Kasan and Kasan & Anor

[2020] FamCA 895

FAMILY COURT OF AUSTRALIA

KASAN & KASAN AND ANOR [2020] FamCA 895

FAMILY LAW – PRACTICE AND PROCEDURE – application by the second respondent for the appointment of a case guardian to be appointed for the first respondent – whether a case guardian should be appointed – application dismissed.

Family Law Rules 2004 (Cth) rr 6.08, 6.09, 6.10

APPLICANT: Ms Kasan

1st RESPONDENT: Mr Kasan

2nd RESPONDENT: Mr Dawood

FILE NUMBER: SYC 2539 of 2020

DATE DELIVERED: 20 October 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: David Legal

COUNSEL FOR THE 1ST RESPONDENT: Mr Kerr

SOLICITOR FOR THE 1ST RESPONDENT: Maclarens Lawyers

COUNSEL FOR THE 2ND RESPONDENT: Mr Kerr

SOLICITOR FOR THE 2ND RESPONDENT: Maclarens Lawyers

Orders

1. The application for the appointment of the Second Respondent as a case guardian is dismissed.

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 Kasan & Kasan 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 CANBERRA

FILE NUMBER: SYC 2539 of 2020

Ms Kasan

Applicant

And

Mr Kasan

1^st Respondent

And

Mr Dawood

2^nd Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Application is made by the Second and First Respondents for the Second Respondent to be appointed as case guardian for the First Respondent. 

2. The Application is not opposed by the Applicant.

3. As per r 6.10, there is no apparent bar on either the Second Respondent or the First Respondent making such an application. For the Second Respondent to be eligible for appointment, r 6.09 imposes four qualifications.

4. One of those qualifications specifies that the person to be appointed as case guardian holds no interest adverse to those of the person for whom he or she is being appointed case guardian. 

5. In this case, although the presence of a Power of Attorney executed by the First Respondent appointing the Second Respondent as his attorney is suggestive that the Respondent does not consider that the Second Respondent holds any adverse interests, this quality in the Second Respondent has not been established on the balance of the evidence.  This absence of establishing that there is no adverse interest disqualifies the Second Respondent from being the case guardian for the First Respondent. 

6. However, even if it were the case that it had been established as required by the Rules that there be no adverse interest, it is necessary to query the basis upon which the Second Respondent might be appointed as a case guardian for the First Respondent. 

7. Rule 6.08 contemplates the appointment of a case guardian for a person with a disability.  It is true, as submitted by counsel for the First and Second Respondents that it does not specifically say that disability is a requirement.  What the Rule specifies is that a person with a disability may only participate in proceedings via a case guardian.  However, it may also be observed that the Rule gives no permission to proceed by means of a case guardian absent a disability. 

8. Neither the Rules nor the Act contemplate that a person will not conduct litigation in person that is, will not give instructions and will not make applications to the Court, other than personally, unless there is a justification.  That justification under the Rules is either because the person is a child or because the person is a person under a disability.  Absent identification of authority, there is a requirement that the person be under a disability, such that they cannot participate in the proceedings.  The Rules define person with a disability in a way that conforms with such an understanding. 

9. The Rules state 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. 

10. Even if it was the case that proceeding by means of a case guardian would be determined simply on a question of the interests of justice in a broader sense it is difficult to contemplate how the interests of justice would provide for case guardian being appointed other than where a person is suffering under a disability as set out under the Rules. 

11. In in any event, the evidence as lead in this case falls short of determining that the First Respondent is unable to participate in the proceedings in either sense described for a person with a disability, or in any sense at all.  It is true that there is some evidence that he has suffered from drug and mental health issues, but that evidence does not rise to the standard to say that he does not understand the nature or possible consequences of the case or is not capable of adequately conducting or giving adequate instructions for the case. 

12. It is true also that he is incarcerated and it may be accepted that a person's status as an inmate makes it much more difficult for them to participate in proceedings or to provide instructions.  However, the evidence that is presented about the terms of his incarceration and circumstances of his incarceration is unpersuasive that he is unable to participate in the proceedings or unable to adequately give instructions.  Although it is not essential to this conclusion, it may be observed that jails, although difficult for legal practitioners to access, make provision for inmates to provide instructions to legal practitioners. 

13. It is also noteworthy that the Rules provide specific mechanisms for persons who are held in custody. 

14. On balance, it has not been established either that the Second Respondent is a person who is qualified to be appointed as the case guardian, nor that the First Respondent is a person who requires a case guardian. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 October 2020

Associate: 

Date:  23 October 2020