IBSEN & IBSEN - [2021] FCCA 660

FEDERAL CIRCUIT COURT OF AUSTRALIA

IBSEN & IBSEN

[2021] FCCA 660

Catchwords:

FAMILY LAW – interim hearing - appointment of litigation guardian – Rule 11.11 of the Federal Circuit Court Rules 2001

Legislation:

Federal Circuit Court Rules2001 (Cth) rr 11.08, 11.11

Cases cited:

Oliver & Gall [2008] FMCAfam 164

Applicant:

MS IBSEN

Respondent:

MR IBSEN

File Number:

ADC 4154 of 2020

Judgment of:

Judge Kari

Hearing date:

18 March 2021

Date of Last Submission:

18 March 2021

Delivered at:

Adelaide

Delivered on:

18 March 2021

REPRESENTATION

Counsel for the Applicant:

Mr Tredrea

Solicitors for the Applicant:

Carmen Wood & Associates

Solicitors for the Respondent:

Tessa Hume of Tessa Hume Barrister & Solicitor

UPON NOTING:

(A)Exhibit W1 is an un-redacted letter of instruction to the wife’s psychiatrist dated 15 March 2021.

THE COURT ORDERS:

That Mr A of B Lawyers to be appointed to act as litigation guardian on behalf of the Applicant Wife.
That the Application in a Case sealed on 23 December 2020 and the Application in a Case filed on 9 March 2021 be dismissed save and except any application for costs.
That no later than 4.00pm on 19 March 2021 the wife’s solicitors do provide a redacted copy of Exhibit W1 NOTING that the document is to be redacted so far as the identity of the wife’s treating psychiatrist and the medical facilities is concerned.
That until further order the husband’s legal representative is restrained and an injunction is granted restraining the husband’s legal representative from providing a copy of the un-redacted Exhibit W1 to the husband and/or any other person NOTING that the Court has indicated a preparedness to hear argument in relation to the same in due course at the request of the husband and/or his legal representative.
That no later than 4.00pm on 9 April 2021 the wife’s solicitors do file and serve any Affidavit that they intend to rely on with respect to the wife’s Application for costs both personally against the husband’s former legal representatives and any application against the husband personally.
That the husband and/or his former legal representatives file an Affidavit in reply by no later than 4.00pm on 20 April 2021.
That the wife’s solicitor serve a copy of the orders made this day upon Messrs E Lawyers and Mr F of Counsel together with a copy of the orders made on 11 March 2021 and in addition a copy of today’s reasons once they are published.
During the period of the adjournment each the husband and the wife are restrained and an injunction is granted restraining each of them from disposing transferring or otherwise dealing with assets and in addition, using any funds held in any bank accounts either in their joint or sole names in excess of the sum of $50,000.00 unless otherwise ordered by the court NOTING the orders made on 21 September 2020 which deals with the use of the partial property settlement funds by the wife.
That the costs applications be listed for Interim Hearing on 25 May 2021 at 2.15pm (45 minutes allowed) with such hearing to be conducted on a face-to-face basis.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4154 of 2020

