Willshire & Willshire
[2009] FamCAFC 130
•21 July 2009
FAMILY COURT OF AUSTRALIA
| WILLSHIRE & WILLSHIRE | [2009] FamCAFC 130 |
| FAMILY LAW - APPEAL - Leave to extend time to file and application - Leave to proceed without a case guardian - Appeal against an order for the appointment of a case guardian - Whether the trial Judge erred in finding the husband had a disability to the extent that it justified the appointment of a case guardian - Appeal dismissed - Order for costs |
| Family Law Act 1975 (Cth) Family Law Rules 2004(Cth), r 6.08(1) |
| APPELLANT: | MR WILLSHIRE |
| RESPONDENT: | MS WILLSHIRE |
| CASE GUARDIAN: | MR K |
| INDEPENDENT CHILDREN’S LAWYER: | MR F |
| FILE NUMBER: | TVF | 208 | of | 2006 |
| APPEAL NUMBER: | NA | 66 | L | of | 2008 |
| DATE DELIVERED: | 21 July 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn J Thackray J Strickland J |
| HEARING DATE: | 12 November 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 December 2007 5 June 2008 |
| LOWER COURT MNC: | [2007] FamCA 1704 [2008] FamCA 702 |
REPRESENTATION
| SOLICITOR FOR THE HUSBAND: | In person |
| COUNSEL FOR THE WIFE: | Mrs Pack SC |
| SOLICITOR FOR THE WIFE: | Apels Solicitors |
| COUNSEL FOR THE CASE GUARDIAN: | Mr Sheridan |
| SOLICITOR FOR THE CASE GUARDIAN: | Mr K |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Burridge |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lehmann Featherstone |
ORDERS
That the Applications in a Case filed by the appellant on 3 September 2008 and 9 September 2008 be dismissed.
That the time for the filing of the Application for Leave to Appeal against the orders made on 7 December 2007 be extended to 22 July 2008 and for the filing of the Notice of Appeal against the orders made on 5 June 2008 be extended to 12 November 2008.
That leave to appeal against the orders made on 7 December 2007 be granted.
That the Appeal against the orders made on 7 December 2007 be dismissed.
That the Appeal against the orders made on 5 June 2008 be dismissed.
That the appellant pay the costs of the respondent, the Independent Children’s Lawyer and the case guardian as agreed, or in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Willshire & Willshire is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 66L of 2008
File Number: TVF 208 of 2006
| MR WILLSHIRE |
Appellant
And
| MS WILLSHIRE |
Respondent
And
| MR K |
Case Guardian
And
| MR F |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
On 22 July 2008 the husband filed an application which can be regarded as seeking leave to appeal against two orders made by Benjamin J. These were:
(a)the order made on 7 December 2007 appointing Mr K as the husband’s case guardian; and
(b)the final property settlement and parenting orders made by consent on 5 June 2008.
The husband’s application can also be regarded as containing an application for an extension of time to file the application, and an application for leave to proceed without the case guardian.
The initial issue which confronts us is that there is a case guardian still appointed for the husband; the order for the appointment of Mr K as the case guardian made on 7 December 2007 has not been discharged.
The husband seeks leave though to proceed without the case guardian and he does so presumably because sub-rule 6.08(1) of the Family Law Rules 2004 provides that:
a child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by case guardian.
In the amended outline of argument for the wife it was submitted that the application filed on 22 July 2008 should be dismissed because although the husband has standing to make an application to remove or replace his case guardian, the husband had failed to provide any medical evidence that he is now capable of conducting these proceedings, and he has failed to present any evidence that the case guardian has acted contrary to his interests. Despite this we permitted the husband to appear on his own behalf and proceed with his application. In our view, given the nature of the complaint that the husband makes, namely that the case guardian should not have been appointed in the first place because he is not suffering from a disability, it was appropriate to allow the husband to proceed without his case guardian. At the commencement of the hearing senior counsel for the wife did not make any submission to the contrary. Nor did counsel for the Independent Children’s Lawyer or counsel for the case guardian.
