Keir & Ramsay
[2022] FedCFamC1F 362
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keir & Ramsay [2022] FedCFamC1F 362
File number(s): CRC 8 of 2020 Judgment of: CAMPTON J Date of judgment: 23 May 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to appoint a litigation guardian – Where the respondent is an inpatient at a psychiatric clinic – Where the mandatory operation of r 13.12(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is engaged Legislation: Family Law Act1975 (Cth) ss 90SM, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.12, 13.4, 13.5
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 20 May 2022 Place: Sydney Counsel for the Applicant: Mr O’Brien Solicitor for the Applicant: J Lawyers Solicitor for the Respondent: Litigant in person (did not participate) ORDERS
CRC 8 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KEIR
Applicant
AND: MR RAMSAY
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS THAT:
1.By no later than 4.00 pm on 25 May 2022, the applicant serve a sealed copy of the following on the President of the Law Society of NSW:
(a)The Orders dated 16 May 2022 and 23 May 2022;
(b)Reasons for judgment dated 23 May 2022;
(c)The Application in a Proceeding filed by the applicant on 13 May 2022;
(d)The affidavit of the applicant filed on 13 May 2022;
(e)The affidavit of Ms L filed on 19 May 2022; and
(f)Exhibits R1, R2, R3 and R4.
2.Simultaneously with compliance with Order 1, the applicant pay in the first instance the fee of $660 to the Law Society of NSW to facilitate the nomination of a suitably qualified solicitor to be appointed as a litigation guardian for the respondent, the applicant having leave to seek further orders by way of reimbursement of or contribution to such nomination fee.
3.The solicitor nominated by the President of the Law Society of NSW pursuant to these orders is requested to consent to the appointment as the litigation guardian for the respondent and to file and serve upon the applicant a Notice of Consent to such appointment and a Notice of Address for Service within 21 days of service pursuant to Order 1 above.
4.That upon the filing of a Notice of Consent pursuant to Order 3, the said nominated solicitor is appointed as the Litigation Guardian for the respondent, in respect of proceedings number CRC 8 of 2020 and the proceedings transferred from the Federal Court of Australia number NSD 1237 of 2020.
5.Upon compliance with Order 3 the nominated solicitor is at liberty to obtain a copy of all documents on the court file.
6.In the event the process of nomination of a Litigation Guardian for the respondent by the President of the Law Society of NSW, or the consent to the appointment of a litigation guardian for the respondent, fails to be completed pursuant to the Orders above on or before 20 June 2022, then:
(a)The applicant is to forthwith serve a sealed copy of all documents specified in Order 1 herein upon the proper officer of the NSW Trustee and Guardian; and
(b)Pursuant to r 3.16(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court requests that the NSW Trustee and Guardian accept an appointment as the manager of the affairs of the respondent for the purposes of the appointment of a litigation guardian; and
(c)The NSW Trustee and Guardian pursuant to these orders is requested to consent to the appointment as the litigation guardian for the respondent and to file and serve upon the applicant a Notice of Consent to such appointment and a Notice of Address for Service within 21 days of service pursuant to Order 6(a) above; and
(d)Leave is granted to the relevant officer of the NSW Trustee and Guardian to obtain a copy of all documents on the court file; and
(e)That upon the filing of a Notice of Consent pursuant to Order 6(c), the NSW Trustee and Guardian is appointed as the Litigation Guardian for the respondent, in respect of proceedings number CRC 8 of 2020 and the proceedings transferred from the Federal Court of Australia number NSD 1237 of 2020.
