JINSON & FLETCHER - [2015] FamCA 890

FAMILY COURT OF AUSTRALIA

JINSON & FLETCHER

[2015] FamCA 890

FAMILY LAW – Case Guardian – Where the wife as applicant in the substantive proceedings is in and out of hospital for surgery and unable to give instructions but able to do so at the time the husband seeks the appointment of a case guardian – No order made.

FAMILY LAW – COSTS – Where costs are awarded because the evidentiary basis for an adjournment is not satisfactory and the wife in seeking an adjournment of a trial, is wholly unsuccessful.

Family Law Act 1975 (Cth)

Collins and Collins (1985) FLC 91-603
Fitzgerald v Fish (2005) 33 Fam LR 123
Forster & Forster [2012] FamCAFC; (2012) 47 FamLR 77
I and I (No 2) (1995) FLC 92-625
L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114
Minister for Immigration and Multicultural Affairs v Vadarlis (No 2) (2001) 188 ALR 143 citing with approval Cretazzo v Lombardi [1975] 13 SASR 4 and Chilli v Abbott (1981) 53 FLR 108

APPLICANT:

Ms Jinson

RESPONDENT:

Mr Fletcher

FILE NUMBER:

MLC

3123

2014

DATE DELIVERED:

23 October 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Marks Qc With Mr Hall

SOLICITOR FOR THE APPLICANT:

O'Hanlon Foster Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Strum

SOLICITOR FOR THE RESPONDENT:

Goldhirsch & Shnider

Orders

That the application in a case filed by the husband on 20 October 2015 is dismissed.
That the husband’s application for costs in respect of the hearings on 8 October 2015 and 22 October 2015 are both dismissed.
That the wife pay the husband’s costs on a party and party basis associated with the hearing on 24 September 2015, such costs be by agreement and failing agreement as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jinson & Fletcher 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 3123 of 2014

Ms Jinson

Applicant

And

Mr Fletcher

Respondent

REASONS FOR JUDGMENT

These interlocutory proceedings raised two unusual issues. First, should the Court order the appointment of a case guardian for a litigant (represented by legal practitioners) who wants to participate but who, from time to time is incapacitated by physical illness?
Secondly, is incapacity because of illness (which causes an adjournment of a trial) a justifiable reason to depart from the primary legislative principle in s 117 of the Family Law Act 1975 (Cth) that each party pay their own costs?
For the reasons that follow, each of those questions requires an examination of the peculiar facts of this case. It is not appropriate at this time, to appoint a case guardian. It is appropriate to make an order for some of the husband’s costs.

