Osman & Caspar (by his litigation guardian Caspar)
[2023] FedCFamC1A 237
•22 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Osman & Caspar (by his litigation guardian Caspar) [2023] FedCFamC1A 237
Appeal from: Transcript dated 25 July 2023 Appeal number: NAA 225 of 2023 File number: BRC 11058 of 2019 Judgment of: SCHONELL J Date of judgment: 22 December 2023 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Where the respondent sought to adduce further evidence – Where most of the further evidence was before the primary judge and/or events that post-date the hearing – Application dismissed.
FAMILY LAW – APPEAL – Leave to appeal – Where the appellant sought to appeal an order appointing a litigation guardian for the husband – Where the appellant contended error by way of denial of procedural fairness, error by admitting evidence objected to and connected errors, inadequacy of reasons and discrete error of fact – Where there is no merit to the appeal – Where the Court does not find that substantial injustice would result if leave to appeal were refused – Leave to appeal refused – Appeal dismissed – Costs ordered as agreed or assessed.
Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.13, 3.15, 7.02
Mental Health Act 2007 (NSW)
Cases cited: Candle v Falkner [2021] FedCFamC1A 102
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter v De Winter (1979) 23 ALR 211
Dimmick & Harrison [2023] FedCFamC1A 30
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
OP v TP Conduct of Counsel (2003) 30 Fam LR 281; [2002] FamCA 1155
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Sigley and De Santis [2022] FedCFamC1A 201
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 54 Date of hearing: 22 December 2023 Place: Sydney (via Microsoft Teams) Counsel for the Appellant: Mr Leneham Solicitor for the Appellant: Kilmartin Legal Pty Ltd Counsel for the Respondent: Mr Brown Solicitor for the Respondent: CIF Lawyers ORDERS
NAA 225 of 2023
BRC 11058 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS OSMAN
Appellant
AND: MS CASPAR AS LITIGATION GUARDIAN FOR MR CASPAR
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 6 December 2023 is dismissed.
2.Leave to appeal is refused.
3.The Notice of Appeal filed 22 August 2023 is dismissed.
4.The appellant pay the respondent’s costs as agreed or assessed, not including the costs of the Application in an Appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Osman & Caspar (by his litigation guardian Caspar) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
By Notice of Appeal filed 22 August 2023, the appellant wife (“the appellant”) seeks leave to appeal and, if granted, to appeal the primary judge’s orders appointing her former mother-in-law as a litigation guardian for her former husband (“the respondent”). Leave to appeal and the appeal were opposed by the respondent.
To obtain leave, an appellant must establish that the primary judge’s decision is attended by sufficient doubt to warrant appellate intervention and further that a substantial injustice would result if leave were refused, assuming the primary judge erred (Medlow & Medlow (2016) FLC 93-692). The test is conjunctive. Establishing mere error is insufficient. The appellant must also establish, assuming error, a substantial injustice if leave were refused.
The Notice of Appeal contended six grounds. Counsel for the appellant submitted that the appeal fell into two broad categories. Firstly grounds going to the integrity of the judicial process, being a denial of procedural fairness by not giving the appellant an opportunity to raise objections to evidence (Ground 1) and a failure to give adequate reasons (Grounds 3 and 4), and the second category being error in admitting evidence objected to and connected errors of fact and law (Grounds 2, 5 and 6(a)) and lastly, a discrete error of fact (Ground 6 (b)).
Whilst the grounds were not argued in those identified broad categories either orally or in the Summary of Argument, I will address them in that order in light of the appellant counsel’s submission.
Consistent with authority, where an appeal contends a denial of procedural fairness, such ground must be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
BACKGROUND
The appellant commenced proceedings in the Federal Circuit Court of Australia (as it then was) on 13 September 2019.
On 22 May 2023, the primary judge listed the matter for final hearing for two days commencing on 18 October 2023.
In mid-2023, the husband was admitted to a mental health facility pursuant to the Mental Health Act 2007 (NSW) (“the Mental Health Act”) after allegedly setting fire to part of a property owned by him and the appellant.
On 10 July 2023, the husband’s legal representatives filed an Application in a Proceeding seeking, amongst other things, that the husband’s mother be appointed as the litigation guardian for the husband. The application was opposed by the appellant.
The affidavit in support of the application annexed a medical report from a medical practitioner from B Hospital recording that the husband had been an inpatient since mid-2023 pursuant to the terms of the Mental Health Act, under the care of a psychiatrist suffering a manic relapse of his bipolar affective disorder. The writer of the report said, “[w]e do not consider [the husband] being able to deal with the issues arising from his [f]amily [l]aw [m]atter as these are likely to trigger a negative health outcome” (affidavit of respondent filed 24 July 2023, Annexure MSC-1).
On 25 July 2023, the matter came before the primary judge for mention as a result of his Honour’s concerns about the material placed before the Court.
At the hearing, the primary judge expressed disappointment at the appellant’s opposition to a litigation guardian being appointed for the husband.
After adjourning to allow the parties to have discussions the matter came back before the Court, with no agreement having been reached, and the primary judge thereafter proceeded with the application.
Counsel for the appellant sought to raise objections to the respondent’s material, which was rejected by the primary judge. The primary judge subsequently indicated that the appellant’s evidence was not of assistance and that the only relevant evidence was the report from the husband’s medical team. On that basis, the appellant’s counsel indicated that he had no submissions to make, and the primary judge thereafter ordered that a litigation guardian be appointed.