MS IBSEN

Applicant

And

MR IBSEN

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter comes before me today in relation to an application first filed by the wife on 23 December 2020 in which she seeks the appointment of a solicitor to act as her litigation guardian in these proceeding.
I am mindful that while that application was sealed on 23 December 2020 it was actually sworn by the wife on 17 December 2020 and filed that day but not sealed because it needed to be assessed for a return date. That application came before the Court for the first time on 22 December 2020.
The explanation I have just given so far as when it was actually sealed assists in understanding why it was sealed after the date that it first came before the Court. In any event, the matter came before the Court on 22 December 2020 in circumstances where, I acknowledge, it came on very quickly and at short notice. Be that as it may, when the application came before the Court that day the wife was represented, as she has always been, by her solicitor, Ms Wood, and the husband was represented by Mr F of counsel.
I have had regard to the notations and the orders that I made that day, in any event, I have a very distinct recollection of what occurred that day. I also have distinct recollections about this matter generally. The reason I have those recollections is that it has been before me a number of times since the proceedings were commenced by the wife on 4 September 2020. The proceedings that were filed by the wife on 4 September 2020 are in relation to the question of property settlement between the applicant and her estranged husband.
The parties have been married for a period of approximately 56 years or something in that region. The proceedings have been before me a number of times since they were commenced by the wife. They have come before me repeatedly because there have been numerous issues that have been problematic in the matter. Of the issues that have been problematic in the matter is the failure of the husband to comply with the orders made on 16 September 2020 when the matter was first before me for the filing of answering documents and, then, ultimately, a failure of the husband to comply with orders that I made for the release of some funds to the wife.
At best count the matter has been before me, inclusive of today, no less than eight occasions since September 2020. To say that the matter has been fraught with difficulty would be an understatement. One of the reasons and a significant reason, from the wife’s perspective, which is relevant for today’s purposes and the application before me today, stems from the wife’s mental health. From the inception of the proceedings, the wife filed an affidavit in which she identified that she suffers from significant mental health issues.
In her affidavit filed at the commencement of the proceedings on 1 September 2020, the wife identified that she has been diagnosed with a schizoaffective disorder characterised by episodic psychosis, depression and mania. That evidence was put before the court as ultimately, the wife’s solicitors were satisfied that the wife had capacity to give instructions so far as these proceedings were concerned.
The genesis of the application made on 17 December 2020 for the appointment of a litigation guardian came about in circumstances where significant concerns were being raised in relation to the wife’s ability to conduct the litigation.
In particular, I have the benefit of two affidavits that were filed in support of that application. The first affidavit is an affidavit filed by the wife’s solicitor, Ms Wood. That affidavit sets out that, among other things, the wife’s solicitor has been concerned about the husband’s conduct of the litigation, that comment made against a backdrop, as I earlier indicated, of non-compliance with orders by this Court with respect to a number of issues. In that affidavit Ms Wood deposed:
I raise very serious concerns about the effect of the husband’s conduct of these proceedings upon my client’s mental health and the influence that the husband and/or the parties’ son, Mr C Ibsen, was exerting over my client.
The affidavit goes on:
My concerns in this regard have been amplified during the period of adjournment.
The period of the adjournment at that juncture being from 29 October 2020 and until this affidavit was filed in support of the application filed on 17 December 2020.
Ms Wood goes on to depose that on 30 October 2020 she received the following text message from the wife.
“I WANT ALL FAMILY COURT ACTION TO STOP FROM TODAY 30/10/20 NO MORE TELL JUDGE I AM WITHDRAWING FROM ALL ACTION TODAY. MS IBSEN”
The affidavit goes on to set out that the wife instructed Ms Wood that the parties’ son, Mr C Ibsen had a copy of that text message, which the wife had provided to him at his request. Ms Wood records that she had concerns about the circumstances in which that text message was sent.
Ms Wood further deposed that since the matter was last before the Court in October 2020 the wife had been admitted and discharged from hospital on a number of occasions for mental health treatment and that she was last admitted on 26 November 2020 and had been continuously in admittance receiving inpatient treatment at the hospital since that date.
Ms Wood further deposed that upon the wife’s discharge she would be in need of independent accommodation, noting that this was the subject of orders that I have previously made for the release of funds to her to enable that accommodation to be arranged.