7.In the event the process of nomination of a Litigation Guardian for the respondent by way of the President of the Law Society of NSW, or by way of the NSW Trustee and Guardian pursuant to these orders fails to be completed pursuant to the Orders above on or before 18 July 2022 from the date of these orders, then:
(a)The applicant is to forthwith serve a sealed copy of all documents specified in Order 1 herein upon the proper officer of the Commonwealth Attorney General’s Department; and
(b)Pursuant to r 3.16(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court requests that the Commonwealth Attorney General’s Department accept an appointment as the manager of the affairs of the respondent for the purposes of the appointment of a litigation guardian; and
(c)The Commonwealth Attorney General’s Department pursuant to these orders is requested to consent to the appointment as the litigation guardian for the respondent and to file and serve upon the applicant a Notice of Consent to such appointment and a Notice of Address for Service within 21 days of service pursuant to Order 7(a) above; and
(d)Leave is granted to the relevant officer of the Commonwealth Attorney General’s Department to obtain a copy of all documents on the court file; and
(e)That upon the filing of a Notice of Consent pursuant to Order 7(c), the Commonwealth Attorney General’s Department is appointed as the Litigation Guardian for the respondent, in respect of proceedings number CRC 8 of 2020 and the proceedings transferred from the Federal Court of Australia number NSD 1237 of 2020.
8.The proceedings are stayed pending the appointment of a litigation guardian pursuant to these orders.
9.Leave is granted to the applicant or the litigation guardian appointed pursuant to these orders to relist the matter on 72 hours written notice by email to the Court and to the applicant or litigation guardian for the respondent, and in the event of such relisting, the applicant shall append to the email a Minute of Order sought on the relisting.
10.The balance of the relief sought by the applicant in her Application in a Proceeding filed on 13 May 2022 shall be adjourned for further directions on 22 July 2022 by way of Microsoft Teams.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keir & Ramsay has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
Ms Keir (“the applicant”) applies by way of an Application in a Proceeding filed on 13 May 2022 to appoint a litigation guardian for the benefit of the respondent, Mr Ramsay (“the respondent”). This application is made in circumstances where the respondent is currently an inpatient in a mental health facility.
BACKGROUND
The applicant by way of an Initiating Application filed on 15 January 2020 in the Federal Circuit Court sought orders for property adjustment pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). The respondent by way of a Response to an Initiating Application filed on 25 May 2020 sought other orders as to property adjustment.
The applicant asserts a de facto relationship commenced with the respondent in mid-2007. The respondent asserts cohabitation commenced in mid-2010. The applicant asserts the de facto relationship between the parties concluded in late 2019. The respondent asserts a termination in late 2016. There are no children of the relationship.
The affidavit evidence filed in the litigation to date records disparate evidence of each party as to each of their contributions at the commencement of their relationship and subsequent thereto. The applicant contends property available for distribution valued slightly in excess of $1 million. The respondent contends the property available for distribution is slightly in excess of $300,000.
The parties each contend interests in corporations, being G Pty Ltd (ACN …) and M Pty Ltd (ACN …) . It appears uncontroversial that during the relationship the parties were engaged in a project producing images of the applicant in the form of adult material published on the internet.
In compliance with orders made by Judge Turner on 26 May 2020, the parties attended mediation with an accredited Family Dispute Resolution Practitioners on 23 June 2020. They did not resolve their property matters on that date.
On 17 September 2020, Orders were made directing the distribution of the proceeds of sale of a property owned by the respondent, such that the sum of $250,000 was to be retained by his solicitors in a trust account pending further order and the balance of the proceeds was to be paid to the respondent. Other orders progressing the matter, including as to the appointment of single expert valuers to value the parties’ commercial and real estate interests were made on that date.
The respondent instituted proceedings in the Federal Court of Australia in November 2020 against the applicant claiming his oppression as a shareholder of the parties’ corporate interests occasioned by the applicant. In addition to the applicant being a defendant in those proceedings, G Pty Ltd is the second defendant and M Pty Ltd is the third defendant. On 10 February 2021, orders were made in the Federal Court transferring those proceedings to the Family Court of Australia (as it was then). Those proceedings are to be heard at the same time as the s 90SM matters. The applicant as the defendant in the Federal Court proceedings has filed a Response to Concise Statement being a form of pleading on 17 December 2020. Neither corporation has filed a Notice of Address for Service or appeared in this forum.
