FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOMERVILLE & SOMERVILLE (No.2) | [2014] FCCA 2439 |
| Catchwords: FAMILY LAW – Litigation Guardian pursuant to r.11.08 FCCR – whether evidence justifies – meaning of r.11.08(1) – personality disorder. |
| Legislation: Federal Circuit Court Rules 2001 (Cth),r.11.08 |
| L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 |
| Applicant: | MR SOMERVILLE |
| Respondent: | MS SOMERVILLE |
| File Number: | WOC 1043 of 2012 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 11 March 2014 |
| Date of Last Submission: | 11 March 2014 |
| Delivered at: | Wollongong |
| Delivered on: | 31 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Miller |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| Counsel for the Respondent: | Ms Gillies |
| Solicitors for the Respondent: | Rossi Simicic Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr McPherson |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
| Counsel for the Intervenor: | Mr Anderson |
| Solicitors for the Intervenor: | Crown Solicitors Office |
ORDERS
There is no evidence before the Court that the Mother in these proceedings requires a litigation guardian pursuant to Rule of 11.08 of the Federal Circuit Rules.
IT IS NOTED that publication of this judgment under the pseudonym Somerville & Somerville (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1043 of 2012
| MR SOMERVILLE |
Applicant
And
| MS SOMERVILLE |
Respondent
REASONS FOR JUDGMENT
Introduction
On 11 March 2014 the Court made Orders in the following terms:
A declaration that there is no evidence before the Court that the Respondent Mother is a person who needs a litigation guardian pursuant to rule 11.08 of the Federal Circuit Court Rules 2001.
As there were many other pressing issues relating to this case, the Court indicated that it would provide written reasons for its order at a later date.
These reasons for Judgment explain why the Court made the Order.
Background
The parents were involved in complex parenting and property proceedings before the Court. Matters of background are adequately set out in the Court’s reasons for judgment delivered on 21 March 2014 and published as [2014] FCCA 695. The detailed chronology at Schedule One to those reasons sets out a comprehensive history of the case.
The legal representatives for the Respondent Mother raised before the Court issues about their client’s capacity to conduct the litigation, and her possible need for a litigation guardian. At this point the Court took upon itself the responsibility for determining whether a litigation guardian should be appointed for the Mother. Rule 11.11 of the Federal Circuit Court Rules 2001 (FCCR) makes it clear that the Court may act of its own motion in this regard. The determination of the issue was obviously critical to the future conduct of the case.
The issue that is raised in this case is the meaning of the words used in rule 11.08(1) FCCR.
The Applicable Law
FCCR 11.08(1) states:
Person who needs a litigation guardian
(1) For these Rules, a person needs a litigation guardian in relation to a proceeding…
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- Somerville and Somerville (No.2) [2014] FCCA 2439
- Case
- [2014] FCCA 2439
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the Mother required a litigation guardian pursuant to Rule 11.08 of the Federal Circuit Rules.
Judge Altobelli found that there was no evidence presented to the Court demonstrating that the Mother required a litigation guardian. Consequently, the Court made no order appointing one.
Orders
Orders of the court
1.
There is no evidence before the Court that the Mother in these proceedings requires a litigation guardian pursuant to Rule of 11.08 of the Federal Circuit Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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