Forster v Forster
[2012] FamCAFC 47
•23 March 2012
FAMILY COURT OF AUSTRALIA
| FORSTER & FORSTER | [2012] FamCAFC 47 |
| FAMILY LAW – APPEAL – APPOINTMENT OF A LITIGATION GUARDIAN – Whether the Federal Magistrate erred in ordering that the father attend for psychiatric assessment to assist in the determination of whether to appoint a litigation guardian for him in the proceedings, and in ordering, upon the father failing to attend, that a litigation guardian be appointed – Appealable error established. |
| Family Law Act 1975 (Cth) Federal Magistrates Court Rules 2001 (Cth), r 11.08 and 11.11 |
| L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432 Samootin and Shea & Shea and Ors [2000] FamCA 1874 |
| APPELLANT: | Mr Forster |
| RESPONDENT: | Ms Forster |
| FILE NUMBER: | ADC | 3359 | of | 2007 |
| APPEAL NUMBER: | SA | 83 | of | 2010 |
| DATE DELIVERED: | 23 March 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Coleman, May and Ainslie-Wallace JJ |
| HEARING DATE: | 16 February 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 October 2008, 19 December 2008 and 16 March 2009 |
| LOWER COURT MNC: | [2008] FMCAfam 1075; [2008] FMCAfam 1536. |
REPRESENTATION
| FOR THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms West |
| SOLICITOR FOR THE RESPONDENT: | Catherine Hicks & Co |
| FOR THE INDEPENDENT CHILDREN’S LAWYER: | No Appearance |
Orders
That the appeal against the orders made by Federal Magistrate Lindsay on 8 October 2008, 19 December 2008 and 16 March 2009 be allowed.
That paragraphs 1, 2 and 3 of the orders made by Federal Magistrate Lindsay on 8 October 2008 be set aside.
That paragraphs 1, 2 and 3 of the orders made by Federal Magistrate Lindsay on 19 December 2008 be set aside.
That the appellant be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
That the respondent be granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
That the two applications in an appeal filed by the appellant on 30 January 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: SA 83 of 2010
File Number: ADC 3359 of 2007
| Mr Forster |
Appellant
And
| Ms Forster |
Respondent
REASONS FOR JUDGMENT
Introduction
By Further Amended Notice of Appeal filed on 21 July 2011, the appellant father appeals orders made by a Federal Magistrate on 8 October 2008, 19 December 2008 and 16 March 2009, which provided that the father attend upon an appropriately qualified medical practitioner nominated in writing by the Independent Children’s Lawyer (“ICL”) for the purposes of a mental state examination, and the subsequent orders made on 19 December 2008 and 16 March 2009 appointing the Public Trustee as the litigation guardian for the father pursuant to r 11.11 of the Federal Magistrates Court Rules 2001 (Cth).
On 8 October 2008 the Federal Magistrate, relevant to this appeal, made the following orders:
1. The father do attend upon an appropriately qualified medical practitioner nominated in writing by the Independent Children’s Lawyer for the purposes of a mental state examination and for the purposes of such evaluation the Independent Children’s Lawyer do provide to the person so nominated such transcript of these proceedings and affidavits of the parties filed herein as the Independent Children’s Lawyer, the solicitors for the mother and the father request to be so provided, and the person so nominated be directed to furnish a report to the Independent Children’s Lawyer and to the Court as to the following:
a) whether the father understands the nature and possible consequences of the proceedings;
b) whether the father is capable of adequately conducting, or giving adequate instructions for the conduct of, the proceedings; and
c) whether the father suffers from any, and, if so, what, psychiatric, psychological or personality disorder or condition, and, if so, the extent to which any such disorder or condition is relevant to the opinion provided in relation to issues (a) and (b) referred to above.
…
As a result of the above orders, an appointment was made for the father to be medically examined on 29 October 2008 by a Dr B. Although the father was aware of the appointment, he failed to attend.
On 19 December 2008 the Federal Magistrate made the following orders:
1. A litigation guardian be appointed for the father in these proceedings pursuant to Rule 11.11 of the Federal Magistrates Court Rules 2001.
…
6. There be liberty to the father to apply to re-list this matter in the event that a report from Dr [B] pursuant to the Order made on 8 October 2008 becomes available during the period of the adjournment.
On 16 March 2009 the Federal Magistrate made the following order:
1. The Office of the Public Trustee is appointed as the Litigation Guardian for the respondent husband in these proceedings for the purposes of paragraph 1 of the Order made on 19 December 2008.
Background
The father and the mother have two children, M (now an adult) and K (aged 17). In 2007 the mother brought proceedings in the Federal Magistrates Court for orders in relation to the children and in relation to property matters.
On 22 May 2008 the children’s matter was listed before the Federal Magistrate for final hearing. At that time, each party had filed an affidavit to be relied on, and an ICL had been appointed and appeared at the trial. At the commencement of the hearing, his Honour asked the ICL to outline the scope of the dispute. The ICL said that the father was seeking an order that the parties’ youngest son, K live with each parent on an equal time basis. It is abundantly clear from the transcript of the proceedings that the father was in fact seeking such an order.
In the case of both the father and the mother, the Federal Magistrate permitted each to rely on his or her trial affidavit, but his Honour did not allow further oral evidence-in-chief. On 22 May 2008, the father cross-examined the mother and, at the conclusion of her evidence, the father was cross-examined by counsel for the mother. The hearing of the matter and the cross-examination of the father by counsel for the mother, and then the ICL, continued into the next day, 23 May 2008.
The cross-examination of the father turned to other litigation in which he was involved in the United States of America. The father indicated that he and the mother had an action against their former attorney, Mr X. The father said that he, in his own right, also had an action against the United States Government pending in the Court of Federal Claims which had reached appellate level. A third action was pending against the parties’ bank in Hawaii in which the father claimed that the bank had wrongfully produced documents relating to their accounts. The father and mother were parties to that litigation and they had had some success because money was due to be paid to them in relation to the matter. There was some holdup in those proceedings because, according to the father, the attorney who then appeared for them in that litigation had been charged and convicted of fraud.
Significant to this appeal is the following evidence given by the father in answer to questions from counsel for the mother on 23 May 2008:
MS HURLEY: …So you’ve got to file your brief and then do you have to stand up in court and argue your case?---It depends on the court. You don’t – if the honourable appellate judges want you to argue your case – it depends on the issues – then they will tell you you have to come argue.
And if the appellate court finds against you, do you have a chance to appeal that case?---Well, you always have a chance. The Supreme Court is the court of last resort.
…
Okay. But in the past – every time there has been a judgment that’s gone against you – you have appealed, haven’t you, in America?---If I think it’s wrong, I will. If it’s based on – what it has to be based on, when you appeal, is the appellate issues.
…
MS HURLEY: You will need to travel to United States of America (sic) with respect to all of these proceedings in the future?---I don’t know. I can’t predict what the court will say.
…
The Federal Magistrate suggested that the uncertainty of the father’s position might make his application for a week about arrangement with K complicated, and suggested that it “…really renders unrealistic any shared parenting arrangement…” to which the father replied: “No, your Honour”.
The father expanded in answer to questions from his Honour as follows:
HIS HONOUR: ... ---Well, your Honour, I don’t debate with the court. Like I said, I can’t predict. I’ll probably be here five years, 10 years. I have an attorney that’s supposed to be looking into the matters, and I will do what is necessary.
You see, we have lots of these applications before the court and usually a person – a mother or a father who is asking the court to order equal parenting – usually they’re at pains to make it clear to the court that they’re ready and available to accept those responsibilities. That’s just usually how the case is conducted. Your case is unusual in that you’re asking for those orders but conducting your case upon the basis of leaving me with a very high degree of uncertainty associated with your presence, from week to week or month to month, in the country. It makes it an unusual case. Do you understand that?---I don’t understand that, your Honour, because nothing is predictable. Like I said, nothing’s predictable. Absolutely nothing. The cases are where they’re at. I can only say that the government is involved in this – sexually molesting [Ms Forster] – and that’s the purpose, to keep me from litigating the case. That’s what I sincerely believe.
