Oliver & Gall
[2008] FMCAfam 164
•25 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OLIVER & GALL | [2008] FMCAfam 164 |
| FAMILY LAW – Property settlement proceedings – allegations of serious misconduct – admissibility and relevance of such evidence. FAMILY LAW – PRACTICE & PROCEDURE – Appointment of litigation guardian. |
| Family Law Act 1975, ss.43, 74, 75(2), 79 Federal Magistrates Court Rules 2001, r.11.08, 11.11, 15.29(1); Evidence Act 1995, s.135 |
| In the Marriage of Fisher (1990) 13FamLR 806; (1990) FLC 92-127 In the Marriage of Kennon (1997) 22 FamLR 1; (1997) FLC 92-757 In the Marriage of Ferguson (1978) 4 FamLR 312; (1978) FLC 90-500 In the Marriage of Soblusky (1976) 2 FamLR 11; (1976) FLC 90-124 In the Marriage of Sheedy (1979) FLC 90-719 In the Marriage of Barkley (1976) 1FamLR 11 In the Marriage of Doherty (1995) 20 FamLR 137; (1996) FLC 92-652 Spagnardi & Spagnardi, 8 September 2003 Morgan & Morgan [1999] FamCA 31 H & H [2005] FamCA 42 Thompson v Smith [2005] QCA 446 Yonge & Toynbee [1910] 1 KB 215 |
| Applicant: | MS OLIVER |
| Respondent: | MR GALL |
| File Number: | BRC 6106 of 2007 |
| Judgment of: | Wilson FM |
| Hearing dates: | 20 & 22 February 2008 |
| Date of Last Submission: | 22 February 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 25 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Page S.C. |
| Solicitors for the Applicant: | Pippa Colman & Associates |
| Counsel for the Respondent: | Mr Richardson S.C. |
| Solicitors for the Respondent: | Hartley Healy |
ORDERS
That the following parts of the affidavit of the wife filed 8 February 2008 be struck out pursuant to r.15.29(1) of the Federal Magistrates Court Rules2001:
(a)Paragraph 7(g) – from after the date 30 March 2007 to the end of the paragraph;
(b)Paragraph 15 – the words “when the husband assaulted me”;
(c)Paragraph 26 – the second and third sentences;
(d)Paragraph 28 – the last four sentences;
(e)Paragraph 42 – the fourth line, from the word “sustained” to the words “domestic violence)”, and in the sixth line, the words “the assault on”;
(f)Paragraph 44 – the last sentence;
(g)Paragraph 54 – the last two sentences;
(h)Paragraph 56 – the last three sentences;
(i)Paragraph 60 – all but the last sentence;
(j)Paragraph 63 – the last sentence;
(k)Paragraphs 64 to 135 inclusive, apart from the following:
(i)the first two sentences of paragraphs 92;
(ii)paragraph 93;
(iii)paragraph 98;
(iv)paragraph 111, except for the words “as a result of the respondents’ assault on me”;
(v)paragraph 112;
(vi)paragraph 114, except for the words “as a result of that assault”;
(vii)paragraphs 115, 116, 117, 118, 120;
(viii)paragraph 119, the first sentence only, excluding the exhibit;
(ix)paragraph 128, except for the words “the assault in”;
(l)Paragraph 136 – the last sentence;
(m)Paragraph 141;
(n)Paragraph 146;
(o)Paragraph 151;
(p)Paragraph 161 – the second sentence;
(q)Paragraph 164;
(r)Paragraph 184 – the last sentence;
(s)Paragraph 199;
(t)Paragraph 208 – the last three sentences;
(u)Paragraph 215 – the last sentence;
(v)Paragraphs 219, 222, 227, 231;
(w)Paragraph 232 – the third sentence;
(x)Paragraph 243 – the fifth sentence;
(y)Paragraph 251.
That pursuant to r.11.11(1) of the Federal Magistrates Court Rules 2001, Ms M is appointed to act as litigation guardian for the wife in proceedings BRC 6106 of 2007.