On 10 February 2021 the matter was transferred by orders of Judge Jarrett to what was then the Family Court of Australia. It was noted that at that time the parties were engaged in ancillary proceedings in the Federal Court of Australia and that they had signed consent orders requesting that those proceedings be transferred to what was then the Family Court of Australia as well.
On 24 March 2021 the applicant filed an Application in a Proceeding seeking a raft of injunctions against the respondent, including that he be restrained from producing, and distributing any content relating to the applicant, her solicitors, and her family of friends, and that he remove any such content already distributed online. She also sought an interim distribution from the respondent of $100,000 by way of interim costs and lump sum maintenance. She made allegations that the respondent had, after the parties separated, distributed intimate video footage of the applicant without her consent by way of submitting the footage to various film festivals and providing it to the applicant’s family, her solicitors, and others.
Justice Rees on 20 April 2021 made orders inter alia restraining the respondent from producing, publishing or disseminating any material relating to the applicant and directing that he cause to be removed and dispose himself of any such media already in his possession or already published or distributed. Her Honour also ordered that the parties facilitate the sum of $50,000 to be paid to the applicant from the proceeds of trust of a property at Suburb C, such payment being a payment pursuant to s 117 of the Act.
On 12 August 2021 the parties attended a Conciliation Conference before a registrar of this Court. They were unable to resolve the matter on this date.
The respondent at the date of this hearing is not represented. Since the commencement of these proceedings in January 2020, he has been represented by five separate solicitors. His most recently engaged solicitor, T Lawyers, filed a Notice of Ceasing to Act on 5 May 2022, being about two weeks before this hearing.
The current application
The proceedings came before me for case management on Monday, 16 May 2022.
At 9.00 am on 13 May 2022, being the working day immediately prior to the case management listing, the respondent sent an email to my chambers, which was marked as Exhibit R1 and recorded among other things:
(a)He is currently a level three inpatient at the N Centre at P Street in Suburb Q;
(b)This is his second admission to that facility, his first commencing in early 2022 and for a period of four weeks;
(c)The respondent records a deteriorating mental health presentation caused by the fact of these proceedings. He conceded that from 1 March 2021 the applicant has raised as an issue in the proceedings his capacity;
(d)That it was the respondent’s view that as and from 9 May 2022 he was “legally incapacitated, incapable of competently representing [himself] or understanding the consequences of the proceedings”.
There is some uncertainty as to whether the respondent’s current admission was voluntary or whether he was scheduled pursuant to relevant mental health legislation.
Accompanying the email was an 89 page document prepared on behalf of the respondent by others, being people he records as “concerned friends and staff of [N Centre]”. For the purpose of the proceedings before me, that document was marked as Exhibit R2. I have adopted it as a Case Outline document. Exhibit R2 records inter alia, the respondent’s request that a “sufficiently qualified legal guardian” be appointed for him in this matter. He sought that the fees of the legal guardian be paid from monies currently held in the trust account of his former solicitor pursuant to orders of this court. Annexed to Exhibit R2 were documents supporting the respondent’s evidence of his admission at the N Centre, including medical certificates and a letter from his treating psychiatrist.
On 13 May 2022, the business day prior to the case management hearing, the applicant filed an Application in a Proceeding seeking the appointment of a Litigation Guardian for the respondent and other consequential orders to facilitate that appointment, as well as other relief varying prior orders as to where trust monies are held and restraining the respondent personally from taking “any active step in these proceedings”. She filed a lengthy affidavit in support of her affidavit, in which she gave evidence as to her understanding of the applicant’s mental health status, including that she understood:
4.… that [the respondent] has been diagnosed with/ self-diagnosed with/ has exhibited symptoms to medical practitioners of:
(a) Extreme Anxiety;
(b) Depression;
(c) Severe ADHD;
(d) Avoidant Personality Disorder;
(e) Obsessive Compulsive Personality Disorder;
(f) Narcissism; and
(g) [A neurological disorder].