Counsel for the mother later returned to that answer, and suggested to the father that the mother “…knows nothing about any sexual molestation…” The father said:
…I informed her during the time that she had an attorney, that the attorney informed me that government agents were going to try to undermine [Ms Forster] and I, and [Mr X]. I indicated to her to be very discreet about what she does, because he told us – he said, “They are trying to undermine you guys,” and he said that – he told me that, “Girls will come up and offer themselves to you.” I told [Ms Forster] that some time ago; a long time ago. I said that, “The government is trying to undermine our case. Be very indiscreet (sic) about what you do.”
The father then indicated that the word he earlier used, “molestation” was not the appropriate one, and he said that it was a reference to her being discreet in her sexual relationships.
It seems that, during the cross-examination of him by the ICL, the father became distressed. The transcript records a discussion between the ICL and the Federal Magistrate about whether the father would like a break from the proceedings. The subject on which the father was then cross-examined was the mother’s use of drugs prescribed by her psychiatrist. The father’s expressed concern was the effect that the prescribed drugs had on the mother’s personality and functioning.
His Honour said to the father:
HIS HONOUR: …I haven’t heard all the evidence even about this particular aspect of it – parenting orders – but I’ve heard a fair bit of the evidence, and I must say, as I think I indicated to you at the time, the evidence that’s concerning me or the issue that’s concerning me is a very practical one.
The whole range of matters that I must take into account in determining [K’s] best interests are all set out in Part VII of the Family Law Act, but some cases are impacted upon significantly just by practical things, and your evidence to me about the very high degree of uncertainty associated with your remaining in Australia is a very significant practical problem for your application. I don’t want to put it any higher than that, but could I invite you to think about your position over the lunch break.
His Honour then referred the father to the Family Law Act 1975 (Cth) (“the Act”) and in particular to s 65DAA(5) “…when it talks about ‘reasonable practicality’…”
The father asked whether he could speak and the Federal Magistrate replied: “No, you don’t need to respond to me about that. They’re matters for you to just take into account in deciding whether you want to negotiate or not…”
The father’s cross-examination continued:
MR BOEHM: …You’re seeking an order that your youngest son live with you for one week out of two. Is that right? Is that the effect of your application before the court?---No. It’s equal time. It doesn’t matter how the court allocate (sic) that time. It doesn’t matter.
When asked what he would prefer, the father said:
…My preference would be probably every month probably – not to have him running back and forth every week, but maybe once a month with me, a month with her, a month with me, a month with her.
The father indicated that, some time ago, he had discussed his proposals with K but had not subsequently discussed them with him. He said that he was not clear what would be K’s present views. He was asked and replied:
MR BOEHM: …Were you clear on what [K’s] views were then when you had that discussion?---I wasn’t clear and he wasn’t either, I don’t think.
The questions turned to a remark made by the father earlier that there had been threats to his life. The father referred to what he regarded as an attempted break-in at his property in June 2007 and he said that there was a second incident some weeks before the hearing. He said he saw someone enter his property and behave in a way which he considered to be suspicious. He gave chase. In the chase, the person left behind his red jacket. The father said that he put the jacket into a bag and took photos of the footprints left by the person. He did not call the police. He said:
…The reason I didn’t call the police, they come out and they make a report and the person probably stood around just to see the police just write it down in a book and do nothing.
…It’s not I don’t trust the police, but someone might have went in there before. Someone might have went in that house before and they didn’t do anything. I think I have a couple where [Ms Forster] reported it to the police, where they went into the house and – I don’t know what they took, because I couldn’t remember, but nobody ever followed up on it, absolutely nobody.
The ICL returned to the father’s evidence about Mr X, the attorney who had acted for the father and the mother in litigation in the United States. The father said that when Mr X first acted for them, Mr X told them both to beware of indiscretion because the United States Government would use what it could to discredit them. The father said that at first he accepted what Mr X had told them because he thought Mr X knew what he was talking about, but later he came to realise that Mr X was a conman.
The father said that subsequently he received advice that the mother was having an affair. He said that he did not know who the person was who had given him this information even though the person had rung him on his personal mobile phone. He said that he told the informant to tell him if he saw the mother again at a particular place. He said that he thought it might have been Mr X, their former attorney attempting to come between him and the mother because of the pending suit against Mr X for compromising professional ethics.
The father said that he believed that there was some connection between Mr X and being given the information that the mother was having an affair.
The Federal Magistrate observed and the father responded:
HIS HONOUR: …It’s clear, sir, because of your demeanour in the witness box and how upset you are on this topic, that it’s deeply affected you?---Absolutely.
Addressing the ICL, his Honour said:
HIS HONOUR: …Can I raise something with all of you and it’s raised just out of a sense of a desire for completeness, to make sure we’re canvassing everything that’s relevant. It doesn’t indicate that I’m thinking down a particular line or not. It’s just a matter I raise out of a sense of completeness.
There were some aspects of the evidence of the husband, particularly this afternoon, that were of concern in the sense that they might have been suggestive of the fact that certain events in his life have coloured his attitude to the proceedings and to his relationship with his children – but these proceedings especially – in a way that might have distorted them and might give rise, on one view, to a suggestion that he may, for that reason, be not capable of adequately conducting the proceedings. Is that a matter that either counsel were going to raise with me in their submissions?
…
HIS HONOUR: I’m referring to the evidence about Mr [X], of course.
Counsel for the mother indicated that this was not a position taken by her and sought an opportunity to get some instructions.
His Honour then turned to the father and said:
HIS HONOUR: Mr [Forster], let me just explain this to you, and please, there’s no need for you to take offence. It’s not raised with you to offend. It’s a matter that’s raised just to make sure you understand this issue. It may be an issue that goes nowhere.
The court has always got to be satisfied, when persons are before the court in an unrepresented capacity, that they are making their decisions about the running of the case on rational grounds, that they’re not wasting their own time or the other side’s time or the court’s time and they’re not putting themselves at risk of costs orders or otherwise making difficulties for themselves. That can arise for all sorts of reasons. It can arise for (sic) a combination of stress of the proceedings, and sometimes we find litigants doing that with a clear mental incapacity.
I’m not suggesting you fall into that category, but there were some aspects of your presentation that suggested there might be questions relating to your ability to make your decisions about this case – and I mean both the children’s aspects and the property aspect – in a calm and rational and prudent way. I don’t put it any higher than that.
It’s a matter that you might want to reflect on, because the court has the power under rule 11 of the rules of this court to appoint a litigation guardian, and it’s got powers to do things antecedent to that; about getting reports and the like.
Please don’t think for a moment that I’ve reached a view that that should happen, and it’s a matter that may go nowhere. I may think about it and decide that it’s not that sort of case. I may not be asked to do anything about it by either of the other parties. I’m just putting you on notice of that matter so that you can give it some thought.
MR [FORSTER]: Your Honour, I didn’t hear the word that you used.
HIS HONOUR: Litigation guardian.
MR [FORSTER]: Yes.
HIS HONOUR: So it’s a matter of finding some more time…
His Honour then proceeded to find a mutually convenient date to continue the hearing of the matter.
In the course of discussing an appropriate date on which to continue the hearing, his Honour and counsel for the mother had the following exchange:
MS HURLEY: Your Honour, I’m assuming that that latter addition to your order is really with respect to the issue your Honour has raised as to the litigation guardian?
HIS HONOUR: Yes.
MS HURLEY: It will need to, obviously, be sorted, and I’m wondering if – and I’m certainly not asking your Honour to do a particular job, but if your Honour could consider whether the court of its own motion is interested in---
HIS HONOUR: I’ll give that some thought as well.
MS HURLEY: Thank you.
HIS HONOUR: Can I just say, my preliminary thoughts on that are – and this is only said to assist; I might have my thinking about this changed radically either way, as the case goes on and I listen to what everyone has got to say – that whilst there were real concerns about the evidence relating to Mr [X] and Mr [X’s] involvement in the mind of the husband, or potential involvement in these communications that were received about the wife’s activities and the like, there’s always a risk of expressing some sort of amateur psychological or psychiatric opinions, and I’m not doing so. I always resist that temptation.
There was about that evidence a real quality of persecutoriness, for want of a better word. But my current thinking is, we’re probably still well short of the circumstances where there’s material before the court that would suggest – and the test is, after all, whether Mr [Forster] does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting or giving adequate instruction for the conduct of the proceeding. I think we’re still a bit short of that, but I felt obliged to raise it…
The orders of 23 May 2008 were not included in the appeal book. However, by reference to the court file, we ascertained that those orders were as follows:
1.The resumption of the trial, being closing submissions in relation to children’s issues and the trial in relation to the property applications, be adjourned to 1 and 2 September 2008 at 10am (NOTING two (2) days allowed).
