Coulson and Coulson

[2008] FamCA 168

FAMILY COURT OF AUSTRALIA

COULSON & COULSON [2008] FamCA 168

FAMILY LAW – PROPERTY SETTLEMENT—Consent order—where the Wife diagnosed with depression—where case guardian appointed for the Wife—where the Wife and her case guardian disagree as to consent orders—where case guardian makes compelling case for entering into consent orders—consent orders entered.

APPLICANT: MR COULSON

RESPONDENT: MRS COULSON

FILE NUMBER: BRF 600 of 2006

DATE DELIVERED: 27 February 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 30 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page of Counsel appearing for the Applicant Husband

SOLICITOR FOR THE APPLICANT: Harrington Family Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Bastian-Jordan, Solicitor of Murdoch Lawyers appeared for the Respondent Wife and Mr Sheehy, Solicitor appeared as the Case Guardian

Orders

1. I will make orders in terms of the draft orders produced to the Court, initialled by me and placed with the papers

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 600 of 2006

MR COULSON

Applicant

And

MRS COULSON

Respondent

REASONS FOR JUDGMENT

1. The parties in this matter were married in 1976.  There are three adult children of the relationship.  The parties separated in early 1999 and divorced in 2005.  Neither party came to the marriage with noteworthy assets.

2. During the course of the marriage the husband worked in agriculture and as a tradesman.  The wife worked part-time for much of the marriage.  I understand for the last eight to 10 years she assumed full time work.  She currently works at a school.  She also assumed domestic responsibilities and raised the three children during the course of the marriage.

3. The parties have an interest in various pieces of real estate, including the jointly owned former matrimonial home which is Property 1.  There is a property, Property 2, which is an allotment of approximately 31 hectares upon which is constructed a three bedroom home.  There is the jointly owned Property 3, which is about 125 hectares.  Property 4 is owned by the husband and his brother, and it comprises two farming blocks of 80 hectares and a three bedroom house, and there is the back property known as Property 5, owned by the husband and his brother which consists of some 93 hectares of vacant land.

4. The parties have resided in various properties from time to time.  As I understand the evidence, presently the wife resides at Property 1 and the husband resides at Property 4.  The primarily contested properties are those at Property 1 and Property 2. 

Chronology of Litigation

1. The proceedings were commenced by the husband in the Federal Magistrates Court in the Brisbane Registry by way of an application filed on 29 August 2005.  He sought the property be divided 65/35 in his favour.  By way of a response document filed on 23 December 2005 the wife sought a 50/50 split.  The matter was transferred to the Family Court by order of Slack FM on 3 March 2006.

2. During the early stages of the litigation both parties were at pains to make adequate disclosure in accordance with the rules.  I accept that substantial disclosure has been made on both sides, and in the face of a looming trial the parties have entered into consent orders.

Case Guardianship

1. By way of an application in a case filed on 12 July 2007 the wife, through her legal representative, sought to have Mr Peter Sheehy appointed as her case guardian for the instant proceedings.  Mr Sheehy is a solicitor in private practice in Brisbane.  He is an accredited family law specialist and regularly appears in this jurisdiction. 

2. At the request of the wife's legal representative, Dr S, a psychiatrist in private practice in Brisbane, undertook a psychiatric assessment for the purposes of demonstrating the necessary disability giving rise to the appointment of a case guardian.  Dr S identified the wife suffers from a severe major depression disorder superimposed on a long standing, generalised anxiety disorder.  Dr S also remarked that:

   "I do not believe that her mental state is currently such that she can make informed decisions about her own future.  I consider that she is having difficulty recognising her own lack of capacity to make decisions and is in danger of making decisions just to reduce her current anxiety level rather than address her future.”

3. The husband indicated he had no objection to the appointment of a case guardian for the wife and, accordingly, on 27 August last year Mr Sheehy was appointed as case guardian for the wife.

Consent Orders

1. On 30 January this year consent orders were put forward by the case guardian for the wife and the legal representative for the husband.  The ultimate effect of the consent orders for present purposes is that the wife will receive a monetary sum in lieu of obtaining ownership of Property 1, a property which had been hotly contested in the proceedings.  I understand there were prior consent orders where the wife was to receive real property in lieu of cash but ultimately the case guardian elected to receive the monetary sum.

