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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Keir & Ramsay

Details

AGLC: Keir & Ramsay [2022] FedCFamC1F 362
Case: [2022] FedCFamC1F 362
Decision Date

CaseChat Overview and Summary

The matter involves an application by Ms Keir for the appointment of a litigation guardian for Mr Ramsay, who is an inpatient in a mental health facility. This application was filed on 13 May 2022 in the Family Court of Australia. The application arises out of property adjustment proceedings initiated by Ms Keir in the Federal Circuit Court on 15 January 2020, seeking orders under section 90SM of the Family Law Act 1975 (Cth). Mr Ramsay responded to the initiating application on 25 May 2020, seeking other orders regarding property adjustment. The applicant and respondent each assert differing dates for the commencement and termination of their de facto relationship. The applicant claims a relationship beginning in mid-2007 and ending in late 2019, while the respondent asserts cohabitation from mid-2010 to late 2016. The applicant seeks to distribute property valued at slightly over $1 million, whereas the respondent contends the value is slightly over $300,000. Both parties have interests in corporations, G Pty Ltd and M Pty Ltd, and were involved in a project producing adult material.

The primary legal issues before the court include the determination of the de facto relationship's commencement and termination dates, the valuation of the property available for distribution, and the resolution of the parties' competing claims regarding their interests in the corporations. The court must also consider the respondent's mental capacity and the necessity of appointing a litigation guardian. The applicant's argument for appointing a litigation guardian hinges on Mr Ramsay's current mental health status and his inability to adequately represent his own interests in the proceedings. The court was tasked with evaluating the evidence provided by both parties and determining the appropriate course of action to ensure a fair and just resolution of the property adjustment and other related issues.

In its reasoning, the court considered the evidence presented by both parties, focusing on the respondent's mental health and capacity to participate in the litigation. The court determined that Mr Ramsay's current mental health condition warranted the appointment of a litigation guardian to assist him in managing his legal affairs. The court recognised the importance of ensuring that Mr Ramsay's interests were adequately protected and that he could participate meaningfully in the proceedings. The court also addressed the property adjustment claims, considering the evidence regarding the valuation of the assets and the contributions made by each party during the relationship. The court concluded that the property available for distribution should be valued based on the evidence provided, with adjustments made as necessary to reflect the contributions of each party. The court made orders appointing a litigation guardian for Mr Ramsay and directed further steps to be taken in the property adjustment proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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)

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