Brief background

Although at first blush, the initiating application of the applicant wife filed in April 2014 indicated there was no marriage, her affidavit simultaneously filed and the respondent husband’s reply, cured that. They were married in 2008. Their relationship seems to have begun in 1999. Needless to say, the paperwork was sloppy.
The husband is 77 and the wife 62. It seems that the Magistrates’ Court of Victoria made an intervention order which excluded the husband from the parties’ home. That order has been mentioned as the basis for the husband’s concern to conclude any property dispute expeditiously. The wife’s claim (as it currently stands) is for the husband to transfer to her the home on an unencumbered basis together with a payment of $5 million. The husband’s response filed in June 2014 evaded the question of what he thought was a just and equitable outcome.
The nub of the dispute lies in a “foundation” in Country B and in particular, whether it is (or could be) property of the husband or under his control (in a financial resource sense).
Since commencing the proceedings in April 2014, the parties have now been to Court on approximately ten occasions. The first of the most important of those hearings was in July 2015 when I set the case down for trial to commence on 7 October 2015. A filing timetable was ordered requiring the applicant to file her affidavit material by 21 August 2015.
In fairness to the wife, it was raised at the July 2015 hearing by her counsel that the case may not be ready but that was because of the wife’s pursuit of information about the foundation.
The wife did not file her affidavit material which led to a hearing on 24 September 2015 at which she sought that the trial be vacated. For that hearing, the wife relied upon an affidavit by her solicitor who said that she had undergone several operations including major abdominal surgery for a perforated bowel and had admissions to hospital in August. The solicitor said that the wife was too ill and not sufficiently recovered from her illness to provide “further instruction” necessary to comply with a timetable set on 31 July 2015. He went on to say that the relapses in the wife’s health meant that she was not sufficiently recovered to be able to meet with him or counsel to provide those instructions. Attached to the affidavit was a series of letters from doctors. The solicitor went on to say that he had visited the wife in hospital where he observed that she appeared to be in constant pain and unable to conduct any conversation other than for a very short period of time.
There are some other facts in that period that may be the subject at trial about how the wife could sign loan documents in that period but could not give instructions for her affidavit but those matters do not affect this determination and I have not drawn any inferences about them.
Keeping in mind the affidavit had to be filed on 21 August 2015, it seems that the wife was hospitalised for much of the month of August. It must also be contemplated that the hearing at which the timetable was set was 31 July and even at that stage, the wife had been in hospital for some time.
At the hearing on 24 September 2015, I declined to adjourn the trial because at that date, I was not aware of the extent of the wife’s capacity to complete the evidence needed and in my view, there had been sufficient time from that day until the designated trial date for it to be completed.
In this same period, having put the husband’s solicitor on notice about the wife’s incapacity, a reply was received raising the question of whether a case guardian should be ordered. The wife’s solicitor blandly rejected that on the basis that the wife would recover and in any event, she wanted to participate in the proceedings.
At the designated trial date, it transpired that the wife had been readmitted to hospital with complications (I understand) associated with her earlier surgery and a further affidavit by her solicitor said that her state of health remained precarious with low blood pressure since she had been discharged on 3 December. The affidavit went on to say that a doctor had thought that it was unlikely the wife would recover for six weeks to a state where she could “attend court” but in any event, it was difficult to be dogmatic because of the nature of the medical condition.
The solicitor for the wife deposed that he had spoken to the wife who had explained to him that she experienced dizziness associated with her low blood pressure including one episode where she almost fell down stairs. The solicitor had spoken to the doctor on the day prior to this affidavit being prepared at which point, the doctor said that the wife would have to be readmitted to hospital to stabilise her medical condition. I certainly concluded on the hearing a day or so later that the wife had been readmitted to hospital
Ultimately, the nub of the affidavit was that the solicitor deposed to the fact that the longest period of time he had spent with his client since early July, was no more than 15 to 20 minutes. Thus this was not only a case in relation to her ability to attend court to participate in a trial but also to prepare material for that purpose.
Finally, the solicitor deposed that on 7 October, he advised the husband’s solicitor of the deteriorated medical condition. A request was therefore made to again vacate the trial date but it was only at the hearing on 8 October 2015 that counsel for the husband conceded that there was an “inevitability” about the vacating of the trial date.