2.Further trial directions with respect to the property applications and any other outstanding applications in relation to either property or children’s issues be adjourned to 4 July 2008 at 9:30am NOTING the Independent Children’s Lawyer is excused from attending.
…
The matter was next before the Federal Magistrate on 1 September 2008.
In the adjournment, the mother filed an application under s 118 of the Act seeking an order that the father be restrained from filing further applications without leave of the Court. Counsel for the mother indicated that the s 118 application was in response to his Honour’s raising of the issue of a litigation guardian for the father.
There was some discussion between his Honour and counsel for the mother about the process for dealing with the s 118 application, and his Honour said that he would hear the submissions on the children’s matter and then: “…we would need to take the evidence of the parties about this vexatious litigant application as well…” There followed further discussion in which counsel for the mother observed that the s 118 application could be dealt with by his Honour considering the history of the matter as litigated in the Court and as shown by the court records.
His Honour sought the submissions of the ICL on the s 118 application. The ICL said that his instructions were limited to supporting the mother’s application.
When called on, the father objected to the s 118 application being heard. He said:
…I would need time to prepare. Not only that but I would have to research the authorities for the definition of vexatious litigant – the paragraph that she refers to indicates that it must be an abuse of process whereby the litigant is actually utilising the court in a frivolous manner, and I don’t think my application involves that. However I would need the time in order to adduce evidence in order to respond appropriately, your Honour.
The Federal Magistrate observed that the matter was before him “…at the very least… for mention today…” and noted that the father had had notice of the s 118 application since 25 July 2008. There was some discussion between his Honour and the father about whether the father had previously expressed objections to the s 118 application.
His Honour said to the father and the father responded:
HIS HONOUR: …so you’re obviously not going to consent to the order.
MR FORSTER: Absolutely not, your Honour. Vexatious litigant – it denies me the opportunity to proceed in accordance with appeals and everything, your Honour, unless I go through leave of court it just would be unjustifiable, your Honour.
His Honour asked the father whether he proposed to call evidence in response to the s 118 application and there followed a discussion about a subpoena.
His Honour said apropos the father’s suggestion that he call some evidence:
HIS HONOUR: I think if that evidence were called I could only, at this stage, Mr [Forster], see that evidence as assisting the applicant in her application, frankly. So she’s after an order that you’re a vexatious litigant and you try to drag a man back who has been brought into these proceedings in respect of a subpoena and the production of documents. You want to bring---
MR [FORSTER]: And that is based on what, your Honour?
HIS HONOUR: You want to bring him back to give some evidence. That sounds vexatious prima facie, doesn’t it?
Although not a specific ground of appeal, we feel we should say that this exchange with the father, and his Honour’s response to the father’s answer to the question as to what evidence he would bring to refute the s 118 application, was unfair and unhelpful. Further, we ask rhetorically, what evidence could the father have called to refute that application? It is particularly unfair in the light of submissions made by counsel for the mother some time shortly before, when she cited to his Honour authority for the proposition that the Court could determine the s 118 application by reference to the litigation history of the matter.
The father continued to dispute with the Federal Magistrate the issue of being declared a vexatious litigant. His Honour said and the father responded:
HIS HONOUR: Look, I’m sorry to interrupt. I just don’t this (sic) is a fruitful – you need to get some advice about that, Mr [Forster], I think. I’m troubled by the response you’ve just given me as to the evidence you’d want to call in respect of the vexatious litigant application. You needn’t take it any further today because I don’t think we can deal with the matter today, but you’d want to give some very careful thought as to whether you’d call Mr [C] on that application; some very careful thought indeed.
MR [FORSTER]: Well, your Honour, you said the evidence however they have not produced any evidence. In order for me to rebut that they would have to have some kind of evidence to indicate that I’m a vexatious litigant, not because of your decision.
Eventually, his Honour indicated that he would hear the submissions on the children’s matter and stand over the property matter and the mother’s s 118 application to another time. The property matter was stood over until March 2009.
His Honour then took submissions on the children’s matter.
The ICL raised as an issue the degree of “uncertainty” in the father’s proposals about spending time with K. After identifying certain matters, the ICL said:
MR BOEHM: …It’s my instructions (sic) and position that one overnight period per week in all of the circumstances is appropriate and that it be subject to [K’s] wishes.
The ICL did not oppose his Honour “applying the presumption” for equal shared parental responsibility in relation to long term issues regarding K.
When the father began his submissions, he agreed that there was a degree of uncertainty attending his proposals. A short way into his submissions, his Honour and the father had the following exchange:
HIS HONOUR: But what orders are you seeking, Mr [Forster]? You’ve got to tell me a little bit about that. What orders do you want me to make?
MR [FORSTER]: Your Honour, I cannot say what orders that I’m seeking now, because I spoke with [K]. The court has told me not to discuss anything with [K]. [K] tells me constantly, “Dad, I want to go to the United States. I want to see my sister.” You know, he has Afro-American family in the United States. He can’t even go there. He tells me every day, “Dad, I want to visit my sister. Dad, I want to do this,” but the court says he doesn’t have a right to be with his Afro-American family I don’t know what my son---
HIS HONOUR: Sorry, Mr [Forster], what orders are you asking for?
MR [FORSTER]: Your Honour, I cannot ask for any order because I have not talked to [K] about spending time with me; how much time he wants to spend… (errors as in original)
Subsequently, the following exchange between his Honour and the father occurred:
MR [FORSTER]: The order that I sought for in my complaint was that – I mean, I’m sorry, my application---
…
MR [FORSTER]: ---was [K] spend equal time with both parents.
…
HIS HONOUR: And are you still seeking that order?
MR [FORSTER]: If I would seek that order now, it would be selfish, because I don’t want to put [K] through circumstances that I don’t know what’s going to happen tomorrow.
HIS HONOUR: All right. So what order are you seeking?
MR [FORSTER]: I’m not seeking any order at the time, your Honour. I would suspend that, because I don’t know. The court in the United States make decisions just like you make decisions here. If they tell me I have to come back to the court tomorrow and I have to go back, what am I going to do with my son? I’m in a situation where she has been – this situation she has been placed in, this is not a situation whereby---
HIS HONOUR: …Mr [Forster], I just want to understand what you’re putting. You’re not seeking any parenting orders at all in relation to [K]?
MR [FORSTER]: Your Honour, I am seeking an order, but how can I keep my – for me to tell you I want to get my son, equal time, and they tell me – and this is what’s been happening. Mrs Hurley has been calling, talking to the attorneys back in the United States, and all of this is a conspiracy. It’s a total conspiracy. She calls and she talks to the attorneys in the United States. They tell her when to make motion, how to delay it and all of this.
…
HIS HONOUR: I need to know whether you – and this really is – this, I think, is now about the seventh or eighth time I’ve had to ask you the question in the space of the last few minutes. What is the order, if any, that you’re seeking of a parenting order nature in relation to [K]? You’ve told me you’re not seeking equal time, but just tell me what you are seeking.
MR [FORSTER]: I ask for equal living arrangement for [K], and not only that, your Honour, but---
HIS HONOUR: So you are seeking an order for equal time?
MR [FORSTER]: It’s impossible for me to spend it though, your Honour.
HIS HONOUR: Mr [Forster], we’re wandering into territory now where I think you’re being disingenuous… (errors as in original)
The Federal Magistrate then asked the father for the answer to his question as to what orders the father was seeking, and said that whatever answer the father gave, he would take it to be “…[the father’s] conclusive answer to that question…”
The father said and his Honour responded:
MR [FORSTER]: The parenting order that I am seeking in relation to [K] is what the court desires, what’s in the best interests of [K]. [K] cannot spend time with me now because the government is doing things to bring me back to the United States. What I seek and what the court does – and, your Honour, I’m answering this as truthfully as I can. What I seek is not in the best interests of [K], for him to come live with me and then have to run back to his mother. I don’t want that for my son. And if I have to live with my mistake, I will live with it, but I know what is happening here. For me to say – yes, your Honour, I want [K] to live with me, but tomorrow they will tell me, “You’ve got to be in court,” and then I’m going to have to run back to the United States and ask [Ms Forster] to take care of [K]. For me to stand up here and tell the court that that can happen and for the court to award [K] to me under those conditions is not just, and it’s wrong.