The affidavit goes on to record that on 15 December 2021 Ms Wood attended upon the wife. At that appointment the wife gave Ms Wood – and I quote from paragraph 13 of the affidavit:
…very clear instructions that she does not wish to abandon her application for the settlement of property.
Ms Wood goes on to depose that when Ms Wood attended upon the wife, she had no concerns about the wife’s presentation, and her instructions, on the basis of matters discussed during that appointment. She deposed that she was satisfied that the wife’s instructions were provided in a coherent matter.
Ms Wood further deposes that the wife, nevertheless, provided instructions to the effect that the present fragile nature of her mental health is such that she is not capable of adequately conducting or giving adequate instructions for the conduct of these proceedings.
Ms Wood went on to depose that the wife instructed her to make an application on her behalf for the appointment of an arm’s length legal professional person to act as her litigation guardian for the purpose of these proceedings.
A solicitor by the name of Mr A was approached to act as the wife’s litigation guardian on the basis of the wife’s instructions. I have the benefit of an affidavit that has been filed by Mr A, being the solicitor that was approached and approved and nominated by the wife as the person to act as her litigation guardian if the Court was inclined to make that order. In that affidavit Mr A sets out that he is aware of the circumstances of the wife’s mental health predicament and that he attended upon her on 17 December 2020 in hospital and that she expressed a wish to engage him to act as her litigation guardian for the purposes of the proceedings.
Mr A deposed to a willingness to take up that appointment if, indeed, the Court was to order that a litigation guardian be appointed for the wife. Mr A also deposed that his appointment, from his perspective, would be an arm’s length appointment for which he would charge a professional fee. He further deposed that prior to swearing his affidavit on 17 December 2020 he did not know and had never met the wife, and he did not know nor had he ever met the husband. He also deposed that he knew the parties’ son, Mr C Ibsen, as he is a legal practitioner with D Lawyers. Mr A however deposed that while he knew of Mr C Ibsen, he otherwise has no personal relationship or other knowledge of Mr C Ibsen, his father or any other members of the Ibsen family.
I pause at this juncture to record that when the matter came before me on 11 March 2021, I indicated to the parties that I had gone to university at the same time as the parties’ son, Mr C Ibsen, but that he was not in my friendship circle and was not, other than someone that I recognised in passing, someone that I associated with. I indicated to the parties that in those circumstances, I did not consider myself to be conflicted whatsoever from hearing this matter. In making those comments, no issue was taken on behalf of the wife or, indeed, the husband that it was inappropriate that the matter remain before me.
Returning to the issues that are before me. The affidavit of Ms Wood filed on 17 December 2020 annexes a letter which is a report from a psychiatrist dated 16 December 2020. I am conscious that the identity of the psychiatrist has been redacted from that report. I am also aware, when I come to it, that the identity of another psychiatrist who prepared a report regarding the wife dated 16 March 2021 has also been redacted.
In any event, the report of 16 December 2020 records the following:
Carmen L Wood
Carmen Wood & Associates
Family & Criminal Lawyers
Lower Ground Floor
37 Angas Street
Adelaide, SA 5000
Name: Ms Ibsen
DOB: xx/xx/1994
Re: Matrimonial Property Matters – ADC4154/2020
Dear Carmen,
I am Ms Ibsen’s treating psychiatry registrar on Ward REDACTED Older Person Mental Health Services, REDACTED Ms Ibsen is currently admitted to our ward for treatment of her mental illness, which has been exacerbated in context of ongoing legal proceedings in which you are her acting legal representative.
I have spoken with Ms Ibsen regarding appointing a person not related to her as her litigation guardian, such as the solicitor Mr A who you have mentioned in your letter. I believe she has capacity to make this decision; she understand there will be a fee associated for his profession service, and believes personally conducted her litigation before the court is counter-therapeutic in her current mental state.
With regards,
Dr REDACTED
As identified earlier in my reasons, when the matter first came before me, at short notice, on 22 December 2020, an issue was taken on behalf of the wife as to Mr F appearing as counsel for the husband that day. The reason that an objection was taken was because – and I do not think this is the subject of dispute between the parties – it was understood that Mr F had previously acted for the wife with respect to criminal charges that had been laid as against the wife where the husband was the victim.
As a consequence of that objection being taken by the wife’s solicitors, Mr F indicated at the hearing that he would not further appear in the matter. What is not obvious from the notations that I made to the orders pronounced that day is the following: firstly, Mr F made submissions to me that day that he was only instructed to appear with respect to the application filed on 17 December 2020 for the appointment of a litigation guardian. In relation to the application Mr F submitted that it was likely that his client’s position would be that no objection would be taken to the appointment of a litigation guardian but that an objection would be taken to the identity of the person nominated by the wife.