At the hearing, I reset the timetable for a trial in early 2016 and the conversation with both counsel (not the wife’s counsel who appeared before me on 22 October 2015) turned to various options about the appointment of a case guardian. The husband’s submission at the hearing on 22 October was that I had made a “finding” of the need for the wife to have a case guardian. I would not elevate the comments to that level but I agree I expressed concern that there was a clear need where the wife could not give instructions and the future uncertainty about that prospect could be inferred from the wife being in and out of hospital. The then counsel for the wife said that the wife’s daughter who was then overseas, was willing to fulfil the role but I do not accept that any of that conversation amounted to a concession that there was a need for the wife to have such a case guardian. I declined to make an order on the basis that I did not have anything in writing seeking a formal order and certainly nothing in writing from the daughter indicating that she would undertake the task. The same discussion revolved around the prospect of the husband advocating for two prominent Melbourne lawyers to take on the role and in respect of lawyers generally acting as case guardian, I also expressed some reservations. As the matter was unresolved, I gave an allocated hearing date of 22 October 2015 for the issue to be litigated if indeed, it was necessary to do so. A timetable for the filing of any relevant material was then provided.
That then brought on the proceedings on 22 October 2015 because the husband filed an application on 20 October 2015. That filing date becomes relevant on the question of costs. No application was made by the wife for any appointment of a case guardian.
Whilst the Family Law Rules set out the practice to be adopted if the Court is satisfied that a litigant is a “person with a disability”, the Court need to consider just what that means. The Dictionary to the rules defines such a person as someone who (relevantly here) because of physical disability is not capable of adequately conducting, or giving adequate instructions for the conduct of the case.
Most of the relevant authorities relate to persons who are disabled by virtue of their mental capacity to participate. Does someone who is in and out of hospital because of surgery fit within the definition of physical disability? And what is the importance of the emphasis on adequately being able to conduct the proceedings including giving instructions? It is also relevant to ask whether there can or should be orders for discrete periods in cases where litigants are quite capable of doing all of those things when not so disabled.
In Forster & Forster [2012] FamCAFC; (2012) 47 FamLR 77, the Court had to contemplate a case in which a litigation guardian had been appointed for a self-represented litigant in a property trial. The Full Court noted the position that had been adopted by the Full Court of the Federal Court in L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114 and observed approvingly that the need for such an order had to be established. Forster has to also be seen in the context of a litigant about whom there were questions being raised as to mental capacity.
In L v Human Rights & Equal Opportunity Commission, the Full Court of the Federal Court commented that the statements in other relevant authorities were to the effect that the purpose was to protect litigants “who would otherwise be at a disadvantage” as well as to protect the processes of the Court.
Thus, it can be seen that a need may arise where a litigant is at a disadvantage caused by medical issues but it also focuses on ensuring that the Court is provided with what it needs to quell the controversy.
All of the authorities refer to circumstances varying from case to case so that there can be no hard and fast rule but the principles seem to me to be that a litigant is at a disadvantage by virtue of being unable to adequately conduct a case or give instructions to do so as well as the Court being unable to do its task because of those same things.
In L v Human Rights & Equal Opportunity Commission, the Full Court said that there was a presumption that a person was competent to manage their affairs and if the contrary was asserted, the person so asserting had the onus of proof. For the reasons I have already set out, I do not consider that counsel for the wife on 8 October made any concession that the wife was in need of a case guardian. There can be little doubt that the Court urged it be done and counsel fulfilled his duty admirably thereafter. Nor, do I accept as I have already indicated that I made such a finding even if inferences were open that it was almost inevitable that such an appointment would follow based on what was happening at that time. Even if I was wrong about that, the time for the determination as to whether or not an order should be made is now.
With respect, I adopt the Federal Court’s view that such a presumption should be applied in every case. In this Court, in Forster, the Full Court observed that there will be cases where “lack of capacity is so clear that medical evidence is not called for.” Their Honours went on to say that there may be cases where the Court is entitled to rely on its own observations.
In my view, if a person is physically unable to participate in proceedings, it is conceivable that the presumption could be rebutted. A litigant who is frustrated by the other party’s inability to participate is able to seek a case guardian order and to do so, has the onus of establishing that the other litigant falls within the definition in the Dictionary and the rules. In cases of physical disability, evidence may not have to be all that strong.
