Keir & Ramsay (No 2)
[2022] FedCFamC1F 730
Federal Circuit and Family Court of Australia
(DIVISION 1)
Keir & Ramsay (No 2) [2022] FedCFamC1F 730
File number(s): CRC 8 of 2020 Judgment of: CAMPTON J Date of judgment: 20 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge a litigation guardian – Where the respondent was an inpatient in a psychiatric ward but has since been discharged – Where the Court is satisfied that the respondent understands the nature and possible consequences of the proceedings, and is capable of conducting the proceedings – Order for the appointment of a litigation guardian discharged – Further Application to shift monies held in the trust account of the respondent’s former solicitors to the applicant’s current solicitors – Where it is sensible and practical for solicitors with some connection to the litigation to hold the funds. Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.08, 3.12, 6.37
Cases cited: Keir & Ramsay [2022] FedCFamC1F 362 Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 20 September 2022 Place: Sydney Solicitor for the Applicant: J Lawyers Solicitor for the Respondent: Litigant in person 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:
20 September 2022
THE COURT ORDERS THAT:
1.I discharge Orders 1 to 9 as made on 25 May 2022.
2.The parties are to forthwith and within 7 days do all such things as are necessary to cause the balance of funds held on trust for the respondent with T Lawyers to be transferred to the trust account of the applicant solicitors J Lawyers to be held thereafter on trust for the respondent.
3.Save and except by way of agreement in writing between the parties for orders of Court, each party are restrained from withdrawing, transferring, dealing with or otherwise adversely affecting the monies held on behalf of the respondent in the trust account of J Lawyers.
4.I otherwise reserve the costs of the applicant in relation to her Application in a Proceeding as filed 13 May 2022, the costs of the respondent in replying to that Application in a Proceeding, the costs of the respondent to his Application in a Proceeding filed 12 September 2022 and the applicants Response to that Application in a Proceeding to the trial.
5.Upon noting that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in these proceedings, the respondent Husband must not cross-examine the applicant Wife personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the respondent Husband.
6.Within seven days of the date of these orders, the respondent Husband is to complete the "Scheme Application Form" and provide that form to Legal Aid NSW (…@...) for the allocation of a legal practitioner.
IT IS NOTED THAT
7.Pursuant to s 102NA(1), there is an allegation of family violence between the applicant Wife and the respondent Husband, and the Court has made an order that the requirements of subsection (2) are to apply to the cross-examination.
8.The parties have each been advised by the Court that:
(a)pursuant to those requirements, neither party may cross-examine the other party personally;
(b)pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
(c)as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d)a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
9.If the respondent Husband fails to apply to Legal Aid NSW for legal representation pursuant to these orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.
AND THE COURT NOTES THAT
A.The respondent Husband instituted proceedings in the Federal Court of Australia in late 2020 as against the applicant claiming oppression as a shareholder in respect of corporate interests held by the parties being in G Pty Ltd and M Pty Ltd. Each of the corporations were name and the second and third defendants in the Federal Court proceedings.
B.On 10 February 2021 orders were made in the Federal Court transferring those proceedings to the Family Court of Australia (as it was then) to be heard at the same time as the current s90SM dispute.
C.Neither corporation has filed a Notice of Address for Service or appeared in this forum.
D.Rule 3.09 provides that corporations must be represented so as to start or carryon a proceeding in this forum. That is they must be represented by a lawyer save and except of leave of the Court.
E.In the circumstances I do not propose at this time to make any directions mandating the appearance of the corporations in these proceedings or to include the said corporations for the purposes of the directions for trial as follows in these orders.
THE COURT ORDERS THAT
10.The proceedings are listed for trial for 3 days commencing in the rolling list in Sydney on 6 March 2023.
Hearing fees
11.The applicant and the respondent must pay the setting down and hearing fees in equal amounts (or seek an exemption) no later than 4.00 pm on 28 days prior to the trial.
Material to be filed
12.On or before 7 October 2022 the applicant de facto wife is to file and serve any Amending Initiating Application setting out with particularity the final orders sought.
13.On or before 21 October 2022 the respondent de facto husband is to file and serve any Amending Response to an Initiating Application setting out with particularity the final orders sought.
14.On or before 25 November 2022 each of the applicant and respondent are to file and serve:-
(a)an updating Financial Statement;
(b)a single, consolidated trial affidavit relevant to their case;
(c)a single, affidavit of each other witness they intend to rely upon at trial;
(d)an undertaking as to disclosure in accordance with r 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
All affidavits are to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
15.Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at trial without the leave of the Court.
