Madigan and Madigan (No 2)

[2019] FamCA 623

FAMILY COURT OF AUSTRALIA

MADIGAN & MADIGAN (NO. 2) [2019] FamCA 623

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of an Application in a Case seeking an order that a case guardian be appointed – Adjournment granted.
WIFE:	Ms Madigan

HUSBAND: Mr Madigan

FILE NUMBER: SYC 4431 of 2014

DATE DELIVERED: 5 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 5 September 2019

REPRESENTATION

COUNSEL FOR THE WIFE IN THE SUBSTANTIVE PROCEEDINGS: Mr Richardson, SC

SOLICITOR FOR THE WIFE IN THE SUBSTANTIVE PROCEEDINGS: Hazan Hollander

COUNSEL FOR THE HUSBAND: Mr Kearney, SC

SOLICITOR FOR THE HUSBAND: Pearson Emerson Meyer Family Lawyers

SOLICITOR FOR THE WIFE IN THE APPLICATION IN A CASE: Gayle Meredith & Associates

Orders

1. Leave granted to the wife to file in court a Response to an Application in a Case.

2. The hearing dates scheduled on 16 – 20 September 2019; 30 September – 15 October 2019 and 16 – 20 December 2019 be vacated.

3. The Application in a Case filed 3 September 2019 be adjourned to 9 am on 24 October 2019 for mention with possible hearing on 13 November 2019.

4. The lawyer for the wife in the Application in a Case for the appointment of a case guardian inspect documents produced under subpoena by Dr B by 4pm Monday 9 September 2019 and forthwith thereafter inform the lawyers for the husband whether or not there is any objection to the husband’s inspection of that material. In respect of material of which there is an objection, the lawyer for the wife is to place that material into a sealed envelope.

5. The husband shall thereafter be at liberty to inspect material in relation to which no objection is taken.

6. If there is any objection, liberty to each of the parties to approach my associate forthwith for a relisting in respect of that objection.

7. The solicitor for the wife in the Response to the Application in a Case, is at liberty to photocopy any material produced by Dr B and provide copies of that material to any expert engaged for the purpose of preparing a report in respect of the Response to the Application in a Case.

8. Subject to any objection, the husband is to, as soon as practicable, inspect the material and within 14 days each party is to indicate in writing to my associate as to whether or not that party intends to seek to tender from material produced by Dr B any document that relates to privileged communication between lawyer and client about negotiations to settle any dispute between the parties and any communication between the parties in respect of any attempt to settle any dispute between the parties.

9. I will further consider the listing of the substantive matter upon determination of the Application in a Case.

10. The husband is to provide Ms Meredith with a copy of the husband’s Outline of Case filed 28 August 2019 and the wife is to provide Ms Meredith with her case outline filed 30 August 2019 and each party is to provide any other material Ms Meredith requests, (subject to any claim for privilege), which in her view is needed for the purposes of prosecuting the wife’s response to the husband’s Application in a Case. 

11. I reserve the costs of each of the parties.

12. I note that all counsel for the wife in the substantive proceedings are excused from participation in the Application in a Case but that the solicitor on the record for the wife in the substantive proceedings shall attend.

13. Order 2 made on 2 September 2019, which places restrictions on the husband’s use of Dr B’s report, be extended to cover any material that Dr B has produced under subpoena which the husband now may inspect as a result of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Madigan & Madigan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4431 of 2014

Ms Madigan

Applicant

And

Mr Madigan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 3 September 2019 the husband filed an Application in a Case seeking an order that a case guardian be appointed for the wife, in the event the court finds that the wife is a person with a disability for the purpose of rule 6.08(1) Family Law Rules 2004.

2. To put this application in context, at 4pm on the working day before the scheduled commencement of a final five week hearing, one of the senior counsel for the wife sent to my associate an email (Exhibit 23). That email indicated that the wife’s instructing solicitors and all three counsel (two senior counsel and one junior counsel) instructed by them had concluded they were legally without instructions.

3. It was explained on the first morning of the hearing (2 September 2019) that that conclusion was based on the view that the wife was a person with a disability and was not capable of adequately conducting, or giving adequate instructions for the conduct of, the case. That view was in turn substantially but not wholly based on the contents of a consultant psychiatrist’s report.

4. On 2 September 2019 I made an order the wife provide to the husband all material in her possession or control which was relevant to the assertion that she was a person with a disability. Conditions were placed upon the publication of that material.

5. On 3 September 2019 the husband foreshadowed the Application in a Case that he intended to file later that day.

6. The husband relied upon the contents of the consultant psychiatrist’s report which the wife had provided to him, as the foundation of his application for the appointment of a case guardian of the wife. That report is by Dr B and is dated 30 August 2019.

7. On 3 September 2019, I noted that:

   … the wife has indicated that she is currently of the view that she is not a person with a disability and is capable of adequately conducting or giving adequate instructions for the conduct of the case. The wife has indicated that she seeks independent legal representation in relation to the foreshadowed application that a case guardian be appointed for her.

8. Also on 3 September 2019, I ordered:

   8. Paragraph 11.2 of the orders of 8 August 2019 be varied such that $50,000 of the amount payable thereto be paid to such solicitors as may be nominated in writing by the wife forthwith upon receipt of that nomination and for that purpose the nomination may be made to the husband by such solicitors on the wife’s behalf and the amount is to be placed in the trust account of such solicitors on account of their costs and disbursements.

9. The wife subsequently nominated Ms Meredith and those funds were transferred to Ms Meredith’s trust account. 

10. On 4 September 2019, Ms Meredith filed a Notice of Address for Service on behalf of the wife for the purposes of appearing for her in response to the Application in a Case filed 3 September. The wife was given leave to file in court this morning a Response to an Application in a Case in which she sought that the husband’s Application in a Case filed 3 September 2019 be dismissed.

11. Ms Meredith, who had first seen the wife late on 3 September 2019, made an oral application for an adjournment of the hearing of the Application in a Case on two bases:

    a)First, the wife had instructed her to attempt to obtain a further expert evidence from a consultant psychiatrist. Ms Meredith informed the court that she made inquiries with 14 potential experts. She had secured an appointment with one at the end of September and with another in October. She anticipated that a report would be available in the third week of October; and

    b)Second, the wife had instructed her to engage counsel for the hearing which understandably she had not yet been able to do.

12. Senior counsel for the husband did not consent to the application for an adjournment and indicated that his client did not consent to the explicit effect of the adjournment that had been sought, namely, the effective loss of the hearing dates that had been set for the determination of the substantive proceedings. However he appropriately conceded that there were considerably difficulties in resisting the adjournment application.

13. Having validly instituted proceedings under the Act, a person has a fundamental right to instruct lawyers to conduct a case in this court. Interfering with that right is not to be done lightly and done only to the extent which is demonstratively justified.

14. Whilst the burden of proving a person does not have the capacity to instruct lawyers to conduct a case rests with those who make that assertion, the wife should be afforded reasonable opportunity to prepare a case in response.

15. Accordingly, the matter shall be adjourned until Thursday 24 October 2019, 9 am for mention and for hearing on 13 November 2019.

16. The inevitable result is the scheduled hearing dates for the substantive proceedings shall be vacated.

17. I shall not address the issue of allocating further dates until the outcome of the Application in Case is known. I am mindful of the dynamic that in the event that the Application in a Case is dismissed, senior counsel currently instructed by the solicitors on the record for the wife in the substantive proceedings, has earlier indicated that he probably will be asking for the opportunity to get a ruling from a professional body first before he continues to act for the wife, if indeed, the wife wishes him to continue.

I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 5 September 2019.

Associate: 

Date:  5.9.19