Gemelli and Pullano

[2016] FamCA 753

FAMILY COURT OF AUSTRALIA

GEMELLI & PULLANO [2016] FamCA 753

FAMILY LAW – PROPERTY – Property settlement in relation to marriage – Where the wife is self-represented and has advanced cancer – Where on the first day of the final hearing the wife presented evidence from a treating psychologist indicating that she may be unable to adequately conduct the proceedings – Where on that evidence, the wife requires a case guardian – Where the final hearing is adjourned to allow the wife to address the issue of her capacity – Orders made for the wife to provide evidence of her fitness to conduct the proceedings or to identify a potential case guardian – Orders made for the valuer for each of the husband and the wife to join in expressing an opinion as to the value of a property in Country A owned by the wife.

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth) r 6.08

APPLICANT: Ms Gemelli

RESPONDENT: Mr Pullano

FILE NUMBER: SYC 6036 of 2014

DATE DELIVERED: 1 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 1 September 2016

REPRESENTATION

APPLICANT: Ms Gemelli in person

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Anderson Lawyers

Orders

1. The hearing listed for 1 & 2 September 2016 is vacated.

2. The proceedings are listed for final hearing in relation to settlement of property and spousal maintenance over two days commencing on 19 September 2016 before Justice Stevenson.

3. Within seven days’ from today’s date the wife file and serve an Amended Application for Final Orders setting out the orders she seeks in relation to property settlement and spousal maintenance.

4. That within 48 hours, the wife notify the solicitor for the husband if she seeks to rely on a valuation for the property at B Street, Town C, Country A other than the valuation annexed to her affidavit sworn and filed 29 August 2016 and if so, the name and address of that valuer.

5. Forthwith upon receipt of a letter from the solicitors for the husband containing an authority to any valuer previously engaged by her, the wife shall execute that authority.  The terms of the authority shall be to communicate with the husband’s solicitors; to meet with any valuer appointed on behalf of the husband by telephone; and to join in producing a memorandum setting out:

   a)the areas in which they agree in relation to the value of a property at B Street, Town C, Country A;

   b)the basis on which they disagree in relation to the value; and

   c)the reasons in each case why one valuer should be preferred over the other in relation to the areas of disagreement.

6. The solicitors for the husband shall provide a copy of any resultant memorandum to the wife as soon as practicable and shall produce any resultant memorandum to the Court.

7. The Court notes that the reason for vacating the hearing today was that in a memorandum of 27 August 2016 prepared for these proceedings a treating psychologist of the wife expressed a strong doubt that the wife would be able to adequately conduct these proceedings.  It is noted that on the commencement of the fresh hearing there must be evidence of:

   a)the wife’s fitness to conduct the proceedings; OR

   b)a potential case guardian who:

   i)      would consent to act; and

   ii)     who could satisfy the Court that he or she had no interest adverse to that of the wife; and

   iii)    who can fairly and competently conduct the case for the wife.

8. The question of the costs of and incidental to the proceedings today is reserved.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gemelli & Pullano has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC6036 of 2014

Ms Gemelli

Applicant

And

Mr Pullano

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for settlement of property and spousal maintenance.  The proceedings were instituted in the Federal Circuit Court.  On 11 May 2016 the proceedings were transferred to this Court in order to facilitate a timely hearing.  The proceedings came before me on that day and I expedited the proceedings, listing them for final hearing over two days, commencing today.  At that stage, the parties both had legal representation.  In early August, a Notice of Ceasing to Act, was filed on behalf of the wife. 

2. We commenced the trial this morning with the wife appearing without legal representation but being assisted by an interpreter. Among other documents, the wife tendered a letter from a Dr D, a registered psychologist, who is her treating practitioner. That  document, inter alia, says:

   Owing to all the hardships mentioned in this letter and to her precarious medical condition, I strongly doubt that [Ms Gemelli] will be able to adequately defend herself in court.

3. That gave rise to a problem. Rule 6.08 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:

   (1)      A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.

4. The dictionary in the Rules defines a person with a disability as:

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

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

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

5. The husband does not challenge the opinion of the wife’s witness.  There is no basis for the Court to challenge the opinion of the wife’s witness.  The wife would like to challenge the opinion of her own witness.  It is quite complicated for a party to challenge the evidence of their own witness. In this instance it would give rise to a collateral problem in terms of the professional obligations of the treating practitioner.  This psychologist’s letter is dated 27 August 2016. The terms of the letter make clear that it was prepared solely for the purposes of these proceedings. Therefore a registered psychologist has knowingly sent a letter to a court expressing an opinion.

6. I have explained to the wife that, in this instance, the Rules are not optional. It is a fundamental principle that litigants are able to conduct their own proceedings or to give instructions for the conduct of their proceedings. I cannot assume that the expressed opinion is incorrect. The body of his letter talks about the sad physical situation in terms of the wife’s health, the fact that she has suffered from the consequences of cancer for many years. The mother’s physical health alone could trigger the provision. The wife started her presentation this morning with a representation about her having a poor memory and so on.

