Masland and Eaton - [2012] FMCAfam 373

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MASLAND & EATON

[2012] FMCAfam 373

FAMILY LAW – Property – should proceedings be heard on an undefended basis.

Applicant:

MR MASLAND

Respondent:

MS EATON

File Number:

ADC 4675 of 2009

Judgment of:

Brown FM

Hearing dates:

18, 19 & 20 April 2012

Date of Last Submission:

20 April 2012

Delivered at:

Adelaide

Delivered on:

20 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr D. Berman

Solicitors for the Applicant:

Mark Esau

Counsel for the Respondent:

In person

ORDERS

The proceedings be finalised on an undefended basis.

IT IS NOTED that publication of this judgment under the pseudonym Masland & Eaton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 4675 of 2009

MR MASLAND

Applicant

And

MS EATON

Respondent

REASONS FOR JUDGMENT

The matter of Ms Eaton & Mr Masland is listed before me. It is a property proceeding. As I have already observed, earlier in the course of these proceedings, the case has been delayed on many occasions, very often as a result of the actions of Ms Eaton, the respondent to the proceedings.
Ms Eaton is not at court. It is the position of counsel for the husband that Ms Eaton’s behaviour, up to this point, has been unsatisfactory and her mode of communicating with the court unacceptable.
In these circumstances application is made for the proceedings to be completed in the absence of the wife. These reasons deal with the preliminary point or whether the case should be further adjourned until such time as Ms Eaton appears before it.
The matter began as a contested hearing last (omitted). Ms Eaton, who, in the past, has been represented by various solicitors, is now representing herself.
At the outset of the case, she wished me to disqualify myself from hearing the matter. In addition, on (omitted), coupled with the application for disqualification, was an inchoate and unparticularised application for an adjournment of the proceedings.
Ms Eaton has presented medical material in the past, which indicates that she suffers from type 2 diabetes. She has also provided medical evidence which indicates that she has suffered neuropathy to her lower limbs, which has resulted in a portion of her leg being amputated. Certainly, on (omitted), which, from memory, is the first time physically I have seen her in Court, Ms Eaton appeared in a wheelchair.
On (omitted), prior to the matter being called on, a person, apparently Ms Eaton, telephoned the National Enquiry Centre of the Family Law Courts and indicated that she (Ms Eaton) had suffered a car accident and was likely to be running late.
As matters transpired, that did not greatly matter because she was here when the matter was actually called on. But as a result of the call, an email was sent to my associate, from the National Call Centre, indicating the occurrence of a car accident involving Ms Eaton.
Ms Eaton, as I say, wanted me to disqualify myself from hearing the matter. Basically, she said that I would not provide her with a fair hearing. She was particularly critical of an order I made earlier which resulted in the valuation of a property, which is relevant to these proceedings, in (omitted), it being the husband’s position that that property needed to be valued, and Ms Eaton was impeding that.
In addition, Ms Eaton was critical that I had not properly dealt with her application for spousal maintenance. She did bring an application for spousal maintenance but, as I recall, her application was listed at a date when she was not represented by lawyers and she did not appear at the time scheduled to pursue it, and it was accordingly dismissed.
The application for spousal maintenance was made against a background where Mr Masland asserts that he had very limited income, and was not in a position to pay any spousal maintenance. It is, indeed, also the case – and I do not think this is in contest between the parties – that he had gone into bankruptcy because of an unsuccessful business which the parties had, which business had considerable debts to the ATO. This indebtedness had resulted in the sale of a property which Mr Masland owned prior to the parties’ marriage.
Ms Eaton’s position throughout the proceedings has been that Mr Masland has, in some way, secreted assets of significant value from this business, and they are concealed somewhere. But, apart from that assertion, as far as I know, no evidence has been provided to trace moneys into assets owned or controlled by Mr Masland. It is also Ms Eaton’s position that Mr Masland is a skilled (occupation omitted), and has a capacity to earn a significant income which he is not currently fully utilising.
Anyway, those are live issues in the trial proceedings, but insofar as the spousal maintenance application in the interim, Ms Eaton did not appear at Court to pursue it and it was dismissed. An application for spousal maintenance on a final basis remains live.
After that application was dismissed, Ms Eaton instructed Ms M, a solicitor, to act on her behalf. That was prior to me provisionally considering whether this was the type of case where Ms Eaton, because of her issues with diabetes and because of unusual aspects of her personality, was a person who required a litigation guardian to pursue these proceedings.
As I recall, Ms M assured me that now that she was engaged, the matter was likely to proceed smoothly. Anyway, for reasons about which I am not informed, Ms M withdrew from the matter. She did, however, prepare a lengthy affidavit on Ms Eaton’s part. However, Ms M did not seek to reagitate any application for interim spousal maintenance on her client’s behalf prior to her withdrawal.
Since that affidavit was provided by Ms M’s office, Ms Eaton herself did not file any material until (omitted), when she brought her application for me to disqualify myself. This application was supported by a lengthy affidavit, which she had prepared herself.
This affidavit also indicted that the Commonwealth Bank had obtained a judgment against Ms Eaton and were in the process of seeking possession of certainly the property in which Ms Eaton currently lives in Property C, but also a property in Property T which she had inherited from the estate of one of her parents. The Bank is the mortgagee of the Property C property and holds some form of charge over the Property T property.
So notwithstanding Ms Eaton’s application for me to disqualify myself and her desire to adjourn the proceedings, she also asserted she was anxious to have the matter finalised because of the financial pressures to which she was subject.
I should say that, from Mr Masland’s point of view, the most significant asset is the remainder of proceeds of the property which was sold as a result of the Taxation Office’s actions, which is a property which he had at Property A. There is about $50,000 remaining. He also has some superannuation which he has acquired, no doubt throughout his career. He is, I think, in his 50s.
When the matter came on, on (omitted), Ms Eaton did not mention to me any car accident. She proceeded with the matter. She agitated her application for me to disqualify myself. She made criticisms of me. She made criticisms of others. She was lucid, as far as I could see, and although it is an overused adjective, was somewhat feisty in her presentation to me.
I was told, in passing, by her friend, Ms C., that she had apparently fallen asleep during the course of the afternoon’s proceedings, but I saw no evidence of that.
Ms Eaton was also able to cross-examine Mr Masland. She made complaint about his lack of discovery and, from my lay observations of her, she knew what the proceedings were about, and she was certainly orientated in time and place.
One of the factors which caused Ms Eaton to wish to have the proceedings adjourned was that she asserted that her home at Property C, had been burgled on the preceding weekend. Ms Eaton asserted that the malefactor involved had stolen important documents, which related to these proceedings.
The import of her complaint was that the only person who could have broken into her home and quietened her dog was Mr Masland. Although I was not asked to rule on the truth or otherwise of that issue, and I should say Ms Eaton, herself, has not as yet given any evidence in these proceedings, this did seem to me to be an extraordinary misfortune which has befallen her. It seems to me to be highly unusual that documents alone would be taken in a burglary.
Mr Masland has been represented by the same firm of solicitors throughout these proceedings, who have retained Mr Berman of senior counsel to appear on his behalf. Mr Berman has told me that statements from bank accounts that Mr Masland has operated at relevant times have been provided to Ms Eaton. She denies that this is the case. But there is some tension between her assertion in that regard and her statement that some unknown person has stolen her documentary records.
In addition, during her cross-examination of Mr Masland, Ms Eaton made much of the fact that he had apparently, through the agency of his son, delivered the documentary records of the parties’ business, a business called (omitted), in boxes to her home and she had apparently been able to reconstruct the accounts from these records.
Again, Mr Masland has given evidence about that, but Ms Eaton has not. Anyway, the hearing proceeded throughout (omitted) afternoon and was adjourned at about four o’clock. I should say that Ms Eaton complained that it was oppressive that she was required to be in Court for one-and-three-quarters hours, although from recollection there was a break during the course of the afternoon.
In any event, the proceedings were adjourned until 10 the following day, (omitted). Arrangements were made in my hearing and in respect to which to a certain extent I facilitated that Ms Eaton would come to Court a little earlier so that she could give to Mr Berman all the documents she had about the Commonwealth Bank’s intention and plans in respect of Property C, and the property in Property T.
It being, of course, of some moment so far as Mr Masland is concerned as to whether Ms Eaton will firstly have a place to live in future. This has obvious implications so far as the assessment of her future needs is concerned and secondly what potential effect the Bank’s actions may have so far as the erosion of the pool of matrimonial assets is concerned.
It being in general terms his understanding that Property T was rented and it was unencumbered. The mortgage on Property C being relatively modest. Therefore the rent from Property T going to pay the mortgage on Property C and Ms Eaton having security in that regard.
In addition, Mr Berman said – and he told me he had a letter from Mr Esau’s office proving that earlier bank statements regarding disputed accounts relating to the business of (omitted) and what has been called the parking account – which was an account Mr Masland opened because he was concerned that Ms Eaton perhaps might not utilise any funds that were available for (omitted) for the purposes of that business had been sent to Ms Eaton earlier.
Notwithstanding the earlier provision of these statements Mr Berman said he would arrange for other copies to be made so Ms Eaton could see them. Accordingly, Ms Eaton said she would try her best to get to Court early, but she complained that she had difficulty driving and had all manner of other problems, but she would do the best she could.
As I recall, she reiterated her application to adjourn the proceedings, saying again that she was anxious for them to be finalised, but she just needed a couple of weeks to get things in order before that could happen.
I should point out that Mr Masland brought these proceedings on (omitted) 2010. So they are now well over two years old. I should also point out that they have been fixed for trial on at least two occasions in the past.
One of those trials was adjourned, with Mr Masland’s acquiescence, because he accepted that Ms Eaton was unwell. Ms Eaton herself has told me that as a result of her medical difficulties, she, unfortunately, developed an addiction of dependence on morphine and one of the reasons why she wished me to disqualify myself was in the past and I have given her the indulgence – and I think it is an indulgence to some extent in this day and age, although others may disagree – of appearing in Court by telephone, although she lives in suburban Adelaide.
Her presentation on the end of a telephone has been unusual and it would seem possible, although I cannot be altogether certain that one of the precipitating factors in her behaviour is her difficulties with powerful painkilling drugs. Anyway, the proceedings were adjourned. Some good had been done on (omitted), although the case perhaps not proceeded as expeditiously as I and perhaps Mr Masland would have wished.
Ms Eaton did not present at Court on (omitted) morning. I was told by her – Mr Masland’s friend – a lady by the name of Ms C. that she had been involved in a car accident.
That struck me as unusual because, as I say, it was my understanding that she had had a car accident on the (omitted) morning preceding the hearing beginning.
I was also provided with what I will describe as a generic medical certificate or certificate of sickness from a Dr R, which said that Ms Eaton was suffering from a medical condition and would be unfit for work from (omitted), but would be able to resume her work on (omitted).
The hearing of this matter was fixed for (omitted). Anyway, Dr R.’s certificate did not give any diagnosis and apart from the fact that the lady concerned was likely to be well enough to resume work on (omitted) and from which one perhaps could infer that the sickness was not of the most serious kind, the certificate said nothing.
Given the history of the matter and given Ms Eaton’s presentation, both on the previous day and on earlier occasions, I was suspicious about the provenance of the certificate and the circumstances in which it had been obtained.
To use the expression I used earlier, I was not prepared to be a metaphorical ping-pong ball, who was being played by the cat-like machinations, or so it seemed to me, of Ms Eaton.
So I directed that Ms Eaton appear at 2.15 yesterday afternoon and if she did not appear, I directed that she provide more particulars, through Ms C., of the alleged medical condition and why Mr Masland’s application should not be dealt with as an undefended matter.
That did precipitate Ms Eaton appearing at Court. Ms Eaton told me, I think, that she had, in fact, been involved in a car accident when she left Court yesterday afternoon. She said it had been reported to the police, but she did not have any document on her person to establish that, rather she invited me or someone on my behalf to contact the police.
There was some uncertainty - and I must say that Ms Eaton did not present in a particularly coherent manner yesterday afternoon – that the report had been made at (omitted) or Property CB, but because the property damage was less than (omitted), the police had told her that it should be reported online. I gleaned from that and I think I suggested to Ms Eaton that this implied that she was able to drive away following the accident and I think she confirmed that was the case.
That of itself suggested perhaps it was not the most serious kind of accident. Although I cannot claim to be an expert on the procedures of the South Australian police, it struck me as surprising that if Ms Eaton was injured, even in a trivial way, it struck me as unusual that she would not be required to make a more formal report to the police rather than making some notation electronically.
Anyway, be that as it may, Ms Eaton arrived at Court with a bandage on her shoulder and bandages on her fingers. She invited me to come and inspect what she said were screws in her shoulders. As I say, I am not medically qualified and, of course, it would be quite improper for me to examine Ms Eaton. She also said to me that Dr R. had told her that she ought to proceed immediately to hospital and that he had been kind enough to visit her at home as a locum.
She had not done that. Her - that is, Ms Eaton’s - presentation was unusual in Court. She oscillated between being quite animated and at times a little angry, I thought, and slumping forward in her wheelchair as though she was under the influence of some powerful substance. I report those as observations only. They seemed to me to be unusual, but, of course, I am not medically qualified.
Ms Eaton places me in a difficult position because I have not seen her on oath. One of the requirements of this case is that, ultimately, I am almost certainly going to be asked if the matter proceeds to a final hearing to make some assessment of Ms Eaton’s credit. I have had, as I have outlined quite a few dealings with Ms Eaton and although she has presented in Court in the past, I have never seen her on her oath, though.
But given her behaviour up to this stage, which Mr Berman characterised as unsatisfactory and that is a characterisation with which I would agree, I have some reservations about Ms Eaton’s ability to be truthful, to answer in a straightforward manner questions which are put to her.
More importantly, I am also gravely concerned that she is intent on manipulating this process and will say whatever she thinks or present herself in whatever way she thinks will achieve the outcome which she wants which, at this stage, is for the matter not to proceed and for me not to be involved in dealing with it.
Anyway, Ms Eaton said, as she left the court, that she had been involved in a car accident going home, that she had been advised immediately to present herself to a casualty department, which she had not done.
If Ms Eaton had been in great pain from (omitted) afternoon onwards, it seems, to me, unusual that she would not have gone to Accident and Emergency earlier, or that she would not have acceded to Dr R.’s request that she go to Accident and Emergency immediately.
I do not know what the doctor would say about this matter, but again there is a tension between his certificate which says that the lady in question will be well on the (omitted) and Ms Eaton’s assertion that she should, on his behest, take herself off to hospital immediately.
In any event, Ms Eaton told me after, in my view, she had given a fairly incomplete and unacceptable account of her car accident, the report to the police and so on and so forth, about whether an ambulance had attended the accident, what she had done about getting medical treatment following the accident, arrangements were made with, I must say, the air of a self-fulfilling prophecy, that if Ms Eaton was admitted to hospital, arrangements would be made for her to contact or someone on her behalf to contact Mr Esau to inform Mr Masland’s legal team that she would not be here for Court today.
Today, Ms Eaton has not attended at court. Rather Ms C has presented a letter which is on the letterhead of the Government of South Australia, the Royal Adelaide Hospital. Stuck on it is a hospital identification tag in respect of Ms Eaton, which gives her date of birth and her address.
The letter is addressed to the Sherriff of the Adelaide Court, re Ms Eaton and reads as follows:
Ms Eaton is currently in hospital and is not medically fit to leave hospital. Please contact us if you have any further concerns. Kind regards, Dr C, Emergency Department, Royal Adelaide Hospital.
And then there is a signature and a stamp that says “Dr C, RAH, Pager - - - ” and a number and her provider number, so Dr C. has a pager and the Health Insurance Commission have given her a number so that she can provide medical services on Medicare, but the certificate, if that is what it is, does not say very much more than that.

Ms Eaton is said to be currently in hospital. No doubt there are many people who are in the premises of the Royal Adelaide Hospital who are not unwell – they work there, they visit there, they may even be awaiting to see a doctor.
The letter does not say that Ms Eaton has been admitted to hospital, the letter says that she is not medically fit to leave hospital.
With the greatest respect to the doctor concerned, and I am well aware that she is subject to all sorts of rules regarding patient confidentiality, the expression is somewhat sphinx-like.
For all I know, it may mean that Ms Eaton has complained of suffering shortness of breath or chest pain but, in a triage setting, it has been considered that she does not immediately need serious medical intervention but it may be prudent to await developments to determine what should happen next.
For all I know, Ms Eaton may be passively refusing to leave the hospital; I do not know, but Ms Eaton, I think, is on notice that I regard these proceedings as being of some moment and some significance.
I have already explained, I think, to Ms Eaton that I am not carrying out some administrative task which can be easily rescheduled to another date. With the greatest respect to the medical profession, I am not like a GP who has long lists of patients that can be rescheduled and rearranged.
This hearing, involving not only Ms Eaton’s rights and entitlements but also Mr Masland’s rights and entitlements, has been scheduled for a long time. Ms Eaton has made it plain by her actions, both active and passive, that she does not want the hearing to go ahead today or yesterday or the day before. She has been somewhat obstructionist.
I have explained to Ms Eaton that I am not an investigator. As such I will not examine her shoulder. I will not ring the providers of medical certificates. I will not inquire of the police as to whether there was or was not an accident. These are not my functions. They are Ms Eaton’s function. It is her role to present her case given that she no longer has legal representation.
It is a matter of some significance, both from the Court’s point of view in terms of managing its business and from Mr Masland’s point of view in terms of getting the matter finalised, that the proceedings have had to be adjourned on several occasions.
Up until this stage, Ms Eaton has had a certain latitude. Proceedings have been adjourned because it has been accepted, in the past, that she has been unwell. But that latitude has to have limits.
Yesterday, when it was indicated to her that she was required to attend Court otherwise the proceedings would be continued in her absence, she did come to Court. Now, the next day she has sent someone in her place with another anodyne and un-particularised medical certificate.
I think, on the basis of the material available to me, that I am entitled to form the view that Ms Eaton is manipulating the process. I do not intend to have Mr Esau or anyone else ring Dr C., whom I suspect is a busy but rather junior doctor at the Royal Adelaide Hospital.
This is an unsatisfactory state of affairs and it is, in my view, inappropriate that Ms Eaton should be allowed to manipulate these proceedings by essentially getting her own way, which is to have the case delayed yet again.
I suppose there is the possibility that I may be mistaken and that Ms Eaton is in a very serious and life threatening condition, but that was not the view of Dr R., nor has Dr C. added something to that doctor’s certificate. Again, a certificate that is essentially meaningless has been provided.
Ms Eaton, I think, is aware that that is not acceptable. There is no evidence to indicate that the lady has been admitted to hospital, she is merely in the hospital.
So, for all those reasons, I have come to the view that the interests of justice dictate that these proceedings be finalised on an undefended basis. Mr Masland is entitled to have these proceedings finished. I am not merely concerned with the rights and entitlements of Ms Eaton, I must not lose sight of the fact that Mr Masland, who is funding these proceedings, perhaps at considerable expense to himself, is entitled, to use the jargon of the times, to closure. So for those reasons, what I propose doing is dealing with the matter on an undefended basis.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 20 April 2012