The costs of both parties be reserved to the final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Oliver & Gall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 6106 of 2007
| MS OLIVER |
Applicant
And
| MR GALL |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
The court has before it two applications: an application filed by the husband on 15 February 2008 that parts of the wife’s affidavit filed
8 February 2008 be struck out pursuant to Federal Magistrates Court Rules 2001, Rule 15.29(1); and an application filed on behalf of the wife on 20 February 2008 that a litigation guardian be appointed to act on her behalf pursuant to Rule 11.11 Federal Magistrates Court Rules.
The substantive proceedings between the parties are for property settlement orders pursuant to s.79 Family Law Act 1975 (“the Act”). The action is listed for final hearing for five days in the week commencing 3 March 2008.
It is convenient to deal first with the husband’s application. The wife’s affidavit contains many allegations of serious misconduct on the part of the husband that constitutes at least family and domestic violence, as those terms are understood, and in some cases, if accepted, serious criminal behaviour. The husband’s application requires the Court to determine the relevance of those allegations in the context of property settlement proceedings. But simply, the submissions on behalf of the husband were that the passages complained of were allegations of misconduct per se, and were therefore inadmissible.
Mr Richardson, Senior Counsel for the husband advanced three arguments why the passages complained of should be struck out:
a)binding authority mandates that course, in reliance on In the Marriage of Fisher (1990) 13FamLR 806; (1990) FLC 92-127;
b)if there is some scope for the admission of evidence relating to conduct, it must be relevant to the matters that the court is required to determine under s.79(4) of the Act and fall within the exceptional class of case referred to In the Marriage of Kennon (1997) 22 FamLR 1; (1997) FLC 92-757 and the present case does not fall within that exceptional class;
c)the Court should, in the exercise of its discretion under s.135 Evidence Act 1995 exclude the material having regard to the prejudicial effect of allowing such evidence outweighing its probative value.
I reject the first argument. I accept the second argument, so it is unnecessary to decide the third.
Fisher is a decision of the Full Court of the Family Court handed down in early 1990. In that case the Full Court upheld an appeal against the refusal of the trial judge to strike out allegations of matrimonial misconduct. In that case the wife had alleged, as in the present case, that the husband had committed severe assaults upon her. It is relevant to observe that Nygh J, who delivered the reasons of the Court observed:
“We have had the benefit of submissions by Senior Counsel for the Appellant Husband. However, when Senior Counsel for the Wife was called upon to respond, he indicated that he had no argument to offer in opposition to the order sought in para 1(a)(b) and (c) and para (2) as set out in the Notice of Appeal. Since those orders have not been consented to, it is necessary to give brief reasons for our decision.”
It is therefore evident that the Court did not have the benefit of considered argument on the major issue in the case, namely the extent to which conduct can be a relevant consideration in dealing with applications under s.79 of the Act. His Honour said, at page 807:
“No direct reference to the conduct of the parties appears in either section 79(4) or section 75(2) of the Act. If the behaviour of one party towards the other is to be taken into account it can only become relevant under para (o) of section 75(2) …”
Subsequent authority has disavowed that approach and held that conduct may be relevant to assessing the contributions of the parties under s.79(4) of the Act.
With Fisher, it could be argued that the actual decision of the Court was that allegations of conduct are not relevant to the consideration required under s.75(2)(o) of the Act. In those circumstances Fisher would not constitute binding authority that such conduct is not relevant to a consideration of the contributions under s.79(4) of the Act. However, Nygh J went further in his reasons that followed.
