WILKINS & GARRETT

[2015] FCCA 2751

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILKINS & GARRETT [2015] FCCA 2751

Catchwords:
FAMILY LAW – Property – application for property settlement.

PRACTICE AND PROCEDURE – Litigation Guardian – appointment of litigation guardian whether applicant needs a litigation guardian – test to be applied – where applicant held not to be capable of adequately conducting or giving adequate instruction for the conduct of the substantive proceeding.

Legislation:

Family Law Act 1975 (Cth), s.79

Federal Circuit Court Rules 2001, rr.11.08, 11.10, 11.11, 11.14

Applicant: MS WILKINS

Respondent: MR GARRETT

File Number: CRC 127 of 2015

Judgment of: Judge Scarlett

Hearing date: 21 September 2015

Date of Last Submission: 21 September 2015

Delivered at: Coffs Harbour

Delivered on: 25 September 2015

REPRESENTATION

Solicitor for the Applicant: Ms Green

Solicitors for the Applicant: Susan Green Solicitor

Respondent: Appeared in person

ORDERS

1. MR R is appointed to act as Litigation Guardian for the Applicant MS WILKINS in these proceedings numbered CRC 127 of 2015.

2. The parties are directed to attend, participate in and act reasonably and genuinely in mediation in respect of the issues regarding property adjustment.

3. The mediator shall be agreed between the parties. The parties shall notify my Associate of the identity of the agreed mediator within fourteen (14) days of the date of these Orders. If no such notification is received the mediator shall be appointed by the Court in Chambers and notified to the parties.

4. Each party is to provide to the mediator copies of all documents filed by each party no less than seven (7) days prior to the mediation.

5. The parties shall contribute equally to the fees of the mediator in the first instance but that the ultimate incidence of those fees be reserved to trial.

6. The parties shall agree with the mediator the fees for the mediation and the terms of payment thereof.

7. At least twenty eight (28) days prior to the mediation both parties must comply with the provisions set out in Part VIIIB of the Family Law Act 1975 and the Family Law (Superannuation) Regulations, in particular:

   (a)File and serve a Superannuation Information Form (SIF);

   (b)Specify any orders sought in relation to any superannuation interest;

   (c)Afford procedural fairness to any superannuation fund trustee (by serving the relevant application/response).

8. Each party shall provide to the other a copy of the following documents no less than twenty one (21) days prior to the mediation:

   (a)The documents detailed in Attachment “A” hereto;

   (b)The documents upon which they intend to rely in the proceedings; and

   (c)Documents in their possession (subject to a claim of privilege) adverse to their claim in these proceedings.

9. The Applicant is to prepare and provide a schedule to the mediator and a copy thereof to the Respondent no less than seven (7) days prior to the mediation that:

   (a)Identifies the agreed property and superannuation interests of the parties;

   (b)Identifies the alleged property that is not agreed;

   (c)Identifies the liabilities that are agreed should be taken into account and those that are not agreed; and

   (d)Identifies the valuations that are agreed and those that are not agreed.

10. THE COURT NOTES that the Applicant will not be available to participate in a mediation on 3 November 2015.

11. The Application is adjourned to Tuesday 24 November 2015 at 11:30 am for mention in the Coffs Harbour circuit.

IT IS NOTED that publication of this judgment under the pseudonym Wilkins & Garrett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 127 of 2015

MS WILKINS

Applicant

And

MR GARRETT

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application in a Case seeking to appoint the Wife’s father, Mr R, as the Wife’s litigation guardian for the purpose of the substantive proceedings. The Wife is the Applicant in proceedings for property settlement under s.79 of the Family Law Act 1975 (Cth). The Application is neither consented to nor opposed to by the Husband.

Appointment of a Litigation Guardian

1. Division 1.2 of the Rules provides for the appointment of a litigation guardian for a party.

2. Sub-Rule 11.08(1) provides:

   For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of the proceeding.

3. Rule 11.10 prescribes who may be a litigation guardian:

   A person may be a litigation guardian in a proceeding if he or she is an adult and has no interest in the proceeding adverse to the interest of the person needing the litigation guardian.

4. Rule 11.11 provides, relevantly:

   (1)The Court may, at the request of a party or its own motion, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.

