Garzelli and Lewis (No 2)

[2014] FamCA 623

FAMILY COURT OF AUSTRALIA

GARZELLI & LEWIS (NO 2) [2014] FamCA 623

FAMILY LAW – Adjournment of trial – unrepresented litigant.

Family Law Act 1975 (Cth)

Re F : Litigants in Person Guidelines (2001) FLC 93-072

APPLICANT: Mr Garzelli

RESPONDENT: Ms Lewis

INDEPENDENT CHILDREN’S LAWYER: Ms Treyvaud

FILE NUMBER: MLC 3869 of 2013

DATE DELIVERED: 8 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Wilmoth Field Warne

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Treyvaud

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Schetzer Constantino

Orders

1. That all outstanding applications for final orders are adjourned to become the third case in the list commencing in August and to be fixed for hearing at 10.00am on 18 August 2014 as a three day matter.

2. That the wife be restrained from permitting any person other than her professional advisor to view the husband’s financial documents.

3. That the wife file and serve by 4.00pm on 8 August 2014 all affidavits upon which she intends to rely.

4. That the husband has leave to rely upon the affidavit filed on 25 October 2013 sworn by the wife’s brother and for the purposes of that evidence, the husband has leave to have the brother cross-examined by telephone if the wife so wishes.

5. That the Independent Children’s Lawyer has leave to file such further affidavits as she considers necessary without any time restriction.

6. That the husband file and serve by 4.00pm on 14 August 2014 such further material in reply as he is so advised.

7. That the wife’s response to relocate internationally set out in paragraph 3 of the response filed on 27 June 2014 is struck out.

8. That the husband’s costs of the day are fixed in the sum of $4700 and reserved to the trial.

9. That the parties and, if requested, the child N born … 2009, attend upon Dr F on 21 July 2014 (or as otherwise directed) for the purposes of preparation of an addendum to the family report prepared on 21 November 2013 and for the purposes of same the parties provide Dr F with copies of their trial affidavits filed 13 June 2014 and 27 June 2014 noting that Dr F has been provided with copy reports of Drs G and H with the husband to pay the costs of same initially with the ultimate question of the cost to be reserved to the final hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garzelli & Lewis (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3869 of 2013

Mr Garzelli

Applicant

And

Ms Lewis

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is a parenting and property dispute between Mr Garzelli, who is the applicant husband and Ms Lewis, who is the respondent wife.  This case has been in the list since last year and this morning, Ms Lewis who is now unrepresented, has sought an adjournment.  I am proposing to grant the adjournment for the following reasons.

2. First, I am not at all satisfied that the material before the court would enable me to make a decision, properly, in respect of the one child of the relationship.  To some extent that has arisen because the single expert witness has said that she not only wants to see the material provided to the court by two other experts but also for some reason that I am not clear about, she wants to see the parties again.  Indeed, the wife is keen to go back to the single expert witness as well. 

3. The second reason is that the wife says that there are documents she wants to see and have examined and although she has had that opportunity in the past notwithstanding the length of time that has expired, she wants to send the documents to the Country I to a person who is said to be an accountant who will provide her with the forensic assistance. Whether those inquiries come to fruition is another issue, but so too is the question of whether or not that evidence can be called, bearing in mind chapter 15 of the Family Law Rules 2004 that requires any expert evidence to be given by a single expert witness.

4. I have grave reservations about whether this case will ever be in any better condition than it currently is, but that is not a basis not to grant the adjournment today.  On the very clear understanding, the wife is being given one final opportunity to get the necessary material that she wants before the court.  She wanted some months, indeed, she said four months, but in my view, having regard to my attempts to find out what extra evidence is proposed to be called, I am none the wiser.

5. Worse still, it would seem that even granting the wife the extra time to prepare herself, I am still not convinced that she would be in a position to cross-examine the witnesses that she is proposing to have the court hear evidence from.  I had contemplated, and raised in discussion, the possibility of making a reference to the Chairman of the Victorian Bar with a request that he contemplate the use of the pro bono scheme, but after making that statement, I then read the evidence of Dr H. 