His Honour referred to In the Marriage of Ferguson (1978) 4 FamLR 312; (1978) FLC 90-500 in which the principles discussed in In the Marriage of Soblusky (1976) 2 FamLR 11,528; (1976) FLC 90-124 were applied. Nygh J, after referring to the judgment of Strauss J in Ferguson approved his Honour’s statement:
“I consider that section 43 does not provide any justification for taking into account matrimonial misconduct as such either under section 75(2)(o) or under section 79(2)”
It is important to emphasise the words “as such”. His Honour did not say that if the conduct was otherwise relevant to the Court’s task in assessing contributions it could not be considered. This was again recognised by Nygh J at page 808, when his Honour repeated his remarks In the Marriage of Sheedy (1979) FLC 90-719:
“The result of the decisions such as In the Marriage of Soblusky…see also In the Marriage of Ferguson … is that the behaviour of the parties as against each other, is not per se, relevant to applications under ss 74, 79. Such conduct is only relevant if it has financial consequences, such as financial misbehaviour resulting in the waste or suspension of family assets … or physical misconduct resulting in the applicant’s illness or disability (of which an example is furnished in the decision of In the Marriage of Barkley (1976) 1FamLR 11,554; (1977) FLC 90-216. It is in the light of these principles that one might consider the interpretation of section 79(4)(b) which refers to the contribution made in the capacity of a homemaker and parent. A failure to make such contributions is clearly relevant whether that failure is the result of fault or misfortune. Thus, it may be relevant that a wife has spent most of her time away from the matrimonial home or conversely, that a husband was never there to assist her with the upbringing of the children. It is not, however, the question of fault which is per se relevant in such a situation. The absence may be caused by conduct which could be described as misbehaviour or it may be caused from accident which is outside anyone’s control, such as a serious physical or mental illness, or the absence of a spouse for business or other reason. It is clearly not sufficient merely to allege misconduct and expect the Court to draw inference there from that his misconduct resulted in a noncontribution. It is perfectly possible for one spouse to be personally obnoxious to the other and yet be an adequate homemaker and parent”
His Honour then continued, at page 809:
“In the present case the wife’s allegations as set out in her affidavit of 13 February 1987 do no more than allege misconduct on the part of the husband. They do not contain any allegations that the wife’s contribution was thereby increased or that she suffered any diminution in her future earning capacity. Even if the alleged misconduct of the husband had that consequence it would not per se have been relevant.
The function of this Court is to make an adjustment of property in the light of contribution and relative needs and resources. As the passage from Sheedy, supra, indicates is the existence of the respective contributions and needs which is the primary subject of investigation and not the causes thereof, even though it may be necessary in some cases to relate them historically.”
If Fisher stands as authority for any proposition, it is that conduct per se is not relevant to a determination of property settlement issues, but may be relevant if it impacts upon the court’s assessment of the parties’ respective contributions under s.79(4) of the Act. Dickey, Family Law, 5th Edition, at 558 summarises the matter as follows:
“There is now no doubt that matrimonial fault and matrimonial misconduct are not relevant to any of the seven considerations set out in section 79(4). None of these mentions or even alludes to matrimonial fault or misconduct
…
The proposition that section 79(2) enables a Court to take into account matrimonial fault or misconduct has now been firmly rejected. The argument that this rejection ignores the words “in all the circumstances” in subsection (2) can be met with the observation by Strauss J in In the Marriage of Ferguson, that “the words ‘in all the circumstances’ do not provide any justification for taking into account matters which are outside the contemplation of the Act”. Matrimonial fault and misconduct can now be taken into account in proceedings for an alteration of property interests only to the extent that this is otherwise relevant to one of the considerations in section 79(4)”
It was the link between conduct and contributions that led to the decision in In the Marriage of Kennon. As to this, Dickey, supra at 577-8 says:
“Domestic violence is not by itself a consideration that can be taken into account under section 79(4). It can, however, be taken into account to the extent that it is directly relevant to one or other of the considerations set out in this subsection.
So, for example, it can be taken into account under paras (a) or (b) of subsection 4 to the extent that violent action by one spouse towards the other has affected the others contributions to property, for instance by making them more onerous.”
At page 584 the learned author says:
“The notion of contribution to the welfare of the family basically concerns contributions to the home and child rearing. It accordingly does not bring into account instances of matrimonial fault (like infidelity) or misconduct (like personal denigration or assault) unless this has had an effect upon a party’s homemaking or parenting activities [citing In the Marriage of Sheedy at 78,972 and In the Marriage of Fisher at 7784-7]. If, however, matrimonial misconduct has had an effect on such domestic activities – as might well be the case if misconduct involved domestic violence which made the discharge of these activities more onerous – this can be taken into account under para (c) as it has a direct effect bearing upon a party’s homemaking or parenting activities” [emphasis mine]
That leads to a discussion of Kennon itself. It is important to bear in mind, as Mr Richardson emphasised, that the actual decision in Kennon involved a cross vested claim for damages. Mr Page, Senior Counsel for the wife, accepted that passages in Kennon that have subsequently been applied both in the Family Court and in this Court are strictly obiter dicta.
