KIRBEY & KIRBEY

[2016] FamCA 897

FAMILY COURT OF AUSTRALIA

KIRBEY & KIRBEY [2016] FamCA 897

FAMILY LAW – PROCESS AND PROCEDURE – Hearing vacated – Costs reserved.

APPLICANT: Ms Kirbey

RESPONDENT: Mr Kirbey

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1802 of 2015

DATE DELIVERED: 17 October 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 17 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tulloch

SOLICITOR FOR THE APPLICANT: Waterson Legal

COUNSEL FOR THE RESPONDENT: Mr Meehan

SOLICITOR FOR THE RESPONDENT: Susan Snyder

Orders

IT IS ORDERED THAT:

1.The final hearing set down for 19 October 2016 be vacated.

2.These proceedings be removed from my docket and placed in the list of cases awaiting allocation to a judicial docket NOTING THAT the husband’s lawyer proposes to make application for the appointment of a case guardian for the husband.

3.The costs of both parties be reserved.

4.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

IT IS DIRECTED:

5.That the letter from the medical practitioner, Dr B, for the husband and dated 14 October 2016 be marked Exhibit “H1” and remain on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kirbey & Kirbey 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 1802 of 2015

Ms Kirbey

Applicant

And

Mr Kirbey

Respondent

REASONS FOR JUDGMENT

ex-tempore

1. This matter comes before me following a mediation with the Honourable Mr Young QC in anticipation of hearing which was due to commence on Wednesday, 19 October 2016 and estimated to take two to three days.  This afternoon – and I note that it is now past 5 pm – the parties attend Court with their counsel and their instructing solicitors.  The husband is accompanied by his son. The wife is accompanied by her two sons.

2. The matter remains unresolved.

3. Counsel for the husband seeks an adjournment of the final hearing. The wife, through her counsel, opposes the adjournment.

4. Counsel for the husband submits that the matter cannot proceed on Wednesday because his client is thought by him and his instructing solicitor, in their capacity as his lawyers, to be unfit to give instructions.  There is some corroboration of that from the husband’s general treating medical practitioner, Dr B, of C Medical Centre.  The letter from Dr B will be marked exhibit “H1” and remain on the file.  It reads:

   Today, I assess [Mr Kirbey] in regard to his cognitive status.  He has distinct deficits in memory, particularly to do with time and finding words.  This is a change over the last two months.  I have referred [Mr Kirbey] to the [D Clinic].  They anticipate having an appointment for him in two to four weeks.”

5. The history of this matter is unfortunate.  Both parties are senior in years.  The matter came into my docket at the beginning of this year, as I recollect.  The matter was first before me, I think, on 23 February 2016.  And on that day, it was agreed that the parties would attend a private mediation with a member of the Victoria Bar to take place on 26 May 2016. The mediation was to occur after the parties had filed all expert valuation evidence. I mentioned to the parties that I would be in a position to provide them a final hearing shortly after the mediation. 

6. The mediation was to be conducted with at least one child of each of the parties present, it being my apprehension from discussions with counsel that it was important to involve the junior members of the family and not just the litigants in any meaningful endeavour to resolve the matter. 

7. The mediation on 26 May did not proceed because the husband was unavailable; he was hospitalised.  On 9 May 2016, the matter was mentioned to me, and the mediation on 26 May was formally cancelled.  My recollection is that Mrs Snyder may have raised at that stage some doubt as to whether or not her client was fit to give instructions, but I’m not sure.  A further mediation was arranged to take place on 24 June 2016.  Notably, as at early May 2016, the practitioners parties had not prepared the matter adequately for a mediation or a trial. Both had failed miserably to comply with my direction for trial. 

8. The matter was then before me again in early June 2016 for disputation about valuations, principally of real property in Israel. It was resolved. 

9. A mediation took place on or around 8 July 2016.  It was convened by Mr Melilli, of counsel. The matter did not resolve. Unfortunately, the wife’s son was not present, nor was any other member of her family.  The wife’s son resides in Asia and had been present in Australia for the mediation planned to take place on 26 May 2016 but then was required to return home.

10. On 8 July 2016, I heard from counsel for each of the parties. The wife welcomed an early hearing.  I allocated the matter a hearing of two to four days due to commence on 11 August 2016.  I directed that the wife was to file her evidence by 21 July 2016 and the husband by 28 July 2016. It was a tight timeframe but I had previously warned the practitioners that a trial date would be allocated swiftly if the matter did not resolve at mediation.

11. On 25 July 2016, the matter was mentioned to me. Both practitioners attended court and submitted that it could not proceed to a final hearing because the parties had not filed their material, being their evidence.  The trial on 11 August 2016 was vacated.

12. A further mediation was appointed for 17 October 2016 (today) and the final hearing was set down for Wednesday, 19 October 2016 at 10 am, estimated to take three days (one of which will be a short day).

13. Today, the parties have attended a mediation with Mr Young QC, but the matter remains unresolved. 

14. As indicated earlier, the counsel for the husband says that his client, in his assessment as a lawyer, lacked the capacity to give instructions and that this first came to his attention last Thursday afternoon during a conference at which the husband’s solicitor was not present, but did subsequently participate by telephone.  The consultation by Dr B with the husband occurred on the following day, last Friday (see Exhibit “H1”). 

15. The husband’s lawyer, Mrs Snyder, has been unable to source an expert to prepare a geriatric psychiatric report of the husband since last Friday, and they now seek an adjournment of the matter in order to do so.  They anticipate that a next friend will be appointed to act for the husband.  They do not say who will be nominated as a case guardian.  I note that Mr E Kirbey, the husband’s son, is in Court with him at the moment.