Ultimately, because of the circumstances that presented themselves on 22 December 2020 I was unable to hear the application that day. I, accordingly, made orders, bearing in mind the intervening Christmas period and my leave, that the matter be heard at my earliest convenience in the new year, which was 11 March 2021, giving time for the husband to file and serve responding documents and for the wife to file and serve an Affidavit in Reply. The husband was required to file a Response to the Application in a Case and any affidavit in support by 12 February 2021, and the wife had the ability to file any Affidavit in Reply by 26 February 2021.
The matter came before me, as scheduled, on 11 March 2021. On that day, it is important for me to record, the husband had not filed any responding documents to the Application in a Case. What had, however, occurred in the intervening period, in addition, was the following: the wife filed an Application in a Case on 9 March 2021 raising an objection to the husband’s solicitor’s continuing to act for him. That objection was taken in the context of Mr F having been instructed to appear at the last hearing and a concern at the wife’s end that issues known to him as a consequence of acting for the wife previously and having appeared that day, which were assumed to have been discussed with the husband’s solicitors.
Ultimately, the application filed 9 March 2021 was listed for mention before me at the same time on 11 March 2021. Again, no Response was filed by the husband to that Application. So far as that topic is concerned, I make no criticism that there were no responding documents given that the application was filed late in the day on 9 March 2021, and the matter came before me on 11 March 2021.
As it turned out on 11 March 2021, I was told by Ms Hume, solicitor who appeared on instructions of the husband’s then solicitor, that there would be no opposition to the application to restrain E Lawyers, the husband’s solicitors, from acting in the matter. In fact, that might be putting it too highly. What I was ultimately told was that the solicitors would be withdrawing and that Ms Hume would be instructed to act for the husband in the proceedings.
At that point in time on 11 March 2021, Ms Hume did not yet have a file, she had limited instructions and she had not met the husband. As a consequence of those circumstances, at the hearing on 11 March 2021, I raised a number of issues with the parties in the context of there being an adjournment application made on behalf of the husband and not opposed at the wife’s end.
One of the issues that I raised at that hearing was the need for the wife to ultimately satisfy the Court that it was appropriate that a litigation guardian be appointed, and I raised an issue with the wife’s counsel that day as to the need for there to be some more meaningful medical evidence before the Court to satisfy the Court that it was appropriate for me to exercise the discretion to appoint a litigation guardian. I ultimately, with the acquiescence of both legal representatives appearing that day, timetabled the matter towards today’s hearing.
Among the orders that I made that day were, firstly, for the husband’s new solicitor, Ms Hume, to file and serve a Notice of Address for Service. That order was complied with. The next order I made was an order giving the husband an extension of time to file his responding documents to the Application in a Case filed on 17 December 2020. The extension of time was until 17 March 2021 at 12 noon. I then gave an extension of time for the wife to file and serve an Affidavit in Reply to 10 am today. I made those orders with a very short turnaround and timeframe in full knowledge that the parties would be under pressure but that I was keen to deal with the application that had been on foot since 17 December 2020. I also made an order that by the afternoon of 17 March 2021, the wife’s solicitor file and serve a report from her treating psychiatrist.
In addition, and as a consequence of an oral application for costs made on behalf of the wife, I adjourned for mention to today that costs application, noting that the application had been made personally against the husband’s former solicitor and counsel, Mr F, that appeared at the hearing on 22 December 2020.
I have a recollection of what occurred at the hearing on 11 March 2021. One of the matters that I recall is that the parties’ adult son, Mr C Ibsen, being the same person that Mr A referred to in his affidavit and whom I have already commented upon in these reasons, attended the hearing with Ms Hume. Mr C Ibsen was sitting in the back of the courtroom. It was at that hearing that I raised the issue of any potential conflict so far as my involvement in hearing the matter was concerned. It is important for me to record that Mr Ibsen was present that day, and that will become obvious as I give my reasons. In any event, as is clear, I adjourned the matter to today.
The matter has come before me again today in circumstances where the husband has not complied with any orders for the filing of documents. That is a matter that concerns me greatly. I make no criticism of Ms Hume in that regard. What is clear to me is that today she has been put under extreme pressure to comply with deadlines, and she has not been assisted by the instructions, or lack thereof, that she has been given in these proceedings.

