Crowley and Child Support Registrar & Anor
[2015] FamCAFC 4
•19 January 2015
FAMILY COURT OF AUSTRALIA
| CROWLEY & CHILD SUPPORT REGISTRAR AND ANOR | [2015] FamCAFC 4 |
FAMILY LAW – APPEAL – Application to appoint case guardian – Where husband is a person with a disability – Where case guardian originally restrained from contacting wife – Where case guardian appointment restricted to purpose of the appeal and may only communicate in the prescribed manner – Application granted – No order for costs.
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Crowley |
| FIRST RESPONDENT: | Child Support Registrar |
| SECOND RESPONDENT: | Ms Stross |
| FILE NUMBER: | BRC | 5457 | of | 2009 |
| APPEAL NUMBER: | NA | 45 | of | 2014 |
| DATE DELIVERED: | 19 January 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 19 January 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1540 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Pippa Colman & Associates |
SOLICITOR FOR THE FIRST RESPONDENT: | Lander & Rogers Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | Second respondent appeared in person |
Orders
Pursuant to Rule 6.09 of the Family Law Rules 2004, Mr Crowley’s mother be appointed as case guardian for Mr Crowley in relation to the appeal number NA 45 of 2014.
The costs of the case guardian be paid from the income or property of the applicant (the first respondent to the appeal).
There be no order as to costs.
notation
It is noted that the address for communication with the first respondent to the appeal (by his case guardian) pursuant to this order is care of Pippa Colman and Associates, PO Box 5200, Maroochydore BC or by email (…) unless otherwise advised in writing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crowley & Child Support Registrar and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 45 of 2014
File Number: BRC 5457 of 2009
| Mr Crowley |
Applicant
And
Child Support Registrar
First Respondent
And
| Ms Stross |
Second Respondent
REASONS FOR JUDGMENT
In a notice of appeal filed 28 August 2014 the Child Support Registrar appeals the decision of Judge Coates made on 31 July 2014.
The other parties to the appeal are Mr Crowley and Ms Stross.
The Child Support Registrar seeks to have included in Mr Crowley’s taxable income for child support purposes his Defence Force pension.
There is no doubt that the appeal raises complex questions.
The application
By application filed 3 December 2014, Mr Crowley seeks that his mother be appointed as his case guardian. The application is not opposed by the appellant. Ms Stross raised a number of concerns in her written submissions. Ultimately Ms Stross did not oppose the order on the basis that Mr Crowley’s mother’s involvement be restricted to the appeal and after arrangements were made for communication between herself and Mr Crowley’s mother.
The affidavit of Mr Crowley’s mother includes medical evidence that, as a result of a motor vehicle accident in 1992, Mr Crowley suffered a severe brain injury.
After a lengthy period in hospital, Mr Crowley returned to the home of his parents. In 1994 he was classified by the Defence Force as permanently incapacitated.
Evidence in support of the application
The affidavit of Mr Crowley’s mother filed 3 December 2014 explains that she is the mother of Mr Crowley and has his Power of Attorney pursuant to a document signed 7 April 2009. Mr Crowley’s mother is familiar with the legal issues in relation to the proceedings as she has been assisting her son for some years including attending at the court.
The observations made by Mr Crowley’s mother of her son on the occasions that she has attended in court and been associated with the legal process are described by her in some detail. It is apparent to her that Mr Crowley is unable to deal with the proceedings both intellectually and physically. Mr Crowley’s mother has, in effect, been managing her son’s legal proceedings for some time.
The medical evidence in relation to Mr Crowley attached to Mr Crowley’s mothers’ affidavit is consistent with the observations by the mother in relation to his capacity.
Applicable Rules
Rule 6.08(1) provides:
A child or a person with a disability may start, continue, respond to, or seek to intervene in a, a case only by a case guardian.
A “person with a disability” is defined in the Dictionary to the Rules as:
person with a disability, in relation to a case, means 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.
The evidence of Mr Crowley’s mother demonstrates that Mr Crowley is in such a category.
It seems that Mr Crowley has also had some other serious medical issues, as described by Ms Stross in her written submissions.
Rule 6.10 (1) of the Family Law Rules (“the Rules”) provides:
A person may apply for the appointment, replacement or removal of a person as the case guardian of a party.
Rule 6.09 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.
Although Mr Crowley’s mother (and her husband) have been restrained by order made on 14 March 2013 from contacting Ms Stross and bringing applications in relation to the children that should not affect this appeal in relation to Child Support proceedings. Despite Ms Stross’ concerns it is not apparent that Mr Crowley’s mother will conduct the proceedings adversely to Mr Crowley or has any untoward interests in relation to child support issues.
The affidavit of Mr Crowley’s mother provides her consent. It does not appear that the consent of the person needing the case guardian is necessary.
An order should be made in this case appointing Mr Crowley’s mother as case guardian.
Costs
Rule 6.14 provides:
The court may order the costs of a case guardian to be paid:
(a)by a party; or
(b)from the income or property of the person for whom the case guardian is appointed.
It is appropriate in this case, should there be legal costs incurred, that the case guardian be reimbursed to the extent he is able, by her son. Most likely that will not be necessary as Mr Crowley’s mother will not be represented by lawyers. Otherwise, there should be no order as to costs.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 19 January 2015.
Associate:
Date: 19 January 2015
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