Ly & Bui (No 2)
[2022] FedCFamC1F 871
•11 November 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ly & Bui (No 2) [2022] FedCFamC1F 871
File number(s): SYC 7794 of 2018 Judgment of: SCHONELL J Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the second respondent sought for a litigation guardian to be appointed on his behalf – Where the wife opposed the appointment – Where the evidence demonstrates that there is a limitation on the second respondent’s capacity – Litigation guardian appointed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.12, 3.15
Cases cited: Stokes v McCourt [2014] NSWSC 61 Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 4 November 2022 Place: Sydney Counsel for the Applicant: Mr McGovern SC with Mr Battley Solicitor for the Applicant: Panacea Lawyers Counsel for the First Respondent: Ms Murphy Solicitor for the First Respondent: Atkinson Vinden Counsel for the Second Respondent: Mr Young SC Solicitor for the Second Respondent: Bangroves Lawyers Solicitor for the Third Respondent: Edmond Khoury Solicitors ORDERS
SYC 7794 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LY
Applicant
AND: MR BUI
First Respondent
MR BELSKY
Second Respondent
B PTY LTD
Third Respondent
order made by:
SCHONELL J
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.Pursuant to r 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Mr T be appointed as the litigation guardian for the second respondent Mr Belsky.
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 Ly & Bui has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Amended Application in a Proceeding filed 28 October 2022, the second respondent to financial proceedings sought orders for the appointment of a litigation guardian. Having heard submissions from the parties, I indicated that I intended to make the order for appointment of a litigation guardian and would deliver reasons in due course. These are those reasons.
The proceedings are part of wider financial proceedings that commenced in December 2018. They arise out of a marriage between the parties in 2006 that concluded with separation of the parties, according to the first respondent husband (“the husband”) in May 2013, and in the case of the applicant wife (“the wife”) in January 2018. In addition to the husband and wife, there are two other respondents to the proceedings.
The second respondent was joined to the proceedings in February 2021.
On 5 July 2022, orders were made transferring the proceedings to the Major Complex Financial Proceedings List. As a consequence of that order, the matter first came before me for directions on 13 October 2022. On that occasion, senior counsel for the wife raised issues in relation to the question of disclosure generally and in particular, difficulties in obtaining disclosure and documents from the second respondent. The second respondent through his solicitor advised that the second respondent had suffered a stroke in March 2022 and that she had difficulty obtaining instructions. Having heard submissions from each party, I made various orders, including directing the second respondent to file an application for the appointment of a litigation guardian.
The second respondent filed the application supported by two affidavits from the proposed litigation guardian by the name of Mr T. The application for appointment of a litigation guardian was supported by the husband. The third respondent was agnostic. The wife opposed the appointment but took no issue as to the appropriateness of Mr T as a litigation guardian should the Court make such an order.
The Court may, pursuant to r 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), on the application of a party or on its own initiative, appoint a litigation guardian. Rule 3.12 identifies the circumstances in which a person may need a litigation guardian. For the purposes of this application, senior counsel who appeared for the second respondent indicated that the application was predicated upon the second limb of r 3.12, which provides that a person will need a litigation guardian if he/she is “not capable of adequately conducting, or giving adequate instructions for the conduct of, the proceeding”.
The evidence in support of the application identified that the second respondent was born in 1961 and is currently aged 61 years. In early 2022, he was admitted to S Hospital and upon admission was diagnosed with a stroke (affidavit of Mr T filed 27 October 2022, Annexure 1). A report from his general practitioner identifies that he was in hospital for a number of months and a recent MRI shows some resolution to the affected areas of his brain. The report from his general practitioner dated 31 October 2022 goes on to state:
He has made significant improvement since discharge from hospital through intense rehab and multiple reviews by specialists and allied health.
However, he still suffers from […]. He is feeling constantly tired and has impaired memory and concentration.
He is unfit to attend court and legal matters.
I cannot comment how long [Mr Belsky] will take to make a complete recovery or how long his symptoms will persist for.
(Affidavit of Mr T filed 1 November 2022, Annexure 1)
The proposed litigation guardian is a professional and he has known the second respondent since 2018. The second respondent was initially a client of Mr T’s, but in his affidavit he says that he and the second respondent have subsequently developed a personal friendship. Mr T says that he visited the second respondent in hospital in mid-2022. He observed that the second respondent was:
6.… unable to concentrate on conversation for more than a few moments, was unable to effectively communicate, frequently switched between English and [Country P language], frequently lost his train of thought, misremembered people’s names and generally was more of a bystander to any conversations rather than an active participant. …
(Affidavit of Mr T filed 1 November 2022)
He indicates that he has visited the second respondent on a number of occasions between August and October 2022. He gives evidence to the following effect:
9. At all of my recent visits with [Mr Belsky], the most recent of which was [in late] 2022, I observed the following:
a. [Mr Belsky] was regularly unable to remember words in English and had to speak in [Country P language] at times, which was translated by [Ms U] and/or [Ms V];
b. Even when [Mr Belsky] was speaking in [Country P language], [Ms V] and [Ms U] appeared to look confused. It was clear to me from [Ms V] and [Ms U]’s reactions that [Mr Belsky] was unable to make himself understood or to effectively make his point;
c. At times he was attempting to explain relatively simple concepts such as the contents of a box, while being unable to make himself understood, in either English or [Country P language];
d. [Mr Belsky] sometimes slurs his speech;
e. [Mr Belsky] had to frequently pause in an effort to collect his thoughts in the hopes of being understood;
f. [Mr Belsky] frequently repeats himself;
g. [Mr Belsky] trails off mid-sentence without apparently realising he has done so;
h. At times I struggled to follow [Mr Belsky]’s sentences as words were frequently out of place;
i. At times [Mr Belsky] gave up on attempting to verbally communicate and attempted to use hand gestures to make his point;
j. [Mr Belsky] frequently referred to me by other people's names;
k. [Mr Belsky] expressed frustration at his inability to get his point across;
I. When recounting a story from his youth, [Mr Belsky] frequently had to take pauses, repeated himself, spoke in [Country P language] without realising it, forgot or misremembered details of the story and generally took a significant time to retell the story;
m. [Mr Belsky]’s energy levels dropped significantly in a short period of time, making it even more difficult for him to communicate;
n.I observed he has limited control over the right side of his body and complains of numbness and/or pain in his right arm, right leg and the right side of his face. He was often distracted by this numbness and pain;
o. He also cannot open his right eye fully for more than a few seconds.
