Masters and Parsons and Ors (No 2)

[2013] FamCA 1111

FAMILY COURT OF AUSTRALIA

MASTERS & PARSONS AND ORS (NO 2) [2013] FamCA 1111

FAMILY LAW – PRACTICE AND PROCEDURE – Where an application was made by the first interveners for expedition – Where the wife’s lawyers seek that the wife is appointed a case guardian – Where the wife seeks that the husband is appointed a case guardian – Where the matter is listed for hearing in relation to the case guardian applications – Where the parties agree the matter should be listed for final hearing –– Where the substantive proceedings are listed for hearing.

Family Law Act 1975 (Cth) ss 79 & 79A.

APPLICANT: Mr Masters

RESPONDENT: Ms Parsons

FIRST INTERVENOR: Mr B and Mr C

SECOND INTERVENOR: Mr H

FILE NUMBER: SYC 3340 of 2006

DATE DELIVERED: 17 May 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 17 May 2013

REPRESENTATION

APPLICANT: In Person

COUNSEL FOR RESPONDENT: Mr Batey

COUNSEL FOR FIRST INTERVENOR: Mr Skinner

COUNSEL FOR SECOND INTERVENOR: Mr Turner

Orders

1. A hearing be listed before Justice Loughnan at 10.00 am on 20 September 2013 in relation to any Application filed on behalf of the wife for the appointment of a Case Guardian for the wife and/or the husband being an Application that is filed and served within 14 days from today’s date together with a current financial statement and all affidavit evidence on which those Applications rely or notice of the evidence on which those Applications rely.

2. Not later than close of business on 6 September 2013 any party who wishes to be heard on 20 September 2013 provide a brief case outline document to Justice Loughan’s Associate … and the other parties setting out the documents relied on, the orders sought if different to any orders sought in an Application or Response and a brief summary of the arguments to be made in relation to that matter.

3. Any Response to an Application filed for the appointment of a Case Guardian be filed and served not later than 13 September 2013.

4. The substantive proceedings be listed for hearing before Justice Loughnan in relation to the property proceedings between the husband and wife but in any event for the claims of interveners under Section 79A Family Law Act and/or Part VIIIA Family Law Act over five days commencing on 10 March 2014.

5. All affidavit evidence including any expert evidence be filed and served not later than 14 February 2014.

6. In the event that the expert evidence is evidence other than that of a treating medical practitioner in the first instance the parties are to agree on a single expert in relation to that issue and in the event that they cannot agree as soon as they are aware they cannot agree the party who seeks to adduce that evidence is to restore the proceedings to the list before Justice Loughnan by arrangement with his Associate and on giving seven days notice to her and to the other parties.

7. By 10.00 am on 10 March 2014 the parties join issue in relation to any objections to evidence, that the husband and wife settle an agreed balance sheet setting out the entity and value of each asset, liability and financial resource and in relation to any dispute as to the existence or value of any of those things briefly on that document set out the competing contentions and the source of the evidence to be relied on in relation to those contentions.

8. Not later than close of business on 24 February 2014 the parties provide to Justice Loughnan’s Associate … and to each other a case outline document setting out the documents relied on, the orders sought in the event that they are different to the orders sought out in any Application or Response and a brief outline the arguments to be made pursuant to the provisions of the Family Law Act relied on in relation to the competing claims.

9. In the event that any party becomes aware of any matter which would prevent either of the hearings commencing or being completed in the time fixed today that party is to forthwith restore the proceedings to the list before Justice Loughnan on 48 hours notice to the court and to each other.

