Krupi & Krupi (No 4) - [2023] FedCFamC2F 1479

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Krupi & Krupi (No 4) [2023] FedCFamC2F 1479

File number(s): CAC 664 of 2022

Judgment of: JUDGE MANSFIELD

Date of judgment: 16 November 2023

Catchwords: FAMILY LAW – Parenting – Where the Independent Children’s Lawyer applied for the appointment of a Litigation Guardian for the Respondent Mother – Where the Applicant Father supported the application – Where the Mother opposed the appointment – Where the Court considered the capacity of the Mother to understand the nature and consequences of the proceedings – Application for appointment dismissed

Legislation:
Family Law Act1975 ss 69ZN, 69ZX, 101, 102D, 102E, 102NA

Federal Circuit and Family Court of Australia Act2021 s 190

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.12, 3.14, 3.16

Cases cited:
Allesch v Maunz [2000] HCA 40

Forster & Forster [2012] FamCAFC 47

Gaddy v Gaddy [2022] FedCFamC2F 1544

Oliver & Gall [2008] FMCAfam 164

Division: Division 2 Family Law

Number of paragraphs: 31

Date of last submissions: 15 November 2023

Date of hearing: 15 November 2023

Place: Canberra

Solicitor for the Applicant: Hijazi Curran Cameron Lawyers

Respondent: Self-represented

Counsel for the ICL: Ms Harders

Independent Children’s Lawyer: Legal Aid ACT
ORDERS

CAC 664 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KRUPI
Applicant

AND:
MS KRUPI
Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE MANSFIELD

DATE OF ORDER:

16 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The oral Application in a Proceeding brought by the Independent Children’s Lawyer on 15 November 2023 is hereby dismissed.
2.The final hearing is to proceed as listed and is to be conducted pursuant to the trial plan that shall be transmitted to the parties herewith.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE MANSFIELD

These are ex-tempore reasons for Orders made following an application by the Independent Childrens Lawyer, supported by the father, that the mother is a person in need of a litigation guardian.
INTRODUCTION
For the mother’s sake, for the father’s sake, and above all else for X’s sake, these proceedings need to end and this is the forum in which that needs to happen. It is common ground that…

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.

Continue reading Krupi & Krupi (No 4)

Details

AGLC: Krupi & Krupi (No 4) [2023] FedCFamC2F 1479
Case: [2023] FedCFamC2F 1479
Decision Date: 16 November 2023

CaseChat Overview and Summary

The case of Krupi & Krupi (No 4) involved a dispute over the appointment of a Litigation Guardian for the Respondent Mother, Ms Krupi. The Independent Children's Lawyer applied for the appointment, a request supported by the Applicant Father, Mr Krupi. However, Ms Krupi opposed the application. The matter was heard in Division 2 of the Federal Circuit and Family Court of Australia. The central legal issue was whether the Mother's capacity to understand the nature and consequences of the proceedings was sufficient to warrant the appointment of a Litigation Guardian. The Court had to balance the rights of the parents against the best interests of the child, considering the Mother's cognitive ability and her ability to participate meaningfully in the proceedings.

The Court assessed the evidence regarding Ms Krupi's capacity to comprehend and engage with the proceedings. It took into account the reports and testimonies provided by experts and the observations made during the hearing. Ultimately, the Court found that Ms Krupi's understanding and capacity were adequate to allow her to participate in the proceedings without the need for a Litigation Guardian. The Court's decision was based on the premise that the Mother could sufficiently comprehend the nature and consequences of the proceedings and engage in the decision-making process without additional assistance. Consequently, the application for the appointment of a Litigation Guardian was dismissed.

In its orders, the Court dismissed the oral application brought by the Independent Children's Lawyer and directed that the final hearing proceed as scheduled. The Court mandated that the hearing be conducted according to the trial plan that would be transmitted to the parties. This decision ensures that the proceedings continue without the appointment of a Litigation Guardian, allowing Ms Krupi to participate fully in the process.

Orders

Orders of the court

CAC 664 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR KRUPI

Applicant

AND:

MS KRUPI

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE MANSFIELD

DATE OF ORDER:

16 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The oral Application in a Proceeding brought by the Independent Children’s Lawyer on 15 November 2023 is hereby dismissed.

2. The final hearing is to proceed as listed and is to be conducted pursuant to the trial plan that shall be transmitted to the parties herewith.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

File number(s):	CAC 664 of 2022
Judgment of:	JUDGE MANSFIELD
Date of judgment:	16 November 2023
Catchwords:	FAMILY LAW – Parenting – Where the Independent Children’s Lawyer applied for the appointment of a Litigation Guardian for the Respondent Mother – Where the Applicant Father supported the application – Where the Mother opposed the appointment – Where the Court considered the capacity of the Mother to understand the nature and consequences of the proceedings – Application for appointment dismissed
Legislation:	Family Law Act1975 ss 69ZN, 69ZX, 101, 102D, 102E, 102NA Federal Circuit and Family Court of Australia Act2021 s 190 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.12, 3.14, 3.16
Cases cited:	Allesch v Maunz [2000] HCA 40 Forster & Forster [2012] FamCAFC 47 Gaddy v Gaddy [2022] FedCFamC2F 1544 Oliver & Gall [2008] FMCAfam 164
Division:	Division 2 Family Law
Number of paragraphs:	31
Date of last submissions:	15 November 2023
Date of hearing:	15 November 2023
Place:	Canberra
Solicitor for the Applicant:	Hijazi Curran Cameron Lawyers
Respondent:	Self-represented
Counsel for the ICL:	Ms Harders
Independent Children’s Lawyer:	Legal Aid ACT

CAC 664 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR KRUPI Applicant
AND:	MS KRUPI Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE MANSFIELD
DATE OF ORDER:	16 NOVEMBER 2023