Marsten & Marsten
[2023] FedCFamC2F 1587
•12 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marsten & Marsten [2023] FedCFamC2F 1587
File number(s): MLC 422 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 12 December 2023 Catchwords: FAMILY LAW – adjournment or stay application pending probate – where one party dies shortly after issue – whether the deceased needed a litigation guardian – whether proceedings invalid – where contested probate proceedings are underway in the Supreme Court of Victoria – where one party seeks an adjournment or stay until the probate proceedings are finalised Legislation: Evidence Act 1995 (Cth) s 121
Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 140, 141, 143, 189, 190
Federal Circuit and Family Court of Australia (Division 2) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.05, 1.31, 2.01, 2.14, 3.12, 3.13, 3.14, 3.15, 3.16, 3.17, 3.18, 3.19, 6.06, 10.09
Powers of Attorney Act 2014 (Vic) ss 22, 26, 39, 51
Cases cited: Frost (Deceased) & Whooten (2018) FLC 93-860
Gilliam & Cantrell [2022] FedCFamC2F 478
Harry & Harrison and Ors [2011] FamCA 457
Hullet & Benton (2022) FLC 94-072
Midhurst (Deceased) v Midhurst [2008] FamCA 393
Murdoch & Brown (No.2) [2013] FamCA 732
Phillips and Phillips (1985) FLC 91-634
S (Deceased) & S [2002] FamCA 1281
Simonds (Deceased) & Coyle [2019] FamCAFC 47
Slater and Slater (1985) FLC 91-641
Smith and Smith (No 3) (1986) FLC 91-732; (1986) 161 CLR 217
Tate & Hunter (Deceased) [2015] FamCA 1242
Division: Division 2 Family Law Number of paragraphs: 116 Date of hearing: 19 September 2022, 12 October 2022, 27 October 2022 Place: Melbourne Counsel for the Applicant: Mr Wraith Solicitor for the Applicant: Mitchell Family Law Counsel for the Respondent: Mr Anthill Solicitor for the Respondent: Casey Business Lawyers ORDERS
MLC 422 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MARSTEN by his litigation guardian Ms Hanley
Applicant
AND: MS MARSTEN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
12 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application of Ms Marsten for the summary dismissal of the Initiating Application for property alteration orders filed on 19 January 2022 by Mr Marsten, by his Litigation Guardian Ms Hanley, be and is dismissed.
2.The matter be listed before Judge O’Shannessy for directions on Monday 19 February 2024 at 10:00am at the Federal Circuit and Family Court of Australia (Division 2).
3.Any applications for costs be and is adjourned to the adjourned date.
AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.
B.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
E.The parties are at liberty to request that the 19 February 2024 listing be vacated if convenient.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
The central question I must decide is whether the proceedings issued on 19 January 2022, after more than 50 years of marriage, are invalid or a nullity because of the form of what purported to be the Initiating Application commencing the proceeding. The proceedings were initiated by a person who purported to be a Litigation Guardian.
BACKGROUND
Back in 1970 the late Mr Marsten and Ms Marsten married and thereafter lived as man and wife. Soon enough they had two children, Ms Hanley, now aged 50 years, and Mr B, now aged 46 years. Mr Marsten was a professional and Ms Marsten worked in customer service. The Marstens lived the last years of their marriage in, I infer, modest but comfortable circumstances in a what is known as a retirement village and they had substantial money in the bank and received aged pensions.
After 50 years of married life, by 2021, Mr Marsten was very ill and he left the former matrimonial home (‘the FMH’) to go to hospital for treatment. His medical advice then was, or soon became, to the effect that he did not have long to live and he commenced palliative care. He never returned to the retirement village. Mr Marsten died in 2022. Ms Marsten did not attend, or was unable to attend, her late husband’s funeral.
Ms Marsten says that when Mr Marsten went to the hospital, he gave her his bank card and password in case she needed to get money. She says that she went to the hospital every day, however was told that she was not allowed to see him as there were to be no visitors. She says that she collected his washing and returned his laundry from the hospital.
Ms Marsten says that in 2021, Mr Marsten’s treating specialist, Dr C, called her and said Mr Marsten “was terminal and unlikely to leave hospital” and suggested she make some plans. She says that she transferred some money from Mr Marsten’s account to their joint account, and she says she did this “because I have seen instances where women whose husbands held the purse strings (like [Mr Marsten] did) left in dire circumstances.”
Ms Marsten says that she found out that Ms Hanley had visited the hospital every day. In 2021, Ms Marsten visited the hospital to ask why she had not been allowed to visit and was then allowed. She says that she visited every day, including feeding him and helping him drink as “he could not hold anything himself.” She says that Mr Marsten never spoke about separation or divorce. Ms Marsten asserts:[1]
20.I was with [Mr Marsten] for at least 2 hours. He was lapsing in and out of consciousness and he could not put two words together coherently.
[1] In her affidavit of 3 March 2022.
Ms Marsten asserts she and Ms Hanley had a poor relationship for many years. She says she cared for Mr Marsten until he went by ambulance to hospital.
How the events of his last days transpired and the events thereafter deeply hurt Ms Marsten. Ms Marsten and her daughter, Ms Hanley, both armed with solicitors and counsel, have examined some of those events in fine detail in the proceedings before me. Attempts to compromise the conflict have been unsuccessful.
SOME SIGNIFICANT EVENTS
Not all events significant to the parties will be referred to but it is necessary to refer to some events to contextualise the parties’ positions in this litigation.
Mr Marsten stays with his daughter: much trouble and an EPOA
After a couple of weeks in hospital, Mr Marsten left hospital to be cared for by Ms Hanley, at her home, as a temporary measure en route to live in an aged care facility. Before he left, at about 8.45 am, Dr D, Mr Marsten’s specialist consulted Mr Marsten. What his contemporaneous notes[2] record are recited later these reasons. Later that day it appears that Mr Marsten, in the presence of two witnesses, utilised a draft of an earlier EPOA, and with initialled handwritten changes to the typed document, purported to revoke any prior EPOA and appoint Ms Hanley as his sole attorney.[3] Also in late 2021, Ms Hanley sent a text message to her mother, Ms Marsten, advising her that she was taking Mr Marsten to her home (not the FMH) and that if Ms Marsten “set foot” on the property Ms Hanley would “call the police”. Ms Hanley says Mr Marsten had told her he was fearful of being visited by Ms Marsten and/or Mr B.
[2] Annexure 2 to Ms Hanley’s 22 August 2022 affidavit.
[3] The document is annexure 1 to Ms Hanley’s affidavit of 19 January 2022 (the affidavit filed together with the Initiating Application seeking property relief) and also annexure 1 to Ms Hanley’s affidavit of 22 August 2022. The document in original form had recorded Ms Marsten as his attorney and Ms Hanley as his alternative attorney. The reference to Ms Marsten was struck through.
