Agambar & Agambar

[2021] FCCA 1113

FEDERAL CIRCUIT COURT OF AUSTRALIA

Agambar & Agambar [2021] FCCA 1113

File number(s):

BRC 8532 of 2019

Judgment of:

JUDGE VASTA

Date of judgment:

4 May 2021

Catchwords:

FAMILY LAW –  where Final Consent Orders were made in 2019 - where an issue arose in the exercise of parental responsibility upon which the parents could not agree and thus requires judicial determination– where a child has launched action for compensation against his mother from a motor vehicle accident that is subject to a compulsory third party claim  - where the child sustained serious and ongoing medical issues – where the mother is a defendant – where the mother is precluded from exercising equal parental responsibility – where it is not in the best interest of the child for the father to exercise default sole parental responsibility – whether an independent person should be in charge of the management of the claim – where a litigation guardian cannot be involved in preliminary matters prior to litigation officially commencing - whether it is appropriate to grant the independent person sole parental responsibility for this very narrow aspect

Legislation:

 Family Law Act 1975 (Cth) ss 64C, 65P

Motor Accident Insurance Act1994 s 52

Uniform Civil Procedures Rules 1999 r 94

Number of paragraphs:

55

Date of last submission/s:

4 May 2021

Date of hearing:

4 May 2021

Place:

Brisbane

Counsel for the Applicant:

Ms Firth

Counsel for the Respondent:

Mr Arnold

ORDERS

BRC 8532 of 2019

BETWEEN:

MS AGAMBAR

Applicant

AND:

MR AGAMBAR

Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	4 MAY 2021

THE COURT ORDERS:

1.That Mr B be joined to these proceedings.

2.That pursuant to section 64C of the Family Law Act 1975, Mr B has sole parental responsibility in relation to commencing and managing personal injury claims on behalf of X born in 2008 and Y born in 2013 ("the children"), as a result of the motor vehicle accident which occurred on 24 March 2019, including the following decisions:

(a)Authority to engage Lawyers on behalf of the children to act in all aspects of the matter and provide continuing instructions on behalf of the children in the place of the parents;

(b)Authority to sign all documents and directions and authorities including authorities to medical practitioners that would otherwise be signed jointly by the parents;

(c)Authority to act as the litigation guardian on behalf of the children in any proceedings commenced in a State Court;

(d)Authority to undertake necessary pre-action procedures on behalf of the children, prior to filing the claims;

(e)Authority to make decisions on behalf of the children in relation to the personal injury claims, such as making proposals or accepting settlement offers;

3.That in relation to his exercise of sole parental responsibility, Mr B will:

(a)Advise the parents of any decision to be made in exercise of his sole parental responsibility in advance of the decision being made;

(b)Consider the parents' views in relation to the decision to be made;

(c)Advise the parents of…