Wembley and Wooten - [2018] FamCA 334

FAMILY COURT OF AUSTRALIA

WEMBLEY & WOOTEN

[2018] FamCA 334

FAMILY LAW – PRACTICE AND PROCEDURE – Application for a case guardian – where the application was brought by the husband’s solicitor as an officer of the Court - where the medical evidence indicated the husband was not a “person with a disability” as defined by the Family Law Rules 2004 (Cth) – where the Court can take into account other factors – where the Court considered the evidence of the husband’s solicitor and counsel in determining his capacity – where findings made that the husband is not a person under a disability

Legal Profession Uniform Law Application Act 2014 (Vic)
Family Law Rules 2004 (Cth)

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APPLICANT:

Mr Rowan Skinner

RESPONDENT:

Mr Wooten

FILE NUMBER:

MLC

8662

2017

DATE DELIVERED:

17 May 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

4 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hall

SOLICITOR FOR THE APPLICANT:

Rowan Skinner And Associates Lawyers

THE RESPONDENT:

In Person

Orders

The applicant’s Application in a Case filed 9 March 2018 seeking the appointment of a case guardian for the husband pursuant to Part 6.3 of the Family Law Rules 2004 (Cth) is hereby dismissed.
All extant applications be otherwise adjourned to the Judicial Duty List at 10.00 am on 3 July 2018.

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 Wembley & Wooten 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 8662 of 2017

Mr Rowan Skinner

Applicant

And

Mr Wooten

Respondent

REASONS FOR JUDGMENT

The husband in this case is a party to final parenting and property proceedings. On 9 March 2018 his solicitor, Mr Rowan Skinner (“the husband’s solicitor”) filed an Application in a Case seeking the appointment of a case guardian for the husband pursuant to Part 6.3 of the Family Law Rules 2004 (Cth) (“the Rules”).
That Application in a Case first came before me for hearing in the Judicial Duty List on 14 March 2018. On that date, I made orders for the husband to attend upon Professor B for the purposes of assessing his capacity to participate in the substantive proceedings. The matter was otherwise…

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 Wembley and Wooten

Details

AGLC: Wembley and Wooten [2018] FamCA 334
Case: [2018] FamCA 334
Decision Date: 17 May 2018

CaseChat Overview and Summary

In the matter of *Wembley and Wooten*, heard before Macmillan J, the applicant sought the appointment of a case guardian for the husband pursuant to Part 6.3 of the *Family Law Rules 2004* (Cth). The precise nature of the underlying dispute between the parties is not detailed in the provided text, but the application for a case guardian indicates a potential issue concerning the husband's capacity to conduct proceedings.

The central legal issue before the Court was whether the criteria for appointing a case guardian for the husband under Part 6.3 of the *Family Law Rules 2004* had been met. This would involve an assessment of the husband's ability to understand the proceedings, instruct his legal representatives, and participate effectively in the litigation.

Macmillan J dismissed the applicant's application. While the specific reasoning is not elaborated upon in the provided text, the outcome suggests that the Court was not satisfied that the threshold for appointing a case guardian had been established. The Court ordered that all other extant applications be adjourned to the Judicial Duty List for a future date.

Orders

Orders of the court

The applicant’s Application in a Case filed 9 March 2018 seeking the appointment of a case guardian for the husband pursuant to Part 6.3 of the Family Law Rules 2004 (Cth) is hereby dismissed.

All extant applications be otherwise adjourned to the Judicial Duty List at 10.00 am on 3 July 2018.

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

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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