In this case, the husband seeks the appointment and the wife opposes it.
The sequence of events is important.
On 9 October 2015, the husband’s solicitors wrote to the wife’s solicitors referring to the wife’s counsel’s proposal on the previous day of the appointment of the wife’s daughter. That person (for reasons that remain unclear) was opposed by the husband and the husband’s solicitor said that the daughter would be required for cross-examination. Thus, the husband was anticipating that the application foreshadowed by the orders of the previous day was coming. On 12 October, the wife was apparently discharged from hospital. On 13 October, the wife’s solicitor responded to the husband’s solicitor but gave no indication that the wife was no longer pursuing a case guardian nor, more importantly, that in the solicitor’s view, she did not need one. That position was not made clear until 20 October by which time, the husband had already prepared for his application to have one of the two solicitors earlier mentioned appointed.
Senior Counsel for the wife submitted that the solicitor had been prudent to see whether the wife was capable during that period. I do not accept that. I am satisfied that from what follows, the wife’s solicitor had formed the view that the wife was not in need of a case guardian. Unfortunately, that created unnecessary angst if not litigation.
In his affidavit filed for other purposes (but I accept also to defend off the husband’s application for an appointment), the wife’s solicitor said that he had “obtained instructions” on 14 October (twice), 18 October (over 34 minutes), 19 October and 20 October. No distinction was made as to any line drawn in and amongst those consultations.
The solicitor said from his own observations, the wife had significantly recovered and understood “what is going on in this matter”. In his view, the wife was capable and did not fall within the Dictionary definition.
That is the only real evidence I have.
There is also a distinction between giving instructions and participating in a trial. The processes and the tasks are entirely different. Based on the solicitor’s affidavit, there is no evidence as at today that the wife cannot fulfil the task of giving the necessary instructions to investigate what she wants undertaken about the foundation but more importantly, the completion of the evidence in chief to comply with the timetable. It is not necessary for me to contemplate the trial participation at this time.
It is important to also observe that all of these propositions and indeed, the evidence of the solicitor, can be tested at trial.
Senior Counsel for the wife properly conceded that the solicitor had an obligation to the Court to be proactive and inform the Court if the wife in future fell into the “disabled” category (see rule 1.08(2)).
Counsel for the husband drew attention to what might be an inconsistency in the solicitor’s evidence because he included in a letter that he had spoken to the wife on occasions earlier that those mentioned above. I am not able to make any finding about that but it is equally open to infer that the wife was incapable then of giving proper instructions. That, as I earlier mentioned, can be the subject of testing at trial.
Counsel for the husband also submitted that “games” were “being played”. He did not assert that the solicitor was involved in anything underhanded but as against that, all of the evidence would indicate that:
(a)immediately after the 31 July hearing, the wife was hospitalised for a significant time of August. True it is that instructions could have been given but I would not draw such an inference from the untested and vague evidence of the doctors; and
(b)much of September seems to have been lost on the basis that the solicitor deemed it inappropriate to take instructions because of the wife’s pain or inconvenience. That too might be tested but she was certainly in hospital at the time the case was due to start and the immediate day before that; and
(c)it is now conceded that documents can be prepared with involvement of the wife which would militate against taking away from her that which the law sees as a fundamental right of participation.
In my view, the evidence does not support a conclusion that as at today, the wife is a person with a disability. The husband’s application must fail.
The second issue relates to costs.
The husband sought his costs of three hearings on a party and party basis. The hearings were 24 September, 8 October and 22 October.
In respect of the hearing on 24 September, it was submitted the wife sought an adjournment and failed. That failure (it was submitted) occurred because of evidentiary difficulties.
In respect of the 8 October hearing, the trial could not proceed not just because affidavit material had not been prepared but also because of the absence of the wife in hospital. The hearing was turned into an inquiry about a case guardian;
The hearing on 22 October from the husband’s perspective turned upon the fact that he had assumed that the wife was continuing with the application relating to the appointment of the daughter and no indication to the contrary was given until read in the affidavit provided the day before. His costs had been thrown away even if he had been unsuccessful because the wife’s solicitor had remained mute.
Senior Counsel for the wife responded by saying that costs should be reserved to the trial where matters could be properly canvassed. She canvassed all of the matters under s 117(2A) but also submitted that there was no justifiable circumstance here for a costs order. Here, the wife had been well and then unwell so there was no fault on her part.