We note that although Mr K, the case guardian, did not seek to appear in that capacity on behalf of the husband, counsel appeared for him but solely for the purpose of addressing any claim that the case guardian had acted improperly.
In relation to the application to extend time, there was no opposition to that application, and given the history of these proceedings and the circumstances of the husband’s disability, or alleged disability, we considered that time should be extended, and we will make an order accordingly.
It was unclear whether the husband in fact required leave to appeal against the order made by Benjamin J on 7 December 2007, but in any event it was our view expressed at the hearing that such leave should be granted and that was not opposed by wife, the Independent Children’s Lawyer or the case guardian.
In relation to the husband’s complaint about the order made on 5 June 2008 it is quite clear that no leave to appeal is required and we have allowed that matter to proceed on the basis of the Notice of Appeal dated 25 June 2008. As it is unclear whether that Notice of Appeal was ever filed, we will out of an abundance of caution extend time for the filing of an appeal against the order of 5 June 2008 to 12 November 2008, the date of the hearing before us.
We note that the appeal books were put together by the appeal registrar in order to assist the husband. We also gave leave at the hearing on the application of the wife to add further documents to the appeal books. Those documents comprise as follows:
9.1Transcript of proceedings before Benjamin J – 20 June 2008.
9.2Reasons for judgment of Benjamin J – 20 June 2008.
9.3Application in a case filed by the husband – 3 September 2008.
9.4Affidavit filed by the husband – 3 September 2008.
9.5Application in a case filed by the husband – 9 September 2008.
9.6Affidavit filed by the husband – 9 September 2008.
9.7Response to application in a case filed by the wife – 23 October 2008.
9.8Affidavit filed by the wife – 23 October 2008.
9.9Report of Dr V – 13 June 2008.
The application in a case filed by the husband on 9 September 2008 sought an adjournment of the appeal hearing to obtain and to present further evidence. That application was renewed before us at the commencement of the hearing. It was opposed by the other parties including the Independent Children’s Lawyer. We refused that application because as we understood the submissions of the husband the further evidence which he wished to obtain would relate to land resumption issues and also to his concerns that his mental health problems had arisen because he had been “criminally drugged”. While these matters are no doubt of great concern to the husband, they appeared to have no relevance to the matters which we had to decide, and which essentially were whether Benjamin J had erred in making the orders of 7 December 2007 and 5 June 2008.
Background
The husband was born in 1962 and the wife was born in 1965.
The husband and the wife commenced their relationship in August 1983 and they were married in June 1985. They separated in 2005 and proceedings were commenced in the Family Court of Australia in 2006.
There are 5 children of the relationship, two of whom are under 18 years namely L born in 1993 and M born in 2001. They both live with the wife.
On 11 October 2006, the wife filed an Amended Application seeking parenting and property orders.
The husband filed a Response on 15 December 2006.
The wife filed a further Amended Application on 20 March 2008.
In 2007, the Independent Children’s Lawyer requested that the husband and the wife be examined by a psychiatrist. They were accordingly examined by Dr B on 19 and 20 March 2007, and on 23 March 2007 Dr B provided his reports.
Regarding the husband, Dr B concluded, inter alia:
…this man clearly has a florid paranoid schizophrenic illness, is in desperate need of treatment, totally insightless and therefore reluctant to accept any treatment…(h)e will become progressively more disordered, disorganised, chaotic and virtually unable to relate to people and to himself.
On 12 July 2007, Registrar Victoire ordered:
UPON APPLICATION made to the Court AND UPON hearing the matter in Chambers and considering the report of Dr [B] filed 20 April 2007
IT IS ORDERED:
1. That the Respondent Husband is affected with a disability which requires that a case guardian conduct the present proceedings for him.
2. It is noted that there is no suitable person available who can act as Mr [Willshire’s] case guardian.
3. Pursuant to Rule 6.11(i) [sic] of the Family Law Rules 2004, the Attorney General is requested to nominate, in writing, a person to be the case guardian for …[Mr Willshire].
4. The person so nominated is asked to file:
a)a consent to act
b)copy of the written nomination of the person as case guardian
c)a Notice of Address for Service
5. That the matter be listed for a hearing Case Management on 5 September 2007 at 10:00am in [C].
The Attorney-General did not nominate a suitable person as case guardian for the husband.