The concurrent determination of a common law damages claim led Fogarty and Lindemayer JJ to observe, at 10:
“Some procedural and evidentiary difficulties may arise where a damages claim and a section 79 claim, involving the same parties, proceed in this court at the same time. An initial decision would need to be made as to whether the proceedings should be heard together or separately. If they are heard together, difficulties may arise in distinguishing what is relevant under each claim. In particular, the parties themselves may not be able to draw that distinction and the section 79 claim could be submerged by what appears to the parties to be fault based issues which may overrun the quite distinct issues relevant under section 79. …”
Their Honours adopted with approval the judgment of Chisholm J in Rosarti, set out at page 12 of Kennon as follows:
“I express my own view that it would be unfortunate if practitioners saw In the Marriage of Doherty (1995) 20 FamLR 137; (1996) FLC 92-652 as an indication that they should routinely include in property proceedings detailed evidence about the parties’ behaviour towards each other during the marriage
There are three main reasons for this. First, in practice it would often be very difficult for the court to make an overall determination of whether one party is more wronged than the other. In many cases, a prolonged investigation of these matters would, in the end, prove fruitless, and would add immeasurably to the financial and emotional costs of the proceedings.
Second, these matters may sometimes be of marginal relevance. For example, if one party has assaulted and injured the other party, the injury and its consequences will be relevant. Quite apart from conduct, if as a result the injured part has medical or other costs, or is in need of assistance, or is unable to obtain employment, again, if the victim of the assault has a right of action for damages under the general law, in financial proceedings a court may perhaps find that “the justice of the case” does not require the matter to be dealt with in the family court proceedings, since the right of action will remain available after the completion of the family law proceedings. This is however a complex matter, as parties sometimes seek to have cross vested actions for damages dealt with in the course of property proceedings…
Third, and most obviously, this sort of material will nominally lead to extended trials of a particularly bitter kind, and will take a heavy toll on the parties in both financial and emotional terms. In some cases, this may be disproportionate to its impact on the end result.
It is clear that there will be some cases where, under Doherty, matters of family violence and perhaps other types of conduct may be properly taken into account. Good lawyers will assist their clients to weigh up the many consequences when considering what evidence to lead in these cases.” [Emphasis mine]
Their Honours considered the relevance of domestic violence to s.79 claims at pages 17ff. At p18 their Honours signalled a change in emphasis in the Family Court to matters involving family violence. Their Honours then observed, at page 20:
“The question raised in this case was whether and if so, to what extent, domestic violence was relevant in the exercise of the discretion under s.79 of the Family Law Act. If it is relevant, that should be clearly acknowledged. If it is not, then a disservice is done by attempting to apply the section to circumstances which are not within its ambit. Change is then a matter for the legislature.”
Their Honours then reviewed cases such as In the Marriage of Soblusky, In the Marriage of Ferguson and In the Marriage of Fisher. In relation to Fisher their Honours said, at [22]:
“Nygh J gave the judgment of the court in which he discussed the earlier cases. After referring to his own judgment in Sheedy, his Honour said at 77,846-7:
“In the present case the wife’s allegations… do no more than allege misconduct on the part of the husband. They do not contain any allegations that the wife’s contribution was thereby increased or that she suffered any diminution in her future earning capacity.”
Up to this point his Honour’s statement appears to be unimpeachable. However, his Honour went on to say:
“Even if the alleged misconduct of the husband had that consequence it would not per se have been relevant.”
It seems to us that this is the essential difference which the more recent cases have identified.”
Their Honours then turned to more recent cases. Included in their reasons was an unreported decision of Coleman J in Manna. There the affidavit of the wife contained allegations of serious assaults by the husband resulting in medical treatment and causing residual injury, as is the case before me. Counsel for the husband sought to have those allegations struck out. In relation to s.75(2) the argument for the husband was that particular paragraphs of s.75(2) were directed to the relevant issues – permanent injury and prospective loss of earning capacity – and causation was unnecessary and therefore irrelevant. Their Honours continued:
“This is an important issue – whether conduct is relevant in the s.75(2) issues. The argument is that if the circumstances that the claimant suffers from ill health, either physical or psychological, or has a reduced earning capacity because of physical or psychological deficits, those matters would in any event be taken into account under the relevant paragraphs of s.75(2) and given full weight. The circumstance that that was brought about wholly or partly by the other party’s conduct would therefore be irrelevant and in isolation would be seen as punishing the conduct itself, a role better left to the common law.
