THROSBY & THROSBY

[2014] FCCA 138

FEDERAL CIRCUIT COURT OF AUSTRALIA

THROSBY & THROSBY [2014] FCCA 138

Catchwords:
FAMILY LAW – Practice and procedure – circumstances under which the appointment of a litigation guardian is appropriate – where party suffers from mental disability impairing ability to understand the nature and possible consequences of proceedings – where party unable to conduct proceedings without legal representation – legal aid funding withdrawn from both parties before Final Hearing – relevant legal principles and rules considered – litigation guardian appointed.

Legislation:

Disability Act 2006
Federal Circuit Court Rules 2001, rr.11.08, 11.11, 11.12

Marin & Salmon [2013] FamCAFC 88

Applicant: MR THROSBY

Respondent: MS THROSBY

File Number: MLC 3317 of 2012

Judgment of: Judge Whelan

Hearing date: 3 February 2014

Date of Last Submission: 3 February 2014

Delivered at: Melbourne

Delivered on: 3 February 2014

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the Respondent: Respondent in person

Counsel for the Independent Children's Lawyer: Mr Dunstan

Solicitors for the Independent Children's Lawyer: Bowlen Dunstan & Associates Pty

THE COURT DECLARES THAT:

1. Pursuant to r.11.08(1) of the Federal Circuit Court Rules 2001, the Applicant requires a litigation guardian to be appointed on his behalf in these proceedings.

THE COURT ORDERS THAT:

1. Pursuant to r.11.11(1) of the Federal Circuit Court Rules 2001, the Court forthwith appoints a litigation guardian for the Applicant in these proceedings.

2. Pursuant to r.11.12(3) of the Federal Circuit Court Rules 2001, it is requested that the Attorney-General appoint a person to be a manager of the affairs of the Applicant for the purposes of the appointment of a litigation guardian.

3. All extant applications be adjourned to this Court on 15 April 2014 at 9.30 a.m. for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3317 of 2012

MR THROSBY

Applicant

And

MS THROSBY

Respondent

REASONS FOR JUDGMENT

Introduction

1. In proceedings before the Court on 3 February 2014, I issued a declaration that the Applicant Father in these proceedings,

   
   

   MR THROSBY (“the Father”), required a litigation guardian to be appointed on his behalf and consequently made orders for the appointment of a litigation guardian.

2. I now release my reasons for that decision.

The history of the litigation

1. The application in these proceedings was initiated by the Father on

   
   

   17 April 2012. The proceedings concern appropriate parenting orders with respect to the five children of the marriage. Those children are:

   ·[V] born [in] 1999 (“[V]”);

   ·[W] born [in] 2001 (“[W]”);

   ·[X] born [in] 2005 (“[X]”);

   ·[Y] born [in] 2009 (“[Y]”); and

   ·[Z] born [in] 2011 (“[Z]”) (collectively “the children”).

2. The Father and the Respondent Mother, MS THROSBY (“the Mother”), separated in February 2012. At the time of the Initiating Application, [V], [W] and [X] were living with the Father while [Z] and [Y] were living with the Mother. On 11 May 2012, orders were made for the appointment…