10. Leave is granted to the husband to attend if needed by electronic means on 20 September 2013.

11. Not later than seven days prior to the first day of each hearing the parties exchange lists of objections.

12. In relation to subpoenas issued to the Department of Immigration & Citizenship, Westpac Banking Corporation, National Australia Bank Limited, HSBC Bank Limited, X Pty Ltd and AMP Bank, these subpoenas are adjourned to Justice Loughnan’s list at 10.00 am on 20 September 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Masters & Parsons and No 2 has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3340 of 2006

Mr Masters

Applicant

And

Ms Parsons

Respondent

And

Mr B and Mr C

First Intervenor

And

Mr H

Second Intervenor

EXTEMPORE JUDGMENT

1. These are very long-standing proceedings.  They commenced in 2006.  It is not necessary to recite the tortured chronology of the proceedings.  Suffice it to say there was a property controversy between the husband and wife, resulting in contested proceedings in that first year, including proceedings determined by me.

2. In 2010 there were a series of interim orders made with the consent of the husband and the wife.  Those orders appeared to have the effect of placing the entirety of the parties’ assets in the hands of the wife.  The orders are unusual, in that they seek to expressly preserve s 79 in relation to the assets seemingly disposed of on a final basis.

3. Sadly, 2010 saw a flare up in the husband’s medical condition.  He has been diagnosed with leukaemia over some time, and a very aggressive form of the disease returned, I think, about that time.  Perhaps that was part of the reason for those interim property orders.  It is asserted by  the husband and, perhaps, on behalf of the wife that those orders were crafted so that the parties could try and trade out of serious financial problems by completing developments in relation to a number of properties, including subdivision and sale.

4. But for whatever the reason, those orders were made. The property proceedings have not been prosecuted diligently or at all by husband and wife since. Creditors of the husband – ultimately, judgment creditors of the husband – learned of the orders and sought to intervene in the proceedings. Their intervention was somewhat ambiguous, but either related to s 79A in the territory of cases such as Chemaise and Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133, where it is asserted that parties have sought to deal with assets in a way that might have the effect, deliberate or not, of putting the assets beyond the reach of creditors, or, under Part VIIIA of the Family Law Act, which provides for proceedings by or against third parties

5. The matter has been in the list on an unconscionable number of occasions.  Ultimately, an application was made by two creditors who appear effectively as one party to the proceedings, the first intervenors, seeking an order, among others, for expedition.  As I put to their counsel this morning that really, was by way of them saying to the Court “Get on with your work”.  In my view that is not unfair.

6. As I said this morning, there is no requirement for parties to civil litigation to actively prosecute their claim.  Ultimately, there is no interest, public or private, for anybody else in them prosecuting their claim, save for many waste of taxpayers’ money.  However, once third parties are involved, then one would need their consent for the litigation to remain in abeyance.  Courts are obliged to manage cases and bring them to some conclusion.  There is the taxpayer impact; there is an impact on other cases in the queue of cases.  Decisions like Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 have explored and developed that obligation.

7. So as I said to the parties this morning, I did not feel there was any choice but to move the matter along.  It is not capable, literally, of expedition, in the sense that any human being would understand the term, but really, as I say, Mr Skinner’s client asking for mandamus, in effect, that the matter be prosecuted.

8. The intervenors do not have confidence, both Mr Skinner’s client and Mr Turner’s client do not have confidence that there is a controversy between husband and wife, or, if there is, that between them they would, left to their own devices, ever consummate it.  So they would like a date fixed for their claim.  In a wonderful coincidence, the husband too would like the claims of the intervenors tested as a preliminary matter.  So we are all in heated agreement that at least as to those third party claims, the matter should be listed for hearing.

9. New to the case today were the legal representatives for the wife, only recently appointed after the wife had been long represented and her representation curtailed before Christmas.  And her lawyers seek that a case guardian be appointed, or will seek that a case guardian be appointed for her.  If a party needs a case guardian, the substantive proceedings must be stayed until a case guardian is appointed.  I do not know that there is going to be an opposition to the application.  As I said, in another context, it is not a discretionary matter.  An application is made.  If the conditions are met, there must be a case guardian.

10. However, the wife’s lawyers also make an application that the husband act through a case guardian.  That is an application that he is entitled to oppose.  The husband is not well.  There is an argument to be made – and has been made – by the intervenors that whatever his health, the husband has not, within his capacity, applied himself to any of the extensive litigation that he has been part of, and they rely on the fact that he has been well enough to travel overseas and do other things.

11. They point to the rapprochement between husband and wife on occasions.  The husband agrees but would have it that there is not an agreed position in relation to their property dispute.

12. There is recent medical evidence, some of it prepared in a different context.  There is an affidavit from a Dr S, clearly aimed at fitting the husband within the description of the guidelines of the New South Wales Legal Aid Commission for a grant of aid.  The doctor gives evidence as a treating practitioner, and his report is inadequate in that he simply recited information that he has been told.  He has not identified the records to which he had access in giving his opinion, and, as a treating practitioner, he is not qualified to give an opinion about a number of the matters that he ventures into, including for example, issues about whether the husband meets the legal aid criteria or not.

13. Nevertheless, he is a psychiatrist who has treated the husband.  He has given evidence about the husband’s mental state including a record of weekly or more frequently appointments recently.  Again, without citing the documents or the source of the information he provides evidence confirming the husband’s case in relation to his health and physical, medical treatment of recent times. 

14. And, as I said in response to something that was said to me earlier today, I am not in a position to reject that evidence.  It has never been challenged in the proceedings that the husband was diagnosed with a form of leukaemia many years ago.  On many occasions he has appeared in my Court saying he has recently been discharged or about to go to a hospital for medical treatment.  On each occasion that I have seen him he looks like death warmed up and has been obviously frail.  He is currently in considerable pain beyond the reach of non-prescription medication and testing the limits of a developing intensity of prescription medication as a result of damage to his teeth that seems to have been a consequence of his cancer treatment. 

15. He has been put to the removal of his remaining teeth, preliminary treatment as an outpatient before that, a period of settling down after that and then restorative treatment following that.  He is given to understand that that treatment will start within 10 days.  The application that he have a case guardian appointed was only made today, is not on paper and he has not had a chance to address the issue. 

16. As the husband says, the appointment of a case guardian is not an insignificant thing.  It is all very well for me to glibly say, “Well, sir, that will fix your problem.  You will have a legal representative”.  As he says and as he knows, he will have somebody who will be in a fiduciary relationship with him but will not be responsible for acting on his instructions.  So it is a very important step to force somebody to have another take responsibility for the decisions made in their litigation. 

17. The husband is entitled to notice of the application.  He is entitled to understand the evidence that is being relied on.  He is entitled to an opportunity to consider it and he is entitled to an opportunity to be heard against it.  And in circumstances of the medical evidence that there is, and I appreciate there is no opportunity to test it – but it is not objectively incredible material.  So I indicated to the parties the course I proposed and that was to list the matter for hearing in relation to the case guardian applications.  The third parties do not want to be heard against the applications.

18. Counsel for the wife says that there is a mechanism that is highlighted in some judgments he has provided me with.  That means that I can make an order requesting the appointment or requesting somebody make the appointment.  I have got a horrible feeling that is not as easy as it looks, but no harm done, because it will fall to the wife’s lawyers to find a case guardian for the husband.  And I suppose, two things might prevent that happening frankly.  One is funding.  And that is addressed, as Mr Batey says, because an order could be made out of the assets that at the moment are in his client’s name.

19. But, secondly, there will be the problem of finding someone willing to be the husband’s case guardian.  He would be a challenging customer.  So there is that issue too, I suppose.  The requirements for the appointment are that someone consents to be a case guardian, there is a person under a disability not able to adequately represent themselves and the proposed case guardian does not have an interest adverse to the party concerned. So those matters will all find their own level.  Either there will be somebody appointed or there will not.  That date was 20 September.  It is a date that meets the timeframe identified by the husband and it is a date not inconvenient to the parties.

20. That leaves the substantive proceedings.  I have said to the parties that I think something has to be done.  As I said, everybody wants at least the preliminary matter heard.  I am not confident that the substantive matter will be able to be heard at the same time, but I am happy to facilitate a listing that might accommodate that.  The week of 10 March is not close but it seems to be a week when the parties are available. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 17 May 2013.

Associate: 

Date: