D and D
[2001] FMCAfam 46
•11 May 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
D & D [2001] FMCAfam 46
PRACTICE AND PROCEDURE – Ruling – application for leave to appear for Applicant Husband and/or appear as amicus curiae – Applicant Husband already represented by trustee appointed as next friend of Husband pursuant to Order 15 Rule 14 Family Law Rules – Application refused.
DISSOLUTION OF MARRIAGE – Applicant at time of filing application disabled pursuant to s.3(1) of Guardianship & Administration Act 1986 (Vic) – capacity to make application for dissolution – separation – irretrievable breakdown.
Family Law Act 1975, ss.48, 49
Family Law Rules, Order 4 Rule 7, Order 15 Rule 14
Pavey v Pavey (1976) 1 FamLR 11358 applied
Jennings v Jennings (1997) FLC 92-773 followed
| Applicant: | M D |
| Respondent: | Y S-D |
| File No: | ZM4362 of 2000 |
| Delivered on: | 11 May 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 11 May 2001 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Solicitor for the Next Friend of the Applicant: | Mr Baker |
| Solicitors for the Next Friend of the Applicant: | Russell Kennedy |
| Counsel for the Respondent: | Ms Melita |
| Solicitors for the Respondent: | David Stagg Tonkin & Co |
ORDERS
The application for dissolution be dismissed.
I direct that the notice of address for service filed 10 May 2001 by Mr Peter Lynch be removed from the file.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
ZM4362 of 2000
M D
Applicant
And
Y S-D
Respondent
REASONS FOR JUDGMENT
Ex tempore
In this matter I have heard submissions from Mr Baker for the State Trustee who was appointed by order of this court on 14 December 2000 as the next friend of the applicant husband pursuant to order 15 rule 14 of the Family Law Rules. That order was made by the court on 14 December 2000 in relation to this application for divorce by the applicant husband.
Before me today I have also heard submissions from Ms Melita who appears for the respondent wife. I have as a preliminary issue decided to receive and hear submissions made by Mr Lynch who has purported to appear for and on behalf of the husband, or in the alternative has made a submission that he ought to appear in this matter as amicus curiae.
It is important to note in this matter that the trustee was appointed, as I have indicated, as next friend on 14 December 2000.
The application for divorce was filed on 27 October 2000. On that date, it is clear from the documents that the State Trustee had already been appointed as trustee of the applicant husband. That appointment occurred on 24 February 1999 and the appointment was made upon a finding that the applicant husband was disabled within the meaning of s.3(1) of the Guardianship and Administration Act 1986. A trustee by that appointment has all the powers under Part V Division 3 and Divisions 3A of that Act.
I received an affidavit sworn by Paul Radlow on 10 May 2001. That affidavit indicates in paragraph 1(b) that the appointment of the Trustee as administrator of the legal and financial affairs of the applicant husband was in fact the subject of a reappointment after a further hearing on 24 February 2001 and I am therefore satisfied that at all material times the State Trustee has been duly appointed and indeed remains appointed as administrator of the legal and financial affairs of the applicant husband.
Before this court today Mr Lynch has argued that he should have standing before this court or in the alternative, should at least have standing to seek to have the matter stood down to enable discussions to take place between himself, Mr Baker for the State Trustee and next friend of the applicant husband and Ms Melita for the wife respondent. In support of his submissions, Mr Lynch has indicated to the court that the State Trustee before this court does not oppose Mr Lynch acting as amicus curiae and further has indicated that there is no real issue of potential conflict that should concern the court. In the course of his submissions Mr Lynch indicated that he has the confidence of the family in this matter, that is the family of the applicant husband. He further indicated that there are certain matters which he may be able to bring to the attention of the court which may assist the court in its deliberations.
In this application for divorce it is important for the court to note that essentially the issue in an Application for dissolution relates to a question of whether indeed there has been the appropriate ground for dissolution made out. I have been taken in brief terms to the well-established principles of law concerning separation and I simply restate those principles which have been defined in the statements taken from Todd and Todd (No2) (1976) FLC 90-008 varied by the Full Court of the Family Court of Australia in Pavey v Pavey (1976) 1 FamLR 11,358. In that case the court said:
“`Separation’ means more than physical separation - it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in this sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships and the nurture and support of the children of the marriage.”
I have also been referred during the course of submissions by Mr Baker and by Ms Melita to the decision of her Honour Dessau J in the matter of Jennings v Jennings (1997) FLC 92 773. In particular I was taken by Mr Baker to a passage which appears at page 84,535, where her Honour states:
“Mr Jennings suffers a disability. His disability is such that he cannot manage his own affairs. His wife has no power of attorney on his behalf. An application was made by her son that an administrator be appointed. That order was made. It strikes me as a perverse proposition that an administrator appointed to represent a person who, through disability, is unable to organise his own affairs, could simply “reach a decision” that the person's marriage has ended. It is not that the administrator points to objective facts, nor that it disbelieves the wife's version, to the contrary. It has simply “reached a decision”. In my view, the administrator is empowered to handle legal and financial affairs of the party but cannot possibly be empowered to handle the “affairs of the heart” or the most intimate aspects of the represented person's mind and soul.”
I adopt what her Honour said in that case as being an appropriate principle which has application, in the present case. I also have regard to the passage I have just read out in relation to the issue to be decided in an application for divorce.
It is appropriate to turn to the question of whether, having regard to the issue that is before the court, the court should allow Mr Lynch to appear as amicus curiae. Order 4 rule 7 of the Family Court Rules provides for right of appearance. In particular, the rules provide that the court may in relation to the proceedings that are before it grant leave to appear to a legal practitioner who is neither on the record nor formally acting for a party. Indeed the person can appear as either amicus curiae or, in some cases, may appear as what is commonly referred to as a McKenzie friend.
The granting of leave to appear in those circumstances is normally granted where there is in fact no representation for one or other party. In the present case the representation of the applicant husband occurs by reason of the order I made on 14 December 2000. That order was made pursuant to order 15, rule 4 of the Family Law Rules. When one looks at the order in relation to the power of the court to appoint a next friend it is clear and unequivocal, in my view, that once appointed the next friend has the power to in fact conduct the proceedings and indeed, Order 15 Rule 11 (b) provides the next friend, “may do anything permitted by these rules to be done by the party.”
The powers of the next friend who stands then in the shoes of the applicant is also a power that has attached to it responsibilities, in particular responsibilities for costs and expenses of the next friend. (Order 15 Rule 9)
In the circumstances of the present case I am satisfied that the next friend properly represents the applicant's interest before this court.
I am satisfied that the applicant husband is therefore represented in accordance with the law and consistent with the law of the State of Victoria whereby the state trustee has been appointed in the manner that I have indicated earlier in this ruling.
Accordingly it remains to consider whether I should exercise beyond that a further discretion to allow Mr Lynch to appear as amicus curiae. On the material before me, and exercising the discretion which I undoubtedly have, it is not, in my view, a case where appointment of amicus curiae is appropriate. I am satisfied that the interests of the applicant husband can be represented by the state trustee and in fact note that in the course of submissions whilst a concession was made by the state trustee to allow or permit Mr Lynch to continue in the capacity of amicus curiae that that is a concession only. It is ultimately a matter for the court in the exercise of its discretion to decide whether to allow that course to be followed.
I am strengthened in my decision not to allow Mr Lynch to continue as amicus curiae by my reading of the material including the affidavit of Paul Radlow to which I have just referred which has attached to it a medical certificate and report from the Austin Repatriation Medical Centre which appears to have been prepared by Dr Simon Croke. I am also strengthened in my conclusion it is inappropriate to allow Mr Lynch to continue to appear by the fact that the material before me is material which would enable at least this application to be properly considered by the court. I do not think it is appropriate for this court in an application of this kind to receive submissions from persons other than the applicant husband and the respondent wife. For those reasons the application by Mr Lynch to appear as amicus curiae or to continue to appear before this court is refused.
I propose now to deal with the application. This is an application for divorce which has been filed with the court on 27 October 2000 by Mr D, the applicant husband. In the application the wife is referred to as “Y (S) D”, although I note in passing that the correct name is
“Y S-D”. The application when it was commenced was an application purportedly being made by the husband who, at the date when he made the application, was already the subject of an order whereby the State Trustee Ltd had been appointed administrator of the legal and financial affairs of the applicant husband, that indeed had occurred on 24 February 1999 and the appointment was further made, that is reappointment occurred, on 24 February 2001.
In this matter I have ruled that Mr Lynch, purporting to act on behalf of the husband and/or family, not be permitted to appear in any capacity including as amicus curiae and I delivered my extempore ruling in relation to that matter. I now have to consider whether it is appropriate to dismiss the application for divorce. Mr Baker, who appears for and on behalf of the State Trustee Ltd which is the next friend of the applicant husband appointed by the court on 14 December 2000 pursuant to order 15 rule 14 of the Family Law Rules, has referred me to material which would support the proposition that at the date of the filing of the application for divorce the husband did not have the appropriate capacity to commence that proceeding.