The application that has been made before me for the appointment of a litigation guardian is made pursuant to the Federal Circuit Court Rules and, in particular, it has been made pursuant to Rule 11.11.
I have also been referred to Rule 11.08. Rule 11.08(1) is particularly relevant in these proceedings because it provides the following:
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.
From the wife’s perspective, the application that has been made is not made on the basis that the wife lacks capacity to give instructions and conduct these proceedings.
The application is made on the basis that the wife is not capable of adequately conducting or giving adequate instructions for the conduct of the proceedings as a consequence of her underlying mental health diagnoses.
What therefore is relevant for me to determine that question is whether I am of the view that the wife is unable to adequately conduct the proceedings.
I have the benefit of the report that I ordered the wife file at the last hearing. That is a report dated 16 March 2021 and reads as follows:

Carmen (Principal)
Carmen Wood & Associates
Family & Criminal Lawyers
Lower Ground Floor
37 Angus Street
Adelaide SA 5000_
Re: Ms Ibsen – DOB:xx/xx/1944
Dear Carmen
This statement is in response to your request made in a letter from you dated 15^th March 2021.
Ms Ibsen has been under my care on Ward REDACTED in January 2021 (discharged 22 Jan 2021). She was admitted following an episode of deliberate self-harm when having suicidal ideations which were in a context of a relapse of psychosis which had occurred because on ongoing severe stress she experienced because of ongoing legal issues relating to her legal divorce proceedings. It is true this stress preys on her mind and is a constant stressor for relapse of psychosis and suicidal ideation. She suffers with Schizophrenia with episodes of schizoaffective disorder and has chronic adjustment disorder. She had been preoccupied with regrets and sorrows which she described to be a consequence of marital trauma.
I would advocate on her behalf that sooner the legal proceedings related to her divorce the less chances of relapse of psychosis and impulsive deliberate self-harm and suicidal urges.
I would like to make it known that I will not be able to be present in Court in relation to this matter and would not like to be involved further in legal matter related to her but happy to advocate on her behalf on grounds of compassion and care. I still continue to provide care to her on an outpatient basis and she has a care coordinator from our outpatient service.
With regards
Yours Sincerely
Dr REDACTED (General Medicine); FRANZCP. Certificate-Psychiatry of Old Age
Senior Consultant Age Psychiatrist
REDACTED
Ward REDACTED
REDACTED

