GALLANDERS & GALLANDERS

[2020] FamCAFC 29

FAMILY COURT OF AUSTRALIA

GALLANDERS & GALLANDERS [2020] FamCAFC 29

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant has had a litigation guardian appointed to represent her – Where the applicant made application for the removal of the litigation guardian which application was dismissed – Where once a litigation guardian has been appointed only the litigation guardian may commence an application – Where the application before this Court has not been commenced by the litigation guardian and this Court cannot receive it – Application dismissed.

Family Law Act 1975 (Cth)
Federal Circuit Court Rules 2001 (Cth) r 11.09(1)

APPLICANT: Ms Gallanders

RESPONDENT: Mr Gallanders by his Litigation Guardian
Mr Gallanders Jnr

RESPONDENT: State Trustees Limited as Litigation Guardian for Ms Gallanders

FILE NUMBER: MLC 7132 of 2019

APPEAL NUMBER: SOA 71 of 2019

DATE DELIVERED: 10 February 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland J

HEARING DATE: 10 February 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 2 September 2019

LOWER COURT MNC: NA – Transcript Only

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Thomas

SOLICITORS FOR THE RESPONDENT: Hartleys Lawyers

COUNSEL FOR THE STATE TRUSTEES LIMITED Mr Hansen

SOLICIORS FOR THE STATE TRUSTEES LIMITED Bailey Timms Lawyers

Order

1. The Application in an Appeal filed on 5 December 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallanders & Gallanders has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
MELBOURNE

Appeal Number: SOA 71 of 2019
File Number: MLC 7132 of 2019

Ms Gallanders

Applicant

And

Mr Gallanders by his Litigation Guardian Mr Gallanders Jnr

Respondent

And

State Trustees Limited as Litigation Guardian for Ms Gallanders

EX TEMPORE REASONS FOR JUDGMENT

1. This is an Application in an Appeal filed by Ms Gallanders (“the wife”) on 5 December 2019, seeking an extension of time to file an appeal against orders made by Judge Stewart on 2 September 2019.

2. The position in this matter is that one of the orders made by Judge Stewart on 2 September 2019 was to appoint State Trustees Limited as the litigation guardian for the wife. Subsequent to those orders, on 2 October 2019, an application was made by the wife to Judge Stewart, seeking a number of orders, one of which was to remove State Trustees Limited as the litigation guardian. That application was dismissed on 1 November 2019.

3. As the matter stands today State Trustees Limited remain the litigation guardian for the wife.

4. Pursuant to r 11.09(1) of the Federal Circuit Court Rules 2001 (Cth), “[a] person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian.”

5. The application before this Court has not been commenced by the litigation guardian, and thus, it is not an application that this Court can receive.

6. I add that Mr Hansen has appeared for the litigation guardian today, and he tells me that the litigation guardian has no intention of seeking an extension of time to appeal against the orders of Judge Stewart, and does not support the application which has been brought.

7. For those reasons I propose to dismiss the application in an appeal.

I certify that the preceding seven (7) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 10 February 2020.

Associate: 

Date:  13 February 2020