HIS HONOUR: All right, thank you. I understand your position with that… (errors as in original)
In discussion with counsel for the mother, and speaking of the father, his Honour said:
HIS HONOUR: I’m going to ask him what his attitude is in relation to the orders your client is seeking. He’s not seeking any orders himself. That’s what I understand his position to be and I’m now going to ask him…
His Honour outlined the mother’s proposals which were that she and the father have equal shared parental responsibility for making long term decisions regarding K, that K live with her and that K spend one night each week with his father. In the course of voicing his opposition to the making of these orders, the father said:
MR [FORSTER]: …At this particular stage, as with regards to living accommodation, I would agree with that. I just can’t say – I wish I could tell [K] tonight when I talk to him that, “Son, I want you to live with me and can’t do it.” I know I can’t do it, because soon as tomorrow come the government going to say – if I get my son to live with me, soon as tomorrow come the government going to say, “The court case has to come up.” I’ve already received from the court, your Honour – already received from the court where one case has been remanded. So I know what’s happening. I know what is happening here. They’re calling, they are saying…
In answer to a question from his Honour, the father said that his case had been remanded on 31 July.
It is significant to note that, as part of the orders proposed by her, the mother sought the continuation of an injunction restraining the father from approaching K’s school. In the course of opposing the making of that particular order, the father said that there was no evidence to support the injunction. His Honour agreed that “…there was never any evidence …that since the proceedings have been under way the father has approached [K]…” to which counsel for the mother also agreed.
Eventually, the application for the continuation of the injunctions was withdrawn and the mother proposed further time between the father and K, provided that it was by consent of the parties and it accorded with K’s wishes.
His Honour said in relation to the father’s proposals and the father responded:
HIS HONOUR: If this was his position, why did we have a trial in relation to children’s issues?
...
HIS HONOUR: Anyway, that might be important in the context of a different application, I suppose, for costs and the like.
MR [FORSTER]: Your Honour, I don’t care about costs, you know…
HIS HONOUR: No. I’ve raised the question of costs, Mr [Forster], for the obvious reason that we’ve reached the end of the process only to be told by you you are not seeking any orders.
To this, the father repeated his earlier submission which was that, if the Court made an order for K to live equally with each of his parents and the father was called to appear in an American court, the father would have to come to this Court and ask for a change of the order. He said:
MR [FORSTER]: …It’s wrong for me to say that. It’s wrong. I want to live with him equally, but I will guarantee, your Honour, they will tell me next week or next month that “You have to go back to the United States”…
The father reiterated that he wanted to see K as much as possible.
His Honour said to the father:
HIS HONOUR: …But whatever else we do today I’m going to make an order discharging the injunctions and making an order for you to spend time with the child in terms of the mother’s application so that there’ll be no ambiguity about that and nothing to prevent you from spending time with [K], provided he wants to and you seem to have a very high degree of confidence that he will want to, and that’s what has been happening at least until the last adjournment…
But, Mr [Forster], having heard you today and subject to what you’re about to say to me and what the other parties have to say to me, I think we’ve now reached the position that we had almost reached at an earlier stage of the proceedings. But your decision not to seek any orders today, your conduct of these proceedings relating to pending orders subject to your having to leave the country at short notice, as you say, on account of the manipulations of the American government relating to the listing of your civil litigation in Hawaii and your emotional state – and I’m not being critical of you for that, it’s just an observation I’m making – that and a number of other matters really put me in the position I think that we need to be looking at a litigation guardian for you. I’m very concerned that you are not capable of adequately conducting these proceedings on your own.
So I obviously won’t be making any order until you’ve had a chance to say something about that, but can I just ascertain what the position of the other parties is?...
His Honour sought the view of the ICL and said to him:
HIS HONOUR: But if I make the order – and I’ll hear from Ms Hurley about both sets of proceedings of course, but I can’t have any confidence that Mr [Forster] is making decisions for the right reasons today, can I?
The ICL had the following exchange with his Honour:
MR BOEHM: The husband’s demeanour in court on two occasions that I – two lengthy occasions where I’ve observed him would seem to support your Honour’s perceptions.
…
MR BOEHM: …We are at the end of a process which has been before this court for a considerable period of time and to come to this point where the husband says to your Honour that he doesn’t seek any orders because of this bar that he talks about, with respect, is odd. It is odd because, to my mind, whilst it may have a bar in relation to “live with” I see no impediment to your Honour making proper orders for “time spent with” which could accommodate the husband, at short notice, for lengths of time going overseas. The situation that he says he finds himself in is not an unusual situation in the sense that parents travel…
HIS HONOUR: Yes, I mean, I understand what you’re saying… but my concern is what’s your position on whether he’s capable of accurately (sic) conducting proceedings?
MR BOEHM: …he now puts to your Honour what his position is, has the position where he either says no orders – he can advocate no orders or in the alternative he agrees with what the wife is seeking but only on a temporary basis. It seems to me that the husband’s position is so at odds---
HIS HONOUR: But what’s liable to happen is a week or two down a track he’ll change his mind and there’ll be some other application brought. That’s the problem. I just don’t have any confidence in his ability to make rational decisions in the light of what – I’ve had concerns about it but they’ve been elevated in my consideration today. My concerns have been magnified, if I can put it that way. As for the property proceedings, if this is his state of mind then I can see all sorts of other applications being brought between now and March. I can see the possibility of him being unsuccessful perhaps with a number of those being subject to further orders for costs. It’s costing the wife to come back on these sorts of applications. It’s costing him if he gets an order for party costs.
It’s all because I think there’s some fundamental problem with his ability to appropriately manage his litigation. I mean, this has been raised before. I think it was raised in the context of – it was during the course, or at the conclusion, of his evidence.
…
HIS HONOUR: The view he takes as to the conduct of the American government and of the conduct of other persons in terms of enticing his wife into certain decisions and the like---
…
HIS HONOUR: I mean, it doesn’t have any basis in the evidence that’s presented to me. I’m not a psychiatrist, I’m not making any psychiatric assessment of Mr [Forster], so when I use this expression I’m using it in it’s (sic) lay meaning. The evidence in relation to those matters demonstrate a paranoia.
The Federal Magistrate and the ICL then traversed what each considered to be the “theme” of “persecutoriness” in the father’s evidence.
The father attempted to address his Honour, but he was stopped by the Federal Magistrate who continued to address the ICL:
HIS HONOUR: …if I – I thought for a moment there that we were in a position where I could just finalise the parenting proceedings on the basis that Mr [Forster] wasn’t seeking any orders and he wasn’t speaking against what the mother was seeking, except for this question of whether it would be interim or final, and I could deal with that fairly quickly. But all we know now about his mental state would just vitiate the effectiveness of those orders, wouldn’t it?
They’d be liable to be set aside on account of – any appeal court reading the transcript would probably think it was manifest that he’s not in control of his faculties as far as the conduct of these proceedings is concerned. Or am I overstating the matter?
The ICL, while noting that “…the husband’s demeanour and submissions to [his] Honour fluctuate”, said:
MR BOEHM: …It doesn’t seem to me to be the case where the husband adopts a position all the time of one where serious doubt must be occasioned in relation to his attitude, his understanding, and his presentation, but that his emotions, when they rise, coupled with the strong theme about others manipulating his personal circumstances so as to thwart proper orders – yes, do give rise, but as to what we do from hereon in, do we have a litigation guardian?...
The ICL reminded his Honour that the mother did not oppose K spending time with his father and his Honour observed that, when the father and K did spend time together, it was successful.
His Honour then said:
HIS HONOUR: …It turns out as far as parenting matters are concerned, we’ve been here for no reason because when the husband is given a chance to ask for orders he says he doesn’t want any. That’s a ludicrous situation.
His Honour continued:
HIS HONOUR: …Do I need a psychiatric assessment? Isn’t it manifest? A psychiatric assessment might tell us more about what explains his behaviour, but isn’t it the behaviour itself that requires the appointment of the litigation guardian?