… This view has attractions to it. But it seems to us to carry with it the assumption that any deficit, such as ill health, unemployment, etcetera, will be given full effect within s.75(2) even if it arose from factors which were unconnected to the marriage, and may have occurred long after the marriage ceased. This gives rise to the “social engineering” objection. We have some reservations about this approach and prefer to express no final view about it.”
Their Honours concluded, at page 24:
“Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
… However, it is important to consider the “floodgates” argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
However, in our view, s.79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of common sense for the lawyers involved, where there may not be sufficient, it is a matter for a firm hand by the court at an early stage when a case appears to raise those issues.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact on the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).”
Although admittedly dicta, their Honours’ observations are a powerful endorsement for the conclusion that the conduct of one party to a marriage towards the other is both relevant and admissible if there is evidence linking that conduct to the contributions made by the other party to the marriage.
The practical application of the matters discussed in Kennon was helpfully analysed by the Full Family Court in Spagnardi & Spagnardi, 8 September 2003, a case to which neither counsel referred. The decision is important because it is an endorsement by the Full Family Court of Kennon but limits its application in a practical sense. At first instance, Chisolm J had accepted that the husband had perpetrated violence against the wife. At [35] the Full Court observed that counsel for the wife failed to effectively refute the suggestion that the trial judge was without “effect” evidence. Their Honours observed that submissions were limited to the assertion that the trial judge was entitled to find that the wife’s contribution as a home maker and parent was more arduous than they ought to have been due to the violence, and to conclude that there was sufficient evidence to make a “Kennon” adjustment. To understand that observation, it is necessary to refer to the submission for counsel for the appellant at para [33] which was to the effect that before evidence as to assaults is admissible there should also be evidence of the effect so as to enable a trial judge to determine the nature and extent of any additional contribution which came about as a consequence of that conduct. Their Honours said at [37]:
“While it may be difficult in some cases to determine at the outset whether a claim under s.79 related to domestic violence is likely to be successful, generally a determination should be made at the outset on the evidence filed by the party relying on it.”
That is the approach which has been taken in the present case. Their Honours embraced the passages in Kennon at pp 84, 291-2 set out at paragraphs 38-41 of their Honours reasons. This includes the key passage set out at paragraph 22 above. Their Honours continued:
[42] The question is whether a trial judge may infer from the evidence that the result must be that a party’s contributions have been affected.
…
[43] At para 54 of the judgment his Honour said:
“It is true that there is no explicit evidence by the wife to the effect that the violence made the performance of her contributions more arduous. However I accept that on the evidence before me it is obvious that her contributions as a home maker and parent must have been made significantly more arduous than they ought to have been because of the violence inflicted upon her by the husband. On the other hand, the lack of specific and detailed evidence about its effect on those contributions makes it inappropriate to make a substantial adjustment in her favour because of this factor.”
In the Full Court, at [46] to [48] their Honours said:
[46] In addition to that stated by the trial judge, we would not want the reference in Kennon to “exceptional” on page 84, 294 to be understood to mean rare. We do not agree with this qualitative description and would be more inclined to the view expressed by the trial judge at paragraph [17]:
“In his submissions, Mr Schonell, quite understandably and quite correctly, drew my attention to the strength of the language, referring to ‘exceptional cases’ and ‘the relatively narrow band of cases’. However, it seems to me that, reading these passages as a whole, the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the keywords in a case where there are allegations of domestic violence are ‘significance adverse impact’ and ‘discernible impact’. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon”
[47] An insufficiency of evidence in the present case leaves the court with a limited ability to deal with allegations in the context of s.79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
· The incidents of domestic violence;
· The effect of domestic violence; and
· Evidence to enable the court to quantify the effect of that violence upon the parties’ capacity to ‘contribute’ as defined by s.79(4).