What is significant from that report is the following: the report is written by a psychiatrist who is said to have treated the wife during her inpatient admission until January of 2021. I now have the benefit of exhibit W1, which is the letter of instruction that was sent to the psychiatrist for the purpose of obtaining that report. What I understand, as a consequence of that correspondence, is that the wife was an inpatient between 26 November 2020 and 22 January 2021, and that is relevant because this psychiatrist was the psychiatrist with the care of the wife during that period of time.
The report goes on to record, at its conclusion, that this psychiatrist continues to provide care to the wife on an outpatient basis and that she has a care coordinator from the hospital’s outpatient service.
From that report I learn, of significance, the following so far as the wife’s underlying diagnoses are concerned: the wife is said to suffer from schizophrenia with episodes of schizoaffective disorder and that she has a chronic adjustment disorder. The report goes on to record that she had been preoccupied with regrets and sorrows which she described to be a consequence of marital trauma.
Of significance is that the report sets out that the wife was admitted, in November of last year until January of this year following an episode of “deliberate self-harm when having suicidal ideation… in a context of a relapse of psychosis which had occurred because of ongoing severe stress she experienced because of ongoing legal issues relating to her legal divorce proceedings.” The psychiatrist indicated that this stress preys on the wife’s mind and is a constant stressor for relapse of psychoses and suicidal ideation. Frankly, they are matters that are very concerning to me.
The psychiatrist goes on to record that the sooner the legal proceedings related to her divorce are concluded the less chance of relapse of psychosis and impulsive deliberate self-harm and suicidal urges are likely to occur.
As I indicated, from the wife’s perspective, the application has been brought against a backdrop of those diagnoses and the very real risk to the wife’s life in the context of the stressors that these proceedings bring about. From my perspective, it could not be more serious, from the wife’s perspective, and the need for the appointment of a litigation guardian, frankly, could not be more compelling.
The husband – I am not entirely clear – may, or may not oppose the appointment of a litigation guardian. He certainly opposes the identity of the person nominated by the wife. From the husband’s perspective, while not formally put in this fashion, by inference, from the submissions made, an adjournment of today’s hearing was sought because he asserts that the Court has insufficient information to determine the question of whether the wife is incapable of conducting the litigation and that there is further information that should be before the Court so far as the identity of a litigation guardian is concerned if the Court was satisfied to make that order.
Again, both of those topics are matters which were raised at the hearing last week and about which I have a recollection. At the hearing last week, accepting, as I do, that Ms Hume had very recently been instructed, she indicated to the Court that there may be the ability to resolve the application filed on 17 December 2021 and that it may not be that the husband opposes the appointment of a litigation guardian but that it was likely that Mr A, in particular, would be opposed. Indeed, Ms Hume suggested that the wife proffer alternatives in lieu of Mr A if that position was taken.
I declined to make an order in that regard. One of the alternatives that Ms Hume suggested at that hearing was that Public Trustee be appointed to act as the wife’s litigation guardian. I declined to make an order requiring the wife to proffer alternatives because I indicated that the husband would have the opportunity to raise whatever objection he wanted to the identity of Mr A and proffer any other alternative that he considered to be appropriate and that those matters could be contained in his answering documents. Sadly, and frustratingly, from my perspective, the husband, in not complying with those orders, did not put any alternative or any other information before the Court.
The failure to comply with those orders comes into sharp focus as a consequence of matters that fell from the husband’s solicitor during submissions today. I pause at this juncture to record that the hearing proceeded before me today, and the wife’s counsel made submissions after the submissions made on behalf of the wife. During the course of the submissions made on behalf of the wife I challenged the wife’s counsel in relation to a number of the submissions put so that I could better understand the wife’s case and why it was being put that she needed a litigation guardian to represent her in these proceedings.
During the course of those submissions I asked the wife’s counsel whether or not the wife had a power of attorney. The wife’s counsel advised the Court that he was not aware that there was such a document and, secondly, that he was not aware that an order had been made by SACAT for any person to manage the wife’s affairs. The reason that I raised that matter, as I indicated to the wife’s counsel during the hearing, was because I was aware of the Family Law Rules 2004 and that those Rules, in relation to the appointment of a case guardian, identify that the person most appropriate for appointment as being any person that has been appointed to manage the litigant’s affairs. Mr Tredrea, understanding that, confirmed that, to his knowledge, no such person had been appointed.
The reason that I make those comments is that Mr Tredrea concluded his submissions, and I then proceeded to hear submissions from the husband’s solicitor. During the course of the submissions made by the husband’s solicitor and when she moved to the topic of the identity of the wife’s proposed litigation guardian, issue was taken with Mr A. Ultimately, submissions were made by the wife’s counsel for the husband’s solicitor to make submissions from the bar table as to the basis of any asserted conflict the husband considered existed so far as Mr A was concerned.
What I understand and, certainly, what I now understand from Mr Tredrea, is that, from the wife’s legal representative’s perspective, they apprehended that an issue was being taken that Mr A was personally conflicted from appearing in the matter. While hearing that submission from Mr Tredrea, I noted that Ms Hume turned to take instructions from the parties’ adult son, Mr C Ibsen. I was also told that correspondence had been sent by Ms Wood to the husband’s solicitors about this topic, but that is not correspondence that I was ultimately provided with by either party.