16. Mr Meehan says that, additionally, his assessment is now that the matter would have taken longer than the two and a half to three days allocated to it and that, even if the hearing commenced on 19 October, it would necessarily be part heard.  However, the major impediment is that Counsel and solicitor for the husband both say that they doubt that the husband is competent to give instructions. Interestingly, the mediation commenced at 9.30 a.m. today and the parties did not attend at court until after 4.00 p.m. I don’t know how they filled in the day if the husband could not give instructions but, as the mediation is wholly without prejudice, it is none of my business. However, there is a distinction between a litigant being a person for whom a case guardian is required, in the terms of our legislation, and a litigant who has an aversion to having their evidence tested.

17. The adjournment application is vigorously opposed by the wife. 

18. The wife attends Court with her two sons, one of whom is from Asia and the other one is from the Middle East.  So they have travelled quite some distance.  Whereas counsel for the husband characterises the wife as “living in Asia”, counsel for the wife submits that the wife has had to seek refuge in Asia and live with her son because living with the husband in the former matrimonial home is intolerable.  It is submitted by counsel for the wife that the inconvenience of an adjournment weighs much more heavily on the wife than it does on the husband, who is at the moment living in the former matrimonial home by himself. In short, the wife is prejudiced to a significant degree and to far greater degree than the husband whom I gather counsel submits, at least inferentially, may not be prejudiced at all.

19. Counsel for the wife informed the Court that, if the matter cannot proceed to a final hearing on 19 October and/or is adjourned, that the wife will be moving back into the former matrimonial home.  Furthermore, that the wife would seek her costs thrown away by virtue of the hearing not proceeding on Wednesday, and that those costs will include the travel expenses or part thereof of her sons from the Middle East and Asia, respectively.

20. Counsel for the wife also makes a submission about the unsatisfactory history of the matter. I was informed that in late 2015 – principally in October and November 2015 – the husband’s solicitor raised with the wife’s solicitor that the husband may lack the capacity to give instructions. However, by November 2015 the husband’s solicitor stated that there was no difficulty. Furthermore, the husband filed several documents on 21 September 2016 – being an amended response, a financial statement, and it would appear, two affidavits. One affidavit being folio 28 on the court file is an affidavit of 103 paragraphs and 20 pages of text and another 15 pages of annexures.  The other affidavit – that was also made on 21 September 2016 of 9 pages, also sworn on 21 September 2016.  Ms Tulloch submitted that the recent filing and service and apparent reliance by the husband on the material sworn by him is somewhat at odds with two aspects of the husband’s case now.  The first is that his general treating practitioner could be interpreted as saying that over a period of two months she has noticed the husband’s cognitive functions to have changed so any issue around the husband’s mental capacity should have been raised much earlier.  The other aspect is that the counsel for the husband says that he contacted his instructing solicitor last Thursday, and that she too thought that the client’s cognitive functions had been impaired. It was clarified that Mrs Snyder expressed this after participating in the conference by telephone link. Ms Tulloch submits that, in any event, the husband must have appeared fit and well enough to give instructions in the days or week prior to making numerous detailed affidavits on 21 September 2016.

21. It is unfortunate in the circumstances that on two occasions the court has fixed this matter for final hearing and on neither occasion has it been ready.  It does appear that prejudice occasioned by an adjournment will be felt more by the wife than by the husband. However, I can’t ignore the fact that procedural fairness/natural justice requires that parties be able to give instructions or, if he is unfit to do so, to have his case prosecuted by an appropriate person 

22. Counsel for the husband says that they do not know who they would seek to have act as case guardian for the husband, whether that be a family member or an institution like State Trustees. 

23. I’m satisfied that the matter cannot proceed on Wednesday, and that the hearing ought to be vacated.  I have no further time this year nor early next year to hear the matter, so I will not retain it in my docket.  Instead, I will return it to the list of cases awaiting allocation to a judge for final hearing. 

24. The second matter is the application for costs.  It is not particularised, but I don’t need to hear any more of it to know that it cannot be resolved today.  For a start, the costs application is made against the husband’s solicitor in her personal capacity.  That means that Mrs Snyder has a right to consider the application and to be represented in response to it.  Even more importantly, the husband (or his case guardian) must have an opportunity to assess the situation and the degree to which the husband’s interests may be in conflict with the interests of Mrs Snyder. I gather that the costs applications will be sequential and that, if Mrs Snyder is not required to pay the costs personally, the wife will seek that the husband pay her costs thrown away by reason of the final hearing being adjourned.

25. Furthermore, the costs are difficult to quantify. No effort was made to quantify them. There are two matters which may or may not figure but which are nonetheless significant. First, whether the case guardian will disavow the accuracy of the extensive evidence given by the husband in his two affidavits and his financial statement. If that evidence is not adopted by the case guardian, the wife will have a legitimate claim for costs thrown away in the preparation of her case as if reliance was going to be placed on the husband’s evidence. Second, whether valuation evidence will have to be updated because of the effluxion of time until the matter is ready to proceed and can be heard.

26. So I will reserve the issue of costs, and return the matter to the list of cases awaiting allocation to a docket which is, I agree, very unsatisfactory in terms of efficiencies.  The parties have forgone two opportunities for a final hearing and the case is not prioritised.

27. I understand it will be some months before the matter is eligible to go to a judicial docket. Then it would be months after that before a judge can actually start the case and hear the cross examination of the husband and the wife.  I think there will be plenty of time before a judicial docket is identified in which an application can be made for the appointment of a case guardian without me appointing a separate date for that process.

28. That concludes my reasons for decision.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 17 October 2016.

Associate: 

Date:  19 October 2016