[48] We do not agree that the evidence in this case could properly have led to an adjustment pursuant to s.79.
… The particular deficiency apart from those referred to by the trial judge is the complete absence of evidence as to how the husband’s conduct affected her ability to contribute”
It is therefore of critical importance for evidence of marital misconduct to be relevant and admissible for there to be evidence not only about the conduct but for there to be evidence to enable the court to quantify the effect of that conduct upon the other party’s capacity to contribute. It is that shortcoming which is particularly stark in the present case.
I should add that the critical passage in Kennon has also been accepted and applied by the Full Family Court in Morgan & Morgan [1999] FamCA 31 and in H & H [2005] FamCA 42.
As a consequence of the dicta in Kennon being approved of by subsequent Full Court authority, I am bound to reject the husband’s first submission. I consider that evidence of conduct is admissible if it is relevant to the contributions of either of the parties under s.79(4) of the Act.
There must, however, also be evidence to enable the Court to quantify the extent of those contributions or the extent to which those contributions were made more arduous so as to enable an adjustment to be made in the affected party’s favour. In order to deal with the second basis upon which the evidence is sought to be excluded, it is necessary to deal with each of the passages in the wife’s affidavit to which exception is taken.
It is clear that the evidence in paragraph 7(g), apart from the first phrase is inadmissible. It deals with the circumstances of separation. It is not relevant to contributions.
As to paragraph 15, it is relevant that the wife sustained injuries that affect her capacity for employment. How those injuries were inflicted, and whether they were as a result of the fault of the husband, is not, in my opinion, relevant. I consider that paragraph 24 is admissible, but only to the extent that it relates to monies expended for alternate accommodation and the reason for that. It is relevant to how matrimonial assets were disposed of.
The second and third sentences of paragraph 26 are not relevant to contributions and should be excluded. Paragraph 27 is admissible. It does not relate to matters of misconduct but as to the need for dental treatment and the cost of it. The factual circumstances in which the wife’s teeth were damaged would not be admissible. On the other hand, the last four sentences of paragraph 28 are not relevant to contributions but go solely to the husband’s conduct.
In paragraph 42 the reference to the husband’s violence in the fourth line and to the assault in the sixth line are not relevant to the wife’s contributions. The wife is able to give evidence about injuries that she suffered on March 2004 and how they affected her ability to perform household tasks or care for herself. The circumstances in which those injuries were inflicted is however, another matter, and is not, in my view, relevant. The last sentence of paragraph 44 is not directed to contributions but simply to the conduct of the husband and should be struck out.
Similar remarks apply to the last two sentences of paragraph 54, the last three sentences of paragraph 56 and all but the last sentence of paragraph 60.
The wife sets out at paragraphs 64 and following of her affidavit a litany of events that, if accepted, amount to serious family violence. The final sentence in paragraph 63 is not relevant to contributions. It should be struck out. Some parts of the wife’s accounts at paragraphs 64 to 135 should not be struck out. I have referred to those in the orders that I have made. The wife in particular is entitled to give evidence about her physical injuries and treatment referred to at paragraphs 112, 114 to 119. The report which is exhibit “D08” is plainly hearsay, and is not admissible.
Otherwise, the paragraphs referred to from 64 to 134 constitute factual allegations of misconduct on the part of the husband. They satisfy the first of the three elements referred to in Spagnardi. They marginally address the second element and seem to completely ignore the third. They marginally address the second element to the extent that the wife deposes that because of certain injuries she was unable to do certain tasks. However, numerous allegations are made that are not tied in any way to an inability to contribute or that the wife’s contributions were made more arduous. There is no attempt to quantify the effect of the husband’s conduct upon the wife’s capacity to make contributions. The wife is able to give evidence that as a result of her injuries she could not perform certain personal care activities and as deposed in paragraph 117 her struggle with ongoing household responsibilities. From this generalised statement the Court could not be expected to quantify the wife’s contributions affected by the conduct. Paragraph 135 is simply insufficient to provide the nexus between the conduct complained of and its effect, and any quantification in terms of contributions. It is simply a general statement of conclusion without any particularity. In my view it is not appropriate to allege a series of events constituting misconduct and then simply state a bald conclusion that these affected one parties’ ability to contribute. There must be more. There must be evidence that enables the court to quantify that effect.
