Hogan and Lennard (No.3) - [2008] FMCAfam 741

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOGAN & LENNARD (No.3)

[2008] FMCAfam 741

FAMILY LAW – Procedural – contempt application – fitness to plead – adjournment to enable husband to file evidence about fitness to plead.

Family Law Act 1975 s.112AP
Family Law Rules 2004 r.21.08

Eastman v The Queen (2000) 74 ALJR 915
R v Mailes (2001) NSWCCA 155
R v Tier (2001) NSWCCA 53

Applicant:

MS HOGAN

Respondent:

MR LENNARD

File Number:

SYC 4472 of 2007

Judgment of:

Altobelli FM

Hearing date:

2 April 2008

Date of Last Submission:

2 April 2008

Delivered at:

Sydney

Delivered on:

2 April 2008

REPRESENTATION

Solicitor-Advocate for the Applicant:

Mr Gates

Solicitors for the Applicant:

Elias Gates and Associates

Counsel for the Respondent:

Mr Schroder

Solicitors for the Respondent:

Pertsoulis Lawyers

ORDERS

The husband to file or cause to be filed such evidence relating to his capacity to admit or deny the allegations and/or participate in these proceedings no later than 22 April 2008.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 4472 of 2007

MS HOGAN

Applicant

And

MR LENNARD

Respondent

Ex Tempore

REASONS FOR JUDGMENT

The matter before me today is an application for the husband to be dealt with for contempt. The applicant is the wife, the husband is the respondent. The husband is the respondent in property proceedings that are listed for hearing on 18 August 2008. He is 56 years old. The wife is the applicant in the property proceedings. She is 54 years old.
On 27 February 2008, the matter came before me. Orders were made after submissions, and the evidence included the affidavits filed by both the husband and the wife. In relation to those proceedings I made an order on 27 February 2008 and it is Order 2 made on that date that is the subject of the contempt application before me.
I note that the time to file a Notice of Appeal in relation to that order has expired now, but had not expired at the time that the contempt application was filed on 19 March 2008.
The affidavit of the wife that was filed on 22 February 2008 explains the context of the order I made on 27 February; namely, that it was necessitated by the husband's earlier breach of orders made by Judicial Registrar Loughnan. So the context of the contempt proceedings arises out of a breach of an order that was necessitated as a result of a breach of an earlier order.
The wife's affidavit that was filed on 19 March 2008 sets out the basis for the current application; namely, that there has been non-compliance with order 2 made on 27 February 2008. In addition, the wife produces evidence that there is a threat from the mortgagee to take possession of the premises. The further evidence before me consists of an affidavit of the wife's solicitor, also filed on 19 March, and it basically confirms the wife's evidence.
The contempt application is of course brought under section 112AP of the Family Law Act1975. The nature of the proceedings are basically criminal in nature. The standard of proof is beyond a reasonable doubt. The consequences of a finding of contempt against the husband include imprisonment.
Rule 21.08 of the Family Law Rules sets out the procedure to be adopted at the hearing. That Rule provides that I must first inform the respondent of the allegation; secondly, ask the respondent whether the respondent wishes to admit or deny the allegation, and thereafter the Rule goes on to state that I must hear any evidence.
At the commencement of the matter before me today, Mr Schroder of counsel, who appears for the respondent husband, indicated to me that he had certain concerns about the husband's fitness to plead. I followed the procedure set out at Rule 21.08. I informed the respondent husband of the allegation and asked him whether he wished to admit or deny the allegation. Mr Schroder, on behalf of the respondent husband, then made submissions in support of an adjournment application that was necessitated on the basis of concerns about the husband's fitness to plead.
The concept of fitness to plead is a concept known under the criminal law. It is a concept that nonetheless applies in this particular type of case; namely, contempt proceedings arising out of a family law matter. Perhaps it is more better described as whether the respondent has the capacity to make an admission or denial of the allegation. For all practical purposes, even though the term 'fitness to plead' does not neatly fit in the context of family law proceedings, it certainly adequate conveys the notion of whether the respondent has capacity.
The basis of Mr Schroder's application was his concern in relation to the ability of the husband to understand the nature and gravity of the proceedings and the consequences of them. He expressed concern about the husband's ability to provide instructions and that led him to have prima facie concerns about the husband's mental capacity.

