Dunbar and Dunbar (No 2) - [2010] FamCA 752

FAMILY COURT OF AUSTRALIA

DUNBAR & DUNBAR (NO. 2)

[2010] FamCA 752

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of case guardian

APPLICANT:

MR DUNBAR

RESPONDENT:

MR DUNBAR

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

BRC

3294

2009

DATE DELIVERED:

16 AUGUST 2010

PLACE DELIVERED:

BRISBANE

PLACE HEARD:

BRISBANE

JUDGMENT OF:

YOUNG J

HEARING DATE:

16 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR GORDON

SOLICITOR FOR THE APPLICANT:

BERCK & ASSOCIATES

COUNSEL FOR THE RESPONDENT:

MR SCOTT-MCKENZIE

SOLICITOR FOR THE RESPONDENT:

BUTLER MCDERMOTT LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

MS McLENNAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

FAMILY LAW SOLUTIONS

Orders

IT IS ORDERED:

THAT MR Y be appointed as the Case Guardian of the mother, MS DUNBAR in respect of all children’s and other matters listed for hearing in this Court.
THAT otherwise the application in a case filed 10 August 2010 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3294 of 2009

MS DUNBAR

Applicant

And

MR DUNBAR

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The matter of Dubar is before the Court for a final defended hearing. The matter is in the Magellan list of cases and has a somewhat long and involved history. In the application before me today, Mr Gordon of counsel appears for the mother. I say that with the qualification that the mother is not in Court and is presently an inpatient of the Acute Mental Health Unit at E Hospital. There is a letter before the Court which has been marked as exhibit “M1” and which was written by Dr C, consultant psychiatrist of that hospital. That letter advises of the fact that the mother is an inpatient, and it further advises:
“As her treating medical officer, I feel she is unable to attend due to current mental health state, and I would appreciate you considering an adjournment of this matter.”
That document was produced to Court this morning. Whilst the mother is not at Court Mr Y is at Court and he is a cousin of the mother and a second cousin to the three children who are the subject of these proceedings, those children being aged seven, five, and three years respectively. Mr Scott‑Mackenzie of counsel appears for the father, who is in Court. Ms McLennan appears as counsel on behalf of the three children, briefed by the Independent Children's Lawyer, and Ms Day, from the Department of Communities, appears amicus curiae to advise or assist the Court on certain matters of and concerning the welfare and best interests of the children.
The preliminary application before the Court, and with which I first deal, is that filed 10 August 2010 by the solicitors then acting for the mother. The document is identified as number 71 in the Court index. The order therein sought is as follows:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FamCA 752
Decision Date: 16 AUGUST 2010

CaseChat Overview and Summary

In *Dunbar and Dunbar (No 2)*, Young J of the Family Court of Australia considered an application filed on 10 August 2010 concerning the mother, Ms Dunbar. The specific nature of the dispute between the parties is not detailed in the provided text, beyond the fact that it involved children's matters listed for hearing.

The primary legal issue before the court was whether to appoint a Case Guardian for the mother, Ms Dunbar, in relation to the children's and other matters before the Court. The court was also required to determine the fate of the application filed by the mother on 10 August 2010.

Young J ordered that Mr Y be appointed as the Case Guardian for Ms Dunbar in respect of all children's and other matters listed for hearing. However, the court dismissed the application filed on 10 August 2010, indicating that the specific relief sought in that application was not granted.

Orders

Orders of the court

IT IS ORDERED:

THAT MR Y be appointed as the Case Guardian of the mother, MS DUNBAR in respect of all children’s and other matters listed for hearing in this Court.

THAT otherwise the application in a case filed 10 August 2010 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.