June 2019 Family Law Case Watch

Are you in a difficult Family Law battle and feel you cannot actively participate in it? Do you think that you have personal circumstances impeding on your ability to do so? Do you have a family member or close friend who knows your state of affairs as well as you do, if not better, who you would trust to provide instructions on your behalf? If you find yourself in this position, read on to understand in what circumstances a “Case Guardian” may be appointed to manage the conduct of a family law case.

The recent Family Law case of Genesalio & Genesalio [2019] FamCAFC 85 contemplates the relevant criteria to be met in order for a Case Guardian to be appointed, and whether the Husband in this particular case, who suffered from various medical disorders and diseases, qualified under that criteria.

Background

The multiple medical co-morbidities that the Husband had been diagnosed with in the matter included:

  1. End stage kidney disease;
  2. Ischaemic (Coronary) heart disease, which reduces blood supply to the heart;
  3. Hypertension;
  4. Type 2 diabetes mellitus;
  5. Renal anaemia; obstructive sleep apnoea; and
  6. Major depression.

The Husband’s kidney disease required that he attend hospital for dialysis every second day and this stress and anxiety could potentially lead to him suffering a heart attack. Given his heart disease. In fact, shortly after attending a Hearing on 8 November 2018, the Husband spent six (6) days in hospital with heart attack symptoms.

The Husband’s general practitioner (“GP”) produced a number of reports (dated from 1 September 2017 to 18 October 2018) indicating that the Husband needs to avoid stress to prevent a heart attack and specifically highlighted that he is at risk of a heart attack or stroke by being in Court. The GP said generally that the Husband “has no capacity to engage in Court requirements, and… any Court proceedings be delayed until his condition stabilised medically”. The GP made further significant remarks including, that:

  1. Any participation in litigation or Court attendance would be hazardous to the Husband’s health;
  2. The physiological impact of stress on the Husband may elevate his blood pressure which in turn would place significant strain on his heart and potentially lead to further Acute Myocardial Infarctions or strokes; and
  3. There is enough risk of death for the Husband to prevent him from making Court appearances for the indefinite future.

Due to the Husband’s circumstances, the Husband’s brother sought an order to be appointed as the Husband’s Case Guardian.

The Wife in the present case, opposed the appointment of a Case Guardian for the Husband, relying on the GP’s most recent Report dated 18 October 2018 which stated that the Husband’s comorbidities should not impact his “cognitive capacity or ability to give instructions or transport himself to Court” if required, and therefore it is not necessary for the Husband to have a Case Guardian appointed. Further, that there has been no more recent medical evidence since that the Report dated 18 October 2018, and no evidence of any hospitalisation following the Court Hearing since November 2018.

Law/Application

The dictionary to the Family Law Rules 2004 (Cth) (“the Rules”) defines “a person with a disability” as follows:

“Person with a disability, in relation to a case, means a person who, because of a physical or mental disability:

  • Does not understand the nature or possible consequences of the case; or
  • Is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

Part 6.3 of the Rules relates to Case Guardians and relevantly outlines that a person who is a manager of the affairs of a party is taken to be appointed as the Case Guardian of that party, if the person has (rr 6.09, 6.10(2) and 6.08A):

  1. Filed a Notice of Address for Services;
  2. Filed an Affidavit;
  3. Consents to the appointment as the Case Guardian; and
  4. Has no adverse interest to the case of the party needing the Case Guardian.

Further, a party will only require a Case Guardian if that party is suffering from a relevant disability (Thorn & Thorn [2017]  FamCA 950).

There is no dispute in the present case that the Husband was suffering from the disorders/diseases that he claimed and there is no suggestion that he does not understand the nature or possible consequences of his case due to those disorders/diseases. What is in contention is whether the Husband “is not capable of adequately conducting… the case”.

Outcome

The Full Court of the Family Court contemplated that the stress and anxiety that would be caused by the Husband appearing in the appeal proceedings and conducting his case could possibly result in the Husband being hospitalised and even suffering a heart attack. The Full Court stated that “it would be naïve to proceed on the basis that the Husband no longer suffered from the medical conditions” and noted that there have been no appearances in Court by the Husband in recent months that could compare to the gravity of the appearance in November 2018, which led to the Husband’s hospitalisation for six (6) days.

The Full Court of the Family Court ultimately found that the Husband suffers from a disability that impeded on his ability to adequately conduct the appeal proceedings, and a Case Guardian was required. It is important to note that the Application by the Husband’s brother to be appointed as Case Guardian was made in the context of the Husband having two (2) appeals before the Court. This is relevant because any order made as a result of an Application in an appeal can only be for the purposes of those appeal proceedings.

In addressing whether the Husband’s brother had an adverse interest in the Husband’s case, the Full Court considered the brothers’ respective interests in certain trusts and pieces of real estate however said that these matters have not yet, and may never, arise in the property settlement proceedings and in any event, those issues have no relevance to the appeal proceedings.

Conclusion

A disability, whether physical or mental, may not suffice for the appointment of a Case Guardian in a Family Law matter. The broader criteria will have to be met and each case will depend on its own respective circumstances and the gravity and impact of those circumstances.

If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional family lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Mediations and Domestic / Family Violence

What do you do when there has been domestic and/or family violence (‘DFV’) in your life and the other party wants to proceed to Mediation? Are you still required to attend?

What if you have been the victim of DFV but you actually feel safe enough to attend a Mediation? Are you automatically excluded?

Matters involving DFV are often considered to be inappropriate for Mediation, given that the issue of a power imbalance evident in many relationships involving DFV is contraindicated to mediation as an appropriate forum for resolving disputes. A Section 60I Certificate will in many of these cases be issued by the Mediator or Family Dispute Resolution Practitioner (FDRP) for that reason. But what if you don’t want to have to go to Court to achieve your desired outcome? Will this mean that all avenues of Alternative Dispute Resolution are unavailable to you?

These are some of the common questions that arise when trying to resolve family law disputes after separation in matters involving DFV. If you find yourself in a similar situation, read on as this article will discuss what can be done to help.

Defining Domestic / Family Violence – What does it involve?

Domestic violence takes shape in many forms and does not discriminate between different cultures. It is widely acknowledged that the majority of people who experience domestic, family and sexual violence are women. But men can also be the victims of DFV. Domestic violence may come in the form of physical, sexual, financial, emotional or psychological abuse – with all forms displaying the application of power and control over another person at its core. Unfortunately, most victims who have experienced violence in any of its forms know their perpetrator intimately.  The difficulty with emotional and psychological abuse is that unlike physical abuse, its scars are often invisible.

The Family Law Act 1975 (Cth) provides that family violence means behaviour that is “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”.  It further provides examples of such behaviour, including but not limited to:

  • Assault;
  • Sexual assault or other sexually abusive behaviour;
  • Stalking;
  • Derogatory taunts;
  • Property damage;
  • Animal abuse;
  • Financial abuse;
  • Controlling behaviour such as not allowing the family member to keep connections with his or her family, friends or culture; and
  • Unlawfully depriving the family member of his or her liberty.

You can see from the above list that the legislation acknowledges that not all forms of violence are physical and can also include behaviours encompassing psychological abuse. It is noteworthy at this point to be alert to the fact that evidence suggests perpetrators of these types of violence may actually try and use the family law system to reinforce their control and intimidate the other party, resulting in a conundrum for many family lawyers and FDRPs. And so, how do we recognise the signs of psychological abuse and power imbalances in these types of matters? And also, how do we address them?

Addressing Power Imbalances

Various factors cause power imbalances – for example, whether it is gender, cultural, education, a lack of confidence and/or skills, a disability or a disparity in finances (and, subsequently, unequal access to resources such as legal advice).

Having regard to the fact that there may be some hidden aspects and/or complexity to a relationship dynamic that others may be unaware of, it is important to discuss these issues in extensive detail with your family lawyer during a consultation (or Mediator during the intake process). This process cannot be rushed and it is important to utilise the consultation/intake process to its full potential.

Family mediators and lawyers especially need to understand the different layers of conflict that may be present in any given situation, which is difficult as family dynamics, and thus the conflict, may be complicated.  However, no matter how diligent the FDRP is during the intake process, a vulnerable party may not feel comfortable disclosing all the details of his or her relationship, and consequently, those matters may be inadvertently screened as being able to proceed.

It is also interesting to note that there are often many matters where domestic violence has occurred, and is widely acknowledged; yet both parties are still content to proceed to mediation. In those circumstances, an FDRP or Mediator may be hesitant to conduct the mediation for the reasons outlined above. In the event parties who fall under this category are seeking formal orders, apart from the prospect of reaching Consent Orders (at a mediation or otherwise), there is little recourse available to them to help resolve their dispute other than to litigate, which may lead to a further deterioration in the post-separation relationship.

Perhaps one reason why this is the case may be to ‘protect’ the vulnerable party from entering into an agreement which may be considered unfair or unsafe to that person. In any event, it is possible that by removing the option of mediation for these families, it may actually result in poorer outcomes in the long term.

So what can we do?

Legally Assisted Mediations

One method of addressing power imbalances may be for the parties to be legally assisted. In particular, the presence of experienced family lawyers can assist vulnerable parties whom, research suggests, are the ones most likely to settle for quick relief without a lawyer present.

However, the presence of lawyers at mediation may also pose certain challenges. Some may argue that there are certain lawyers who are adversarial by nature and unable to operate any other way. Some lawyers may attempt to protect their clients by ‘silencing’ them – which is not conducive to reaching a negotiated agreement.

In any event, you should consider the approach of your family lawyer and whether that approach is likely to be of benefit to you. Many clients report that having a lawyer present at a Mediation is especially helpful due to the quick availability of legal advice when one is considering his or her options and alternatives – and to assist in protecting a vulnerable party’s interests.

Shuttle / Telephone / Online Mediations

Shuttle mediations are conducted by having the parties in separate rooms. The parties do not physically see one another and the mediator travels between the rooms carrying back and forth different proposals, options and alternatives. Shuttle mediations provide a lot of scope to identify options and “reality test” possible solutions. They can however sometimes suffer the consequence of “Chinese whispers” – with the recipient not always hearing what the speaker intended to say because it is conveyed independently by a third person as not everyone is in the same room.

Telephone and online mediations are useful in matters where geographical distance may be a considerable factor and are conducted entirely through telephone / videoconferencing.

An advantage of these modes of mediation is that its use acts as an automatic safety mechanism in that it physically separates the parties whilst allowing them to have some productive discussions. At any time, if the discussions become quite emotional and heated, there is the opportunity for the mediator to disconnect the line and recommence at a later stage.

An obvious downfall to these forms of mediation is the fact that the mediator cannot truly know and see whether the parties are adhering to the confidentiality provisions – for example, they may be allowing one of their family members to silently observe the discussions taking place and so on. Further to this concern, is the use of technology to secretly record these discussions, which apart from being illegal, would be a significant breach of trust and good faith.

Presence of a Support Person

A disadvantaged party may be assisted through the use of a support person, who is, as the name suggests, essentially in attendance to ‘be there’ and support him or her. This person is generally a trusted family member or friend but can also be a professional caseworker.  Support persons are not actively involved in the mediation but are on hand to lend emotional support.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.