Carchar and Hbenum

[2010] FamCA 569

FAMILY COURT OF AUSTRALIA

CARCHAR & HBENUM [2010] FamCA 569

FAMILY LAW – CASE GUARDIAN – Appointment of case guardian

Family Law Act 1975 (Cth)

APPLICANT: Ms Carchar by her case guardian Mr KH

RESPONDENT: Mr Hbenum

FILE NUMBER: DGC 280 of 2010

DATE DELIVERED: 28 June 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Cronin

HEARING DATE: 28 June 2010

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: Willerbys

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT: John Snodgrass & Associates

Orders

1. That pursuant to Chapter 6 of the Family Law Rules 2004, Mr BE is appointed as the Case Guardian for the husband.

2. That the Application in a Case filed 11 June, 2010 is otherwise dismissed. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DCG 280 of 2010

MS CARCHAR

Applicant

And

MR HBENUM

Respondent

REASONS FOR JUDGMENT 

1. This is an application filed on 11 June 2010 ostensibly by Mr BE to be permitted to act as the case guardian for Mr Hbenum. Mr Hbenum is the respondent in a property application by Ms Carchar who in these proceedings, from what I have read, is represented by a case guardian herself. 

2. There have been proceedings of an interlocutory nature to date, including before Registrar Kaur on 11 June.  The registrar was sufficiently concerned about Mr Hbenum’s capacity to make decisions in relation to litigation to fix the matter before me in the duty list today.  At that hearing, as I understand it, Mr BE, who is the neighbour of Mr Hbenum, attended and assisted. 

3. Rule 6.08 provides that a party with a disability may continue to conduct litigation once an order is made.  The case guardian must be a person who is an adult, has no interest in the case adverse to the interests of the person needing the guardian and can act fairly and competently in terms of conducting the case.  That person must also consent to act as guardian.  I am satisfied on the affidavit filed on 11 June that Mr BE fits all of the requirements of rule 6.09. 

4. A question of the need for a case guardian also arises under the rules and Mr BE points to a report from a psychologist, Mr W, who is registered as a psychologist in a comprehensive report detailing the testing he undertook of Mr Hbenum.  He said Mr Hbenum would be almost totally incapable of engaging in the proceedings in a court hearing as his understanding of verbal concepts is extremely poor.  His ability to comprehend and use the English language is also extremely poor.  Unfortunately, his poor short‑term auditory memory indicates that he would not retain sufficient information even if his understanding was average or better.  The score on the non-verbal subtest appears to indicate that Mr Hbenum may have received brain damage that has led to intellectual impairment. 

5. Whilst Mr W is not a medical practitioner, he did set out the tests that he conducted and I am satisfied that the conclusion, whilst perhaps not that of an expert, is one that I can draw the appropriate inference from.  This is a case, therefore, where it is appropriate for Mr Hbenum to be properly represented in the litigation by having a case guardian make decisions for him. 

RECORDED:  NOT TRANSCRIBED

1. I will make a notation on the orders I have made today that the respondent is intending to argue that the action for recovery or enforcement should be stayed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  8 July 2010