16.On or before 30 November 2022 the applicant de facto wife shall serve upon the respondent de facto husband a joint draft balance sheet to include:
(a)all assets, liabilities, superannuation interest and financial resources suggested to be relevant and to include values as alleged by each party:
(b)The respondent de facto husband shall then within 7 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect his contra allegations and any values that are agreed (if applicable);
(c)Wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy;
(d)Upon completion of any Single Expert Valuation, the balance sheet shall be amended to reflect determined/agreed values; and
(e)A final, settled version of the joint balance sheet shall be filed and served by no later than 7 December 2022.
17.In the event that either party becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
List of issues
18.No later than 28 days prior to the trial date, each party is to file and serve on the other party a document setting out with precision what that party contends to be the issues in the proceedings.
Factual findings
19.No later than 21 days prior to the trial date, each party is to file and serve on the other party with a document setting out with precision the factual findings that party will contend should be made by the Court, and for each factual finding sought, the document shall identify the reference to a paragraph number of the relevant affidavit and/or a precise reference to the document in the annexures or exhibits that supports the making of that factual finding.
Outline of Case
20.Not less than 7 days prior to the trial date, each party is to file and serve a Case Outline document and shall include:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court; ( may be omitted if above order made as to joint chronology).
(c)a summary of contributions claimed or contended for, and the percentage-based contributions contended for;
(d)a summary of the relevant 90SF(3) factors and the percentage-based adjustment contended for; and
(e)any further factors relevant to determining a ‘just and equitable’ division of property.
Objections
21.Each party shall, not less than 14 days before the commencement of the trial:
(a)Notify the other party in writing of any objection to any material in any affidavit filed by the other party;
(b)Specify the paragraph or part of the paragraph objected to; and
(c)Detail the grounds of the objection.
22.The other party shall reply to the objections in writing within 7 days of receipt.
23.The parties before the trial shall confer in relation to any objections and provide to the Court at the commencement of the trial a list setting out:-
(a)The agreed deletions from each affidavit; and
(b)The objections to be argued on the hearing date and the ground for the objections.
24.In the event the parties fail or neglect to comply with these orders as to the taking of objections, leave is required to take objections to the affidavit evidence at the commencement of the trial.
25.In the event either party wishes to issue subpoena for the production of documents they are to make such application for subpoena to the docket Judicial Registrar.
Trial plan
26.Not later than 48 hours prior to the trial date, the parties are to confer and prepare a trial plan allowing for the matter to complete within the allocated time, including oral submissions.
Single expert evidence
27.I direct that the parties do all such things that are necessary to direct the single real property valuation expert to update their opinion as to the value of the Town F property by way of instructions to the single expert within 14 days of the date of these orders and for the purposes of facilitation of that order the applicant is to provide to the respondent the draft updating letter of instruction to the expert and the respondent is to provide any amendments to that draft within 7 days thereafter. The applicant will thereafter forward the letter of instruction to the single real property expert.
28.I note it is estimated that the cost for the updated opinion will be in the range of $1200 but the parties cannot agree as to how that costs will be funded. In the circumstances absent the parties reaching agreement in writing within 14 days as to how the cost of the updated opinion is to be funded, I direct that:
(a)The applicant forward to chambers a document of no greater than two pages in length proposing a regime where by the updated expert opinion will be funded within 21 days of the date of these orders and the respondent forward a document of no greater than two pages in length within 28 days of the date of these orders in response to the issue as to the funding of the expert to be determined by me in chambers.
(b)I note the provisions of the Rules where by each of the parties would in the first instance meet one half of the costs of the single expert.
29.I note that pursuant to the orders made by Judge Jarrett (as he was then) on 17 September 2020 the costs of single expert valuers were to be met from the injuncted portion of the funds produced on the sale of U Street, Suburb C Victoria.
30.The orders made by Judge Jarrett on 17 September 2020 appointed Mr V of W Pty Ltd as a single forensic accounting expert to value the interests of the parties in the following entities:
(a)X Pty Ltd;
(b)G Pty Ltd; and
(c)M Pty Ltd.
31.That expert has not undertaken the process of opining as to the value of the party’s interests in the said corporations.