Mr Baker has, in my view has commendably taken as neutral a position as he may, having regard to the competing interests of on the one hand wishing to have any opposing views ventilated before this court, on the other hand discharging the duties of next friend and trustee of the applicant husband. Ultimately, however, he cannot place before the court any material which would persuade the court that it should do otherwise than accept the respondent's submission that this application should be dismissed on the grounds that the applicant husband at the time of the filing of the application, and indeed currently, does not have the appropriate capacity.
In support of the issue of capacity, the court has noted the exhibit, annexure PR1 to the affidavit of Paul Radlow sworn 10 May 2001. That exhibit is a medical report from Dr Simon Croke which indicates that the doctor has “been the consultant in charge of his care for the last one year of that time”.
He refers to a period of time namely from 31 March 1999 until 30 March 2001 when the applicant had been a patient of the A & R.M.C. Secure Extended Care Unit, a psychiatric ward catering for patients requiring rehabilitation over longer periods of time and/or commitment for reasons of safety.
It is indicated in that report by the doctor that during the period that the applicant was detained under section 12 of the Mental Health Act of Victoria and the admission came to an end unexpectedly when the Mental Health Review Board, an independent external review body, adjudicated that the applicant was allowed to exercise voluntary agreement to admission. But the applicant then left the unit and has thereafter, according to this report, been living with his sister and mother.
Significantly, however, in the report the doctor states that:
“….. When interviewed by myself Mr D he shows an inability to discuss meaningfully a wide range of issues including the state of his marriage. While he does often express a desire to live with his family of origin rather than his wife, when pressed for further information he would reveal that he didn’t know his wife’s name and report that he hadn’t seen her for several months when in fact she was visiting him more than once a week.
It is the opinion of our service that significant improvement in Mr D's cognitive state is unlikely this long after his original brain injury. His schizoaffective disorder, for which he remains on medication and is in a period of relative stability, is not seen as a reason for calling into question these current court proceedings.”
I should add that the reference to Mr D is the reference to the applicant's name. He is known as both Dz and D. The doctor in the report goes on to say:
“For the reasons stated above, I believe Mr Dz does not have the capacity to understand the significance of the Family Law court proceedings”.
It is on that basis that both Ms Melita for the respondent and Mr Baker for the state trustee submit that I should not be satisfied that the applicant indeed had capacity to make the application for divorce when that application was filed on 27 October 2000. I accept the evidence as it appears before this court that in fact the applicant husband did not have the capacity to understand the nature of the proceedings and on that basis alone it is my view that it is appropriate to dismiss the application. In the event that I am incorrect about that it is further submitted by Ms Melita on behalf of the respondent that in any event on the material presently before the court I cannot be satisfied that the appropriate ground for disillusion has been made out.
The issue of course in this application is whether or not the marriage is broken down irretrievably pursuant to section 48 subsection (1) of the Family Law Act. The ground of irretrievable breakdown is established and a decree nisi may be pronounced if the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the filing of the dissolution application. During the course of my ruling I referred to the often cited quotation of the Full Court of the Family Court of Australia in the matter of Pavey v Pavey. For the sake of brevity I simply adopt that quotation.
It is perhaps also significant in the context of this application to refer to what the Full Court of the Family Court said in the matter of Falk v Falk (1977) FLC 9247 and reported also in (1977) 3 FamLR 11,238 where at 11,244 the court said:
“Where one party only has formed the relevant attitude and intention which should have been communicated to the other party directly or indirectly, where other aspects of the relationship continue, a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude.”
In the present case it seems to me, having regard to the relevant authorities to which I have referred, that again a major difficulty in this case is trying to establish that there is sufficient evidence upon which the court could safely rely whereby it could be said that the husband has indeed the capacity to communicate an intention or convey an attitude that the relationship has been severed and indeed that the marriage has broken down irretrievable has a consequence of what might be described as physical or geographical separation from time to time. In my view, the court on the material before it cannot be so satisfied.
To the extent that I am required, though, I go one step further in referring to the response that has been filed and relied upon by the respondent. In particular I note in the details set out as grounds upon which the respondent relies that there does indeed appear to be a continuation of what I would describe and find as being evidence of a continuing marital relationship both in terms of consortium vitae as we know it and also in general terms of the continuation of nurturing and the relationship one might otherwise expect in these somewhat unusual and difficult circumstances where the applicant clearly suffers from a significant disabling condition.
I rely, however, on the response and the material attached to it. I accept the submissions that have been made in relation to both the incapacity question and the issue of separation. For those reasons I conclude that the appropriate course in this case, and indeed the only course available to me on the material presently before the court, is to order that:
(1)The application for dissolution be dismissed.
(2)I direct that the notice of address for service filed 10 May 2001 by Mr Peter Lynch be removed from the file.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM
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