Senior Counsel for the wife submitted that the court could infer such an effect. That is contrary to authority. In any event it does not address the crucial question which is whether there is any evidence to quantify the effect. There is none.
The last sentence of paragraph 136 is not relevant to contributions. Nor is paragraph 141, 146, 151, the second sentence of 161, 164, the last sentence of 184, 199, the last three sentences of 208, the last sentence of 215, 219, 222, 227, 231, the third sentence of 232, the fifth sentence of 243 and 251. None of these are relevant to contributions made by either of the parties.
In my opinion the evidence complained of fails the same test as referred to by Nygh J in Fisher, referred to at paragraph 12 above. The wife’s affidavit does no more than make numerous allegations of misconduct without relating that misconduct to her contributions. It is not good enough to seek to make that nexus by the generalised conclusion at paragraph 135 of her affidavit, without the evidence on which the conclusion is based.
My ruling on the admissibility on the wife’s evidence is directed to its relevance in the s.79 proceedings. The wife may have other remedies against the husband at common law (see s.119 of the Act) and this is referred to, in passing, at paragraph 199 of her affidavit. However, since the demise of the cross-vesting legislation, such proceedings cannot be brought in this court.
In my view, it was appropriate for the husband to bring the application to test the admissibility of the wife’s affidavit. The Full Court in Spagnardi endorsed that approach as did Kennon itself. The striking out of the passages of the wife’s affidavit to which I have referred will limit the issues at trial to those that are relevant to the proceedings and will save the husband from having to respond to what is inadmissible evidence. It may also shorten the length of the hearing.
It follows that I accept the husband’s second submission which is that the evidence in the present case that I propose to strike out, is not of a type that addresses the necessary matters in Kennon and in Spagnardi.
It is then necessary to deal with the wife’s application. Federal Magistrates Rule 11.08 provides:
(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
As is apparent from its terms, the rule permits the appointment of a litigation guardian in circumstances going beyond those where a party lacks legal capacity. The appointment is made pursuant to r.11.11(1).
In an affidavit of a solicitor employed by the wife’s solicitors, Ms Lyn Selby refers to a conference on 4 February 2008 between the wife and her senior counsel. Ms Selby says:
“It was my observation of the applicant that day that she was affected by drugs or alcohol. Her speech was slurred. She seemed to have difficulty focusing and in responding properly to questions.
She became upset and teary when Mr Page repeated his questions and sought to have them answered.
In an interview lasting two hours, she needed two breaks to compose herself.
At that meeting, Pippa Colman, Graeme Page and I discussed concerns that the applicant may not be well enough/may not have the capacity to give us instructions.”
The wife’s psychologist was asked to provide a report. A report from Ms H dated 8 February 2008 was supplied. She opines that the wife presents with features consistent with post traumatic stress disorder. The wife presented with high level anxiety and depressive features and exhibits a numbing of general responsiveness associated with a PTSD response. She showed a marked loss of interest in participation in activities in activities important to herself. The wife reported increasing irritability, poor concentration, and hyper vigilance and exhibited an increased startled response. She expressed a desperate desire to remove all memory of the past with [the husband]. She reported that each time she has to recollect or relate this period in her life she felt overwhelmed and anxious. At page 7 of her report Ms H states:
“The achievement of this goal is severely hampered in my opinion by the current situation regarding the legal matters under consideration. The anxiety she is experiencing anticipating the trial and having to face [the husband] appears to be incapacitating her ability to use her cognitive processes appropriately.”
Ms H gives her opinion that it would be detrimental to the wife’s psychological health to give evidence in front of her ex husband. Giving evidence could exacerbate the wife’s psychological condition and cause her recovery period to be extended indefinitely.