2. The case guardian reveals that the wife has expressed the opinion that she did not endorse the consent orders and did not agree to their terms. He noted the wife wished to receive Property 2 as part of the settlement.  Property 2, as I understand it, is valued at $475,000.  The case guardian noted that, notwithstanding the wife's wishes, the husband had never contemplated that the wife would receive that real estate during the property settlement and has conducted the litigation from that point of view.  On this basis, and in the absence of communication from the wife, the case guardian instructed his solicitors to accept the offer involving receipt of Property 1, but after consultation with the wife's 28 year old son, Mr Sheehy in considering the matter on the wife's behalf, opted for the alternative offer involving payment of a monetary sum and the wife to receive no real estate.  Such an option, I accept, would afford the wife the opportunity to leave the area where her former husband will continue to reside at some point in the future should she wish to do so.

3. Significant difficulties arise in the circumstances where the case guardian and the principal are in disagreement as to the course to be taken.  There are, nonetheless, compelling reasons to prefer the course adopted by Mr Sheehy than that of the wife herself.

4. The first point I mention is that r.6.08 of the rules provides that where a person has a disability the case can only be continued by a case guardian.  The evidence of Dr S is sufficient to demonstrate the wife's disability, as discussed above, and therefore the case must be run by the case guardian.  It is observed in this regard that the wife ceases to have standing herself upon the case guardian's appointment.

5. The second factor is that r.6.13 states that where a case guardian purports to enter into consent orders he or she must file an affidavit setting out the facts relied on to satisfy the Court that the order is in the party's best interests.  Mr Sheehy filed an affidavit dated 30 January 2008 precisely to that effect, and I have made reference to that.  It is immediately apparent that Mr Sheehy has dutifully discharged his obligations as case guardian and that the consent orders he proposes to enter into on behalf of the wife are appropriate.  I can simply add I would expect no less from Mr Sheehy.

6. Finally, and most compellingly there is Mr Sheehy's arguments as to future legal costs.  The wife has already incurred sizeable legal fees and the cost of a two day trial would increase the sum substantially.  There is a real risk that the wife's goal of proceeding to trial to obtain Property 2 in the final distribution would not succeed, particularly having regard to the husband's submissions in this regard. 

7. Mr Sheehy has expressed the opinion that even if the wife were to succeed in receiving Property 2 at trial, it would have to be sold to meet outstanding legal debts that by that stage would have accrued.  I note in arriving at the conclusion that I have, that the wife has at no stage sought to bring an application to discharge the appointment of the case guardian on the basis she no longer requires same.  She has not sought to go back to either Dr S or to any other appropriately qualified medical practitioner to say the case guardian is unnecessary because her condition has improved.

8. It is fully appreciated that the wife has agitated a conclusion to these proceedings different to the one that has eventuated at the behest of her case guardian.  Psychiatric evidence deposed to by Dr S, whose assessment the wife consented to, explicitly demonstrates that she is unable to make informed decisions having regard to her future.  In making property orders this Court is required as much as possible to make final and conclusive orders.  Absent unusual circumstances it would not be possible for the wife to

   
   

   re-litigate these matters at a future date were she to later find that the orders she had hoped for ultimately brought about unforeseen consequences.  It is entirely for this reason that a case guardian is necessary to direct the litigation for those unable to do so themselves.

9. I note that on 19 February the wife forwarded a document directly to my Chambers.

   RECORDED  :  NOT TRANSCRIBED

   There is no indication that the wife consulted her case guardian, the lawyers acting for her case guardian or the husband's legal representative before taking the action that she did in forwarding a letter directly to my Chambers.  I have made a copy of that letter available to the legal practitioners this morning.  One course open to me was to simply disregard the letter.  It is seen as inappropriate to communicate directly with a judicial officer outside of a Court.  I am not being critical but I simply say that it is a not a course that is normally adopted.  But as I have called on the wife directly and I have read the opening paragraph of her letter I elected to read what she had to say.

10. I am confident the case guardian and her lawyers are conscious of the issues that have been raised.  They have confirmed that for me this morning.  The wife has to realise that whilst she makes various claims the husband's legal representatives put forward various answers to such claims by way of explanation and justification for what has been done.  It is unlikely all the issues raised in the wife's letter would be determined in her favour.  I am informed, and I accept that her case guardian and her legal representative have factored in this aspect when agreeing to resolve the outstanding issues by way of consent orders.

11. I express some regret at not simply signing off on the consent orders when asked to do so on 30 January.  I did not intend to create a false expectation for the wife that the Court would accede to her position.  I simply wanted to be fully informed of her position.  I had not read all of the documents.  I am not required to when asked to make consent orders.  I simply satisfy myself that the practitioners regard the end result as a just and equitable conclusion, but in this case because of the special circumstances of a divergence of opinion between the case guardian and the wife, I took the somewhat exceptional course of adjourning the matter to allow me to consider all aspects. 

12. I am satisfied, albeit against the wife's family's expressed views, that the result obtained is a just and equitable one.  It is the most appropriate course in the circumstances.

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  27 February 2008