Case guardian’s divorce application successful20-January-2014 Family Law By Simone Green
The Full Court of the Family Court of Australia chose to approve the divorce of Ms Price and Mr Underwood even though it was Mr Underwood’s case guardian who put forward the application for divorce. [Price & Underwood (Divorce Appeal)  FamCAFC127 (14 July 2009)]
The circumstances in this case were rare in that Mr Underwood had previously applied for a divorce but was unsuccessful, so this second case, when Mr Underwood was very ill, was undertaken more than a year later by his case guardian.
The case details
In summary, the matter involves a husband and wife who married in February 1986, had two children and then the husband filed an application for divorce in the Federal Magistrates Court on 12 December 2007. The husband, prior to this marriage, had two children from a previous marriage, J Underwood and N Underwood.
The husband in his application asserted that separation had occurred in October 2005. In the wife’s response, she swore that separation had not occurred until 3 April 2007.
That Application for Divorce was granted by orders of a Federal Magistrate on 9 April 2008. But the wife appealed to the Full Court and successfully had the divorce order set aside on 15 April 2008. A second divorce application was then filed on 16 April 2008 in the Family Court of Australia by the husband’s case guardian, who was the husband’s daughter from the earlier marriage.
Of relevance, the case guardian provided evidence that the husband was terminally ill and had, in accordance with medical advice up to three days to live.
Among other complex matters, the appeal before the Full Court of the Family Court of Australia dealt with the question of whether or not a case guardian had the ability to bring an application for a divorce order.
It was submitted, on behalf of the wife in these proceedings, that as a divorce was ‘a matter of intention and a decision that only a party to a marriage can make’, the case guardian could not file for an application for divorce on behalf of the husband. It was also submitted, by the wife that the husband’s daughter from a previous marriage could not be appointed as his case guardian as there was a conflict of interest between the husband and his daughter, as there was something for her to gain from the divorce. Such submissions were ultimately not accepted by the Court.
This particular matter was distinguished from earlier cases that related to whether or not a case guardian had the ability to establish that a party to a marriage had the requisite intention to bring the marriage to an end. The matter of Jennings and Jennings (1997) FLC 92-773 was a matter in which the Court found that the husband’s administrator could not be empowered to handle ‘the affairs of the heart’ or the most intimate aspects of the represented person’s mind and soul. As there was no evidence of any intention by either of the parties to sever a relationship in the Jennings case, the Court was not satisfied that a case guardian could reach that decision for the represented person.
This Underwood case, however, is distinguished due to the first divorce application filed by the husband. It was conceded by the wife that the husband had indeed made it very clear that he wished to bring the marriage to an end.
In the Marriage Act, the Court confirmed the rules make no special provision for an application for divorce to be brought by a case guardian, and alternatively nor do they preclude such an application.
The Court confirmed that the rules apply equally to an application for divorce filed by a party to a marriage, as they do if the application was filed by a case guardian. There needs to be the requisite intention to bring the marriage to an end, and the parties need to have lived separately and apart for 12 months prior to the filing of the application.
Under the requirements of the Family Law Rules, the Court was satisfied that Ms Underwood was a suitable case guardian and had automatic entitlement to the role by virtue of the fact that she was deemed to be the person managing her father’s affairs.
In the final judgement, Justices Boland and Ryan concluded (at paragraph 163):
“We conclude, having regard to the rules, that a case guardian may bring an application for a divorce order. A person who is a manager of the affairs of a party suffering a disability, including a person so appointed for the purposes of State or Commonwealth law, will qualify, subject to compliance with the rules, to be a case guardian. Ms U satisfied that criteria. The case guardian must be confident and act fairly and his or her interest must not be adverse to the person under a disability. Ms U also satisfied that criteria as case guardian for a divorce application. However the circumstances in which a Court will be satisfied on evidence presented by a case guardian in a marriage that it is irretrievably broken down are likely to be rare. This is one of the rare cases.”
The second divorce application was granted and it was ordered that the divorce order take effect immediately
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