The affidavit records the provision of letters and reports from the respondent’s treating psychiatrist and then from other persons commencing in mid-2021, requesting a “hold” on these proceedings pending a restoration of the respondent’s mental health. The applicant records the respondent’s conduct as to allegedly failing to comply with orders and flooding her lawyers with emails. Some of these emails are identified in the reasons for judgment delivered by Rees J on 20 April 2021. In addition to the Federal Court dispute between the parties being transferred to this forum, the evidence records complaints made to ASIC, the Australian Taxation Office and the NSW Police. The evidence further records other satellite information in the Local Court of NSW next before that Court on 23 May 2022.
On 16 May 2022, I made orders that the applicant serve upon the respondent a copy of her Application in a Proceeding and affidavit each filed on 13 May 2022, and listed the applicant’s Application in a Case as to her Order sought for the appointment of a Litigation Guardian for hearing on 20 May 2022. The email as to the provision of the documents as ordered to the respondent’s email address originating from the applicant’s solicitors dated 17 May 2022 was marked as Exhibit A1. I am satisfied that notice of the applicant’s Application in a Case and of the fact and nature of this hearing has been provided to the respondent, to social workers at the N Centre and to the respondent’s treating psychiatrist, by reason of the communications sent to my chambers as recorded in these reasons.
On 19 May 2022, the applicant filed a further affidavit in support of her Application in the Case in which she deposed to the steps she and her solicitors had taken to enquire with the Law Society of NSW as to the mechanism for the appointment of Litigation Guardians. Her affidavit records:
2.I made enquiries with the Law Society of NSW and was advised that parties may request the President of The Law Society of New South Wales to appoint an independent solicitor when a case guardian is required for a party to a family law proceeding. I understand that the request can be made via a consensus position between the parties or pursuant to Orders.
3. In terms of the process I understand that the requests for the Presidential appointment of an independent solicitor should be made in writing and should include, if relevant, a copy of the Order or Terms allowing the President of The Law Society of New South Wales to make the appointment.
4. In relation to the fees for the presidential appointment of an independent solicitor, I understand that under the relevant Order, the President's role is to simply appoint a suitably qualified solicitor. The appointed independent solicitor then sets his or her own fees and invoices the parties directly. The party requesting the nomination must pay a non-refundable fee of $660.00 (including GST). If both parties agree to the nomination, the may be shared equally between them.
At 7.51 pm on 19 May 2022, the respondent provided by way of email to my chambers, marked as Exhibit R3 a letter which appears to be sent from his treating psychiatrist, Dr R of S Hospital. The subject line of R3 is recorded as being:
“Request for 1. An assessment of [Mr Ramsay’s] capacity to give direction before the court, 2. Whether [Mr Ramsay] requires a court appointed Public Guardian to act on his behalf”
The letter records Dr R’s recommendations to the Court as to how to progress these proceedings in light of the respondent’s current circumstances, including that:
(a)The proceedings be adjourned for a period of three months to allow the respondent to “engage proactively in treatment”; and
(b)That the respondent will need to be an outpatient, that is, not a current patient in a mental health facility, to proceeding with future court hearings; and
(c)That any assessment as to the respondent’s capacity ought to be conducted by an independent psychiatrist other than himself.
My chambers received a further email from the respondent half an hour prior to the commencement of the hearing on 20 May 2022, marked as R4. That email recorded that:
(a)The respondent withdrew his application that he “be considered legally incapacitated” after having spoken with the Law Society, saying that his “treating clinical psychiatrist Dr R has advised that [his] condition may not [be] permanent, and my improve if [he is] given time to heal”; and
(b)That his “first priority is to the court”;
(c)But that prior to focussing on the court proceedings he will need to be released from the facility he is currently in, and apply for legal aid or pro bono assistance; and
He said that he is unable to take any of those steps while he is in an inpatient. He said he anticipates, on the recommendation of his treating psychiatrist, that he will require a three month adjournment of the proceedings to be released from the N Centre and pursue all the necessary steps to engage in these proceedings.
THE LAW AND DETERMINATION
This is an interlocutory determination as to the appointment of a Litigation Guardian for the respondent. The large number of allegations made as identified by the parties in their affidavit evidence will be determined at a final hearing. So that it is plain, I am not making any findings of fact in the property settlement proceedings, the transferred Federal Court proceedings or otherwise as to the large number of allegations made by each party as against the other.