Ms H’s report does not address the capacity of the wife to give adequate instructions for the conduct of the proceedings. The wife is represented by experienced legal practitioners. Rather, Ms H’s report addresses the wife’s ability to give evidence. That is a separate consideration. No doubt aware of these shortcomings in Ms H’s report, the wife’s solicitors obtained a report from Dr C, a psychiatrist. Under the heading “Provisional Diagnostic Impression” Dr C said that in his opinion the wife was suffering from at least three major and overlapping psychiatric disorders: post traumatic stress disorder, major depression and anorexia nervosa. He opines that the wife is an extremely traumatised, isolated and demoralised person largely as a result of a sensitive disposition and major psychological adversity during the course of her long relationship with the husband.
During cross examination Dr C was criticised for the use of the heading “Provisional Diagnostic Impression”. However, having heard his evidence I am left with the clear understanding that Dr C does not have any doubt about his diagnosis of the wife. He opines that the wife is severely ill from a psychiatric perspective and is likely to remain so for at least several months. He opines that the wife would not be able to withstand the rigours of adversarial court proceedings. More importantly, in the context of the application for the appointment of a litigation guardian, Dr C says, at page 9 of his report:
“Furthermore, on account of her fear of her husband, severe depression and under nourished state, [the wife] is not presently able to freely make decisions from the perspective of her best longer term interests and cannot be relied upon to provide sensible instruction to legal counsel acting on her behalf.”
Ms M, the wife’s sister, has filed an affidavit in which she deposes to being prepared to act as litigation guardian.
In Thompson v Smith [2005] QCA 446 McPherson JA considered, at [7] that before appointing a litigation guardian there should be evidence on which a judge can confidently act that the person is not capable of making decisions required for conducing the litigation. In my view the evidence of Dr C fulfils that requirement. Senior Counsel for the wife relied on Yonge & Toynbee [1910] 1 KB 215. That case is only marginally relevant. There is no question here in my view of the wife’s legal capacity. There is no evidence that she does not have legal capacity. Rather, it is a question of whether, in her current state she is capable of giving adequate instructions for the conduct of her proceedings. Dr C opines that she is not. There is no evidence to the contrary. Dr C said that there are two matters that concerned him: the first was the wife’s difficulty in the process of giving evidence; the second was that she requires someone to make decisions on her behalf. In my view, that squarely brings the matter within r.11.08(1). It is true, as Mr Richardson pointed out, that Dr C has provided his opinion against the background of assumptions that he has been asked to make about the history of the parties’ relationship and during an interview lasting ninety minutes. Those criticisms are valid, but nevertheless I am left with Dr C’s opinion which was not affected in my view by cross examination.
It is of concern that these matters have come to light so close to trial and the husband and his legal advisers are entitled to be suspicious about those circumstances. The husband sought leave to rely on an affidavit in which he deposes to matters relevant to prejudice that he will suffer if an adjournment of the trial is sought by any litigation guardian appointed to act on behalf of the wife. In my view, the husband’s affidavit is not relevant to determining whether or not a litigation guardian should be appointed. I decline to rely on it in that regard. The husband’s evidence may become relevant if and when the litigation guardian seeks an adjournment of the trial.
It is also of concern that the wife was able to swear her affidavit of evidence in chief filed 8 February 2008. Nothing is deposed to about what occurred between 4 February 2008 when the solicitors and senior counsel for the wife formed their concerns and 14 February 2008 when Dr C examined the wife. It is strange that in the intervening period the wife apparently had capacity to execute her affidavit of evidence in chief.
Not without some hesitation, I think the evidence as it presently stands is sufficient to persuade me that on the balance of probabilities the wife is not capable of giving adequate instruction for the conduct of these proceedings. In those circumstances fairness dictates that a litigation guardian be appointed, and I propose to so order.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Wilson FM
D/Associate: Kristy Glover
Date: 27 February 2008
CORRECTIONS:
Orders page to delete paragraph 1(k)(x).
Orders page to amend paragraph 2 to show “Ms M” as the litigation guardian.
Page 6 of Reasons for Judgment to delete the words “and a” and replace with the word “under” in the quote at paragraph 17.
Page 9 of Reasons for Judgment to delete punctuation in the quote at paragraph 22 and to add punctuation to paragraph 23.
Page 10 of Reasons for Judgment to delete the words “paragraph 24” and replace with the words “paragraph 22” at paragraph 25.
Page 10 of Reasons for Judgment to delete the word “honour” and replace with the word “Honour” in the quote at paragraph 25.
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