   (2)A person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding

5. Rule 11.14 provides for the payment of the litigation guardian’s costs and expenses:

   The Court may make orders for the payment of the costs and expenses of a litigation guardian (including the costs of an application for the appointment of a litigation guardian):

   (a)     by a party; or

   (b)from the income or assets of the person for whom the litigation guardian is appointed.

Procedural History

1. The Applicant filed an Application for property settlement, supported by an affidavit and a Financial Statement, on 17^th May 2015. The Application was returnable at 9:30am on 21^st September 2015.

2. She filed a further affidavit, by her father, on 9^th June 2015.

3. The Respondent filed a Response, supported by an affidavit and a Financial Statement, on 3^rd September 2015.

4. On the first return date the Application was adjourned to Friday 25^th September.

5. The Applicant filed her Application in a Case and two supporting affidavits on 24^th September 2015.

Application to Appoint a Litigation Guardian

1. The Applicant relies on the following affidavits in support of her case for the appointment of a litigation guardian:

   a)the affidavit of her solicitor, Susan Green, sworn 23^rd September 2015; and

   b)the affidavit of her father, the proposed litigation guardian, Mr R, sworn 23^rd September 2015.

2. In her affidavit, Ms Green deposed that:

   a)at a round table discussion on 25^th February 2015 with the Respondent and his then solicitor, Ms Heather McKinnon, she observed the Applicant’s behaviour to be “quite erratic and concerning, and she in fact left the meeting shortly after it started”.[1]

   b)She has received many emails from the Applicant advising that she has not slept for days prior to possible interaction with the Respondent;[2] 

   c)The Applicant has been receiving psychological counselling throughout these proceedings and prior to their commencement;[3]

   d)There have been times when she has been “very concerned about Ms Wilkins’ mental health and ability to deal with this matter…”;[4] and

   e)In light of her experiences with the Applicant and her observations of the Applicant’s behaviour when under stress she foresees that she will have “ongoing difficulties” in fulfilling her duty to her client as well as her “duty to the court to represent Ms Wilkins’ case in a succinct coherent manner should a litigation guardian not be appointed.”[5]

   [1] Affidavit of S. Green 23.9.2015 at paragraph [4]

   [2] Ibid at [[6]

   [3] Ibid at [7]

   [4] Ibid at [9]

   [5] Ibid at [12]

3. In his affidavit of the same date consenting to being appointed as the litigation guardian for his daughter, Mr R deposed that due to his concern for her capacity to deal with the proceedings and make decisions which are in her best interests or in fact give adequate instructions to her solicitor for the conduct of the case, he arranged for her to see her doctor and her psychologist.[6]

   [6] Affidavit of Mr R 23.9.2015 at paragraph [3]

4. Mr R annexed to his affidavit copies of a brief certificate from the Applicant’s treating medical practitioner, Dr K dated 19^th September 2015, and a letter dated 23^rd September 2015 from Ms M, Clinical Psychologist.

5. In her letter, Ms M states that she has been consulted by the Applicant on some ten occasions since 10^th December 2013 for “treatment of depressed mood with anxious distress”. Ms M supports the Applicant’s decision to appoint her father as litigation guardian, stating that:

   “In my opinion, Ms Wilkins’ current stress levels may interfere with her capacity for clear judgment and decision making in her interactions with Mr Garrett[7] in this matter”.[8]

   [7] i.e. the Respondent

   [8] Letter 23.9.2015 forming Annexure “B” to the affidavit of Mr R 23.9.2015

6. The Respondent did not seek to be heard on the application to appoint a litigation guardian.

Conclusions

1. It is clear that the Applicant’s father has no interest in the proceeding adverse to that of the Applicant. He has filed an affidavit indicating his consent to being appointed as a litigation guardian for his daughter.

2. The issue in this case is the second leg of the test in Sub-Rule 11.08(1), whether or not the Applicant is capable of adequately conducting, or giving adequate instructions, for the conduct of the matter.

3. The affidavit evidence of Ms Green as to her observations of the Applicant in the proceedings so far and the report by Ms M, the Clinical Psychologist, lead me to the firm view that the Applicant herself is not capable of adequately conducting, or giving adequate instruction for the conduct of, the property proceeding in which she is involved.

4. Accordingly, I propose to appoint the Applicant’s father, Mr R, as her litigation guardian. It may well assist the parties for this matter to be referred to mediation, and it would appear that Mr R will no doubt be able to take part in that procedure.

5. I note that the Applicant will not be available for a mediation on 3^rd November this year.   

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  8 October 2015