A few days later, Ms Hanley made enquiries at Mr Marsten’s bank about his finances and, I infer, discussed with him his finances and recent transactions. Rightly or wrongly Ms Hanley says she came to the view that her brother, Mr B, was then intimidating her mother, Ms Marsten, to cause her to withdraw substantial money from Mr & Ms Marsten’s bank account/s and transfer this to Mr B. Ms Hanley alleges Mr B has a history of drug abuse and anti-social behaviours and that he has acted aggressively to her parents over the years. Ms Hanley asserts, and it does not appear challenged, that she regarded the withdrawal/transfer of money to Mr B as financial abuse of her parents.
The Intervention Order
It is clear enough that, motivated by this belief, Ms Hanley attended a police station and made a statement to police, effectively alleging financial abuse of her parents by Mr B and asserted she was Mr Marsten’s attorney. Soon after that statement was taken the police applied for, and obtained, an interim intervention order on behalf of both Mr and Ms Marsten. The evidence does not address whether or not the police consulted Ms Marsten about the need to protect her from her son, but her text message to Mr Marsten suggests she was not.[4]
[4] See 2021 text message at page 24 of 39 of annexure 4 of Ms Hanley’s affidavit filed 22 August 2022, “…I am entitled to have a say..”
If family relationships were not already at a low ebb, they plummeted further. It is clear that in or before late 2021 Ms Marsten consulted her current solicitor Ms E and told Mr Marsten that she had.[5] Ms Marsten’s text message to Mr Marsten in late 2021 commences, “[Ms Hanley] has gone too far this time…The way she is going I will see her in court…”. I infer this was sent after Ms Marsten learned of the allegations of the police in the interim intervention order proceedings of that day. That text message was followed up with another that day from Ms Marsten to Mr Marsten, that included, “By the way [Ms Hanley] will need to produce evidence of bullying and abuse for when I take her to court and not just your word. Actual proof. I do not care if I never have any contact with her ever again … you have known how I have felt for a very long time. I am starting to wonder why we did separate in 2000 when we discussed ir [sic] because I do not believe we have had a real marriage since then.[6]”
[5] See 2021 text message at page 24 of 39 of annexure 4 of Ms Hanley’s affidavit filed 22 August 2022, “…I went to see …”
[6] See 2021 text message at page 25 of 39 of annexure 4. Ms Hanley’s reading of that text message asserts that the word “not” has been unintentionally omitted twice in this text.
Lawyers, a new Will and new EPOA
At some point on or before early 2021, Mr Marsten, either himself or through or with the assistance of Ms Hanley, retained solicitors (‘the New Will Solicitors’) and those solicitors referred Mr Marsten and/or Ms Hanley to specialist family law solicitors (‘the family law solicitors’). The family law solicitors act for Ms Hanley in these proceedings. In early 2022, that is about three weeks after Mr Marsten left hospital, Ms Marsten’s solicitors wrote to Ms Hanley and complained about her putting a stop on the Marsten’s joint account, sought an explanation and sought a “copy of the power of attorney which you have purported to act on”, failing which an application to VCAT would be made.
Soon after that first lawyers’ letter, while being cared for by visiting medical practitioners and Ms Hanley, Mr Marsten executed, or purported to execute, a new will (‘the new will’) and a new enduring power of attorney (‘the new EPOA’) both drawn by the New Will Solicitors. Ms Hanley says that the new Will, but not the new EPOA (both dated early 2022) was initially provided to the family law solicitors.
The new Will purported to appoint Ms Hanley and her husband as executors of his estate and left Mr Marsten’s entire estate to Ms Hanley. The new EPOA purported to appoint only Ms Hanley as his attorney.
Initiating Application issued just before Mr Marsten dies
In early 2022, the family law solicitors sent a letter by email to Ms Marsten’s solicitor and:
·Acknowledged the letter to Ms Hanley;
·Advised they were instructed that, “[Mr Marsten] wishes to separate from your client and commence proceedings… for property settlement.”;
·Advised that, “Due to [Mr Marsten’s] deteriorating health [Ms Hanley] has agreed to act as Litigation Guardian for him in the family Law proceedings. We intend to file the Application with the Court today”; and
·Asked for whether they would accept service for Ms Marsten.
The same day, shortly after the execution of the new will and EPOA, Ms Hanley (purporting to be his Litigation Guardian) signed documents. A solicitor lodged those documents in this court (at 4:13 pm) seeking property alteration or division of assets between Mr Marsten and his wife (her mother), Ms Marsten. The documents signed were a financial statement, an affidavit and an Initiating Application, that sought as final orders “an adjustment of the parties’ property pursuant to section 79 of the Family Law Act 1979 (Cth)” and interim orders as interim orders that Ms Hanley be appointed as Litigation Guardian and restraint on the operation of the Marsten’s term deposit. The affidavit referred to and exhibited the 2021 EPOA and did not refer to the new EPOA.
Also in late 2021 at the family law solicitors provided both the 2021 EPOA and the new EPOA (executed in 2022)[7] to Ms Marsten’s solicitors. The 2021 EPOA was requested in the early 2021 letter and, unless invalid, the new EPOA revoked the 2021 EPOA, whether or not that validly appointed Ms Hanley as attorney.
[7] See annexure D, page 14 of 39 to the affidavit of Ms Marsten’s solicitor filed 14 September 2022.
In 2022, shortly after the proceedings were issued or were purported to be issued, Mr Marsten died.
The matrimonial property pool
The total pool of the Marsten’s property was said to be about is $700,000, with the main assets being a term deposit of $325,000 that had been held in joint names and the interest in a unit in the retirement unit the couple lived together from late 2016 to just before Mr Marsten’s death (‘the FMH’) of a value of about $300,000, that had also been jointly owned by Mr and Ms Marsten. There is also a share portfolio said to be worth maybe $75,000 in the late Mr Marsten’s name alone.
Hence, absent a valid Family Law Act application for property alteration[8], the survivor, Ms Marsten, would own or be entitled to the bulk of the property of the two of them and only the share portfolio and solely owned personal chattels would pass according to the late Mr Marsten’s will.
[8] And absent a severance of the joint tenancies and this was not argued before me.
The early correspondence between lawyers
In early 2022 Ms Marsten’s solicitor wrote a long letter to the family law solicitors and relevant parts include:
We note that when you filed that application on 19 January 2022, you are [Ms Hanley] were clearly of the view that [Mr Marsten] was a person who needed a litigation guardian.