…
HIS HONOUR: And subject to whatever is put to me by any of you or by the litigation guardian if we appoint one, the rational course of action is to end these proceedings as quickly as possible, substantially upon the basis of what the mother is seeking. That’s what a rational person in Mr [Forster’s] position would do, wouldn’t they? As for property matters, I don’t know what the complication is there. It doesn’t strike me as a very complicated matter, but the small asset pool is being denuded on a weekly basis by all this fighting in the outhouses, which I’m thinking now is again, principally a function – if not exclusively a function – of Mr [Forster’s] incapacity to make rational decisions.
Once again, the litigation guardian would be able to conclude those proceedings on his behalf, subject always to the court being satisfied the order was just and equitable.
When his Honour raised the issue with counsel for the mother, she said:
MS HURLEY: …I have no doubt that Mr [Forster] understands the process of this court. He understands when to take the objection; he understands the authorities; he understands the process.
HIS HONOUR: He misunderstood re-examination and cross-examination.
MS HURLEY: Yes, he does. And that may well just be a different title. I do appreciate that that party has misunderstood. If your Honour is saying – if the question we’re here to answer is: should I appoint a litigation guardian? Then yes, I think your Honour needs to go through the step of the psychiatric assessment. If your Honour says, “We should appoint,” then I think the psychiatric assessment is unnecessary, given the body of evidence…
His Honour called on the father and again asked him why, if he wanted to spend time with K, he did not seek orders for that to occur, to which the father replied:
MR [FORSTER]: Because I’ll be back in the court, your Honour, wasting the court’s time. I’ll be back in court here. I have to go to the States. I have to tell [K] – I don’t want to tell my son, “I’m going to leave you again,” and he wants to go…
HIS HONOUR: If I did appoint a litigation guardian, Mr [Forster], it would be someone who would be able to make decisions on your---
MR [FORSTER]: I don’t need a litigating guardian. I need what’s right for my son.
HIS HONOUR: So you understand what a litigation guardian is? I just want to make sure you---
MR [FORSTER]: I’m not really sure I understand.
His Honour then asked the father about any relatives, friends or other persons who might be appropriate to serve as a litigation guardian for him, and the father replied:
MR [FORSTER]: …if your Honour wants me to do it I’ll look for an attorney to represent me…
The matter was stood down shortly to enable the mother to give instructions to her counsel on the issue. When court resumed, counsel for the mother indicated:
MS HURLEY: …My client’s instructions are: she’s not in the position to assist this court as to the state of the father’s mind and whether, in fact, there should be a litigation guardian. However, she’s aware of what the fathers concerns are. She states that her understanding is the father is concerned that any order that he seeks he won’t be able to satisfy so, on that basis – that she proffered an option to the court being that an order be made that the father spend any other time with the child, if the parties agree in writing, and in line with the child’s wishes so that that would allow the father the flexibility to spend more time with the child whilst still acknowledging the fact that the father is, through no fault of his own, quite transient at the moment.
His Honour then asked the father whether he would appeal any order that was made on that day, to which the father answered: “I can’t answer that… Because I don’t know what order you make, your Honour”. The Federal Magistrate referred to a comment made by the father sometime earlier that he would appeal whatever order was made, to which the father replied:
MR [FORSTER]: I probably will, your Honour.
…
Because I don’t think it’s – the proceeding has been fair toward me. Not only that, your Honour, I just think that in order to properly execute my – I mean… I can’t say I would appeal your order, I can’t say I won’t appeal your order. Maybe that was a misstatement that I said before but I’m willing to do whatever is necessary to ensure that [K] know that I did my best.
The discussion between the Federal Magistrate and the father turned again to what orders the father was seeking.
His Honour asked the father when his case was next before the court in the United States, to which the father replied:
MR [FORSTER]: I’m waiting for the court to – it was remanded 31 July, your Honour. I was waiting for the court to contact me and I was sitting in a motion about a week ago.
HIS HONOUR: But why does that stop you asking for orders?
MR [FORSTER]: Because I won’t be able to stay here, your Honour.
HIS HONOUR: Well, why would that – so the child would, presumably, live with his mother when you were in the United States?
MR [FORSTER]: Yes.
HIS HONOUR: What’s the difficulty with that?
MR [FORSTER]: No difficulty with it but she wouldn’t consent to that. I indicated it at the last time that’s what – if I had to go to the States that I think that she would honestly let the kid live with her. I said that but she never made a comment in reference to it.
There seems to be considerable force to this submission by the father. We note that the mother did not seek to put the father’s mental state in issue in the proceedings and, accepting his apparent need to leave Australia from time to time, she had proposed orders that provided for more time with K. It was open to his Honour to make an order in the terms proposed by the mother which would have been consistent with the father’s submissions. We also note that the ICL made no submission about the father’s mental state.
At this point too, it is worth noting that, although the Federal Magistrate appeared determined to have the father articulate the orders he was seeking, from the submissions of the other parties in the case, it seems most unlikely that his Honour would have acceded to an order for equal time, or even substantial and significant time. Quite why then his Honour was apparently determined to have the father state a position is unclear.
His Honour said:
HIS HONOUR: All right. Can I ask you finally today, Mr [Forster], have you ever sought any psychiatric help or treatment or assistance.
The father’s response is instructive. He said that he was evaluated in the past when the litigation started in Hawaii and, to his Honour’s question as to whether a report was made, he said:
MR [FORSTER]: I’m not sure, but they said I was competent enough to litigate on my behalf; because the government tried to say that I was not competent. I think [Ms Forster] was there at the time. They tried to indicate that I was incompetent to litigate on my behalf the psychiatrist’s report said I could litigate on my behalf.
His Honour reiterated his concern about the father’s capacity, noting that this matter had been raised by him before, and he referred to a decision of the Federal Court:
HIS HONOUR: …where I have made such an order previously. It’s a decision of Sfakinos v Tomlin and Sfakinos (2006) FMCA Fam 364. I relied fairly heavily upon a decision of the Chief Justice of the Federal Court in the case of L v Human Rights and Equal Opportunity Commission (2006) FCAFC 114. I want to read that case again, so I propose to stand further consideration of all these applications down until 10 am in the morning.
After an apparently suitable adjourned date was found, his Honour said:
HIS HONOUR: I’ll reserve my determination of this issue of the appointment of a litigation guardian, and I’ll adjourn all other matters to 9 am on Thursday, 4 September 2008.
We observe here that the Federal Magistrate’s view about the father’s “need” to have a litigation guardian appointed for him seems to have been firming into a positive conclusion. His Honour however had not heard from the father on the issue.
When the matter resumed on 4 September 2008, his Honour indicated that he had not been able to make a determination on the issue and that he needed to consider the transcript of the evidence of the father of 23 May 2008. His Honour said:
HIS HONOUR: …What I was proposing to do today, subject to what anyone has to say to me, is to reserve that determination in relation to the litigation guardian.
Counsel for the mother made some submissions to the Federal Magistrate about the decision of L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432. His Honour asked whether the mother was supporting the appointment of a litigation guardian for the father, to which counsel said “no” and continued:
MS HURLEY: …On her understanding, Mr [Forster] appreciates the orders that he actually sought cannot, in a practical sense, be put into place because of his transient state between the United States and Australia. She doesn’t seek an order of a litigation guardian.
The ICL said and his Honour responded:
MR BOEHM: …In relation to the separate issue of an appointment of a litigation guardian for the father, it would be helpful if the father could tell your Honour, now, whether he could, if your Honour considers it necessary – which seems to be implied in paragraph 2 of your Honour’s judgment in Sfakinos – that a psychiatric assessment is a step---
HIS HONOUR: Look, I think if I made the order I’d simply expect him to comply with it.
…
HIS HONOUR: He’s not given any indication that he wouldn’t. I suppose I can do – I mean, I can determine not to appoint a litigation guardian. I can appoint one without a psychiatric report being available, or I can order him to submit to a psychiatric evaluation before I make the determination...
…
HIS HONOUR: They are the three options, aren’t they?
We note that the father was in court throughout this conversation. We wonder why the question was not put directly to him rather than the discussion about him being conducted in the third person.
The ICL observed that his role in the proceedings was almost concluded and expressed concern as to the effect that the appointment of a litigation guardian for the father might have on the proceedings, to which his Honour said:
HIS HONOUR: It is almost at an end, but the dilemma is that I had the father, when he gets the opportunity to make submissions, saying that he wasn’t seeking any orders. I think he changed his mind about that by the end of the day. All right. Thank you, Mr Boehm.
