Dementia Patient in Need of Legal Guardian in Court Proceeding
Scott & Munayallan (No 7) [2022] FedCFamC1F 944 (17 November 2022)
Ms Scott is unable to represent herself due to late-stage onset dementia, and despite objections from Mr Scott and his wife, a legal guardian, Mr K Scott, has been appointed by the court to represent her interests. At the final hearing, all parties must be physically present and file and serve a Case Outline document by February 13, 2023. However, Mr M and Ms L have failed to appear and have instead sent a lawyer who is not on the record.
Facts:
- On 1 September 2022, Mr. K Scott filed an application in a proceeding and it was granted.
- Mr. K Scott was appointed as the legal case guardian of Ms. Scott on an unknown date to represent her interests and conduct the litigation in her stead in these proceedings.
- On 29 September 2021, the Orders were made restraining access to Ms. Scott’s pension account and they were discharged on an unknown date.
- This matter is listed for final hearing commencing at 10am on 20 February 2023 and will proceed in person, with all parties to appear in person other than Ms. Scott.
- By no later than 4:00 pm on 25 November 2022, the Liquidator is to file and serve any Application in a Proceeding seeking a special costs order against the respondent husband.
- By no later than 4:00 pm on 25 November 2022, the Liquidator is to notify all persons named in order 1 of the Application in a Proceeding filed 17 August 2022, being those persons who claim to be creditors of I Pty Ltd (in liquidation), of the Application in a Proceeding filed 17 August 2022.
- Any of the persons referred to in order 6 above, who maintain their claim to be a creditor of I Pty Ltd (in liquidation), are to file and serve a Notice of Address for Service by no later than 4:00 pm on 2 December 2022.
Issue:
The issue in this case is the representation of Ms Scott, who is unable to represent herself due to late-stage onset dementia.
Applicable law:
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.13 - provides that the Court may very or set aside orders.
Analysis:
Ms Scott, is unable to represent herself due to late-stage onset dementia, as stated in an affidavit from her doctor, Dr AG. Despite objections from both Mr Scott and the wife, and without objections from the liquidator, the Court believes Mr K Scott being appointed as the legal case guardian is the best course of action to ensure that Ms Scott's interests are protected in these proceedings. Unfortunately, Mr M and Ms L have failed to appear, instead sending a lawyer who is not on the record, which only further highlights the need for someone to represent Ms Scott's interests.
Any person seeking to be heard at the final hearing must be physically present in court. All parties must file and serve a Case Outline document by February 13, 2023 containing a list of documents to be relied upon, a minute of orders sought, an agreed list of assets and liabilities, a short chronology, the issues for trial, and a brief summary of argument and authorities.
Conclusion:
An application filed by Mr K Scott on September 1, 2022 has been granted and he has been appointed the legal case guardian of Ms Scott to represent her interests in the litigation. The orders made on September 29, 2021 have been discharged. The matter remains listed for a final hearing on February 20, 2023 with all parties required to appear in person, except for Ms Scott who will appear through Mr K Scott. The liquidator must file and serve any applications by specified deadlines and notify all persons who claim to be creditors of the company.
The creditors must also file and serve their evidence by specified deadlines. The respondent husband has been granted leave to file and serve a response and amended response by January 13, 2023 and file and serve evidence by January 20, 2023. The liquidator must file and serve evidence in reply by February 3, 2023. The liquidator has been given permission to serve documents on different parties at specified addresses.
Mr M, being named in the liquidator's application, must comply with specified orders.
Case: Scott & Munayallan (No 7) [2022] FedCFamC1F 944
Judgment of: HENDERSON J
Counsels:
Counsel for the Third Respondent: Mr Rose
Solicitor for the Third Respondent: ERA Legal, Commercial, Insolvency and Litigation Lawyers
Solicitor Advocate for the Fourth Respondent: Mr Ardino
Solicitor for the Fourth Applicant: Morgan Ardino & Co Solicitors
The Fifth Respondent: No appearance
Solicitor Advocate for the Intervener: Ms Au
Solicitor for the Intervener: Mills Oakley Lawyers