Masters and Parsons & Ors
[2013] FamCA 916
•26 November 2013
FAMILY COURT OF AUSTRALIA
| MASTERS & PARSONS AND ORS | [2013] FamCA 916 |
| FAMILY LAW – APPOINTMENT OF A CASE GUARDIAN – property settlement proceedings – physical incapacity - application by the wife for the appointment of a case guardian - whether a case guardian should be appointed – whether husband is fit and able to give instructions - where husband’s physical health is considered |
| Family Law Rules (Cth) 2004 – R. 6.08 |
APPLICANT: | Ms Parsons |
RESPONDENT: | Mr Masters |
FIRST INTERVENERS: | Anthony Arnold Cheney & Peter Neil Wilson |
SECOND INTERVENER: | Mr H |
FILE NUMBER: | SYF | 3340 | of | 2006 | |
DATE DELIVERED: | 26 November 2013 | ||||
PLACE DELIVERED: | Sydney | ||||
PLACE HEARD: | Sydney | ||||
JUDGMENT OF: | Loughnan J | ||||
HEARING DATE: | 13 November 2013 | ||||
REPRESENTATION
COUNSEL FOR THE APPLICANT: | Mr Batey | |
SOLICITOR FOR THE APPLICANT: | Champion Legal | |
RESPONDENT HUSBAND IN PERSON: | Mr Masters | |
FIRST INTERVENERS: | No appearance (excused) | |
SECOND INTERVENER: | No appearance (excused) | |
Orders
IT IS ORDERED
As to the orders sought at paragraphs (6)(1) and (2) of the wife’s Application in a Case filed 31 July 2013, the application is dismissed.
The proceedings shall be listed on a date convenient to all parties for directions in relation to all outstanding interlocutory issues and leave is granted to any party to attend on that date by telephone.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masters and Parsons and Ors 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: SYF 3340 of 2006
| Ms Parsons |
Applicant Wife
And
| Mr Masters |
Respondent Husband
| Anthony Arnold Cheney and Peter Neil Wilson |
First Interveners
Mr H
Second Intervener
REASONS FOR JUDGMENT
INTRODUCTION
These are contested proceedings for the appointment of a case guardian for the husband for the purposes of proceedings which involve settlement of property between husband and wife and related litigation involving third parties.
The wife seeks and the husband opposes the appointment of a case guardian for him. The substantive proceedings involve third parties who do not wish to be heard in relation to this issue and who were excused for the purposes of this interlocutory hearing.
The wife’s application is without merit and will be dismissed for the following reasons.
THE HEARING
On 20 September 2013 an order was made fixing the matter for hearing of the wife’s application for the appointment of a case guardian for the husband on 13 November 2013. The order appointing the hearing also referred to the hearing of any application for interim costs filed and served within seven days from 20 September 2013. No such application was filed although on 5 November 2013 the husband did file an application seeking interim costs, among other orders.
On 12 November 2013, the matter was briefly mentioned at the husband’s request pursuant to a direction I had made that any party who became aware of something that would prevent the hearing commencing or being completed on 13 November 2013, should forthwith restore the matter to the list. After hearing from the parties by telephone, no significant orders were made and the hearing date was confirmed.
On 13 November 2013, the wife was represented by counsel and the husband appeared on his own account but by leave granted with the consent of the wife, was assisted at the bar table by a friend. When the matter was first called I was asked to stand the matter in the list for discussions. Such discussions continued during the morning and at about 12 noon I was told that the parties would like to continue their discussions until 2.15 pm. I was also told that the parties had agreed that if the hearing proceeded, after I ruled on objections to evidence, the hearing would be conducted on the papers and based on the submissions of the parties.
At 2.15pm the hearing commenced, I ruled on objections and oral submissions were made. Judgment was reserved and the parties were excused on delivery of judgment. No orders or directions were made about a raft of other interlocutory issues raised in the wife’s application in a case or in applications or responses filed by other parties, save that I indicated that further attention to those matters would await the determination of the case guardian application.
BACKGROUND FACTS
The background facts relevant to the substantive proceedings are extensive and remarkable. That history is not addressed in the evidence identified for the hearing of this matter. Some of that history would aid in understanding these reasons. The complete history would overwhelm this interlocutory judgment and in some aspects it remains controversial. Admittedly far from representing a complete chronology of the remarkable circumstances of the case, I believe that the following background is relevant.
The husband and wife are about 59 and 57 years of age, respectively. As at the date of the hearing the wife describes her occupation as “consultant”. It may be that she has an academic role related to health practice. The husband was suspended from practice as a barrister in NSW in February 2006 and I understand he seeks or will soon seek to return to practice.
