Wahner and Laberman & Ors

[2020] FamCA 441

FAMILY COURT OF AUSTRALIA

WAHNER & LABERMAN AND ORS [2020] FamCA 441

FAMILY LAW – PRACTICE AND PROCEDURE – Case Guardian – where the third respondent maternal grandmother is appointed as case guardian for the second respondent maternal grandfather – where their interests are the same and they are represented by the same counsel and solicitor - where there is medical evidence that demonstrates that the maternal grandfather has some health issues which diminish his capacity to conduct proceedings on his own behalf and it is appropriate to appoint his wife as case guardian.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 6.10

APPLICANT: Mr Wahner

FIRST RESPONDENT: Ms Laberman

SECOND AND THIRD RESPONDENTS Mr B Laberman and Ms C Laberman

FILE NUMBER: MLC 13340 of 2017

DATE DELIVERED: 24 February 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 24 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Lander & Rogers  

COUNSEL FOR THE FIRST RESPONDENT: Mr Tatarka  

SOLICITOR FOR THE FIRST 

RESPONDENT:

Kcl Law

COUNSEL FOR THE SECOND AND THIRD RESPONDENT

Ms Swart

SOLICITOR FOR THE SECOND AND THIRD RESPONDENT Rkl Lawyers and Consultants

Orders

1. Ms C Laberman be appointed as case guardian for Mr B Laberman.

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 Wahner & Laberman  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 MELBOURNE

FILE NUMBER: MLC 13340 of 2017

Mr Wahner

Applicant

And

Ms Laberman

First Respondent

Mr B Laberman and Ms C Laberman

Second and Third Respondent

REASONS FOR JUDGMENT

1. The substantive proceedings are property proceedings.  They involve the wife’s parents insofar as there is a property registered in their name in relation to which the husband seeks orders.

2. The wife’s parents, Mr B Laberman and Ms C Laberman, have been parties to these proceedings from the outset and although the matter is now set down for a final hearing, and has been set down for some time, the maternal grandmother has recently filed an application in which she seeks to be appointed as case guardian on behalf of her husband, Mr B Laberman, pursuant to rule 6.10 of the Family Law Rules 2004 (Cth) (“the Rules”).

3. Those Rules provide that a child or a person with a disability may start, continue, respond to or seek to intervene in a case only by a case guardian. The Rules make provision with respect to who may be a case guardian and requires that it be an adult; a person who has no interest in the case that is adverse to the interests of the person needing a case guardian; can fairly and competently conduct the case for the person needing the case guardian, and has consented to act as the case guardian.

4. There is medical evidence which I am satisfied demonstrates that the maternal grandfather has health issues, which diminish his capacity to conduct these proceedings on his own behalf and I am satisfied that it is appropriate to appoint his wife as the case guardian.  They have both been involved in these proceedings for some time and have always had the same interest in the proceedings. I am satisfied that the third respondent has no interest adverse to her husband’s interest, and that I should make the order she seeks.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 24 February 2020.

Associate: 

Date:  24 February 2020