It is the general rule, as prescribed in s 117(1) of the Act, that each party should bear their own costs. However, the Court is empowered by s 117(2) of the Act to make an order for costs if it is of the opinion that there are “circumstances that justify it in doing so”. If the Court finds a justifying circumstance, it still has to have regard to the factors in s 117(2A) in considering what order, if any, should be made (see I and I (No 2) (1995) FLC 92-625).
The first question is whether the position of the wife in respect of the three hearings created costs for the husband such that the Court is justified in saying that the general rule in s 117(1) should not apply.
The illness of the wife (if accepted at trial to be what her solicitor has now in at least 2 affidavits described) cannot be a matter of her fault. But this is not about fault. The primary question is whether there is something unusual about the facts such that the Court finds that applying the primary principle is unfair.
It must also be remembered that costs are not awarded by way of punishment of the unsuccessful party but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party as a result of having been required to participate in the legal proceedings and remembering here that the wife is the applicant. (Minister for Immigration and Multicultural Affairs v Vadarlis (No 2) (2001) 188 ALR 143 citing with approval Cretazzo v Lombardi [1975] 13 SASR 4 and Chilli v Abbott (1981) 53 FLR 108).
In my view, each of the three circumstances has to be looked at separately. I accept that the wife failed on 24 September because the evidence did not support the position that she was agitating. Thus in respect of that day, the husband was inconvenienced at a time when he had every right to consider that his trial was going to proceed in October. It would be unjust to make him pay his own costs (or some of them) there where the circumstances were not adequately explained.
In respect of the 8 October hearing, the husband had little choice other than to concede he could not proceed because of the wife’s illness and in any event, he then pursued the case guardian issue. I see no justifying circumstance there.
In respect of the 22 October hearing, the husband had anticipated (quite appropriately) that there would be an inter partes dispute about the case guardian. He appropriately engaged lawyers to pursue the understood position from 8 October. The lack of correspondence bearing in mind the wife was in regular communication with her solicitor means that the husband should have been put on notice that she had decided not to pursue that which was canvassed in the previous hearing. He incurred costs however on the basis that he was not going to agree to the wife’s position even if she had continued on the contemplated pathway. In reality, his case was appropriately prepared and put and I am not convinced he would not have proceeded even if the wife had indicated earlier than she did that she would not promote the order. There is therefore no justifying circumstance there even if I am critical of the wife’s lawyers for leaving such a significant position unstated until the eleventh hour.
The justification therefore relates to 24 September. The wife had certainly indicated she was going to seek an adjournment but the basis was unclear and as I have indicated the evidence did not justify the vacating of the trial. Before making an order however, the Court is obliged to take into account the factors in s 117(2A).
No one factor in s 117(2A) is decisive of the outcome.
The husband says that the wife was wholly unsuccessful. I agree.
The financial circumstances of the parties in general terms are not very different. The wife deposes to living on maintenance and having an interest in a home but she has also received a partial distribution of property of $125,000. She received that in June. In April 2014, January 2015 and again in April 2015, she showed no outstanding legal fees so I have presumed that whilst she has incurred fees since then, they could not have been all expended by the $125,000 payment.
The husband’s financial position was no better. Absent something being established to show the foundation has significant interests that belong to the husband, he would appear to have not much. Thus, his financial circumstances would appear to be affected by constantly paying legal costs to his lawyers. The prospect of leaving the question over to the trial is tempting because if the wife’s assertions are correct, the husband may have significant interests in Country B. But she too has sought an order for $5 million dollars if she is right in which case, her financial circumstances would hardly be dire.
Section 117(2A) requires consideration of conduct but it is conduct as a litigant. Here, the issue is whether the husband was inconvenienced by the illness of the wife.
It is important to observe here as the Full Court did in Collins and Collins (1985) FLC 91-603 that the discretion in s 117 is broad and that the relevant factors in s 117(2A) are not to be read in a restrictive way. Any one or more of the factors in s 117(2A) may be the sole foundation for an order for costs (see Fitzgerald v Fish (2005) 33 Fam LR 123) but it is the law that all of the factors must be taken into account and balanced (see I and I (1995) FLC 92-625).
I find in the circumstances that taking into account the way in which the wife approached the hearing on 24 September, she should pay the husband’s costs for that day and the necessary preparations such as briefing counsel for that hearing. In default of agreement, the costs will have to be assessed.

I certify that the preceding Sixty Two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 October 2015.

Associate:

Date: 23 October 2015