Sadly, the husband was diagnosed with a major depressive illness in 1997 and with Leukaemia in 1998. He has since experienced treatment for the latter condition which has at times been intensive and debilitating.
For a period in the 1990s the husband practiced as a solicitor in Country G. He separately retained Mr H (an architect) and Mr I (an accountant) as experts for the purposes of litigation on behalf of his clients. They claimed the husband did not pay all of the fees he owed them. Proceedings were instituted against the husband in Country G, including proceedings by the Law Society of Country G.
The husband and wife started to live together in February 2000 and were married in 2003.
There are no children of the marriage, however the wife has two adult children from a previous marriage, Ms J and Ms K who are now about 24 and 20 years of age respectively. They were part of the matrimonial household.
In 2002 the husband commenced litigation in the NSW Supreme Court against Mr I and Mr H. After many years, those proceedings ultimately resulted in:
(a)A costs order in favour of Mr I which in June 2011 lead to judgment being entered in the NSW District Court against the husband in favour of Mr I in the sum of $214,909,96; and
(b)A judgment debt against the husband and in favour of Mr H in February 2012 in the sum of $523,179.17.
The husband and wife separated in December 2005.
After an Apprehended Violence Order was made against the husband in February 2006, which had the effect of excluding him from the former matrimonial home at Suburb L and from contact with Ms J and Ms K, the husband commenced these family law proceedings which ultimately included proceedings for property settlement. The proceedings were commenced in the Federal Magistrates Court and soon thereafter were transferred to this Court.
Pursuant to consent orders made in this Court on 8 December 2010, 14 December 2010 and 2 February 2011 assets were transferred from the husband to the wife as follows:
In about January 2010:
(i)the husband’s 50 per cent shareholding of M Pty Ltd, which owned an apartment in N Street, Sydney;
(ii)the property at O Street, P Town;
(iii)two European motor vehicles; and
(iv)other chattels.
In about February 2011
(i)the property at D Street, E Town; and
(ii)more chattels
On 29 June 2011 a registrar of this Court made directions in the property settlement proceedings and noted his observations about the financial circumstances of the husband and wife and the effect of the consent orders made in the proceedings over time. He directed that 11 named creditors be notified that they might not be able to recover debts if the “interim orders were to become final”. The husband and wife applied to review the orders of the Deputy Registrar. Those orders were stayed in a minor aspect but were not set aside.
In order to compromise his obligation to his own solicitors for legal fees, by a deed dated 27 July 2011, Mr I assigned his rights under the District Court judgment to those solicitors being the partnership of Cheney and Wilson. It is notable that in the 1980’s Cheney and Wilson had been in partnership with the husband in a solicitors firm in regional NSW.
In December 2011 Cheney and Wilson intervened in the property settlement proceedings between husband and wife and among other orders, sought that property transfers from husband to wife pursuant to interim consent orders made in these proceedings, be set aside pursuant to section 79A of the Family Law Act.
In December 2012 H also intervened in the property settlement proceedings between husband and wife and among other orders, sought that the wife satisfy the husband’s judgment debt and that, in aid of that claim, she be restrained from dealing with certain property.
On 17 May 2013 the substantive proceedings were fixed for final hearing over five days commencing on 10 March 2014 and consequential directions were made to facilitate that hearing.
THE APPOINTMENT OF CASE GUARDIANS
The wife seeks the appointment of a case guardian for the husband.
The Family Law Rules 2004 require the appointment of a Case Guardian for any party who is a person with a disability. Rule 6.08 provides:
6.08 Conducting a case by case guardian
(1) A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.
(2) Subrule (1) does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case.
Note 1: For service on a person with a disability, see rule 7.09.
Note 2: If a case is started by a child or person with a disability without a case guardian, the court may appoint a case guardian to continue the case.
The Dictionary to the Rules defines person with a disability as:
person with a disability, in relation to a case, means a person who, because of a physical or mental disability:
(a) does not understand the nature or possible consequences of the case; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.
The appointment of a case guardian is not discretionary. It goes to the integrity of legal proceedings that parties before the court have the capacity to present their case or to instruct a lawyer to do so, on their behalf. Provisions similar to Rule 6.08 are regularly included in legislation including subordinate legislation.
Importantly, I am to assume that the husband is competent and the wife bears the onus of establishing otherwise. In L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 (12 July 2006) the Full Court of the Federal Court (Black CJ, Moore and Finkelstein JJ) said at paragraph 26:
26There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: Masterman-Lister at [17] (Kennedy LJ); Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 at [36] (Handley JA). When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister at [17] (Kennedy LJ); Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193 at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.