On 7 December 2007, Benjamin J made the following order, notation, direction and request:
BY CONSENT
1. …[Mr K] is appointed case guardian for …[Mr Willshire] (“the respondent”) in these proceedings.
IT IS NOTED
2. The consent given by the respondent is given in light of a report of Dr [B].
…
IT IS DIRECTED
5. Any settlement of these proceedings, whether in regard to children or regard to property be approved by me or if not available by another Judge of this Court or a Federal Magistrate.
IT IS REQUESTED
6. The Queensland State Guardianship Board, relying on the evidence of Dr [B], of its own motion under the State Legislation consider appointment of the Queensland State Adult Guardian as guardian for the husband, without the requirement for further medical examination.
…
Mr K was the husband’s solicitor at this time and it seems he continued in a dual role for some time thereafter.
On 23 May 2008 the case guardian filed an affidavit in satisfaction of the requirements under Rule 6.13(1)(d) of the Family Law Rules 2004. Under that paragraph, where a consent order is sought a case guardian “must file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests”.
On 26 May 2008 the matter came before Benjamin J for the purpose of making consent final parenting and property orders. The case guardian, the Independent Children’s Lawyer and the solicitor for the wife all appeared. The husband was also present and he expressed opposition to the orders sought for property settlement. He also indicated that he was opposed to the parenting orders, but only to the extent that they provided for supervised time. Benjamin J adjourned the matter to 5 June 2008 to allow the husband to make an application for removal or replacement of the case guardian and to present medical evidence to the court about the state of his mental health.
On 5 June 2008 Benjamin J was advised that the husband had been admitted to hospital as an involuntary patient. His Honour then made orders in terms of the minute of consent order signed by the Independent Children’s Lawyer for the mother and the case guardian on behalf of the father. Benjamin J also made the following orders:
IT IS FURTHER ORDERED BY THE COURT
7. Leave be given to the husband to apply to the Court in relation to the removal of Case Guardian and setting aside these orders, provided such application is made within fourteen days from the date of these orders and is supported by an affidavit from a qualified and licensed medical practitioner certifying: -
a) the husband has the capacity to manage the case himself; and
b)the husband is properly medicating and treating himself in accordance with medical advice in relation to his illness.
8. The operation of the property orders be stayed until 5:00pm 29 June 2008.
On 16 June 2008 the husband filed an application in which he sought various orders including orders that the order made on 5 June 2008 be struck out as being made without his consent and without his knowledge, and that Mr K be removed as case guardian. He filed affidavits in support of that application and attached to that affidavit was a report from Dr V dated 13 June 2008. Indeed that report was also provided direct to the court and it said as follows:
This is to certify that I saw Mr [Willshire] on 12 06 08 and found that he does not presently have the mental capacity to represent himself. He has commenced on treatment that will probably only be fully effective in two months time. He suffers from Schizo-Affective Disorder/Schizophrenia.
On 20 June 2008 the application came before Benjamin J and his Honour dismissed the husband’s application.
On 22 July 2008 the husband filed the application referred to in the opening paragraphs of these reasons.
On 3 September 2008 the husband filed another application in a case but it is impossible to discern the orders that he sought in that application. Accordingly, we propose to dismiss that application.
On 9 September 2008 the husband filed a further application in a case in which, inter alia, he sought an adjournment of the appeal hearing which was dismissed for the reasons given earlier.
On 18 September 2008 the Queensland Guardianship and Administration Tribunal made the following orders:
DECLARATION ABOUT CAPACITY
1. That the application for the declaration about capacity for …[Mr Willshire] is dismissed.
ADMINISTRATION
2. That the appointment of The Public Trustee of Queensland as administrator for …[Mr Willshire] for all financial matters is continued.
3. The administrator is to provide a financial management plan to the Tribunal within four (4) months.
4. The Tribunal directs the administrator to provide accounts to the tribunal when requested.
5. This appointment remains current until further order of the Tribunal.
On 10 October 2008 the Public Trustee of Queensland advised the Appeal Registrar that the Public Trustee was the administrator of financial matters for the husband, that the Public Trustee did not wish to be heard in the matter of the husband’s appeal, and that the office of Public Trustee would be assisting the husband in the ongoing management of his financial affairs including his entitlement from the settlement.