…
That you both formed the view that [Mr Marsten] was a person who needed a litigation guardian is perfectly reasonable and understandable in the circumstances.
…
Obviously, it is not only the Court that can appoint someone as a litigation guardian. A person cannot appoint themselves as a litigation guardian; they can only apply to the Court for an order that they be so appointed by the Court.
Likewise, it is self-evident that no-one can act as a litigation guardian unless and until the Court appoints them to be a litigation guardian. It is only after a person is appointed as a litigation guardian that proceeding can be commenced by them pursuant to rule 3.13 on behalf of the person who needs a litigation guardian.
Given all of the above, in our opinion, the only sensible interpretation of the Initiating Application that you prepared, signed and filed on 19 January 2022 is that it is an application by [Ms Hanley] pursuant to rule 3.15(1) for an interlocutory order of the court pursuant to rules 3.15(20 and 5.02 that [Ms Hanley] be appointed as a Litigation Guardian for [Mr Marsten], for the purpose of allowing [Ms Hanley] to then commence proceedings as a Litigation Guardian for [Mr Marsten] against our client [Ms Marsten] for a property settlements pursuant to section 79 of the Family Law Act 1975 (Cth).
We seek your confirmation asap that our understanding of the nature of your Initiating Application filed on 19 January 2022 is correct.
If our understanding is not correct, then we suggest that your filing of the initiating Application was in clear breach of rule 3.13 and the proceeding should be struck out as a nullity. In that event, we reserve our client’s right to seek an order for costs against you personally.
[Emphasis added]
Consistent with that letter, on 11 March 2022, Ms Marsten filed a Response to Initiating Application seeking that, “The application be dismissed for lack of jurisdiction” and that Ms Hanley pay Ms Marsten’s costs.
THE PROCEEDINGS
These reasons have not been determined with the three-month guideline for reasons with this court. I apologise to the parties and their lawyers for the delay which is not the fault of the parties.
In early 2022 Ms Hanley advertised her intention to obtain probate of the new Will and Ms Marsten lodged a caveat indicating an intention to challenge the validity of the new Will. On 2 March 2022, Ms Hanley filed an interlocutory application seeking substitution of herself as legal personal representative for the purposes of section 79(8) of the Act.
The 1 August 2022 Directions
In July 2022 Ms Hanley’s solicitors sought that the whole of the proceedings be adjourned pending a grant of probate. That was not agreed to so the matter proceeded. Ultimately orders and direction were made on 1 August 2022 that included the following:
THE COURT ORDERS THAT:
Interim Defended Hearing
1.The matter is listed for an Interim Defended Hearing before Judge O'Shannessy on 19 September 2022 at 10.00 am NOTING THAT the issue to be determined is the standing of [Ms Hanley] as Litigation Guardian to commence the proceedings in circumstances where the Respondent questions the validity of the of Power of Attorney.
2.Not later than 4.00 pm on 8 August 2022, the proposed Legal Personal Representative provide to the Respondent a copy of all medical reports they seek to rely on at the Interim Defended Hearing.
3.Not later than 4.00 pm on 22 August 2022, each party file and serve one consolidated supporting affidavit in relation to issues to be determined at the Interim Defended Hearing and one affidavit of each witness, noting the provisions of Rules 5.04 and 5.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 together with the Central Practice Direction – Family Law Case Management.
4.Pursuant to the Central Practice Direction – Family Law Case Management, by 4.00 pm on 15 September 2022, each party file and serve:
(a) an Outline of Case (Interim Hearing); and
(b) a Minute of Orders sought.
5.Not later than 4.00 pm on 5 September 2022, the Respondent must file and serve any written submissions on which that party intends to rely.
6.Not later than 4.00 pm on 12 September 2022, the proposed Legal Personal Representative must file and serve any written submissions on which that party intends to rely.
[Emphasis added]
There was no mention of the late Mr Marsten not needing a Litigation Guardian as at the date of issue.
The adjournment application
Ms Hanley seeks an adjournment, really a stay of the proceedings in in this court, until the probate issue is resolved in the Supreme Court which will identify the legal personal representative. Those probate proceedings will likely include making findings in regards to the validity of Mr Marsten’s new Will made in early 2022.
But in addition to that application the orders that were sought by Ms Hanley’s interlocutory application filed on 9 September 2022 are as follows;
1.That this Application in a Proceeding be listed for an urgent hearing before His Honour Judge O’Shannessy.
2.That [Ms Hanley] be granted leave to be heard amicus curiae, or in the event that is deemed necessary or otherwise appropriate, to intervene in the proceedings.
3.That the hearing of [Ms Marsten’s] application for dismissal of the proceeding for want of jurisdiction (“the Respondent’s Application”), listed on 19 September 2022, be adjourned to a date to be fixed.
4.That in the event that the Court determines that it is appropriate to deal with the Respondent’s Application prior to a grant of representation being made in the estate of the deceased Applicant Husband, then [Ms Hanley] be granted leave to file further affidavits in response to the Respondent’s Application.
5.That for the purpose of Order 4, the Court declare whether [Ms Hanley], or any other person, is empowered to waive professional privilege on behalf of the estate of the deceased [Mr Marsten] with respect to the communications between the deceased and his legal representatives, and any other person and the deceased’s legal representatives, with respect to:
a.the preparation and execution of any will or power of attorney document by the deceased , and
b.the commencement of these proceedings and matters incidental thereto.
…
The adjournment application heard on 19 September 2022
As at 19 September 2022 Ms Hanley’s position was that she had validly issued the proceedings as Mr Marsten’s Litigation Guardian because Mr Marsten had “needed” a Litigation Guardian at the time the proceedings were issued or commenced. She said that because Mr Marsten had died the whole of the proceedings should be adjourned, effectively stayed, until a grant of probate was obtained that would confirm her as, or otherwise determine, the legal personal representative of Mr Marsten, because, unless uncontested, only the representative of the deceased as confirmed by the grant of probate or letters of administration in the Supreme Court of Victoria could be the legal personal representative. She said that until probate she did not even have authority to compromise the Family Law Act proceedings on behalf of the estate[9].
[9] Transcript 19 September 2022, TP 32 lines 14-18
The interim proceedings needed to be adjourned, she said, so that she could file and serve further evidence that went to the issue of Mr Marsten’s “need” for a Litigation Guardian at the time the proceedings were commenced. That was because, she said, until Ms Marsten filed her written submission on 6 September 2022 (or a discussion on 1 September 2022), the issue of the “need” for a Litigation Guardian had been common ground or at least unchallenged and so her material filed in accordance with the 1 August 2022 orders did not address that issue. The direction of 1 August had directed her material be filed by 22 August 2022 and forbade the filing of further material.