Inherent to the jurisdiction of the court is the necessity of the protection of the integrity of its own processes and to ensure litigants who are otherwise at a disadvantage are properly protected, and in so far as is necessary. Cast against the shadow of the expanding conflict in this case, it is fundamental that the parties to this litigation are focused in their endeavours consistent with the purpose of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The appointment of a litigation guardian is mandated by Pt 3.5 of the Rules. Rule 3.12 prescribes:
3.12 Person who needs a litigation guardian
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a)does not understand the nature and possible consequences of the proceeding; or
(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
The language of that rule is mandatory. That is, once it is determined that a person satisfies either of the indicia, the proceedings may continue only by way of a litigation guardian being appointed in respect of that person.
Perhaps unusually in this case, on the evidence before me, both the applicant and the respondent on the matter coming before me on 16 May 2022 sought an order for the appointment of a litigation guardian for the respondent. The respondent’s position, on its face, appears to have shifted over the period of four days pending the hearing on 20 May 2022.
On a consideration of all of the evidence, including the documents marked as Exhibits R1 through to R4, I am satisfied that the respondent is not capable of adequately conducting or giving adequate instruction for the conduct of these proceedings while he is an inpatient of the psychiatric facility. I find that the mandatory operation of r 13.12(1)(b) is engaged.
I find and declare that the respondent requires a litigation guardian in relation to these proceedings.
Neither party identifies a specific person with no interest in the proceeding adverse to the respondent to consent to the role of the respondent’s litigation guardian. Rule 3.14 provides:
A person may be a litigation guardian in a proceeding if the person:
(a)is an adult; and
(bhas no interest in the proceeding adverse to the interest of the person needing the litigation guardian; and
(c)can fairly and competently conduct the proceeding for the person needing the litigation guardian.
In my view it is important that a person who is seen to be both independent and impartial ought to undertake the task. The respondent is currently in NSW. I find on the evidence that the president of the Law Society of NSW is an avenue by way of nomination of a suitably qualified independent and impartial solicitor to undertake the task of the appointment as litigation guardian of the respondent, and is the most efficient methodology available to achieve that objective. In circumstances where the respondent contends he is impecunious and the applicant conceded it would be appropriate, she shall meet the costs of the nomination of the litigation guardian with the Law Society of NSW in the first instance, the characterisation of such payment to be determined by the Court at a later date. Should the nominated solicitor file a Notice of Consent to be the respondent’s litigation guardian, it will be a matter for that litigation guardian to make such application for security of and payment of their fees as they consider appropriate.
In the event that the prescribed process fails within a short time frame then it is necessary to ensure alternatives are in place, including with the NSW Guardian and Trustee, being the statutory body for NSW residents to provide assistance and management in this capacity. In the event a methodology to appoint a litigation guardian by way of the Law Society of NSW or the NSW Guardian and Trustee fails, a further alternative process is proscribed by the Rules.
For the purposes of these reasons I am mindful of the capacity for and application to be made for the removal of a Litigation Guardian or substitution of another person as Litigation Guardian. The interlocutory nature of the order appointing a Litigation Guardian is confirmed by way of a capacity within the rules for either the removal of the litigation guardian or the substitution of another person. Rule 3.15 records:
3.15 Appointment of litigation guardian
(1)A person may apply for the appointment, replacement or removal of a person as the litigation guardian of a party.
(2)The court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian, or substitute another person as litigation guardian, in a proceeding in the interests of a person who needs a litigation guardian.
(3)A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding.
(4)The court may remove a litigation guardian at the request of the litigation guardian.
This determination is solely as to the appointment of a litigation guarding for the respondent and the process whereby an appropriate person can be sourced to consent to that appointment. I will otherwise stand over the balance of the relief sought by the applicant in her Application in a Proceedings and otherwise check the progress of the matters on 22 July 2022.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 23 May 2022
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