On 23 October 2008 the wife filed a response to the applications filed on 3 September 2008 and 9 September 2008 seeking that they both be dismissed.
On 12 November 2008 the husband’s application filed on 22 July 2008 came before this Court for hearing.
Reasons for judgment of the learned trial Judge – 7 December 2007
His Honour’s reasons were brief. His Honour stated that he proposed to make orders providing for a case guardian for the husband, and that in doing so, he had regard to the submissions made by each of the parties, and discussion between himself and the husband directly. He indicated that he had read the report of Dr B.
The learned trial Judge then discussed an application which had been made to the Queensland State Guardianship Board for the husband to undergo a second psychiatric assessment and his intention to make a copy of his reasons and Dr B’s report available to the Board. His Honour requested the Board appoint the State Adult Guardian as guardian for the husband in his general life, having regard to the views of Dr B without further medical examination.
The learned trial Judge directed that any settlement of the proceedings be approved by himself or another judge of the Court.
Reasons for judgment of the learned trial Judge – 5 June 2008
Again his Honour’s reasons were brief. His Honour noted that the matter had come before him on 26 May 2008 for the purpose of making consent orders with respect to parenting and property matters. At that time the husband continued to have his litigation conducted by Mr K as case guardian, but the husband attended saying that he opposed the settlement being made.
The learned trial Judge detailed that on 26 May 2008 he invited the father to arrange for an alternative case guardian or apply to remove the case guardian between 26 May 2008 and 5 June 2008.
His Honour stated that he was informed that the husband was involuntarily placed in psychiatric care in hospital earlier that week and that may have impacted on his ability to obtain the medical evidence that he wished to put before the Court. His Honour considered that it was open to him to infer that he had some significant problems arising out of his mental illness.
His Honour then considered that having regard to the material provided to him when the matter was before him on 26 May 2008, the property orders were appropriate and informed, and he proposed to make those orders. With regard to the parenting orders, his Honour considered that the parenting orders before him were appropriate and in fact that they were not orders which the father had opposed on 26 May 2008.
His Honour continued:
4. What I have done is make final orders today, but given leave to the father to reapply within a short period of time if he can provide evidence to the Court that he has capacity to conduct his own case. If that application is not made within a period of three weeks from the date of these orders, then these orders become final orders. I direct a copy of the orders to be forwarded by ordinary prepaid post to the father by his case guardian.
The grounds of appeal – order 7 December 2007
The notice of appeal was difficult to follow. However, doing the best that we can it seems that the husband asserts that the diagnosis of Dr B was “flawed” and there was no basis for the appointment of a case guardian. In his oral submissions the husband put that Dr B had only spent a brief time with him namely approximately 15 minutes, and that at the time he had been “criminally drugged”. He also submitted that his affidavit had been altered to remove references to this drugging.
The grounds of appeal – order 5 June 2008
Again, the notice of appeal was difficult to follow but it seems that the husband’s complaint is that the case guardian, who should not have been appointed in the first place, consented to orders to which he did not consent.
Discussion
We propose to first deal with the appeal against the order of 7 December 2007 appointing the case guardian. If we allow this appeal then that would provide a possible basis to set aside the orders made on 5 June 2008. However, if we dismiss the appeal it follows that the husband would not be in a position to challenge the orders made on 5 June 2008 and thus the appeal against those orders would be dismissed.
Part 6.3 of the Family Law Rules 2004 comprises the rules in relation to case guardians, including for their appointment and removal.
The Dictionary to the Family Law Rules defines a case guardian as follows:
case guardian means a person appointed by the court under rule 6.10 to manage and conduct a case for a child or a person with a disability and includes a next friend, guardian ad litem, tutor or litigation guardian (see part 6.3).
A “person with a disability” is defined by the dictionary in the Rules as follows:
Person with a disability, in relation to a case, means a person who, because of 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.