Both parties were represented by counsel. Counsel advised that the application for probate had been filed in the Supreme Court the previous day in late 2022, and Ms Marsten would soon file a caveat and/or grounds of objection to the proving of the new Will.
On 19 September 2022 I heard the application by Ms Hanley for adjournment in order for her to be able to file additional material, and the opposition to that application. Although Ms Hanley’s counsel pressed that Ms Hanley be heard amicus curie no issue was taken on the day with her right to be heard and I was satisfied that she had standing to be heard. Although in instruments that were or would be challenged, she had the benefit or burden of documents that purported to appoint her the attorney under an EPOA and also as executrix of the new Will of the deceased.
It was submitted the adjournment should be refused because:
·Ms Hanley’s lawyers should not have been taken by surprise (notwithstanding the highlighted or emphasised parts of the letter recited above);
·They had sufficient time, in any event, to file the material after 1 or 6 September 2022;
·The claimed restriction on filing material, of Ms Hanley being unable, as executrix, to waive Mr Marsten’s legal professional privilege, that she said troubled her (because her appointment under the new Will was challenged) should not carry any weight because she had already disclosed material subject to legal professional privilege;
·The application for adjournment did not contain any indication of what the further evidence would be, contrary to convention when applying for an adjournment on that basis;
·In a conversation between counsel on 1 September 2022 Ms Hanley’s counsel had conceded that he was alert to the issue;
·That because the late 2021 EPOA had been referred to and annexed to the affidavit filed with the Initiating Application, at the time of the early 2022 letter, the context was then different because it was then “perfectly reasonable to think that he had need of a litigation guardian [because] she [Ms Hanley] wasn’t relying upon the second [EPOA], because she [Ms Hanley] accepted that he didn’t have capacity to execute it at the time”; and
·That Ms Hanley carries the burden of proof of the essential elements of jurisdiction and Ms Marsten is not under any obligation to point out to Ms Hanley what she needs to prove and what the difficulties in her case are.
The context to that position taken by counsel for Ms Marsten was the assertion that there was an assertion by Ms Hanley (and evidence) that Mr Marsten had capacity in early 2022 (he executed the new Will and the new EPOA that day) but “simply nothing that can satisfy the court that the husband was in need of a litigation guardian at the time the proceedings were filed” that is 19 January 2022[10], four days after it was asserted he had capacity.
[10] 19 September 2022 TP40 lines 32 to 35.
Ultimately while reserving all points of contention if the proceeding were to continue, for the purpose of the application to dismiss the proceedings for want of jurisdiction it was conceded that application would have to apply the evidence of Ms Hanley’s case at its highest unless improbable or internally inconsistent. It was conceded:
MR ANTILL: No. No. Look, I think, your Honour, based on the summary dismissal principles could find that he did have capacity to execute the EPA [in early 2022].
HIS HONOUR: But your contentions were that he didn’t.
MR ANTILL: … I think, your Honour, based on the summary dismissal principles could find that he did have capacity to execute the EPA [in early 2022].
HIS HONOUR: But your contentions were that he didn’t.
MR ANTILL: My contention was that – in my written submissions were that there wasn’t perhaps sufficient evidence about that, but given the discourse and your Honour’s pointing out that it is a summary dismissal application and evidence at the highest form, then I don’t press that submission, but what I do press is that there is no evidence to establish that he was a person in need of a litigation guardian.
In a busy duty list where I heard the opposition to the adjournment until 5:45 pm in the evening, I reserved my orders and reasons at 5.45pm, with only one further matter to hear.
On 30 September 2022 I made orders listing the matter for a 1-day defended hearing to determine the issue of the Litigation Guardian for 27 October 2022. I otherwise reserved further orders and reasons. These are those reasons and orders.
The orders of 30 September 2022 in effect granted the adjournment to permit the filing of further material. I made those orders, rather than dealing with the matter or the basis of only the material filed, because I was satisfied, given the emphasised parts of the early 2022 letter recited above, that Ms Hanley and her solicitors may well have been caught by surprise by the discordance between the early 2022 letter and the 6 September 2022 written submissions and because I did not consider, after a more than 50 year marriage, that 18 days was sufficient to consider, draft and file material that dealt with the “needs” issue once the change of position had been made clear. Further, the conversation between counsel was disputed and I was not prepared to place weight on either counsel’s version of that conversation and because either 1 September or 6 September was after the filing as directed by the 1 August 2022 orders. The material she had filed pursuant to court order was filed before she was aware of the other side’s position. I was satisfied procedural fairness demanded that Ms Hanley and Ms Marsten, have the opportunity for further material to be filed after Ms Marsten’s position was understood by Ms Hanley.
The further procedural orders
On 4 October 2022 I received an email from Ms Hanley’s solicitor asking when my reserved reasons would be published so that the parties could be notified whether Ms Hanley would have the authority to file an affidavit on behalf of Mr Marsten. My Chambers responded that if there was uncertainty they could request a mention, and they duly requested a mention and it was listed for the next week. On 12 October 2022 I heard that mention and Ms Hanley provided to the Court a minute of orders sought that was not consented to or opposed by Ms Marsten. Those orders sought permission for Ms Hanley’s solicitors to file an affidavit setting out communications between the solicitor, Ms Hanley and Mr Marsten with respect to the intentions and competence of Mr Marsten to provide instructions to commence the proceedings pursuant to section 121 of the Evidence Act 1995 (Cth). I made those orders.
The 27 October 2022 further hearing
The matter returned to me on 27 October 2022 at 10:07 am and ran until 5:01 pm. I heard additional submissions on the Litigation Guardian/legal personal representative issue on that date, including objections to and submissions on the additional evidence filed by the Applicant. I reserved orders and reasons, and these are those orders and reasons.
Both parties were represented by counsel on 19 September 2022 and 27 October 2022.
Documents relied upon at resumed hearing
The Applicant relied upon the following documents:
·Affidavit of Ms Hanley filed 22 August 2022;
·Affidavit of Mr F filed 22 August 2022;
·Written submissions filed 12 September 2022;
·Application in a proceeding filed 13 September 2022;
·Affidavit of Ms Hanley filed 13 September 2022;
·Affidavit of Ms Hanley filed 13 October 2022;
·Affidavit of Ms G, the family law solicitor, filed 13 October 2022;
·Affidavit of Dr C filed 19 October 2022; and
·Affidavit of Dr D filed 26 October 2022.
