to be a litigation guardian. Given the existence of such an affidavit of consent, the consenting party can then be appointed by the Court. Similarly, any manager of affairs appointed by the Attorney-General or person located by the Attorney-General must provide a consent before being appointed litigation guardian under the Rules or by this Court. Given there is no consenting affidavit, the question in this case now is what is the Court to do in such circumstances.
The Court has discussed with Counsel today, in seeking assistance from the counsel appearing for the applicant de facto wife, the following:
(a)Whether a stay of indefinite duration could be seen as appropriate? The Court expressed the view that it would be reluctant to do so given that the property settlement orders had been made and are to be considered regularly made and unchallenged and that the terms of those orders provide both the de facto wife and the de facto husband each an interest in the house property and the proceeds of any sale from that property;
(b)The Court also has expressed a view that another possibility would be to proceed to hold the de facto wife to those same standards in prosecuting her claim that might apply to an applicant seeking orders on an ex parte basis, similar to those which might be found under sub Rules 5.11(b)(ii),(iii) and (vi) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021;
(c)Thirdly, the Court considered whether orders or directions could be made for the de facto wife to make an application under the Guardianship and Administration Act 1993 (SA) for a guardianship order appointing the Public Advocate possibly under subsections 29(1) and (4) of that Act and then for an administration order to be sought under section 35 and subsection 31(1)(b) of that Act, which may result in the Public Trustee under subsection 35(2) undertaking the role of litigation guardian on behalf of the de facto husband.
It has been indicated to the Court today following the submissions made by the wife’s counsel, and of which the Court finds of assistance, that the wife is disposed to endeavour to make such an application as indicated under the possible third alternative mentioned by the Court today. It has been indicated that such an application made to the relevant tribunal under the State legislation may not be disposed of until late February 2022 and that for the purposes of such an application to be expedited, access would be required and permission required for the provision of certain materials which have been either filed in these proceedings or have been promulgated by the Court by way of various orders and/or judgments and/or are held by way of transcript.
This indication was companied by an application for adjournment.
The Court welcomes this application on behalf of the de facto wife and is disposed, firstly, to adjourn the matter to enable the de facto wife to make the application to the relevant State tribunal under the Guardianship and Administration Act 1993 (SA) and, secondly, to consider in chambers any application for the provision of material necessary to prosecute that application.
The Court has also made a reference in the course of submissions this afternoon to a certain recent State authority that might bear upon other aspects of this matter which might have to be considered should the application to the State tribunal be unsuccessful. Notice of that authority will be provided to the de facto wife’s counsel directly by my associate.
NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Dated: 23 December 2021
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