7. On the evidence before the Court, the wife needs a case guardian.  The wife is supported in court today by a friend and in an early discussion, it appeared that he may be a person qualified to act as case guardian, being an adult who has no interest adverse to that of the wife and being somebody willing to undertake the role.  The problem is, consent.  This is a situation where, unusually, I understand, the case guardian will be required to conduct the case without the assistance of legal representation.

8. In almost all the cases that I can recall, a case guardian has been a lawyer or has had legal representation.  There are obligations that fall to a case guardian in terms of them competently conducting the proceedings, not misleading the Court, not acting in a way that might incur costs for another party.  The costs of a hearing can involve five or more thousand dollars a day just for one party.  Even if this gentleman kindly volunteers, I would not accept that from him until he understands what it meant to take on the responsibilities of being a case guardian.

9. I have discussed the matter with the parties and indicated that I would try and find some time before the Court in the not too distant future where this issue could be addressed.  It could be addressed either by evidence that excludes the psychologist’s opinion or puts it into a context whereby it does not give rise to a need for a case guardian.  If that is not practicable, evidence could be provided to the effect that a person knows and understands the obligations of being a case guardian, has no interest adverse to that of the wife and is willing to consent to act as case guardian.

10. Another judge has kindly offered to take the case on the 19^th and 20^th of this month.  In the meantime, it is apparent that the orders sought by the wife are not orders that she achieve.  They are an exaggeration of her claims.  There is no problem about her amending her claim, provided she seeks orders of the same type of relief and I will provide for her to amend her application before the new dates.

11. We have two real estate valuations.  There is formal evidence that the property in the husband’s name has a value of the order of $900,000.  The wife says she has a formal valuation at $930,000.  In the terms of valuation opinion evidence, that is not a relevant distinction.  The wife says, well, properties have increased in value.  There is no formal evidence of that.  She does not have formal valuation evidence at a greater figure.  I am satisfied to leave that issue on the basis that there is evidence that the property has a value of the order of AUD$900,000.

12. The wife owns a property in Country A.  There are two, associated car parking spaces.  The wife relies on evidence from January 2015 that the property has a value of €156,000.  There is evidence of very recent times from a valuer engaged by the husband who puts the property at €275,000 with an additional valuation at €30,000 for the two car spaces.  The wife said something to me today that suggested she thinks the car spaces have no value.

13. Normally, the husband’s evidence would be excluded because it was filed under cover of an affidavit sworn today.  The problem is that until 8 August this year, the wife was represented.  Her solicitor was engaged in discussions with solicitors for the husband about issues including the valuation of the properties.  In those circumstances, the husband did not have any time to obtain valuation evidence so that the wife could have proper notice.  Adding to the problem, the wife says she had engaged another valuer to provide another, more recent, valuation of the Italian property but she does not have the funds to pay him.

14. I have explained to the wife that in the event that there is a conflict of evidence between two valuers, orders would normally be made for a conference of experts to have them identify what is agreed between them, the areas in which they differ and to have them identify the reasons why, in each case, one opinion should be preferred over another.  That would lead to a memorandum that could come before the Court and, in the normal course, such if there was still a dispute, the experts could then be cross-examined during the trial.  I do not know that that is going to be possible, in this case.

15. It is the wife’s case that the valuation obtained by her is more reliable because the valuer entered the property and was able to observe its dilapidated state.  If the wife is right, it may be that, in the process of the two valuers speaking, the later valuer might concede that his valuation is too generous and that the property has a lesser value.  I am not sure, but I think at least if the parties try to achieve a joinder of issue between the valuers, that might put the trial judge in a better position to make an assessment of value. 

16. The Court’s obligations remain even if there cannot be an assessment of the value of the property.  One of the unique aspects of this case is that the parties’ cohabitation was very short and their marriage was relatively short.  It may be that it is a case that is argued on the basis of the parties each bringing in a property that was not used or contributed to during the marriage.  In that context the precise value of the wife’s property may not be of significance.  Here the husband does not seek an order requiring the wife’s property to be sold

17. I will note that the reason for the vacation of the hearing today is that a Dr D, in a memorandum of 27 August 2016, expressed a strong doubt that the wife would be able to adequately conduct these proceedings.  It is anticipated that on the adjourn date, there would be evidence that allowed the proceedings to continue to be conducted by the wife on her own account, or there was before the Court a potential case guardian who would consent to act and who could satisfy the Court that he or she had no interest adverse to that of the wife and that he or she would be able to competently prosecute the proceedings.  I reserve the question of the costs of the proceedings today.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 1 September 2016.

Associate: 

Date:  7 September 2016