The Applicant also relied upon the following authorities:
·Murdoch & Brown (No.2) [2013] FamCA 732
·Tate & Hunter (Deceased) [2015] FamCA 1242
·Harry & Harrison and Ors [2011] FamCA 457
·S (Deceased) & S [2002] FamCA 1281
Ms Marsten relied upon the following documents:
·Response to an application in a proceeding filed 11 March 2022;
·Affidavit of Ms Marsten filed 11 March 2022;
·Written submissions filed 6 September 2022;
·Affidavit of Ms E, Ms Marsten’s solicitor, filed 14 September 2022;
·Written submissions filed 19 September 2022; and
·Affidavit of Ms E, Ms Marsten’s solicitor, filed 20 October 2022.
Ms Marsten also relied upon the following authorities:
·Slater and Slater (1985) FLC 91-641
·Phillips and Phillips (1985) FLC 91-634
·Simonds (Deceased) & Coyle [2019] FamCAFC 47;
·Frost (Deceased) & Whooten (2018) FLC 93-860
·Gilliam & Cantrell [2022] FedCFamC2F 478
Objections
On 19 September 2022 the parties clarified that certain communications were “open” offers, not “without prejudice” and hence not protected from being in evidence. On 27 October 2022 I dealt with Ms Marsten’s objections to certain parts of the family law solicitor’s affidavit filed on 13 October 2022 and of Ms Hanley’s affidavit filed on that same date. Documents in redacted form had been provided and Ms Hanley asserted she did not have authority to waive privilege and/or parts that were redacted related to the property proceedings and not whether the late Mr Marsten had capacity to make a new will as contemplated by section 121 of the Evidence Act. Ms Marsten’s counsel pressed to inspect the redacted parts of documents. With the agreement of those appearing I inspected the unredacted documents and compared them with the redacted documents and I ruled on inspection of documents and gave reasons there and then. Following rulings on documents to be inspected objections were not pressed.[11]
[11] See 27 October 2022 TP 26 lines 30-32
Exhibits tendered
There were only two exhibits tendered. Exhibit W1 of 27 October 2022 is a bundle of redacted and unredacted emails sent to Chambers that informed the rulings on the objections to evidence. Exhibit H1 of 27 October 2022 is an email from counsel for Ms Hanley regarding the authorities discussed in submissions that day.
The medical evidence
In late 2021, Ms Hanley says that Mr Marsten undertook a capacity assessment by Dr C and Dr D of the H Hospital. Dr C and Dr D’s and notes are both annexed to Ms Hanley’s affidavit of 22 August 2021. Dr D’s notes include:
Mildly disorientated
Note daughter is seeking EPOA today.
Discussed with [Mr Marsten]. He has a general idea of EPOA + MTDM [medical treatment decision maker]
Discussed role of MTDM + EPOA, financial + lifestyle. He was able to show understanding of all of the above and openly stated he trusts his daughter to hold any or all of these. I think there is an underlying cognitive deficit but it’s mild and he has capacity to appoint MTDM/EPOA[12].
[12]
Dr C’s notes include:
Met with [Mr Marsten] + daughter
Discussed pall care referral
EPOA done … JP
Ms Hanley says that after the capacity assessment, they amended the 2020 EPOA document by hand (‘the 2021 EPOA’) and executed the document. She says she was appointed Mr Marsten’s EPOA. She says that the 2021 EPOA was witnessed by Ms J, justice of the peace, and Mr K, who both knew Mr Marsten. Ms Marsten says the 2021 EPOA does not appoint anyone as attorney.
Later that day, Mr Marsten was discharged from the hospital into the care of Ms Hanley.
In early 2022, Mr Marsten had a videoconference consultation with Dr C. Prior to that conference, Ms Hanley says that she emailed Dr C a list of questions from the family law solicitor about Mr Marsten’s capacity for providing instructions in relation to Family Law Act proceedings. In early 2022 Dr C sent the family law solicitor an email responding to those questions. That email contained the following:
In my opinion, he is in the capacity to make decision. He has [a serious illness] and he will most likely to deteriorate further in next few weeks. He will require higher doses on analgesia and his capacity to make the decision will be affected.
Ms Hanley issued proceedings on 19 January 2022 on his behalf, and she says as his Litigation Guardian. She says that although Mr Marsten “was very unwell and became very weak physically in his last days, he continued to communicate his wishes to me firmly.”
Events subsequent to Mr Marsten’s death
Dr D produced a report regarding Mr Marsten’s capacity in relation to the 2022 Will for the new Will solicitors, dated 29 March 2023. That report included the following:
I was first involved in [Mr Marsten’s] care when he was an inpatient at [a hospital]. He was experiencing pain from his [illness] which was end stage, having progressed through multiple lines of treatment. … I reviewed him again [days later]… I subsequently reviewed [Mr Marsten] [late 2021] while he remained an inpatient at [the hospital]. I had telephone calls with his daughter during this time. We agreed to meet to discuss Enduring Power of Attorney and Medical Treatment Decision Making with [Mr Marsten] and his daughter. During the admission [Mr Marsten] was often fatigued and at times drowsy however did not show any overt signs of confusion. On the day of the review, [Mr Marsten] was mildly disorientated however we had an extensive discussion regarding the role of Enduring Power of Attorney and appointing a Medical Treatment Decision Maker for which [Mr Marsten] was able to express his understanding of the role of both of these appointments and the impact it would have on his ongoing care and decision making as well as the implications of those appointments on others.
With regards to the making of a Will this was not formally assessed and on review of my notes …I made no documentation of attesting of his capacity. In specific response to the questions in your letter, In my opinion [Mr Marsten] had an understanding of what a Will was as he demonstrated the capacity to understand Enduring Power of Attorney and Medical Treatment Decision Maker. I did not make an assessment of his general understanding of the nature and extent of his estate or assets. I did not formally test his capacity to consider beneficiaries of his Will nor did I attest his capacity to have the ability to evaluate and discriminate between those potential beneficiaries and make provisions for them.
[a few days later] was my last review and interaction with [Mr Marsten]. I note that his Will was signed [in early] 2022 and given the time that had passed between the making of the Will and my assessment of his cognitive abilities, I am unable to comment on what his cognitive abilities would likely have been at the time of signing of the Will.
Dr C also produced a report, dated 30 April 2023 and filed in these proceedings on 19 October 2022. That report contained the following:
I was asked to provide a medical statement regarding [Mr Marsten’s] capacity to make a legal decision.
[Mr Marsten] had a: long stay at [H Hospital] [in late 2021]. [In late] 2021, he was examined by myself and palliative care specialist [Dr D]. We both believe he had a general idea of making power of attorney and Will.
I last spoken and examined [Mr Marsten] [in early] 2022. On my assessment, he was not drowsy or confused. He is in capacity to make a legal decision.
Over the tumultuous last month of Mr Marsten’s life, a block was placed on the joint term deposit, which had around $325,000 in it at the time. Over the course of 2022, before the hearing in September, the bank released half of that amount to Ms Marsten and the other half is still held in the account awaiting orders.