Of course it was not appropriate for him to give me examples but he described the situation that he was dealing with as one where there were illogical instructions that are incoherent and fly in the face of common sense.
He sought an adjournment in order to place material before the Court as to his client's medical condition. Obviously that medical evidence is not available today.
Mr Gates is the solicitor appearing for the applicant wife. He was ready to proceed today and he opposes the application for an adjournment and has serious concerns about whether there is any genuine issue about fitness to plead. Mr Gates made the appropriate submission that, based on experience in this jurisdiction, there are many clients who could be described as incoherent, illogical, do not understand and probably do not listen to advice that is given. He frankly admitted, however, that he could not comment on the husband's mental capacity, an appropriate admission to make.
He pointed out that when this matter was before me last week, no concerns were expressed in relation to the husband's capacity. He also reminded me of the history of the proceedings and of the gravity of the situation that confronted, it should be noted, not just the wife but the husband too, for if the mortgagee exercises its power of sale, it will be to the ultimate detriment of both the husband and the wife. In short, Mr Gates indicated that it was the wife's position that the bona fides of the husband should not be accepted.
I have not had time available to find any authority in the Family Law cases about fitness to plead in a family law contempt application.

A comprehensive statement of the law relating to fitness to plead is contained in a decision of the New South Wales Court of Criminal Appeal in R v Mailes (2001) NSWCCA 155. It is a decision of His Honour Spigelman CJ, the Chief Justice at Common Law Wood J and Greg James J. The decision was handed down on 19 October 2001.
It sets out some of the fundamental propositions relating to the issue of fitness to plead. For example, at paragraph 164 of the judgment the Court refers to the High Court’s judgment in Eastman v The Queen (2000) 74 ALJR 915 and cites Gaudron J at paragraph 64:
Traditionally, an accused person has not been put on trial unless fit to plead because of "the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing." That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.
I observe that, in my opinion and based on the Family Court authorities, for all practical purposes these contempt proceedings are the equivalent of a criminal trial.
The case goes on to describe the various contexts in which the question of fitness to plead may arise and specifically the question of when fitness to plead is raised by the representative of the accused at the commencement of the hearing. At paragraph 179 of the decision in Mailes, the Court quotes Kirby J and other Judges in the decision of

R v Tier
(2001) NSWCCA 53. Relevantly at paragraph 72 of that judgment there appears this passage:
Where an accused's representative raises a question concerning the unfitness of the accused, the trial judge would ordinarily be expected to accept that the issue has been raised in good faith. Legal representatives, whether barrister or solicitor, are subject to professional obligations. Once raised by a practitioner, there is, prima facie, an obligation upon the trial judge to halt the trial and to conduct an enquiry before a separate jury.
It goes on to say:
If, however, the basis for concern is not obvious or the validity of that concern is dubious, it is appropriate for the trial judge to seek an elaboration upon the matters giving rise to the concern. Where that elaboration demonstrates a real and substantial question, good faith will be presumed. The question of unfitness must then be determined by a separate jury. It is only where there is patently no real and substantial question that the Court may impute an absence of good faith and decline to conduct an enquiry.
In this case, of course, Mr Schroder raised the issue quite properly and as he was duty bound to do. I asked him to, in effect, explain the basis for his concerns and I am satisfied that he has properly done so in accordance with the responsibility that is on him.
Having heard the concerns expressed by Mr Schroder, I consider myself required by law to halt the trial, to use the words used in this passage, and to conduct an enquiry. Obviously conducting an enquiry in the criminal law sense is a process that will need to be adapted for family law purposes. It is my intention to adjourn this matter before me to 24 April 2008 at 9 o'clock at the Federal Magistrates Court at Parramatta so that further evidence may be obtained.
I am most conscious of the difficult situation that is created by this adjournment. It is a situation that ironically affects the husband as much as it affects the wife. If it is the case, and I stress if, hypothetically, it is the case that the husband has embarked on a course of action that does, after due enquiry and perhaps with the benefit of hindsight, turn out to be contemptuous, if it turns out that at a final hearing findings of non-disclosure are made, it is possible that the pool of assets that is available to the parties may still remedy any disadvantage that has been caused or will be caused to the wife. I hasten to say that all of that is said in hypothetical terms; I do not know how the evidence will pan out in this case.
For the time being, it is necessary to establish whether the husband has the capacity to participate not just in the contempt proceedings, but in the substantive proceedings themselves.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:

Date: