Choujaa and Hali

[2016] FamCA 893

FAMILY COURT OF AUSTRALIA

CHOUJAA & HALI [2016] FamCA 893

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the Husband for the appointment of a Case Guardian – Case Guardian appointed due to the Applicants incapacity and distress associated with the court proceedings.

Palmer & Palmer [2009] Fam CAFC 9

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 6.08, 6.09

APPLICANT: Mr Choujaa

RESPONDENT: Ms Hali

FILE NUMBER: PAC 5168 of 2014

DATE DELIVERED: 21 October 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Karen L Haga & Associates

SOLICITOR FOR THE RESPONDENT: Allied Lawyers

Orders

1. That Mr B be appointed as case guardian for the Mr Choujaa the applicant husband.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Choujaa & Hali has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 5168  of 2014

Mr Choujaa

Applicant

And

Ms Hali

Respondent

REASONS FOR JUDGMENT

1. In property proceedings the applicant Husband seeks to have his son appointed as his case guardian.

2. A case guardian is required to continue proceedings for a person with a disability pursuant to Rule 6.08 of the Family Law Rules. The Rule is in mandatory terms as it states that a person with a disability may continue in a case only by a case guardian.

3. The only matter for the court to determine therefore is whether the applicant is “a person with a disability”.

Person with a disability

1. The dictionary, which forms part of the Rule defines a “person with a disability” as “a person who, because of a physical or mental disability:

   a)does not understand the nature or possible consequences of the case; or

   b)Is not capable of adequately conducting, or giving adequate instructions for the conduct of the case.

2. This application is brought on the basis that the applicant in the property proceedings is not capable of adequately conducting the case because of a physical disability.

3. According to a medical report dated 30 November 2015 of Dr C, a specialist geriatrician, annexed to the affidavit of the proposed case guardian, the applicant suffers from a number of physical disabilities including a 20 year history of diabetes, ischaemic heart disease, hypertension, hyperlipidaemia, colitis and diabetic retinopathy.  He suffered a stroke in 2004 which has left him with residual left sided weakness and is wheelchair bound.  The applicant also suffers from night time incontinence and has had hospital admissions in January 2014, July 2014, February 2015 and June 2015 with diarrhoea and colitis.

4. Although there is no medical evidence specifically related to the applicant’s capacity to adequately conduct the case, the Doctor describes the applicant as “a frail elderly gentleman with a long history of diabetes and past stroke who requires high level assistance from his family to continue living at home”. 

5. The proposed case guardian, the applicant’s son says in his affidavit that the applicant has become increasingly emotional as he is aged and cries on a regular basis and becomes emotionally distressed very easily.  According to the son, the applicant is particularly emotional as a result of the breakdown of his marriage which was also noticed by the geriatrician who describes the applicant as having “a significant amount of social stress”.

6. In my view the applicant husband is in a similar position to the applicant in Palmer & Palmer [2009] Fam CAFC 9.  In that case Finn J appointed a case guardian in circumstances where the applicant had capacity to understand her legal rights and give verbal instructions but Her Honour found that the applicant may benefit from the appointment of a case guardian due to physical incapacity and severe mental distress due to the stress of the court case. 

7. The stress associated with separation in these proceedings is such that the police obtained an apprehended violence order to protect the applicant from the respondent wife. 

8. The symptoms experienced by the applicant on the occasions he was admitted to hospital are such that it would be extremely unpleasant and extremely distressing for him in the event that he suffered again from this recurrent condition at a time that he is required to attend court.  In these circumstances I am of the view that he would benefit from the appointment of a case guardian due to his incapacity and distress associated with the court proceedings.  It is to be noted that the application is not opposed by the respondent wife.

The Proposed Case Guardian

1. The criteria for a person to be appointed as a case guardian are set out in Rule 6.09 of the Family Law Rules which requires that a person who may be a case guardian must be:

   ·An adult

   ·Have no interest in the case that is adverse to the interest of the person needing the case guardian

   ·Can fairly and competently conduct the case for the person needing the case guardian and

   ·Consents to act as the case guardian

2. I am satisfied on the basis of the affidavit of the applicant’s son, Mr B, that he satisfies each of the requirements set out in this Rule.

3. For the foregoing reasons I order that the applicant’s son, Mr B be appointed as case guardian in the proceedings.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on

21 October 2016.

Associate: 

Date:  21 October 2016