Grierson and Grierson

[2009] FamCA 114

FAMILY COURT OF AUSTRALIA

GRIERSON & GRIERSON [2009] FamCA 114

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of case guardian

Family Law Act 1975 (Cth)

APPLICANT: Mr Grierson

RESPONDENT: Ms Grierson

FILE NUMBER: MLC 10817 of 2007

DATE DELIVERED: 16 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fookes

SOLICITOR FOR THE APPLICANT: Ronald Segal & Associates

COUNSEL FOR THE RESPONDENT: Ms Gorman 

SOLICITOR FOR THE RESPONDENT: Jeanne Gorman

Orders

1. That Mr Timothy Mulvany be appointed as the case guardian for the wife.

2. That my reasons be transcribed and be made available to the parties.

3. That the parties and their practitioners attend a conciliation conference at 2.15pm on 7 April 2009.

4. That the husband file and serve a further amended application for final orders by 6 March 2009.

5. That the wife file and serve an amended response to the husband’s amended application by 20 March 2009.

6. That upon the conclusion of the conciliation conference, the Registrar approach me to indicate if a final trial date is needed in which case, subject to all procedural issues being completed, the case be fixed for trial as quickly as possible after the conciliation conference.

7. The parties’ costs of this day are reserved.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 10817 of 2007

MR GRIERSON

Applicant

And

MS GRIERSON

Respondent

REASONS FOR JUDGMENT

1. This matter has come back to me as a mention this morning.  It was listed before me in 2008 to be fixed for trial at which stage it was unashamedly not ready.  

2. There are some good reasons why there are difficulties in getting this matter for trial.  This is a very short marriage and the parties are not young.  The wife was convicted by the state courts of, as I understand it, arson and sentenced to a term of imprisonment.  The property damaged was in fact property that might have otherwise been a part of the pool of assets.

3. I have had an oral application made to me this morning for the appointment of a case guardian on behalf of the wife.  The rules in chapter 6 provide for a person to have a case guardian if they have a disability and “disability” is defined in the dictionary as including a person who does not understand the nature and possible consequences of the case or is not capable of adequately conducting their case or giving adequate instructions for the conduct of the case.

4. On 12 February 2009 the practitioner for the wife filed an affidavit by a Dr Z. Dr Z is a consultant psychiatrist and his qualifications are set out in the affidavit.  In a report to the practitioner dated 5 February 2009, Dr Z set out the history of his involvement with the wife.  It is somewhat unusual in that he knows her a little more closely than one might normally expect, having attended her marriage and been somewhat surprised by all of the events that unfolded.

5. Importantly, for my purposes, Dr Z says:

   I believe she cannot understand the nature or possible consequences of her case and cannot give adequate instructions for the conduct of the case and is in need of a case guardian.   

6. Mr Fookes, on behalf of the husband, remains mute on the subject, neither opposing nor consenting to the order. 

7. One of the considerations in the appointment of a case guardian is that the person who accepts that role must be objective and have no pecuniary interest in a personal sense in the matter.  Mr Timothy Mulvany has put his hand up, so to speak, in this case and in a letter on 12 February 2009 he wrote to the practitioner for the wife indicating a willingness to undertake the task.  Obviously Mr Mulvany is a professional and has requested that the consideration be given to how he is funded.  There are a number of considerations still to be worked out, including whether the wife will be eligible for some form of legal aid or whether there can be an agreed hourly rate.  At this stage it seems important for me simply to appoint Mr Mulvany and to re-examine the issue if the funding considerations cannot be resolved.

8. In the circumstances this is a case where the wife ought to have a case guardian under the rules and I appoint Timothy Mulvany as that particular person, subject to the right to have it reviewed on the basis of the funding issue.

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 February 2009