32.It is the contention of the applicant that each of the relevant corporations have traded at a loss for a number of years and the value of the interest of the parties in each corporation (if anything) will be less than the costs to be undertaken in the progression of the single expert opinion. Implicitly the applicant identifies the overarching purpose recorded in r1.04 and in s67 of the Federal Circuit and Family Court of Australia Act so as to take a path in the litigation to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. The respondent contends that the forensic accounting opinion as to the value of the party’s interests of the party three corporate entities is required for the s 90SM dispute. In the circumstances I defer the determination of the issue as to whether the order made by Judge Jarrett on 17 September 2020 as to the appointment of a single forensic accounting expert to value the interests of the party’s in each of the three said corporate entities to be determined by me by way of Microsoft Teams at 2.15pm on 23 September 2022 and for the purposes of that hearing I direct that:
(a)The respondent de facto husband file and serve on or before 10am 23 September 2022 a draft letter of instruction to be provided to the proposed single expert and identify the approximate costs of the single expert’s opinion; and
(b)The applicant de facto wife file and serve the last three published financial statements of each of X Pty Ltd, G Pty Ltd; and M Pty Ltd by way of exhibiting said documents to an affidavit.
33.I note that in the event there is no updated valuation report as to the Town F property available at the commencement of the hearing then it is likely than an order will be made that the property will be solicitor.
Notice to Single Expert
34.Where a party wishes to cross examine a Single Court Expert Report writer at the final hearing, that party shall provide written confirmation to the Single Court Expert not less than two (2) months prior to the commencement of the trial. In the event this order is not complied with and the Single Court Expert writer is unavailable the Single Court Expert Report will be admitted into evidence without cross examination subject only to evidentiary objection.
Tender Bundles
35.The parties’ legal representatives only are to photocopy all documents produced on subpoena to which access has been granted in the proceedings for the purposes of each preparing a proposed tender bundle.
36.The tender bundle is to comprise all documents that the parties’ propose to tender into evidence, or put to a witness in cross examination.
37.In the event either party proposes to rely on a tender bundle, that tender bundle is to be bound, indexed and paginated and provided to each of the parties and my Associate electronically and hard copy not less than two business days prior to the commencement of the hearing.
38.For the purposes of this direction, the provision of r 6.37 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as to documents comprising child welfare records, criminal records, medical records or police records shall not apply.
39.Photocopies of any documents referred to in the above order shall be retained in the possession of a parties’ legal representative at all times and are not to be otherwise disseminated or distributed in any manner other than for the purposes of the proceedings and at the conclusion of proceedings be destroyed by the legal practitioner, or returned to the Registry.
40.The respondent de facto husband has leave to file his Application in a Proceeding filed 15 September 2022 seeking urgent lump sum s77 maintenance and list that application by way of Microsoft Teams at 2.15pm on 23 September 2022 noting the evidence in support of the urgent maintenance application is contained in an affidavit of the respondent de facto husband bearing the same date.
41.Save and accept with leave of the docket registrar each of the applicant de facto wife and respondent de facto husband are not to file any further Applications in a Proceeding except in circumstances of extreme urgency or any further affidavit material save and accept as provided for by these directions.
42.That in the event either party wishes to issue subpoena for the production of documents they are to make such application for subpoena to the docket Judicial Registrar.
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).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J
Application to discharge the litigation guardian
In this matter, Mr Ramsay (“the respondent”) applies by way of an Application in a Proceeding sealed on 12 September 2022 to discharge orders made by me on 23 May 2022 to appoint a litigation guardian for his benefit for the purposes of these proceedings. Ms Keir (“the applicant”) opposes the respondent’s application for discharge of the orders appointing a litigation guardian for the benefit of the respondent.
These reasons assume familiarity with the reasons delivered on 23 May 2022, being Keir & Ramsay [2022] FedCFamC1F 362.
The parties’ litigation in this Court and other courts to date records a somewhat tortuous history.
An appointment of the litigation guardian for the benefit of the respondent was made in circumstances where the respondent was an inpatient in a psychiatric ward at Suburb Q Private Hospital. It is uncontroversial, as was identified by way of a discharge summary dated mid- 2022, that the respondent ceased treatment at the hospital on that date.
Rule 3.12 of the Federal Circuit and Family Court Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that 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 proceedings; or
(b)Is not capable of adequately conducting or giving instruction for the conduct of the proceedings.
The Rules further provide a process whereby a litigation guardian can be discharged.
The evidence before me contained in Exhibit 2 records that the respondent initially presented before Mr Z, a psychologist, in mid-2022 with symptomology by way of acute stress and anxiety. Mr Z reports that over a period of six attendances upon the respondent, the last of which was a couple of months later in 2022, such symptomology “now appears to have significantly resolved”. He sets out his exchanges with the respondent, and says that the respondent has demonstrated an intelligent and structured approach to problem solving, uses coherent language and follows a logical sequence of commissions and memory with concentration appearing to be intact. It was Mr Z’s observation that the respondent does not present with delusions or paranoia, but rather presents as a person with insight and decision making capacities. Overall, Mr Z provides a positive prognosis and confirms that he will continue to support the respondent.