6. Dr H saw both parties.  I have not read the observations of Dr H about the husband, but I certainly have read the observations he made about the wife.  It is not necessary for me to make any findings about that evidence at this stage, apart from the fact that it has not been tested in any event, but it is quite clear that he had great difficulty getting on the same wavelength as the wife.  He described her mental state as:

   Hesitant in her delivery and cautious in her approach.  She provided long, meandering answers with much verbiage but little emotional content.  It was difficult to get at which she meant.  She was hard to understand at an emotional level.  There was conveyed a sense of concern and confusion.  There was no evidence of formal thought disorder or delusional thinking.  Her style was idiosyncratic and her manner removed and anxious.

7. I am not a psychiatrist, but that reflects my perception of today.  I think, in those circumstances, bearing in mind that the thrust of the pro bono scheme is that the particular litigant must do the groundwork themselves, this case is as good as it is ever going to get from the wife’s perspective. 

8. Dr G also prepared a report for the court which was based upon his forensic testing.  He made observations which can be categorised in two areas.  The first was that the wife took more than two-and-a-half hours to undertake the personality evaluation which he thought was typical for individuals who were attempting to show themselves in a naively, positive light and who were being defensive.  The second observation he made was that in individuals who are above average or above intellectual ability, elevations on the “L” scale are not unusual.  It seems to me that this is what he was talking about when he made an observation about the wife.

9. Based on what Dr G is saying, I am dealing with a litigant who is cautious, if not evasive, but clearly able to articulate what she wants, gather together what she needs and can conduct the litigation if she understands the process. 

10. At the commencement of this trial in August, I propose to advise the wife what the Full Court requires of a trial judge with a person who was without legal representation in Re F : Litigants in Person Guidelines (2001) FLC 93-072. I cannot run the case for her; I cannot assist her in what she needs to provide in respect of the property matters.

11. Because of the obligations in Division 12A, I can set out what the court needs in respect of the parenting issues, but thus far, I have heard nothing this morning that would convince me that there is further evidence that might assist me to make a determination.  On that basis, I have decided not to refer the matter to the Victorian Bar to use the pro bono scheme.  What that does, is place an enormous amount of pressure on Ms Lewis over the ensuing four weeks to file whatever material it is that she wishes to rely upon.

12. I make this warning abundantly clear.  The filing of an affidavit does not mean that its contents are admissible.  To be admissible, a document to be put in evidence must have probative value, which means that it must have some persuasive impact upon the determination that is to be made.  The wife would do well to get some advice before she files the material on the grounds of admissibility.  One example of that situation is the affidavit that she has filed or has had filed on her behalf by her father.  Most, if not all of that affidavit, is directed to a relocation case to the Country I.

13. That evidence is, therefore, irrelevant to any issue now to be determined because one of the orders I am proposing now to make is to strike out paragraph 3 of the response filed on 27 June.  The relocation issue is now a thing of the past.  This case is now about where this child lives in the future. 

14. I propose, therefore, to grant the adjournment but it must come with some consequences.  All parties have a right to have their case heard.  The husband is disappointed that he has gone to the trouble of getting ready and the wife is not ready.

15. The court was provided, yesterday, with a letter from J Lawyers, a solicitor who is no longer acting for the wife.  Mr I, quite properly, wrote to the court and said that he was officially on the record as acting for the wife, but due to her financial constraints, he would not be acting in the matter when it was listed today.  In fairness, he had canvassed that issue at the last mention and the wife had been unable to provide the necessary funding for her legal representation.

16. That was certainly foreshadowed.  To his credit, Mr I not only drew that to the court’s attention, but he has prepared material, no doubt, not being fully compensated.  On the basis that I am anticipating that the wife will be unrepresented in the foreseeable future, this case must start soon.  The husband also sought costs of the day thrown away be fixed.  Counsel anticipated those costs to be a total of $6400.  Because of the scale, I propose only to fix them at $4700. Those costs will be reserved to the trial. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 July 2014.

Associate: 

Date:  4 August 2014