WESTWELL AND ANOR & WESTWELL

[2017] FamCA 165

FAMILY COURT OF AUSTRALIA

WESTWELL AND ANOR & WESTWELL [2017] FamCA 165

FAMILY LAW – PRACTICE AND PROCEDURE – appointment of case guardian – not heard

APPLICANT:	Ms Westwell
SECOND APPLICANT:	Ms Peake

RESPONDENT: Mr Westwell

INDEPENDENT CHILDREN’S LAWYER: Ms C Naidu

FILE NUMBER: CAC 1014 of 2016

DATE DELIVERED: 20 March 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE SECOND APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claire Naidu & Co

Orders

1. The application for the appointment of a Case Guardian for Ms Westwell was not heard this day.

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 Westwell and Anor & Westwell 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 CANBERRA

FILE NUMBER: CAC 1014 of 2016

Ms Westwell

Applicant

And

Ms Peake

Second Applicant

And

Mr Westwell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Peake, the second applicant, is the mother of the first applicant, Ms Westwell.  Ms Westwell is not present in Court today.  Ms Peake is self-represented.  Ms Peake has today sought to make an application to be appointed as the Case Guardian for her daughter and has done so without notice to the other parties and without identifying notice to the first applicant. 

2. Part 6.3 of the Rules deals with the appointment of Case Guardians.  In short, there is provision for the appointment of a Case Guardian where a person is a person with a disability.  The nature of that disability must be such as to meet the definition contained in the Dictionary to the Rules.  The Dictionary to the Rules explains that a person with a disability in relation to a case means:

   a person who, because of a physical or mental disability:

   (a)does not understand the nature or possible consequences of the case; or

   (b)is not capable of adequately conducting, or giving adequate instructions for the conduct of, the case.

3. At present there is no evidence that the first applicant, Ms Westwell, is on any notice that this application is being made.  It is certainly a serious thing to take the place of a person within proceedings and is only justified where a person is unable to conduct the proceedings because they are a person with a disability. 

4. Without determining whether in some cases, because of urgency and because of the extreme circumstances which surrounds them, it may be permissible to make an application to become a Case Guardian without giving notice to the person, in this case, there is no evidence to sustain such an urgency of circumstances.  The evidence that has been presented takes the place of a number of exhibits (exhibits A1 to A4) and an oral outline by Ms Peake as to the testimony that she would give in support of the Court hearing the application today.  There is nothing in that material which is sufficient to indicate that Ms Westwell is a person with a disability.  There is some material to indicate that she is suffering from some form of mental problem, although that is not adequately identified.  It is clear that it is not sufficient to qualify a person as a person with a disability merely to point to the person suffering from a mental problem.  Even accepting that the documents are sufficient to show that Ms Westwell is suffering from depression, it is not sufficient to show that she has a lack of understanding or an incapacity at this stage to a degree of urgency that if it is possible to do so, would allow this matter to be heard without any notice to her.

5. I decline to hear the application today for the appointment of a Case Guardian for Ms Westwell. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 March 2017.

Associate: 

Date:  22 March 2017