CROSS & CROSS

[2020] FamCA 454

FAMILY COURT OF AUSTRALIA

CROSS & CROSS [2020] FamCA 454

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of a case guardian – Where the solicitor for the husband seeks an order appointing a Case Guardian for the husband – Where that application is not opposed – Whether the Court is satisfied that the husband is a person with a disability – Whether the mandatory rule set out in r 6.08 of the Family Court Rules 2004 (“the Rules”) applies – Whether the proposed Case Guardian meets the criteria set out in r 6.09 of the Rules – Orders made in accordance with those proposed by the Applicant.

Family Court Rules 2004 r 6.08, 6.09.

APPLICANT: Mr Cross

RESPONDENT: Ms Cross

FILE NUMBER: SYC 6040 of 2016

DATE DELIVERED: 25 May 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 25 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Gathercole of Central Coast Family Law

SOLICITOR FOR THE RESPONDENT: Ms Worland of Abrams Turner Whelan Family Lawyers

Orders

1. Pursuant to r 6.10 of the Family Law Rules 2004 (Cth), Mr B is appointed to act as case guardian for Mr Cross in proceedings SYC6040/2016.

2. The costs of the case guardian be paid from the income or property of Mr Cross.

3. The matter is listed for directions at 9.30am on 29 July 2020 by telephone using the following details:

   a.Dial …;

   b.When requested, enter Guest Passcode: …; and

   c.You will hear music only until the Court Officer joins the conference.

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 Cross & Cross 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 SYDNEY

FILE NUMBER: SYC 6040 of 2016

Mr Cross

Applicant

And

Ms Cross

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This decision concerns an Application in a Case filed on 22 May 2020, by the solicitors for the husband, seeking orders appointing a case guardian to act on behalf of Mr Cross (“the husband”) in property proceedings between him and Ms Cross (“the wife”).

2. The solicitors for the husband rely upon the following:

   a)Affidavit of Mr B filed on 22 May 2020;  and

   b)Affidavit of Jannette Isobel Worland filed 22 May 2020.

3. Relevantly, r 6.08 of the Family Law Rules 2004 (“the Rules”) provides that:

   A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.

4. The Court notes that r 6.08 is mandatory – that is, once it is determined that a person has a relevant disability which impacts upon their ability to conduct the proceedings, the matter may continue only by way of a case guardian being appointed in respect of that person.

5. A “person with a disability” is defined in the Dictionary attached to the Rules as being 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 instruction for the conduct of, the case.

6. In this matter, the Affidavits, to which I have referred, satisfy me that the husband is incapable of adequately conducting or giving adequate instruction for the conduct of the case. In those circumstances, I am satisfied that it is appropriate for there to be a case guardian appointed.

7. Having found that the husband falls within the parameters of a person with a disability, it is now necessary to determine who should be appointed as his case guardian. In that regard, r 6.09 of the Rules provides:

   A person may be a case guardian if the person:

   (a)  is an adult;

   (b)  has no interest in the case that is adverse to the interest of the person needing the case guardian;

   (c)  can fairly and competently conduct the case for the person needing the case guardian;  and

   (d)  has consented to act as the case guardian.

8. Having regard to the Affidavit of Mr B, I am satisfied that he meets those criteria set out in the Rules, and accordingly I will make orders appointing Mr B as the case guardian for the husband.

9. For the reasons which I have set out, I therefore make orders as sought in the Application in a Case filed on behalf of the husband.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 25 May 2020.

Associate: 

Date:  5 June 2020