Coburn and Selby

[2015] FamCA 35

FAMILY COURT OF AUSTRALIA

COBURN & SELBY [2015] FamCA 35

FAMILY LAW – PRACTICE AND PROCEDURE – Case Guardian appointed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Coburn

RESPONDENT: Mr Selby

FILE NUMBER: MLC 1523 of 2013

DATE DELIVERED: 14 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wiener

SOLICITOR FOR THE APPLICANT: Leanne Cain & Associates

COUNSEL FOR THE RESPONDENT: Mr Myers

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

Orders

1. That MR COBURN be appointed as the Case Guardian of the Respondent, MS COBURN.

2. That otherwise the application is dismissed.

3. That the reasons be transcribed and placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1523 of 2013

Ms Coburn

Applicant

And

Mr Selby

Respondent

REASONS FOR JUDGMENT

1. This is a property proceeding which is on its way to trial.  There is before me today an application that the respondent wife be represented in the proceedings from this day onwards by a case guardian.  The rules of the court have a definition about who is an infirmed person.  But the rules also provide for situations in which someone cannot participate in the proceedings by virtue of the fact that they cannot give instructions. 

2. Attached to an affidavit today by Mr Coburn, who is the father of the applicant, is a report by a psychiatrist, Dr P.  Dr P’s evidence is that he has examined the applicant.  And I quote him:

   I noted her experiencing extreme psychological and behavioural challenges whenever she had to deal with her legal matters.  And this appeared more profound than another person handling their legal affairs. 

3. The psychiatrist then goes on to describe the sort of problems the applicant has had in trying to deal with the legal process.  He then says:

   As Ms [Coburn’s] capacity to handle her legal matters are compromised due to the above mentioned reason and is likely to continue until the legal matters against her ex-husband are completely finalised –

4. The sentence is grammatically incorrect but its purport is clear.  Dr P indicates that the applicant is not able to give adequate instructions and not able to adequately participate in the proceedings from the point of view of making decisions.  But he does add that she should be informed of each and every step in the process as well as making her feel part of the process.  There is no objection to the nominee who has also indicated his willingness to act fairly and competently on behalf of his daughter, it is appropriate in the circumstances to make the orders sought.

5. I will make orders in terms of paragraph 1 of the application in the case filed on 15 December 2014.  I will otherwise dismiss that application.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 January 2015.

Associate: 

Date:  3 February 2015