VIC Power of Attorney Attending court

[Destiny]

Hi
Wondering if an Enduring Power of Attorney is able to attend court, on behalf of the other person, in the case of a divorce matter?
With this Covid19 virus at the moment, the court states he can phone in with a code at the certain hearing time. He is very hard in hearing on phone so would not hear/understand.
Initially as an agreed divorce, with no lawyer interference, neither was attending. I confirmed with court that phoning in still isn't compulsory, just if intended to physically attend.
Ex Partner has now taken documents to a lawyer due to letter re phoning in , thinking she was lied to, and it is possible the lawyer may now phone in. But can a Power of Attorney call in, incase lawyer does causing unnecessary turmoil?
Thanks

 

[Suzi]

The short answer is 'depends'. Firstly, has the donor (the person giving the power) lost capacity to make decisions for themselves? If so, then the court may require evidence of that incapacity in the form of a letter from the doctor. If the Divorce Application was a joint application, then there is no need for either party to attend the hearing. The court will make orders based on the documents that have been filed. If the Divorce Application was a sole application and there are no children of the relationship who are under the age of 18, then there is no need for either party to attend the hearing. Again, the court will make orders based on the documents filed. If there are children of the relationship who are under the age of 18, and a joint application was filed - no need to attend. If there are children under the age of 18 and a sole application was filed, then it will be necessary for someone to attend the hearing. As a result of the COVID-19 social distancing measures, the courts are accepting telephone appearances by parties that are required to attend.

Even if the wife/husband has now sought legal advice, it is unlikely that anyone will be attending the hearing, particularly if the the application was a joint one. There is nothing to be achieved.

Disclaimer: My LawAnswers comments are for general informational purposes only which are current at the time of publication, and do not constitute legal advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information expressed here. You may seek professional advice from me, but any advice given is subject to satisfactory engagement of legal services on Bambrick Legal's usual terms and full and proper disclosure of all relevant circumstances.
For professional legal advice, contact Suzi Cengarle, Bambrick Legal – Kent Town SA – Law Tap – Find a Lawyer & Book Online Instantly

 

[Destiny]

Thanks Suzi
Donor not lost capacity totally to make decisions, but would not be able to hear or fully comprehend what is said via telephone. Thus if Power of Attorney able to use number & code just to call in instead, without talking.
Divorce application was sole, no children and served and signed without any problems and nobody was attending. Suddenly a lawyer has filed "Notice Of Service for Address" for Wife to them now in portal, this is how found out she was trying to cause trouble instead of agreeing to do easy and no costs with lawyers. No "Response to Divorce" form showing in portal and 28 days would be up to lodge.
Told by family member she is saying now she was "bullied" to do , regardless of her hiding to lawyer having a new partner since separation and saying to lawyer she's not ready to let go of her husband. There is no chance of getting back together whatsoever, just her trying to control his life and using the words "I'm his wife" to bully others. Thus why wondering if Lawyer would now phone in and can create a nightmare.

 

[Suzi]

Hi Diedre

Even if a solicitor appeared on behalf of the wife, what are they going to say? That they weren't separated for 12 months prior to the application being made? If so, then the applicant may be asked to arrange for an affidavit of an independent person who can attest to the separation being genuine. It is my view, that it is unlikely that the wife or her solicitor can create too much of a nightmare.

If I were you, I'd call in, identify yourself and say that you will be interpreting for the applicant who has trouble hearing. I doubt that the Registrar will even ask him any questions? The only thing they are usually looking for is that the Application has been completed, served on the other party and there is evidence on the court file that service has taken place. I assume this has occurred?

If all of those things are in place, then it the order ought to be made.

 

[Destiny]

Hi Suzi
As I mentioned originally in messages, the court case was today and adjourned now for another week. Wife had the solicitor call in, and yes playing games, that she is filing a Response to Divorce. I thought that it had to be done by 28 days of being served and before court case, which was past that many days from being served? Was told via court chat she can lodge on or prior to adjourned date now.
Why then would court grant another week to do the response? It was also moved from City to Albury court circuit?
Maybe an idea to get the affidavit of separation by independent person done incase. Would this be lodged via portal?
Will call in this time, but need to interpret to him due to hearing problem.
Unless see Response form, and not if lodged at last minute by solicitor, need to cover the delays she trying again.
Thanks

 

[Suzi]

The 28 days is in relation to service of the divorce application ie needs to be served at least 28 days before the hearing of the application. If the wife now wishes to file a response, she is at liberty to do so. This does not have to be done prior to the first hearing. Without more details, I can't answer why the matter has been moved to another Court. Likely the wife's solicitors made submissions in relation to that.

If the couple had not been separated for at least 12 months when the application was made, then an affidavit of separation is required and yes can be filed on the portal.

The Response must be served on the applicant in order to give the applicant an opportunity to respond to the response if required.

Why would the wife want to delay the divorce? What does she expect to gain from doing so? I don't need an answer, just curious.

 

[Destiny]

Hi
Not sure what gain is other than attempt financial gain due to delaying, due to his terminal illness.
I also realised that she engaged the solicitor mid April, but has not served a Response to Divorce and its now mid May. They waited till court date 12th May to state this. Next court date is the 20th of May, so will they try delay again by not giving any time to respond by lodging last minute.
Have obtained an affidavit of separation from a person, although they separated over 2 years, to lodge in portal prior incase she tries claiming they are attempting to get back together.
Are we able to email her solicitor and ask the question of when sending, and why not by now?
Thanks

 

[Suzi]

They need to serve response at least 48 hrs before the hearing. Every communication you have with the solicitor may likely increase the fees to the wife because the solicitor is required to peruse each communication, consider and then decide what, if anything, needs to be done about it. This is all chargeable to their client. It's up to you as to whether you contact the solicitor.

I think the more urgent issue is estate planning and/property settlement - if that hasn't been done yet. If your friend is terminally ill and still has joint assets with his wife, then he ought to be pushing for property settlement asap. At least make the application so that if something happens to him before it is finalised, the estate can continue to battle against the wife to ensure she doesn't get any of his share.

His Will ought to exclude his wife from receiving any benefit from the estate as well.

 

[Destiny]

Hi Suzi
Thanks so much again. Surprise today that the Solicitor has lodged "Notice of Intention to withdraw as Lawyer". I wonder why?
We still now have to be alert that she may try another lawyer and try again to delay.
I agree on the property matters settlement and he had changed Will so she's not on there.
Will see if all sorts out next week now !
So stressful

 

[Suzi]

Hi Diedre

It is not sufficient for her to not be mentioned in the Will. She needs to be excluded. Whilst they are still married, she is eligible to make a claim against his estate unless his Will specifically names her and the reason why she is not to benefit from the estate. Better have a close look at the Will. I'm hoping he got some legal advice before making it. This issue can be quite complex.