THE APPLICABLE LAW
The relevant law in these proceedings includes the issues of the application for an adjournment/stay, the Litigation Guardian controversy and the appointment as legal personal representative issue.
The Rules and a Litigation Guardian
It is agreed that a Litigation Guardian may act for a party who is alive and in need of someone to act on their behalf. Litigation Guardians are determined pursuant to Part 3.5 of the Rules. When a party dies, the position of a Litigation Guardian dies with the deceased. When a party dies, any EPOA is revoked.
Litigation in this court must be conducted in accordance with the applicable rules. Those rules are the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) (‘the Division 2 Rules’)[13]. The Division 2 Rules are made by the Chief Judge of the Court pursuant to the Federal Circuit and Family Court of Australia Act 2021 (Cth). Those Rules applied from 1 September 2021. The Division 2 Rules, by Rule 2.02, provide that the Federal Circuit and Family Court of Australia (Family Law) Rules 2021(‘the Rules’)[14] “…apply…as if the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 were provisions of these Rules.” Relevant parts of the Rules are:
[14] The Division 2 Rules are only 13 pages including title pages and the
1.04 Overarching purpose
(1)The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Note 1:These Rules must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose (see subsection 67(3) of the Federal Circuit and Family Court Act).
Note 2:See sections 190 and 191 of the Federal Circuit and Family Court Act in relation to the overarching purpose of the Rules of the Federal Circuit and Family Court (Division 2). See also the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 which applies these Rules with modifications.
(2)Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
Note:See subsection 68(1) of the Federal Circuit and Family Court Act.
(3)A party’s lawyer must, in the conduct of a proceeding before the court (including negotiations for settlement) on the party’s behalf:
(a)take account of the duty imposed on the party referred to in subrule (2); and
(b)assist the party to comply with the duty.
Note:See subsection 68(2) of the Federal Circuit and Family Court Act.
1.05 Definitions
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litigation guardian means a person appointed by the court under rule 3.15 to manage and conduct a proceeding for a person who needs a litigation guardian (also known as a next friend, guardian ad litem or tutor) (see Part 3.5).
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1.31 Court may make orders or dispense with these Rules
(1)The court may, in the interests of justice, dispense with compliance, or full compliance, with any of these Rules at any time.
(2)If, in a proceeding, the court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the court prevails in that proceeding.
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2.01 Which application form must be filed
(1)Unless otherwise provided in these Rules, a proceeding must be started by filing an application for final orders in accordance with the relevant approved form.
(2)An application for final orders may include an application for an interlocutory order.
(3)A person must not file an application for an interlocutory order unless:
(a) an application for final orders is current in the proceeding; or
(b) the application includes an application for final orders.
(4)If a person makes an application for an interlocutory order after the start of the proceeding and before final orders have been made in the proceeding, the application must be made by filing an Application in a Proceeding.
(5)The required documents must be filed with an application if they have not already been filed in the proceeding.
(5A)An application must concisely state the orders sought.
(6)The relevant approved forms are set out in Table 2.1.
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2.14 Formal requirements for documents
(1) Documents, other than forms, filed with the court must:
(a)be typed in at least 12 point font size (Times New Roman or equivalent) with line spacing of 1.5 lines; and
(b)have margins (left, right, top and bottom) of approximately 2.5 cm; and
(c)have each page consecutively numbered; and
(d)have a coversheet in the approved form including the court file number distinctive to the proceeding.
(2) Paper documents should be:
(a)legible and without erasures, blotting out or material disfigurement; and
(b)printed on one side only of white A4 paper; and
(c)securely bound or fastened.
(3)Electronic documents must be filed in PDF format.
(4)A document filed or served (other than an affidavit, annexure or exhibit) must be signed by a party or by the lawyer for the party unless the nature of the document is such that signature is inappropriate.
(5)Subrules (1) to (4) do not need to be strictly complied with if the nature of the document, or the manner of filing, means that strict compliance would be impracticable.
Note: For formal requirements for affidavits, see Part 8.3.
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Part 3.5—Litigation guardians
3.12 Person who needs a litigation guardian
(1)For these Rules, 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 proceeding; or
(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2)Unless the court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
3.13 Starting, continuing, defending or inclusion in proceeding
(1)A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by the person’s litigation guardian.
(2) The litigation guardian of a party to a proceeding:
(a)must do anything required by these Rules to be done by the party; and
(b)may, for the benefit of the party, do anything permitted by these Rules to be done by the party.
Note 1:person may apply for an interlocutory order to be appointed as a litigation guardian in relation to a prospective proceeding (see rule 5.02(2)(b)).
Note 2:Rule 6.01(3) applies the duty of disclosure to a litigation guardian appointed under this Part.
Note 3:Subrules 5.28(3) and 10.04(3) require a litigation guardian seeking a consent order to file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests.
3.14 Who may be a litigation guardian
A person may be a litigation guardian in a proceeding if the person:
(a)is an adult; and
(b)has no interest in the proceeding adverse to the interest of the person needing the litigation guardian; and
(c)can fairly and competently conduct the proceeding for the person needing the litigation guardian.
3.15 Appointment of litigation guardian
(1)A person may apply for the appointment, replacement or removal of a person as the litigation guardian of a party.
(2)The court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian, or substitute another person as litigation guardian, in a proceeding in the interests of a person who needs a litigation guardian.
(3)A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding.
(4)The court may remove a litigation guardian at the request of the litigation guardian.
3.16 Manager of the affairs of a party
(1) In this rule:
manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.
(2)A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the person’s authority extends.
(3)If, in the opinion of the court, a suitable person is not available for appointment as a litigation guardian for a person who needs a litigation guardian, the court may request that the Attorney‑General appoint a person to be a manager of the affairs of the party.
(4)The Attorney‑General may appoint, in writing, a person to be a manager of the affairs of a party for the purposes of this rule, either generally or for a particular person.
(5)A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person.
3.17 Notice of becoming litigation guardian
A person appointed as the litigation guardian of a party to a proceeding must, as soon as practicable after the appointment, give notice of the appointment to each other party and any independent children’s lawyer in the proceeding.
3.18 Costs and expenses of litigation guardian
The court may make orders for the payment of the costs and expenses of a litigation guardian (including the costs of an application for the appointment of the litigation guardian):
(a) by a party; or
(b)from the income or assets of the person for whom the litigation guardian is appointed.
Part 3.6—Death or bankruptcy of a party
Division 3.6.1—Death of party
3.19Death of party
(1)This rule applies to a property proceeding or an application for the enforcement of a financial obligation.