As to the way in which the case will be decided, from L v Human Rights and Equal Opportunity Commission at paragraph 27 there is:
27The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):
‘even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists’.
Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30, AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy v Doman at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J).
DISCUSSION
Although the written submissions are not as precise and the wife’s affidavit evidence traverses other matters, including the husband’s mental health, it was revealed in the oral submissions made on her behalf that the wife claims that the husband meets the definition because of a physical disability. On a number of occasions during the hearing learned counsel for the wife said that it was not asserted by her that the husband has a mental disability.
The wife’s case is further revealed in her affidavit filed 31 July 2013. In summary, it is the wife’s case that the husband has a long history of being unable to meet his obligations in litigation and enquiries; he has had compromised health for many years; and to the present day relies on the fact of his poor health and medical treatment for his failure to comply with his obligations and for continued delays at the present time.
The wife says she is concerned that the husband will not prosecute his case and in any event, will not be ready in time for a hearing fixed in March 2014. She cites instances when it is asserted or has been found that the husband has failed to comply with procedural directions in these proceedings and in proceedings in the Common Law Division of the NSW Supreme Court. She cites findings from a report of the Office of Supervision of Solicitors for Country G, also criticising the husband’s compliance with formal requirements. The wife relies on instances, including in 2013, of the husband relying on evidence from his doctors to support delays or extensions of time in these proceedings. The wife notes that as recently as 18 July 2013, the husband wrote to her solicitors relying at least in part, on his medical condition or on upcoming medical treatment to seek a delay in the hearing of the application for the appointment of a case guardian.
The wife refers to the way in which the husband conducts himself with regard to the proceedings and the cost implications for her of that conduct. She refers to voluminous correspondence from him to her solicitors.
The husband relies on evidence from his treating doctors. There is a significant amount of material from his treating psychiatrist, Dr S. Despite the wife not claiming that the husband’s disability arises from his mental health, reference is made to that material in her case. The most recent report from Dr S is contained in an affidavit sworn in November 2013. In an affidavit sworn in June 2013 Dr S expresses concerns about the demands on his time and the physical impact of the husband’s treatment for cancer and the related treatments, on his capacity to manage the litigation without legal representation. However, it is his clear and unchallenged opinion that the husband has capacity to conduct the litigation. Dr S deposed at paragraphs 15 and 16:
15.…
I have had several consultations with the Husband in the period since 28 February 2013 often weekly and more frequently and it is my opinion that throughout that period the Husband has had the necessary mental capacity to represent himself in these proceedings. I do not, for example, regard the extensive dental problems, the recurrent skin cancer problems and other physical manifestations of illness such as bladder problems, adverse reactions to chemotherapy and the like as being indicative of any form of mental incapacity such as would require the appointment of a Case Guardian to conduct these proceedings on behalf of the Husband.
16.It is my opinion that the Husband is possessed (sic) the relevant cognitive skills to enable him to function adequately to give such instructions.
In an affidavit sworn in November 2013 Dr S deposed that far from needing a case guardian, such an appointment may itself be detrimental to his mental health. He deposed as follows:
14.From a psychiatric and psychological point of view, it is my opinion that the Husband is coping extremely well and in a very positive manner with his difficult medical condition and the legal predicaments he is involved with. I am concerned that if a Case Guardian were to be appointed and the Husband was prevented from resuming practice at the New South Wales Bar this could have a significant and detrimental impact upon the Husband in a psychiatric sense.
….
19.It remains my opinion that the Husband is physically, cognitively, mentally and psychologically well enough to represent himself in these proceedings if need be without the need for a Case Guardian to be appointed.
20.There is always a possibility that the Husband’s state of physical health might materially deteriorate between now and 10 March 2014 when the proceedings are listed for final hearing, however there is no present medical reason of which I am aware which would prevent the Husband from adequately representing himself in these proceedings at that time.
21.I am continuing to have regular consultations with the Husband generally on a weekly or fortnightly basis and I am aware that the Husband’s medical condition is being regularly reviewed by [Dr T] and [Prof U].
I am not sure what was meant by the qualification “if need be” in paragraph 19. Dr S was not required for cross-examination and so there was no opportunity to ask him. Given a literal meaning it would appear to rob the paragraph of its intended effect. However such an interpretation is inconsistent with the overall thrust of Dr S’s evidence and I reject that interpretation.
The husband relied on recent reports[1] from his surgical oncologist, Dr T. On 31 October 2013 Dr T reported to Dr V on a post-operative review of the husband in relation to a further operation to remove a squamous cell carcinoma from his right ear. He reported that there were clear margins and the cosmetic outcome was quite good. In a letter dated 7 November 2013 Dr T advised “To Whom it May Concern” that the husband had been his patient since 2010. He reported that since he removed the husband’s parotid gland in 2010, the husband had had significant ongoing skin cancer surgeries. He also recorded:
“..
