Bouchard and Bouchard

[2019] FCCA 506

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOUCHARD & BOUCHARD [2019] FCCA 506

Catchwords:
FAMILY LAW – Parenting – mother does not have the capacity to understand the nature and consequences of these proceedings – case guardian requested.

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004, r.6.11

Applicant: MR BOUCHARD

Respondent: MS BOUCHARD

File Number: DNC 79 of 2018

Judgment of: Judge Young

Hearing date: 4 February 2019

Date of Last Submission: 4 February 2019

Delivered at: Darwin

Delivered on: 4 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Jordan

Solicitors for the Applicant: North Australian Aboriginal Justice Agency

Counsel for the Respondent: Ms Pratt

Solicitors for the Respondent: Northern Territory Legal Aid Commission

Counsel for the Independent Children’s Lawyer Ms Collier

Solicitors for the Independent Children’s Lawyer Collier Lawyers

ORDERS

1. That the matter be adjourned to 11 June 2019 at 11.00am for further consideration.

THE COURT NOTES:

1. The Court is satisfied that the applicant Mr Bouchard is not capable of adequately conducting or giving adequate instructions for the conduct of the proceedings;

2. Pursuant to rule 6.11 of the Family Law Rules the Court requests that Commonwealth Attorney General nominate in writing a person to be a Case Guardian to assist the mother Ms Bouchard in these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Bouchard & Bouchard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 79 of 2018

MR BOUCHARD

Applicant

And

MS BOUCHARD

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. At this stage, I am going to find, having regard to the matters raised by Ms Jordan this morning to the effect that she is not satisfied that Ms Bouchard has the capacity to understand the nature and possible consequences of the proceeding, and is not satisfied that she, Ms Bouchard, is capable of adequately conducting or giving adequate instruction for the conduct of the proceeding, and having regard to the neuropsychology report on the applicant, dated 1 October 2016, by Ms A, the neuropsychologist, indicating the existence of pervasive brain damage from an early age, apparently related to childhood meningitis, that has had a catastrophic impact on Ms Bouchard, along with the family report, dated 15 December 2018.

3. Having regard to those matters, I am satisfied that there ought to be a litigation guardian appointed. None of the counsel were able to provide any real assistance about who, and it is not a criticism. It is a statement of fact. Given that it appears to me that rule 6.11 of the Family Court Rules, there being no corresponding rule or applicable rule in the Federal Circuit Court Rules, that I ought to apply rule 6.11 of the Family Court Rules, because, in the opinion of the Court, a suitable person is not available for appointment in this case as a case guardian, and I propose to request that the Attorney-General nominate in writing a person to be case guardian for the applicant. I am going to vacate the trial date.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  4 March 2019