Somerville and Somerville (No.2)

[2014] FCCA 2439

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

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.

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

1. 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.

2. 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.

3. These reasons for Judgment explain why the Court made the Order.

Background

1. 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.

2. 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.

3. The issue that is raised in this case is the meaning of the words used in rule 11.08(1) FCCR.

The Applicable Law

1. 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…