June 2019 Family Law Case Watch

By Lisa Wagner & Stephanie Ordanoska

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.

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