(2)If a party dies, the other party or the legal personal representative of the deceased person must ask the court for procedural orders in relation to the future conduct of the proceeding.
(3)The court may order that the legal personal representative of the deceased person be substituted for the deceased person as a party.
Note 1:The court may make other procedural orders, including that a person has permission to intervene in the proceeding (see rules 1.31 and 3.04).
Note 2:For the effect of the death of a party in certain proceedings, see subsections 79(1A), 79(8), 79A(1C), 90SM(2), 90SM(8), 90SN(5), 90UM(8) and 105(3) of the Family Law Act.
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10.09Application for summary orders
(1)A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a)the court has no jurisdiction; or
(b)the other party has no legal capacity to apply for the orders sought; or
(c)it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
(2)An application under this rule must be made by filing an application in accordance with the approved form.
The Judge-made Rules operate in the shadow of the Act. Significantly section 79(2), section 79(4) and section 79(8) of the Act provide as follows:
Section 79(2)
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4)
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(8)
(8)Where, before property settlement proceedings are completed, a party to the marriage dies:
(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b) if the court is of the opinion:
(i)that it would have made an order with respect to property if the deceased party had not died; and
(ii)that it is still appropriate to make an order with respect to property;
the court may make such order as it considers appropriate with respect to:
(iii)any of the property of the parties to the marriage or either of them; or
(iv)any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and
(c)an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
From 1 September 2021 this court operates pursuant to Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCOA Act’) and I must apply that Act. The FCFCOA Act provisions include:
140. Making of orders and issue of writs
(1)The Federal Circuit and Family Court of Australia (Division 2) has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds, including interlocutory orders, as the Court considers appropriate; and
(b)issue, or direct the issue of, writs of such kinds as the Court considers appropriate.
141. Declarations of right
(1)The Federal Circuit and Family Court of Australia (Division 2) may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2)A proceeding is not open to objection on the ground that a declaratory order only is sought.
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143. Summary judgment
(1)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.
(5)This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975 .
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189. Formal defects not to invalidate
(1)Proceedings in the Federal Circuit and Family Court of Australia (Division 2) are not invalidated by a formal defect or an irregularity, unless the Court is of the opinion that:
(a)substantial injustice has been caused by the defect or irregularity; and
(b) the injustice cannot be remedied by an order of the Court.
(2)The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, on such conditions (if any) as the Court or Judge thinks fit, make an order declaring that the proceeding is not invalid:
(a)by reason of a defect that it or the Judge considers to be formal; or
(b) by reason of an irregularity.
190. Overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil 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 2) 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 2);
(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.
(3)The civil 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.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
The Powers of Attorney Act 2014 (Vic) includes the following:
22 Enduring power of attorney
(1)By an enduring power of attorney a person may authorise an eligible attorney to do anything on behalf of the person that a person can lawfully do by an attorney.
(2)Without limiting subsection (1), a person may confine what is authorised to be done by an attorney—
(a) to personal matters only; or
(b) to financial matters only; or
(c) to matters specified in the instrument of appointment.
(3)Despite any rule of law to the contrary an enduring power of attorney is not revoked by the principal, after making the power, becoming a person who does not have decision making capacity for any matters to which the power of attorney applies.
(4) In this section—
eligible attorney means a person who is eligible under Division 3 to be appointed as an attorney under the power of attorney.
Note
See section 26 for matters for which power cannot be given under an enduring power of attorney.
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26 Matters for which power cannot be given under an enduring power of attorney
To avoid doubt, despite section 22, a principal under an enduring power of attorney is not able to authorise an attorney under that power to—
(a) make or revoke a will for the principal; or
(b) make or revoke an enduring power of attorney for the principal; or
(c) vote on the principal's behalf in an election for the State or the Commonwealth or another State or a Territory of the Commonwealth or a local election or a referendum; or
(d) consent to the entering into or dissolution of a marriage of the principal or of a sexual relationship of the principal; or
(e) make or give effect to a decision—
(i) about the care and wellbeing of any child of the principal; or
(ii) about the adoption of a child under 18 years of age of the principal; or
(f) to enter into, or agree to enter into, a surrogacy arrangement, within the meaning of the Assisted Reproductive Treatment Act 2008, on the principal's behalf; or
(g) consent to the making or discharge of a substitute parentage order, within the meaning of the Status of Children Act 1974, on the principal's behalf; or
(h) manage the estate of the principal on the death of the principal; or
(i) consent to an unlawful act.
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39 When attorney's power is exercisable
(1)A principal may specify, in an enduring power of attorney, a time from which, a circumstance in which or an occasion on which the power for all matters or the power for a specified matter under the power of attorney is exercisable, which may be—
(a)immediately on the making of the power; or
(b)when the principal ceases to have decision making capacity for the matters or matter; or
(c)any other time, circumstance or occasion.
(2)If a specification is not made in an enduring power of attorney under subsection (1), the power for all matters under the enduring power of attorney is exercisable on and from the making of the power of attorney.
(3)Despite a specification being made under subsection (1) in an enduring power of attorney, if before the specified time, circumstance or occasion for a matter, the principal does not have decision making capacity for the matter, an attorney who has power for the matter may exercise that power during any period when the principal does not have that capacity.
(4)If an attorney is acting under an enduring power of attorney as to a matter because the principal does not have decision making capacity for the matter, a person dealing with the attorney may ask for evidence to establish that the principal does not have the decision making capacity.
Note
An example of evidence that may be given under subsection (4) is a medical certificate as to the principal's decision making capacity.
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51 Death of principal
An enduring power of attorney is revoked on the death of the principal.
Legal personal representative
Counsel also made the point that the 24 December 2024 did not amount to a document to appoint Ms Hanley an attorney because by the use of the draft document the reference to Ms Marsten was struck through and Ms Hanley was only appointed an “alternative attorney” and there was no “attorney”.
Counsel for Ms Marsten also referred to Ms Hanley’s affidavit of 13 October 2022 including at [13] where she observed:
On the morning of [early] 2022, I contacted the palliative care team and informed them that I was concerned that it seemed that [Mr Marsten] would not be able to swallow by the afternoon and he may therefore need the syringe driver installed, as had previously been discussed.
Counsel submitted that this was inadmissible as it required medical expertise to give that evidence and alternatively went to weight. Counsel concluded as follows:
MR ANTILL: No. So that’s the evidence, and I would say the evidence that is there is in support of the conclusion that he was not in need of a litigation guardian. He’s not in need [in early] 2022. He’s not in need [a week later]. He was not in need [a few days later].
HIS HONOUR: Who has got the burden of proof in this matter?