In any event, as Ms Hume appeared to be taking instructions from Mr C Ibsen I raised a concern with Ms Hume that she was taking instructions from the parties’ son, and not the husband, in relation to the matters before the Court. Ms Hume was very careful to identify, in her submissions to me, that Mr C Ibsen had personal knowledge and was instructing her with respect to the conflict topic. As it turned out, what then fell from Ms Hume was the following: Mr C Ibsen instructed her that an application had been taken to SACAT for someone to be appointed to manage the wife’s affairs.
What I now understand from Ms Hume’s submissions is that Mr C Ibsen has not personally made that application but that two of the parties’ adult children are the people to have taken that application. What I also understand from the submission is that the application was made some time in October of 2020.
The timing of that application is not lost on me, and it is of some significant concern. What is more concerning at this juncture, however, is that the first time that this Court and/or the wife’s legal representatives have learnt of that application is as a consequence of the instructions given to the husband’s solicitor today by Mr C Ibsen.
I express, frankly, my outrage as to how that omission, at the husband’s end, could have come to pass, particularly in the context of this application before the Court. That, is a matter which may well go to the costs applications that have been made. It may, also go to two other topics: firstly, whether Ms Hume considers that she is in a position to continue to act in these proceedings because it may be that she feels that she has been compromised from continuing to do so, and she may choose to get her own advice about those matters.
It also goes to a question that is looming in my mind as to whether something should be done at my end to refer, not Ms Hume but the legal representatives who previously acted for the husband to the conduct board, if it turns out that they were aware of the information that has now been disclosed. That is something that I may consider doing and which I know is a very serious step.
What I am more dismayed about, despite all of that, is that the parties’ adult son, Mr C Ibsen is himself a legal practitioner. He was present at the hearing last week. He has knowledge that this application for the appointment of a litigation guardian is pending before the Court, and he himself has chosen not to raise the topic of an application to SACAT sooner than during the hearing today. How that has come to pass is, frankly, astounding.
From my perspective, I do consider that there is sufficient information before me today to make the orders sought by the wife. The reason that I say that is because I consider that the report that has been obtained on 16 March 2021 does deal, comprehensively, with the issues that go to the heart of why the wife’s solicitors and the wife consider that she is incapable of conducting her own affairs so far as these proceedings are concerned.
During the course of submissions earlier today I referred the parties’ legal representatives to the decision of Oliver & Gall [2008] FMCAfam 164. It is a decision of Wilson FM.
That decision concerns itself with Rule 11.08, in particular. In that decision the Federal Magistrate, as he then was, makes the following comment at paragraph 45:
As is apparent from its terms, the rule permits -
being rule 11.08 -
permits the appointment of a litigation guardian in circumstances going beyond those where a party lacks legal capacity.
That case concerned itself with someone who had been diagnosed with three major overlapping psychiatric disorders, being post-traumatic stress disorder, major depression and anorexia nervosa.
It is not necessary for me at this juncture to say more about that decision, but it is one that I have taken into account in my consideration of the matter today. As I have already said, from my perspective, the letter from the wife’s psychiatrist of 16 March 2021 is compelling. There could be nothing more serious than a litigant attempting to take their life as a consequence of the stressors that these legal proceedings bring to bear upon them.
Another factor that I have taken into my consideration, in the context of when the wife was admitted for psychiatric treatment in November 2020 until January 2021, is the timing of that admission.
It is not lost on me that the wife commenced proceedings on 4 September 2020 and that between then and her admission in November 2020 she was forced to come before the Court a number of times to have orders made to advance her claim. What is also not lost on me is that if the application made by the parties’ two adult children was made in October 2020, it would appear, it was made within a month or so of the wife commencing these proceedings. It was also made in the context of certain pressure being brought to bear on the wife, according to the wife’s solicitor, resulting in a text message sent to the wife’s solicitor by the wife on 30 October 2020, which, at least, the parties’ adult son, Mr C Ibsen knew about and had a copy of.
It appears to me that, as a result of the manner in which these proceedings have unfolded before me to date, including the events that have unfolded today, I can be left in no doubt that the nature of this litigation is certainly acrimonious and that, undoubtedly, that has had, to date, an effect on the wife and, according to her treating psychiatrist, continues and will continue to have an ongoing effect on her so long as this litigation continues. While I cannot prevent how long this litigation ultimately takes to resolve, in one way or the other, what I can do is remove that as a stressor from the wife and remove it as a stressor that manifests itself, from the wife’s perspective and according to her psychiatrist, in psychosis and suicidal ideation; suicidal ideation she already has attempted to act upon.
From my perspective, I am satisfied that the wife is a person who needs a litigation guardian within the definition provided for in Rule 11.08.
I then turn to the potential identity of a litigation guardian. Again, I am satisfied that Mr A is an appropriate arm’s length person. While it may be that the ultimate application to SACAT may be successful, that is something that has not yet occurred. I do not have any evidence before me about that application, the basis for it, what evidence was produced and why it is said that the two persons that have been promoted are appropriate.
If, however, that order is ultimately made, then it is for the husband and/or those appointed pursuant to that order to bring a further application to vary the orders that I propose to make today.

NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Kari

Associate:

Date: 1 April 2021