[Mr Masters] is also being treated by [Prof U] for what is currently stage IV chronic lymphocytic leukaemia. [Mr Masters] has had extensive chemotherapy and radiation therapy at various times since 2010 but is not having any such treatment at present.
…
I have made arrangements to see [Mr Masters] for follow up review in February 2014. Otherwise [Mr Masters’] treatment remains conservative. This treatment should not prevent [Mr Masters] from attending Court or resuming practice at the NSW Bar.”
[1] Annexure B to the husband’s affidavit sworn 13 November 2013.
There is no evidence directly from Prof U. It is the unchallenged evidence of Mr W, who studied law with the husband in the 1970s, that as at September 2013 the husband was not having chemotherapy but four weekly, outpatient Intragram treatments to boost his immunity.
Three lawyers known to the husband have sworn affidavits in his support.
As this case was presented, it falls to the wife to demonstrate that because of a physical disability the husband:
(a)does not understand the nature or possible consequences of the case; and / or
(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.
Logically and as was cited in the decision in L v Human Rights and Equal Opportunity Commission litigants, “in almost every case the court would need medical evidence to guide it”. The wife has not presented medical evidence that supports her case. Importantly, to the extent that the evidence adduced by the husband to rebut the wife’s case fell short, he was under no obligation rebut anything.
The high point of the case for appointing a case guardian is the fact that the husband has been involved in an extraordinary volume of litigation or disputation over many years. In recent times he has been in dispute with bodies such as the NSW Legal Aid Commission and Centrelink as well as the array of litigation referred to earlier. He has been sick and at times, very sick with cancer, with cancer treatment and the consequences of that treatment. At times he has not attended to the obligations associated with litigation. On some of those occasions the failure was attributed by the husband to his physical or mental health.
In my view, those facts are insufficient to rebut the presumption of competence and to warrant a step so serious as to require that a Case Guardian stand in his shoes and have carriage of these proceedings on behalf of the husband.
Litigants in person commonly present challenges to a Court and to other parties to proceedings. In Forster and Forster [2012] FamCAFC 47; (2012) 47 Fam LR 77 the Full Court, Coleman, May and Ainslie-Wallace JJ said:
125.Given the Federal Magistrate’s extensive reference to the authorities on the appointment of litigation guardians, his Honour could not have helped but be aware of the very serious implication that flows from such an order. As the Full Court of the Federal Court observed in L v Human Rights and Equal Opportunity Commission at [26]:
There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs. When it is alleged that a person is incompetent, the onus of proof is on those so asserting. (citations omitted)
126.In our view, that presumption cannot be, nor should it be, easily displaced. It is the common experience of courts that many self-represented litigants appear to act against their interests, file voluminous documents and file many applications, some of which, at least at first blush, would enjoy no prospects of success.
127.As the Full Court of the Federal Court made clear in L v Human Rights and Equal Opportunity Commission, conduct that might on its face appear to be against the interests of a litigant does not compel the conclusion that the person is in “need” of a litigation guardian. At [34], the Court said:
…the fact that a litigant has put forward a case that reveals no reasonable cause of action may say nothing at all about the litigant’s capacity to present such a case…
Finally, if the volume and tone of correspondence and the number, duration and conduct of litigation was sufficient to establish the need for a case guardian then the conduct of the wife could be sufficient to rebut it. The husband deposes to the fact that settlement negotiations have occurred between him and the wife in recent months. I was asked to delay the commencement of this hearing to determine whether the husband required a case guardian, while the parties had settlement discussions. Necessarily, I was not privy to the subject matter or form of those discussions but if the wife was right and the husband requires a case guardian it follows that no resultant settlement could be relied on against the husband. The fact that the wife engaged in settlement discussions suggests that the wife had a level of confidence in the husband’s capacity to conduct the litigation.
CONCLUSION
The wife sought the appointment of a case guardian for the husband. She argued that he was under a physical disability whereby he did not understand the nature or possible consequences of the case; and / or was not capable of adequately conducting, or giving adequate instruction for the conduct of, the case. The wife had to establish that case and in doing so, to rebut a presumption that the husband is competent.
The wife was not able to make out her case. The background facts reveal that at times the husband was physically unable to attend to this and other litigation. There is no evidence to support that proposition at the present time. The application will be dismissed.
There remain a number of interlocutory matters and arrangements will be made to list the matter for further directions.
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan.
Associate:
Date: 26 November 2013
0
8
1