Mr [Forster], I’ve indicated I’m simply reserving for a short period of time the determination of the litigation guardian issue. I’m going to vary the injunction, to make it clear to everyone, including you, that there’s no impediment to you spending time with your child as agreed. Did you want to put anything to me about those orders?
The father then made strong submissions opposing the appointment of a litigation guardian and directed submissions to showing that the applications he had brought had not been frivolous or vexatious. His Honour concluded the matter by noting that he reserved his decision on the issue of a litigation guardian and that the purpose of the reservation was to obtain the transcript of 23 May 2008.
On 8 October 2008, when the matter was next listed, his Honour made orders and delivered reasons. No transcript is available for that day, the recording having apparently been corrupted.
The Orders and Reasons of 8 October 2008
As we have already noted, on this day, the Federal Magistrate ordered that the father attend on an appropriately qualified medical practitioner to be evaluated as to the following:
a) whether the father understands the nature and possible consequences of the proceedings;
b) whether the father is capable of adequately conducting, or giving adequate instructions for the conduct of, the proceedings; and
c) whether the father suffers from any, and, if so, what, psychiatric, psychological or personality disorder or condition, and, if so, the extent to which any such disorder or condition is relevant to the opinion provided in relation to issues (a) and (b) referred to above.
We also note that, on this day, his Honour dismissed the father’s application for a stay of these orders.
In his reasons, at [15], his Honour outlined matters that had caused him “disquiet” during the hearing.
At [21], his Honour turned to the father’s proposed parenting orders. He said:
…The transcript beginning at page 43 evidences my persistent requests of the father to be told by him the orders that he is seeking. After some discussion the father eventually explained that his position was that he was not able to seek any specific orders because he was liable to be called back to the United States for the purposes of the litigation at any time. He went on to suggest that his being called back in those circumstances would be in furtherance of some form of conspiracy…
His Honour referred at [30] to a “lengthy peroration” by the father “…given in a highly emotional way”. His Honour said that “[t]he impression was of a person who was finding the court process and all that had happened to his family to be emotionally very wounding indeed”.
His Honour noted at [31] that the father saying that he would appeal any orders made by the Court, in the context of him being unable to formulate the orders he was seeking, was “irrational” and his Honour said that the father agreed such a position was “irrational”.
His Honour referred to these matters as the context in which he raised the need for the appointment of a litigation guardian for the father. At [32], his Honour then turned to matters which seem to have formed the basis for his decision to investigate whether the father required a litigation guardian.
His Honour referred at [33] to the father’s apparent inability to formulate parenting orders in light of the American litigation. His Honour observed at [34] that, during the hearing, the father was highly emotional at times, “openly weeping… particularly when it related to his discussion with his children”. At [35], his Honour referred to the father’s evidence about the two incidents in which the father said he saw people on his property. As to these incidents, his Honour said at [36] that “[t]here was something troubling about the affect of the father when he gave this evidence”, observing that the father said he was troubled by the incidents but did not believe that they posed a risk to K. His Honour said: “The whole issue was clouded by his decision not to live at the home at any event”, and indicated that the father had not made clear why he was not living in the home.
At [37], his Honour said:
More troubling still was evidence he gave as to his dealings with
Mr [X], the attorney, for a time acting for he (sic) and the mother in the litigation against the United States Government
His Honour then said at [38]:
…The overall effect of the evidence on this topic was such as to leave an abiding concern about the ability the father had to sort out in his mind reality and experience from imagination. There was about the evidence an aspect of persecutoriness (sic), if not paranoia. There was no apparent logical connection between the different aspects of the account the father gave.
His Honour noted at [41]:
…Each phase of the proceedings has been characterised by the father’s trend of opposition to procedural orders which on there (sic) face were not controversial. I do not want to be unfair to the father in characterising every submission he made on each occasion of an interlocutory hearing as being unreasonable. I simply note a general concern arising from the the history of the matter as being one involving his unwillingness or inability to consent at any time to orders of a procedural nature. This forms the background against which the application for the litigation guardian is assessed.
His Honour referred at [42] to Division 11.2 of the Federal Magistrates Court Rules 2001 (Cth) as being the source of power for his order. Rule 11.08 is as follows:
11.08 Person who needs a litigation guardian
(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
…
His Honour made extensive reference to cases involving the appointment of a litigation guardian. It was not suggested that his analysis of those cases was incorrect. It is in considering the effect of that authority that we find his Honour was in error.
As to whether the father had a “need” for a litigation guardian, his Honour noted at [63] and following:
a)The father was unable to ask for any orders because he believed that he might be called to the United States to attend to his litigation there. His Honour also identified the reason for the father being called to the United States as “…[appearing] to arise out of a conspiracy in some way…” [63];
b)The father was unable to point to any benefit to the mother from continued participation in the American litigation [64];
c)The father was not living in any permanent or semi-permanent accommodation [64]; and
d)The evidence given by the father about Mr X, the parties’ former attorney and the association drawn by the father between Mr X’s advice and the mother’s conduct. As to this evidence, his Honour noted at [66]:
…The evidence was more than merely curious. It was disconcerting. Disturbing propositions as to the conduct of various persons were advanced without him being able to point to any justification or basis for his putting such matters.
Although his Honour mentioned the father’s demeanour twice in his judgment and, as we record at [61] of these reasons, he said to the father that his “emotional state” was a matter that he would take into account in considering whether to appoint a litigation guardian, it seems that it was not a matter he ultimately took into account as being relevant to his decision [67]:
…I am mindful that a self-represented person has the burden of the stress involved in being an advocate added to the ordinary stresses of participation in litigation. That burden is especially severe where it follows from a family break-up. His emotional presentation in itself should not be weighed against the father in the evaluation of any aspect of his evidence…
His Honour clearly was influenced in his determination by what he regarded as a fundamental difficulty which was the father’s inability to articulate the orders he sought. At [65], his Honour said:
…Furthermore, being in a position where he is not able to promote any orders he should not be indicating to me that any order that I made would be subject of an appeal by him. At each stage of the decision-making process the father is revealing flawed judgment and some degree of irrationality.
Again, at [69] and [70], his Honour said:
If the father’s own assessment of his life circumstances was such that he was unable to seek any orders for the parenting of his child he should have indicated that at the outset. My concern that the whole trial process in relation to parenting orders has been unnecessary is deepened by the evidence which emerged of ongoing, regular and non-contentious interaction between the father and his son [K]… The need for any litigation relating to [K] is not apparent to me…
Of course, the Court’s concern in relation to the unnecessary nature of this litigation can always be expressed in terms of an order for costs. No application is presently before me but there are a number of considerations identified in s.117(2A) of the Family Law Act 1975 (“the Act”) which may relevant to the making an order for costs in these circumstances. However, an award for costs does not address all of the problems arising from unnecessary litigation - it does not address the problems at all that such litigation presents to the father himself. I strongly suspect that his participation in and prolongation of this litigation is not doing him any good at all in terms of his psychological health…
His Honour took into account at [68]:
The cases discussed above emphasise that the need of a litigation guardian will arise out of a desire both to protect the person under the disability from the consequences of his or her flawed decision-making but will also be made in circumstances where a respondent is unfairly or unnecessarily being involved in litigation for no or no proper purpose.
His Honour noted at [72] that the mother had applied for an order pursuant to s 118 of the Act for the father to be restrained from filing further applications without leave of the Court. However, his Honour added at [73] that “[an] order for the appointment of a litigation guardian might be thought to make unnecessary the mother’s furtherance of such proceedings”.
One might think, having reached this point in the reasons, his Honour was persuaded that he must order the appointment of a litigation guardian. His Honour observed at [75] that the authorities to which he had earlier referred “…make it clear that medical evidence of incapacity is not necessarily required before the Court makes an order”. His Honour, referring to L v Human Rights and Equal Opportunity Commission, said at [77]:
The Full Court… clearly indicated an expectation that medical evidence will (sic) obtained in the usual course of events before a decision is made. I do not understand that case or any of the cases discussed above to be suggesting that an appointment of a litigation guardian cannot be made in the absence of a medical opinion expressing the need for same. Rather the emphasis was upon the need to ascertain through the mechanism of a report from an appropriately qualified person the mental health status of the person concerned. The evidence obtained from such a report may augment or assuage concerns the Court already has. It may not be determinative but it is unlikely in the extreme not to be relevant.
While his Honour concluded at [78] that the combined effect of the matters to which he had earlier adverted “…causes a real apprehension on the part of the Court as to [the father’s] present capacity to properly conduct his litigation”, his Honour determined that it would be appropriate to have information from a psychiatric assessment of the father.
However, at [81], his Honour said:
I am presently inclined to make the order for the appointment of a litigation guardian. But it would be imprudent of me to determine the matter in a final way without the benefit of a psychiatric report. The report may opine that no issue arises of a psychiatric or psychological nature such as to make the father incapable of conducting the proceedings. (I would be very surprised if any issue arose as to his understanding of the proceedings - the first of the matters giving rise to the “need” to which r.11.02 refers.) The existence of a clinical medical condition is not a pre-requisite to the making of an order for the appointment. An incapacity may arise from a number of factors, some clinical and others not. Or an opinion may be expressed that the father has clear capacity to conduct (or to “manage”, to use the equivalent language of other jurisdictions, referred to above) the litigation.
His Honour ordered that the father attend for psychiatric assessment and that the father pay the costs of that assessment. We will return to the propriety of this order shortly, but it is necessary to first consider what happened next.
The father declined to attend the ordered psychiatric assessment.
The matter came before his Honour on 19 December 2008. The father appeared for himself, and the mother and the ICL appeared through legal representation.
The ICL informed his Honour that, notwithstanding an appointment having been made for the psychiatric assessment, the father did not attend. The following exchange occurred between his Honour and the father:
HIS HONOUR: Did you attend that appointment?
MR [FORSTER]: No, I did not.
HIS HONOUR: Why didn’t you?
MR [FORSTER]: I did not want to.
HIS HONOUR: And why didn’t you want to?
MR [FORSTER]: Because the court has been extremely prejudiced toward me…
The father indicated that he was concerned that there had been communication between his Honour’s staff and the other legal representatives.
His Honour then sought submissions from the ICL who suggested that, if his Honour was “…satisfied that all available opportunities that [he’d] given for the father to put [the] issue aside have been exhausted”, his Honour could make the order appointing a litigation guardian. Interestingly, the ICL referred to the father’s refusal to submit to a psychiatric assessment as having not “…[taken] up any further opportunity that [his] Honour gives him to do so”.
Counsel for the mother urged his Honour to make the order for the appointment of a litigation guardian for the father. She submitted:
MS HURLEY: …In my submission it is no different to someone who is stopped at a breath-testing station, who refuses to blow. The presumption then is that it’s needed. And it’s the same here. If Mr [Forster], given the concerns the court has, given the opportunity he had to establish that he didn’t need a litigation guardian, the fact he hasn’t taken up that opportunity in itself must cause concern, and so we would be urging the litigation guardian to be appointed.
This submission only needs to be repeated to reveal the fundamental, and we say fatal, flaw in the logic of requiring someone to, in effect, prove the fitness of a person and, if that is not done, that an inference against the person be drawn from it. This submission misapprehends the law and the authorities. Ordinarily, we would not be minded to comment on such a submission, but as we see it, it was seized by his Honour and incorporated into the reasons he delivered for the making of the order for the appointment of a litigation guardian.
The Reasons of 19 December 2008
After noting that, despite his order requiring the father to be psychiatrically assessed, the father declined to attend and had indicated that he had no intention of attending the assessment, the Federal Magistrate referred to [77] of his reasons delivered on 8 October 2008 and said at [7]:
I considered it appropriate then to provide that mechanism for the psychiatric assessment. I do so consistent with the decision of the Chief Justice of the Federal Court in L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, but this matter now falls into one of the exceptions that the Chief Justice referred to in those reasons that is, one of the exceptional circumstances in which the Court will proceed to make an appointment for a litigation guardian in the absence of such an assessment maintains here, in that there is a refusal on the part of the person about whom the Court has the concerns to submit to the medical examination…
His Honour said at [9]:
There may be all sorts of reasons he is not complying with it. It may be, as Ms Hurley says, that I should draw the inference that he is not complying with the order because his decision to do so is a function of his inability to adequately conduct the proceedings, his lack of capability to adequately conduct the proceedings, or possibly a function of some as yet unspecified mental health difficulty. That is certainly possible, but there may be other reasons he is not complying with it. It may just be a contumacious attitude he has towards this aspect of the matter. It may be that he wants to prolong the litigation.
After observing that there had been 70 documents filed “in the matter to date”, a matter not included in his reasons of 8 October 2008 as giving rise to any concern, his Honour then said at [12] and [13]:
For the Reasons I gave, it is always best to have the medical report. It may be that the medical report would have kicked in to touch, as it were, all of the concerns that were expressed in the Reasons, but Mr [Forster] has not allowed that to happen. The concerns expressed in the Reasons remain and, having revisited those matters in the light of the information that is available to the Court today, I am satisfied, for the Reasons that are set out in my judgment of 8 October 2008, that the need for the litigation guardian remains.
I am of the view that, on all the material available to me, Mr [Forster] is not capable of adequately conducting these proceedings. I do not express any view as to whether he does not understand the nature and possible consequences of the proceedings. That may or may not be a salient factor, but I am satisfied, on the balance of probabilities and all the information available to me, that he is not capable of adequately conducting the proceedings and accordingly, pursuant to rule 11.11 of the Rules of Court, I appoint a litigation guardian for the father in these proceedings.
Finally, at [16], his Honour indicated to the father that, should the father take up the “opportunity” of attending on the nominated psychiatrist, he would order that there be liberty to apply to relist the matter to discharge the order.
Given that the only information available to the Federal Magistrate on 19 December 2008 which had not been before him in October 2008 was the father’s refusal to attend the psychiatric assessment, taken with the offer of ordering a liberty to apply to discharge the order, leads us to the irresistible conclusion that the tipping point in his Honour concluding to appoint a litigation guardian was the failure of the father to submit to psychiatric assessment.
The Propriety of the Orders of 8 October 2008
Given the Federal Magistrate’s extensive reference to the authorities on the appointment of litigation guardians, his Honour could not have helped but be aware of the very serious implication that flows from such an order. As the Full Court of the Federal Court observed in L v Human Rights and Equal Opportunity Commission at [26]:
There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs. When it is alleged that a person is incompetent, the onus of proof is on those so asserting. (citations omitted)
In our view, that presumption cannot be, nor should it be, easily displaced. It is the common experience of courts that many self-represented litigants appear to act against their interests, file voluminous documents and file many applications, some of which, at least at first blush, would enjoy no prospects of success.
As the Full Court of the Federal Court made clear in L v Human Rights and Equal Opportunity Commission, conduct that might on its face appear to be against the interests of a litigant does not compel the conclusion that the person is in “need” of a litigation guardian. At [34], the Court said:
…the fact that a litigant has put forward a case that reveals no reasonable cause of action may say nothing at all about the litigant’s capacity to present such a case…
What then was the basis on which the Federal Magistrate formed the view that the father required a litigation guardian and, to that end, ordered the father to attend for psychiatric assessment?
We have considered the transcript of the evidence given by the father on 22 and 23 May 2008, and there is no doubt that at times his evidence was unusual, perhaps unbelievable. However, it is also clear that the father cross-examined the mother, made objections (some of which were upheld) and argued about the admissibility of evidence with focus and to effect (we refer in particular to the application by counsel for the mother that the father produce his diary and the father’s argument that he had not used it to refresh his memory in giving evidence).
Even accepting the Federal Magistrate’s view that there was a “a real quality of persecutoriness” in some of the father’s evidence, and accepting that his Honour himself was at pains not to venture into the area of “amateur psychological or psychiatric opinions” (see [32] of these reasons), that is not conclusive of the “need” on the part of the father for a litigation guardian.
It seems to us, from the transcript and the reasons for his Honour’s orders, that primary to his determination that the father was demonstrating “flawed judgment” and “irrationality” in the conduct of the litigation was the father’s apparent inability, as the Federal Magistrate saw it, to articulate the orders he sought in relation to his son. We do not accept that the father was unable to articulate the orders he sought. The father said that he wanted K to spend half the time with him, but that his circumstances would make it unfair on K to have such time allocated and then the father be required to leave for the United States. Whether or not the father’s view was that his recall to the United States was because of a conspiracy, he articulated orders. Finally, when pressed, the father said to the Federal Magistrate to make whatever orders he thought appropriate. We note too that the ICL and the mother both proposed orders for K to spend time with the father which they said would accommodate any uncertainty about where the father would be.
It is tolerably clear to us, from the whole of the evidence and his Honour’s remarks, that an equal time arrangement was not likely to be ordered as being in K’s best interests. In that regard, we observe that, in Family Law proceedings, the authorities on the appointment of litigation guardians to protect the interest of the person must be considered against the Court’s overriding duty to make orders that are in the best interests of children.
The Federal Magistrate also took into account the father’s concession that he “probably would” appeal any order the Court made as demonstrating a “need” on his part for a litigation guardian. It is also apparent that the father had appealed earlier orders made in the proceedings. However, we note that it was not until the Federal Magistrate raised the issue of the litigation guardian that the mother responded with the s 118 application. Whether the father’s appeals were successful or not, they had not prompted any such application from the mother earlier in the proceedings.
The father’s ideas (persecutory or not), whether he lived in permanent accommodation or not and his views about the attempted break-ins at his property do not impact on his ability to conduct his case; nor, as we see it, did they in fact.
As we have said, to relieve an adult person of the right to conduct his or her own litigation is a serious step and a serious deprivation of a fundamental right. It also requires the rebuttal of the presumption of competence.
In our view, there was nothing in the material before the Federal Magistrate, nor to which his Honour referred in his reasons, to support the proposed appointment of a litigation guardian for the father.
The decision of the Full Court of the Federal Court in L v Human Rights and Equal Opportunity Commission makes it clear that it is for those asserting “need” to establish it. It is not for the litigant to “prove competence”. The order requiring the father to undergo psychiatric assessment in order to complete his Honour’s already held view that he was not competent reversed that onus and, in our view, was not made on any or any proper grounds.
Having so ordered, to then infer that, because of the father’s failure to comply with the order for psychiatric assessment, the appointment of a litigation guardian was appropriate, was fundamentally flawed.
His Honour could not have helped but be aware of the seriousness that attends the step of removing a person from the conduct of his litigation. If his Honour was concerned about the way that the father might conduct future litigation (as appears from his remarks to counsel and reproduced in these reasons at [67]), he had before him the mother’s application for orders under s 118.
We are thus satisfied that his Honour erred in ordering that the father be psychiatrically assessed and that his Honour further erred by making an order for the appointment of a litigation guardian for the father based principally on the father’s failure to comply with an erroneous order.
Before leaving this issue, it is necessary for us to say, without attempting to define the circumstances in which such orders may properly be made, and while the Court does have power to order that a litigation guardian be appointed for a party to the proceedings and may in the circumstances properly order that the party undergo psychiatric assessment, that it is important that these orders not be made without due regard to the very serious consequences which may flow. Although we acknowledge that there may be circumstances in which an appointment may properly be made in the absence of medical evidence as to the party’s capacity, that step nevertheless should be approached with extreme care, especially where, as in this case, there were other less draconian options available to the Court.
In Samootin and Shea & Shea and Ors [2000] FamCA 1874, the Full Court (Lindenmayer, Coleman & Penny JJ) upheld an appeal against an order of a trial Judge to appoint a litigation guardian for the appellant.
Their Honours said at [7]:
The order which the trial Judge made on 21 September was an unusual order. There was no application before his Honour for the appointment of a next friend for the applicant wife, but as I have said, his Honour took the view, in the course of the proceedings, having regard to the content of some of the affidavits or at least an affidavit of the wife which was read before him, and from the way the wife presented herself and her case, that she had a mental infirmity and he then, purporting to proceed under Order 15 rule 14 of the Family Law Rules, proceeded to make the order that he did.
After considering the relevant rules (which for present purposes are no different from those considered by the Federal Magistrate), their Honours said at [10] and [11]:
As this matter has not been fully argued before us, I think it is undesirable and unnecessary for me to express any concluded opinion about the power of the court to make an order appointing a next friend for a litigant who appears in person before the court, in the absence of any medical evidence as to the mental capacity and status of that litigant. Suffice to say that I think at least it is open to argument that the court needs to have before it some evidence before it can come to the conclusion that a person is in need of a next friend because of physical or mental infirmity. However, as I say, for reasons which I will explain, I find it unnecessary to decide that question in this case at this time.
I say that because, in my respectful opinion, a fundamental miscarriage of justice occurred to the wife in the course of the proceedings before his Honour for this reason. As I have said there was no application before his Honour brought by any party for an order of the kind which he made, and his Honour of his own motion had indicated, in the course of the proceedings, that he was minded to make the sort of order which he did. When it became apparent to the wife, who was representing herself, that that was the case, she asked his Honour to adjourn the proceedings to allow her the opportunity to obtain some legal advice on the matter
In L v Human Rights and Equal Opportunity Commission, the Full Court of the Federal Court (Black CJ, Moore and Finkelstein JJ) said at [25]:
There are valuable statements about the court’s power to appoint litigation guardians in Masterman-Lister v Brutton and Co (Nos 1 and 2) [2003] 1 WLR 1511 (Masterman-Lister). In substance, the purpose is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court…
Their Honours continued at [27]:
The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):
[17] … even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists.
Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30; AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 (AJI Services) and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party…
Their Honours observed at [32] that “…it may be expected that, as a practical matter, medical evidence bearing upon the issue of “need” will be placed before the court”.
At [34] and [35], their Honours said:
Without making any comment about the merits of the present proceeding, we would observe that the fact that a litigant has put forward a case that reveals no reasonable cause of action may say nothing at all about the litigant’s capacity to present such a case. The presumption that an adult person is capable of managing their own affairs is hardly likely to be displaced merely because a case has been commenced that has no prospect of success. In such circumstances, if no serious question about capacity arises, the application of the commonplace and objective criteria for determining whether an action should be summarily dismissed will ordinarily provide the appropriate means for disposing of it.
Difficulties may arise when a respondent submits that it would be appropriate for the court to dismiss a proceeding summarily on the ground that it is vexatious or an abuse of process or for some other reason, and an issue of capacity emerges at the same time. Then, a judge or magistrate would need to consider whether the question of capacity would be more appropriately resolved before considering summary dismissal. In some situations, the utter hopelessness of an action may make it a proper case for summary dismissal, without there being any need to consider the litigant’s capacity to conduct it. The appropriate course for a judge or magistrate to take will of course inevitably depend on the circumstances of the case, bearing in mind that the threshold for the summary dismissal of a proceeding is a high one.
The Applications in an Appeal
The father brought two applications in an appeal, both filed on 30 January 2012. In the first of these applications, the father sought an extension of time in which to file the second application which was for leave to adduce further evidence in the appeal. The further evidence that he sought to put before the Court was contained in an affidavit sworn by him on 27 January 2012 and in a number of annexures to that affidavit. On 3 February 2012, the mother filed a response to his applications, seeking that both be dismissed and that the father pay her costs of the applications.
As the appeal will succeed, there is no need to give further consideration to the father’s applications, nor to that of the mother save to say that any cost incurred by her in responding to his applications should not be borne by him.
Conclusion
There was no dispute that, in accordance with the Federal Magistrate’s orders, a litigation guardian was appointed for the father. A solicitor appeared in the father’s stead and consented to orders resolving both the children’s and property matters between the parties. The appointment was discharged on 16 December 2011 with effect from 6 January 2012. We were informed that the former litigation guardian was aware of the appeal and the issues raised, but there was no appearance on the litigation guardian’s behalf in the appeal.
No leave was sought to bring this appeal and no point raised in that regard by the respondent mother. Given the nature and effect of the order from which the appeal is brought, we would be of the view that, if leave is required to appeal from such an order, it would be granted.
The father sought a number of orders should his appeal succeed, including that we set aside consent orders entered into on his behalf by the appointed litigation guardian. We indicated to the father that this is not an order which could be made by us.
We will therefore propose that the orders of 8 October 2008, 19 December 2008 and 16 March 2009 (which appointed the Public Trustee as the litigation guardian for the father) be set aside.
As is customary, we sought submissions as to costs. Each party sought a costs certificate should the appeal succeed. In our view, it is appropriate to make the usual order in relation to a costs certificate for each party.
I certify that the preceding one hundred and fifty five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May and Ainslie-Wallace JJ) delivered on 23 March 2012.
Associate:
Date: 23 March 2012
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