The issue is whether the learned trial Judge made an error in finding on the evidence before him that the husband had the requisite disability to justify the appointment of the case guardian.
As referred to above, the evidence that the learned trial Judge had was the report of Dr B filed 20 April 2007. As was correctly pointed out by the counsel for the Independent Children’s Lawyer in his summary of argument, that report addressed the mental health of the husband in the context of whether the children should spend supervised or unsupervised time with him. Dr B was not asked to report directly on whether the nature of the husband’s condition amounted to a disability requiring the appointment of a case guardian. However, we agree with the submissions made by counsel for the Independent Children’s Lawyer to this effect, that the report of Dr B revealed a person who was unlikely to understand the nature and consequences of the proceedings and who was unable to adequately conduct or give adequate instructions in relation to the proceedings.
The order of the learned trial Judge was expressed to be by consent. Certainly the wife and the Independent Children’s Lawyer were consenting to the order, but it is problematic whether the consent of the husband could be said to have been fully informed. During the course of the hearing the husband told his Honour that he had not read the report of Dr B. However, it is apparent from the transcript of the hearing before his Honour that the husband had some appreciation of the implications of the appointment of a case guardian. In any event, the Family Law Rules do not require the consent of the person under a disability, and indeed in most instances that would be impossible to achieve. Furthermore, it is clear his Honour’s findings did not depend on the consent of the husband, and thus any doubt about the validity of the consent does not affect the validity of the orders.
The issue before the learned trial Judge was whether the husband was a person with a disability within the meaning of the Family Law Rules. In our view the report of Dr B provided sufficient evidence for the learned trial Judge to find that the husband was a person who because of mental disability did not understand the nature or possible consequences of the case or was not capable of adequately conducting or giving adequate instructions for the conduct of the case. Thus there is no merit in the ground of appeal against the order appointing the case guardian.
Turning to the orders of 5 June 2008, given that the case guardian was validly appointed and the husband had not brought any application to remove or replace him, and that there was no medical evidence indicating that the husband was capable of understanding the nature or possible consequences of the case or that he was capable of adequately conducting the case, the consent of the case guardian to the proposed final orders was sufficient to finalise the matter. The trial Judge gave the husband ample opportunity to bring an application, and when he did so on 16 June 2006 the husband’s own medical evidence was to the effect that he did not have the mental capacity to represent himself. We agree with the submission made by counsel for the Independent Children’s Lawyer that the consent of the case guardian was binding on the husband. Thus the appeal against the order made on 5 June 2008 has to be dismissed as well.
We cannot leave this appeal without commenting on the circumstance of the husband’s own solicitor being appointed as the case guardian. That is highly unusual and indeed concerning, but it was brought about by the absence of any other person or any relevant entity or authority to take up the appointment. A request had been made by the registrar to the Attorney-General pursuant to Rule 6.11 of the Family Law Rules but no nomination had been made.
Unfortunately it is a common occurrence for there to be no person, entity or authority available to take such an appointment. Presumably for State entities such as Public Trustees or Public Advocates it is a question of costs, but they are the obvious choice to take up such an appointment where there is no available alternative.
It would be highly desirable, in our view, if the Attorney-General was able to initiate discussions for arrangements between the Commonwealth and State Governments which provide for a suitable case guardian to be appointed for a person in the position of the husband here where there is no alternative available. It is entirely unsatisfactory that the husband’s own solicitor should be placed in the position where he is appointed as the husband’s case guardian. They have entirely different roles in the conduct of litigation.
Conclusion
It was open to the learned trial Judge on the evidence before him to find that the husband had a disability which required the appointment of a case guardian, and thus the appeal against the order made on 7 December 2007 should be dismissed.
This then disposes of the appeal against the orders made on 5 June 2008 and that should also be dismissed.
Costs of the appeal
In the event that the appeals were unsuccessful, the wife, the Independent Children’s Lawyer, and the case guardian all sought orders for costs.
The husband opposed any order for costs.
We consider that orders for costs should be made, since the husband was entirely unsuccessful.
I certify that the preceding 61 paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered 21 July 2009.
Associate
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