MR ANTILL: In my submission, the applicant is seeking to invoke the jurisdiction of the court and it’s their – burden is on them. So moving on and just picking up, effectively, if this is perhaps a blunder – and when I say “blunder”, it was – if – I would say is, if the proceedings were issued in the name of the husband, that we wouldn’t be here. The evidence is from the solicitor that she got clear instructions from the husband that he wanted to issue the proceedings; she could have signed the document on his behalf. There’s no evidence that he couldn’t have signed the document – is frail, but – but she didn’t. And so then the question is can this court cure that question you posed to me on the last occasion, your Honour, and, in my submission, first, it’s no. The court can’t – I mean, I don’t know how you would cure it.
[Emphasis added]
Ms Hanley’s case.
Ms Hanley’s case is that the second EPOA will not be set aside and so she will have been the “manager” because Mr Marsten, because of his feeble health, did need a Litigation Guardian and hence the proceedings are valid. She relies on the same evidence Ms Marsten says shows Mr Marsten had capacity and that Ms Marsten must take all of the evidence on this application not just some of it.
Ms Hanley asserts it was always preferable to adjourn the whole controversy until probate had been sorted. While that is not without substance, I am persuaded by Ms Marsten’s counsel that, jurisdiction having been challenged in accordance with the Rules, I must be satisfied I have jurisdiction before adjourning the whole of the proceedings.
Discussion
I do not accept the proposition that if a person has capacity that person does not need a Litigation Guardian. The facts of every case must be considered. In this case I was pressed to hear the lack of jurisdiction case before probate of the new Will has been dealt with. It is common ground in such an application, on the papers, I must take the evidence of the respondent to the application at its highest. They evidence of Ms Hanley and the family law solicitor is clear and neither inconsistent or implausible.
Ms Marsten’s submissions concentrated on Rule 3.12(1)(a), i.e. the “does not understand”, or what could be called the “capacity” provision. But only one of 3.16(a) or (b) need be satisfied: the word at the end of 3.16(1)(a) is “or”. That word means what it says. Both limbs of 3.12, both (a) and (b) must be considered and may be, but are not required to be, read conjunctively. “Or” does not mean “and”.
Rule 3.16(b) uses the word “is”, which evokes the present tense but also the words “not capable of adequately conducting, or giving instructions for the conduct of, the proceedings. Those letter words invoke a consideration of not only the present but at least the near future as well.
The evidence establishes that the family law solicitor cautiously ensured at every step that the desire to issue proceedings was genuinely that of Mr Marsten. It had been intended to issue the proceedings in his name. It is clear, accepting the evidence at its highest, that he had capacity to understand and execute a new Will and new EPOA in early 2022. It is clear enough that up to that morning in early 2022 he had “capacity” to make legal decisions. He may have had capacity to merely consent to the issue of proceedings right up to that evening in early 2022. The evidence shows that Mr Marsten’s illness and ability to conduct proceedings was not set in stone but varying on a day-to-day basis as his physical capacity declined. He was dying of a serious illness. He was feeble on his death bed. He was observed to be having difficulty talking and swallowing. The evidence shows a significant decline. The evidence also shows he never recanted his desire for proceedings to issue.
I do not accept a non-medical person is unable to observe whether someone is unable to, or having difficulty, swallowing. I do not accept that observation requires medical expertise.
More than mere capacity required to start or conduct a proceeding
The Rules provide that for the issue of property proceedings more than capacity is required. A financial statement must be sworn or affirmed (Rule 6.06 (5)) and the facts asserted in the Initiating Application must be read and signed as “true” (Part K of the Initiating Application). That part K also requires the applicant to “have read and complied with the pre-action procedures”. The form of the financial statement requires the applicant for property orders to consider the extensive suite of information and disclosure required by the Rules, see Rule 6.06(3). The evidence discloses the solicitor understood Mr Marsten’s health was rapidly declining and that he would be unable to read and comprehend and swear or affirm the suite of complex documents required to issue the property application. The decline in health is consistent with his death only days later.
Conclusions
Taking the evidence at its highest the solicitors’ position was both prudent and reasonable. I am satisfied, that on the day the proceedings were issued Mr Marsten was not capable of adequately conducting, or giving adequate instructions for the conduct of the property alteration proceedings pursuant to section 79 of the Family Law Act 1975 (Cth) and that he needed a Litigation Guardian to do so. Hence the proceedings are not invalid or without or outside jurisdiction. The facts here are very different to Gilliam & Cantrell.
Ultimately Ms Marsten’s counsel did not pursue the point that a Litigation Guardian must be appointed before the substantive proceedings are issued as asserted in the early 2022 letter. But the point was not renounced. The definition of Litigation Guardian lends weight to that proposition. Taking the Rules as a whole I am not satisfied that an interlocutory application or appointment is mandatorily required before a person who is not a “manager” can commence a proceeding as a Litigation Guardian for someone who needs a Litigation Guardian. Weight must be given to the plain words of Rule 3.13(1). An interlocutory application can be made but the Rules are sufficiently flexible to accommodate circumstances, as here, where that is not possible or practical.
In the event I am wrong about that I am satisfied that the evidence shows this is an appropriate case for the variation or dispensing of the requirements of the Rules for that appointment beforehand pursuant to Rule 1.31. I am satisfied of that because that would be necessary to comply with the overarching purpose of section 190 of the FCFCOA Act and in particular sections 190(1)((a) and (b) and 190(2)(a),(c) & (d). I am also so satisfied by the command of section 189 of the FCFCOA Act that a formal defect or irregularity does not invalidate proceedings. Here that is so because I am not satisfied that substantial injustice has been caused and the dispensation of the application of that Rule (if it means a Litigation Guardian must obtain appointment by the Court prior to the issuing of the proceedings) would remedy the irregularity.
I am satisfied that such an approach is at least consistent with the Full Court’s observations in Hullet & Benton (2022) FLC 94-072, notwithstanding the very different factual scenarios.
Were such dispensation required (and I would so dispense) that would not be permitting a proceeding where no cause of action existed as in Simonds and Frost. The parties had been married for more than 50 years and were not divorced. No time limit applied or would be circumvented. I am satisfied the initiating application was a matrimonial cause as defined by (ca) of the definition of “matrimonial cause”. To dispense with the requirement if there be one, of requiring an application for a Litigation Guardian before the issue of the substantive proceedings would only go to the form, not the substance of the cause of action, the matrimonial cause.
In the circumstances of this case, I am satisfied the proceedings are validly instituted.
I am satisfied that the position of counsel for Ms Hanley of the necessity to adjourn or stay the proceedings pending the probate proceedings is well made. I will bring the matter on for mention to determine where the probate application is up to and determine what further orders should be made.
Costs
Despite the irony, any application for costs, if there is to be one, should be made in accordance with the Rules.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 12 December 2023
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