Stevens & Stevens [2015] FCCA 63 (15 January 2015) involved an 87 year old husband admitted by his son to an aged care facility on the Gold Coast and then removed and placed in another one in New Zealand.

In 2011 the Queensland Civil and Administrative Tribunal appointed the Public Trustee of Queensland as administrator of the husband’s affairs, finding he was “easily influenced, that he exhibits short term memory loss, and as a result is unable to retain the consequences of decisions in his memory”. The wife argued that the husband’s removal from home was without her knowledge or consent and that the husband’s application for property adjustment should be summarily dismissed on the basis that the parties had not separated.

Judge Lapthorn dismissed the wife’s summary dismissal application. The Public Trustee of Queensland as the husband’s litigation guardian. The Court (at [20]-[21]) distinguished its ruling in similar circumstances in Shearer & Defazio [2013] FCCA 1596 (that it would not in that case be just and equitable to make a property adjustment order in the absence of evidence that the parties’ marriage had broken down) by referring to a letter from a doctor annexed to the affidavit of the husband’s solicitor saying which said that the husband had indicated to him that he wanted a divorce.

Judge Lapthorn said that such issues as whether the husband had been influenced by the children or the relief sought was an abuse of process, could not be determined whether evidence tested at a final hearing.

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