Arellano & Arellano (No 2)
[2024] FedCFamC1F 184
•27 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arellano & Arellano (No 2) [2024] FedCFamC1F 184
File number(s): MLC 6603 of 2018 Judgment of: JOHNS J Date of judgment: 27 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEUDRE – appointment of litigation guardian – where a previous order has been made for a litigation guardian to be appointed for the first respondent – where the Attorney-General’s department has been unable to identify and appoint a litigation guardian – where the second and third respondents have identified a suitable individual to be appointed – where the parties do not oppose the appointment – where the provisions of rule 3.14 are satisfied – litigation guardian appointed Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 3.14 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 27 February 2024 Place: Melbourne Solicitor for the Applicant: Mr Stone of Gold Stone Family Lawyers Solicitor for the First Respondent: Litigant in Person Counsel for the Second & Third Respondents: Mr Goddard Solicitor for the Second & Third Respondents: Belleli King and Associates ORDERS
MLC 6603 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARELLANO
Applicant
AND: MR ARELLANO
First Respondent
MR B ARELLANO
Second Respondent
MS C ARELLANO
Third Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
27 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to Rule 3.15(2) of the Federal Circuit and Family Court of Australia (Family Court) Rules 2021, MR D be appointed as litigation guardian for the respondent husband.
2.By 4.00pm on 29 February 2024 Mr D file and serve a Notice of Address for Service.
3.All extant applications be listed for mention before Johns J at 9.30am on 27 March 2024.
AND THE COURT NOTES that it is agreed between the parties that they will endeavour to engage in a mediation prior to the adjourned mention hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arellano & Arellano has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
This matter comes before the Court today as a result of a request for a mention hearing. Previously, on 8 November 2023, I made orders appointing a litigation guardian for the respondent husband, and further made a request to the Attorney-General of the Commonwealth of Australia to appoint a person to so act as a litigation guardian.
Otherwise, the matter was adjourned for mention on a date to be fixed following the appointment of the litigation guardian. Notwithstanding the efforts of the Attorney-General’s Department, no person has been identified by them to satisfy the requirements of those orders.
The second respondent sought that the matter to be listed for mention as a solicitor, Mr D, has been identified by the second and third respondents as a person who may be suitable to step into the role of litigation guardian and prepared to do so on behalf of the respondent husband.
In support of that position, Mr D has affirmed an affidavit filed on 26 February 2024. In that affidavit, Mr D confirms that he has been admitted to practice as a legal practitioner in Victoria and in the High Court of Australia. He has been engaged in legal practice for in excess of 12 years. In addition to working in private practice, Mr D has been employed by a government agency in a role that included managing and assisting disabled litigants.
Mr D deposes in his affidavit that he was contacted by the solicitors for the second and third respondents to ascertain his interest and availability in acting as a litigation guardian in this matter. Mr D has confirmed his consent to being so appointed as the respondent’s litigation guardian.
He also confirms in his affidavit that he has no interest in the case that is adverse to the interests of the respondent husband. In addition, he confirms that he can fairly and competently conduct the case on behalf of the respondent husband, and further, that he is unaware of any conflict of interest that would preclude his acting as litigation guardian in this matter. I accept that evidence.
The applicant wife does not oppose the appointment of Mr D as the litigation guardian for the respondent husband. Both the second and third respondents confirm their consent to that appointment through their Counsel, Mr Goddard.
Having regard to all those matters, I am satisfied that Mr D is an appropriate person to be appointed as the litigation guardian for the respondent husband in accordance with the provisions of Rule 3.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
I am satisfied that:-
·Firstly, he is an adult;
·Secondly, he has no interest in the proceeding adverse to the interest of the respondent husband; and
·Thirdly, he can fairly and competently conduct the proceeding for the person needing the litigation guardian.
Having regard to those findings, I appoint Mr D as litigation guardian for the first respondent, and make orders to that effect.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 20 March 2023
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