(Affidavit of Mr T filed 1 November 2022)
The second respondent’s lawyers contend that the evidence demonstrates that the second respondent is not capable of “giving adequate instruction[s] for the conduct of, the proceeding” (second respondent’s Case Outline, paragraph 3).
Senior counsel for the wife contends that the evidence before the Court is insufficient for the Court to be satisfied that the second respondent is not capable of giving instructions for the conduct of the proceedings.
The second respondent’s Case Outline addressed a number of matters that the Court is required to consider having regard to r 3.12(a). In circumstances where the application is pressed pursuant to the provisions of r 3.12(b), I do not propose to address the submissions that relate to r 3.12(a). In relation to r 3.12(b), senior counsel for the wife addressed the observations of McDougall J in Stokes v McCourt [2014] NSWSC 61 in his Case Outline, contending that:
7. …McDougall J stated that it is necessary to ask whether the relevant party can deal with the issues in the proceedings with the assistance of appropriate explanation from his or her lawyers and experts retained. This must extend to seeking advice on prospects or on evidence, considering and evaluating risks, costs and reward, dealing with the lawyers in the preparation of the case, and being able to give informed instructions as to settlement [at [31]]. This approach is consistent with test postulated in para (b) of rule 3.12 of the 2021 Rules.
He submitted that the medical evidence is insufficient to enable the Court to determine that the second respondent is unable to give adequate instructions. Senior counsel for the wife also proposed that in the event that the Court determined that it was appropriate for the appointment of a litigation guardian, then it should be conditional upon the making of an order in the following terms:
10A.If the Applicant requires the Second Respondent to be medically examined at any time before the trial, but then no later than 7 weeks prior to the trial date, the Applicant’s solicitors shall give written notice to the Second Respondent’s solicitors of the name of the doctor and the time and place of the medical examination and the Second Respondent is to make himself available for medical examination by the nominated doctor at the time and place specified.
10B.If so advised the Applicant is to file and serve any application for the removal of the Case Guardian no later than 7 weeks prior to the trial date.
Senior counsel for the second respondent in reply submitted that it would not be appropriate to make such orders at this stage as it may be that the second respondent is able, in due course, to provide instructions such that he no longer needs a litigation guardian. He contended the making of an order at this stage was premature and it is a matter that the Court can address at a later date.
Conclusion
In relation to the proposal of senior counsel for the wife that the appointment be conditional upon the making of orders as proposed by him, I do not propose to make such orders. The refusal to make those orders, however, is without prejudice to the wife renewing her application at a subsequent time should she consider it appropriate to do so. At this stage, there remains a degree of fluidity in relation to the second respondent’s health. It may be that he recovers, it may be that he does not. In the event that he does recover, then he will not need a litigation guardian. The wife is at liberty to make her application at a time closer to the hearing if she so instructs.
I have reached the conclusion supporting the appointment of a litigation guardian as a consequence of a combination of the medical evidence, which demonstrates that there are limitations on his capacity, including his capacity to deal with legal things, the evidence of the proposed litigation guardian as to his observations to understand issues as well as the evidence, albeit provided from the bar table by the second respondent’s solicitor, that she is unable to get instructions.
I also have regard to the fact that these proceedings have been before this Court for four years. The Court is unable to provide an early hearing date and indeed has made out directions for trial, including providing a hearing date in September next year. By that time, the proceedings will have been before the Court for nearly five years. This is a situation that cannot be permitted to continue. I am also of the view that consistent with s 67(3) of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”) that it is necessary and consistent with the overarching purpose of family law practice and procedure that these proceedings be brought to an end as expeditiously as possible. In that respect, s 67(3) imposes the following duties on the Court:
67 Overarching purpose of family law practice and procedure provisions
...
(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
The overarching purpose objectives are set out under s 67(1) and (2) of the FCFCOA Act as follows:
67 Overarching purpose of family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
In my view, the Rules of Court must be interpreted and applied in a manner which best promotes the overarching purpose and its objectives, one of which is to bring this litigation that has been before the Court for four years to an end. I am of the view that, in circumstances where the evidence reveals that the wife has had difficulty obtaining documents from the second respondent and the evidence of the second respondent’s solicitor is that she is unable to obtain instructions, the litigation will remain at an impasse and not resolve absent the appointment.
For all these reasons, I am of the view that it is appropriate that a litigation guardian be appointed for the second respondent.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 11 November 2022
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