It is the opinion of Mr Z that the respondent can competently and respectfully represent himself in the current proceedings. Having regard to that evidence, I am satisfied:
(a)That the respondent understands the nature and possible consequences of the proceedings; and
(b)That he is capable of adequately conducting or giving adequate instructions for the conduct of the proceedings.
I am further mindful in the circumstances of the rights of litigants to be heard and for them to be represented in the proceedings as codified in r 3.08 of the Rules.
In those circumstances, orders will be made discharging Orders 1 to 9 as made on 25 May 2022. Each party can seek such orders seeking their costs of and incidental to their interlocutory applications for the appointment and discharge of a litigation guardian as they may consider just, such applications to be reserved for consideration at trial.
Application to shift funds held in trust
On 17 September 2020, orders were made by Judge Jarrett (as he was then) providing inter alia that the proceeds of sale of a property at U Street, Suburb C (“the Suburb C proceeds”) be disbursed as follows:
1.(a) Payment of $250,000.00 to the trust account of the [respondent’s] solicitors to be held pending further Order.
(b) The balance to the Respondent as he directs.
It was not controversial that pursuant to those orders, the sum of $250,000 was paid to the trust account of T Lawyers, being the then solicitors of the respondent. The balance of funds injuncted pursuant to the order to the trust account of the husband’s solicitors have been reduced, pursuant to further orders of the Court, to approximately $200,000.
By way of an Application in a Proceeding filed on 16 May 2022, the applicant sought that those orders be varied such that the funds be transferred from the trust account of T Lawyers to the trust account of J Lawyers (being the applicant’s current solicitors) pending further order.
The balance of the relief sought by the applicant in her Application in a Proceeding filed on 16 May 2022, save as to costs, has been determined by way of prior orders made in these proceedings.
The respondent by way of an Application in a Proceeding filed on 12 September 2022, resists the relief sought by the applicant, such that the said injuncted funds would remain the trust account of T Lawyers “until the respondent in the matter appoints a new legal representative, pending further order”.
The evidentiary foundations relied upon by each party in support of the relief sought, or its opposition, are somewhat scant.
The respondent is currently absent representation in the proceedings. It is submitted on behalf of the applicant that it is sensible and practical, in circumstances where the respondent currently has no solicitors, for solicitors with some connection to the litigation to hold the funds injuncted pursuant to the orders made by Judge Jarrett (as he was then).
The respondent contends that he may, or is likely to, obtain alternate representation in the future, and will direct T Lawyers to transfer the balance of the injuncted funds to the newly-instructed solicitor’s trust account. It is his contention that he does not understand the need, or want, for another firm of solicitors to hold the moneys on trust for him pursuant to the said injunctive order.
I have indicated to the parties that I propose to make orders, at the conclusion of the delivery of these reasons, for the allocation of final trial dates in early 2023.
It is uncontroversial that a final Apprehended Violence Order was made in the Local Court at Town D in mid-2022, restricting and prohibiting the conduct of the respondent as it is directed towards the applicant. In those circumstances, it is not controversial that the mandatory provisions of s 102NA of the Act will be engaged, ensuring the mandatory protection of the applicant in the circumstances of the case. Putting it another way, the respondent will be prohibited from engaging personally in the cross-examination of the applicant at the forthcoming trial. It may be that, in those circumstances, other solicitors will be engaged by the respondent.
This is a finely-balanced microscopic aspect of the overall dispute between the parties, and to my mind is reflective of their approach to this litigation. In the circumstances where the respondent currently does not have the benefit of legal representation, I am of the view that it is appropriate for the moneys subject to the injunction pursuant to the orders made by Jarrett J on 17 September 2020, are held in a trust account by solicitors who have some connection to the proceedings. The benefit of such a circumstance is self-evident, especially in circumstances where any orders made by the Court directing the parties in person to account for or to adjust the funds can be expeditiously implemented, and any aspect of the role of the husband’s prior solicitors in the proceedings is avoided.
Orders will be made that the parties forthwith and within seven days do all such things as are necessary to cause the balance of funds held on trust for the respondent with T Lawyers to be transferred to the trust account of the applicant’s solicitors J Lawyers to be held thereafter on trust for the respondent.
A further order will be made that save and except by way of agreement in writing between the parties or by way of orders of the Court, each party are restrained from withdrawing, transferring, dealing with or otherwise adversely affecting the monies held on behalf of the respondent in the trust account of J Lawyers.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 29 September 2022
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