APPLICATION IN AN APPEAL
On 6 December 2023, the respondent filed an Application in an Appeal seeking to adduce further evidence pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The affidavit in support contended that the evidence supports the orders made by the primary judge. As is apparent from the affidavit, most of the additional evidence existed before the mention before the primary judge or could have been obtained in advance of it, being various clinical reports in relation to the husband. The other material relates to events that post-date the hearing and add nothing to the maintenance of the orders (CDJ v VAJ (1998) 197 CLR 172).
Leave to adduce further evidence is refused. Consequently, the Application in an Appeal will be dismissed.
GROUNDS OF APPEAL
Ground 1
1.His Honour erred by failing to afford procedural fairness to the [appellant], by failing to give the [appellant] any, or any adequate, opportunity to raise objections to evidence.
(Emphasis added)
The appellant relied on the exchange between the primary judge and counsel where the primary judge said, “I’m not hearing any objections to evidence” (Transcript 25 July 2023, p.6 line 4). The appellant submitted that “the refusal to even hear (let alone consider and rule upon) the appellant’s objections to evidence is sufficient to sustain the granting of leave to appeal and the allowing of the appeal” (appellant’s Summary of Argument filed 10 November 2023, paragraph 7).
The appellant submitted that by doing so the primary judge failed to afford the appellant procedural fairness. It is clear that the submission departs from the ground. The ground asserted error in contending that the appellant was denied the opportunity to raise objections. As drafted, it is erroneous. The appellant had recorded her objections in the appellant’s case outline filed 24 July 2023. It is clear from a reading of the transcript as a whole that the primary judge had read all of the material including the appellant’s objections. As drafted, the ground must fail.
Permitting the appellant to recast the ground to contend a denial of procedural fairness in not ruling on the appellant’s objections would be an exercise in futility. The appellant’s case outline filed 24 July 2023 framed the objections in the following way:
1. The husband’s medical records are entirely hearsay in the absence of direct expert evidence from the persons who created those records.
2. In the absence of any admissible expert opinion evidence about the husband’s mental health, including producing any such expert for cross-examination, the [appellant] objects to any such evidence being admitted and says that it may be inferred that the husband’s alleged mental health issues are fabricated by him in an attempt to obtain a better outcome for himself in this proceeding.
(Emphasis added)
Pausing there, no such inference could arise without evidential foundation for which there was none. A submission in such hyperbolic terms should not have been made.
It is a curious submission in light of the evidence adduced by the appellant in her affidavit filed 24 July 2023. Annexed to her affidavit is a copy of the ADVO obtained by the police following the fire which recorded the following.
Upon arrival at the scene the accused was found wondering [sic] around in a dazed and vacant state. He told fire-fighters he had made a mistake, and lit the fire. He [sic] hands had the smell of petrol.
Police attempted to speak to the accused however he was suffering from an obvious mental health episode. He made comments about ‘forces’ and other nonsensical matters. He was unable to answer simple questions or speak about the fire. He was sedated and taken to [B Hospital] for a mental health assessment.
(Affidavit of appellant filed 24 July 2023, Annexure KLM-10)
The appellant conceded in her counsel’s Summary of Argument that s 75 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides that hearsay is admissible in interlocutory proceedings (appellant’s Summary of Argument filed 10 November 2023, paragraph 8). So, an objection based on hearsay does not advance the appellant’s argument nor point to appealable error.
The appellant’s alternative objection is also without merit. Ignoring for the moment that ordinarily cross-examination is rarely permitted in interlocutory applications, counsel for the appellant made no application to the primary judge to cross-examine the medical practitioner. The appellant is bound by the way she conducted her case.
The appellant alternatively submitted that s 75 of the Evidence Act “does not cure the unfairness of the [primary] judge’s refusal to hear objections” (appellant’s Summary of Argument filed 10 November 2023, paragraph 8(a)). The appellant’s ground is cast in terms of denial of procedural fairness. A failure to afford procedural fairness will not automatically result in an appeal being allowed if it is apparent that the primary judge’s determination was inevitable, as to do so would be a futility (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). That observation is apposite to this determination. The medical report was clearly admissible.
The appellant alternatively submitted that the evidence the primary judge relied upon was inadmissible because it was irrelevant (appellant’s Summary of Argument filed 10 November 2023, paragraph 8(b)). The submission is directly contrary to the primary judge’s finding which was that it was the only relevant evidence. This submission was not the basis of the appellant’s objection at the hearing. The appellant cannot raise a new argument on appeal (Metwally v University of Wollongong (1985) 60 ALR 68).
There is no merit to Ground 1.
Grounds 3 and 4
3. His Honour erred by failing to give any or any adequate reasons for the decision to admit the disputed evidence.
4. His Honour erred by failing to give any or any adequate reasons for the decision to appoint a litigation guardian.
(Emphasis added)
Grounds 3 and 4 contended error by inadequacy of reasons in two instances.
The adequacy of reasons is adjudged by the issues and circumstances. The primary judge had clearly read all the material and said that “[t]he only evidence that is relevant is the medical certificate from his current mental health team” (Transcript 25 July 2023, p.6 lines 11–12). The primary judge provided a clear reason for admitting the “disputed” evidence, namely its relevance. No more was required.
The primary judge invited submissions from the appellant in light of that evidence as to why he should not appoint a litigation guardian. The appellant elected to make no submissions and the primary judge made the order. The reasons for the making of the order are apparent from a reading of the transcript. The primary judge made the order based on the medical evidence from the husband’s current mental health team. As has been made plain in numerous authorities, the extent of reasons depends upon the particular case under consideration and the matters in issue (see Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33). Here, the issue was whether or not a litigation guardian should be appointed.
It is clear from the transcript that the primary judge identified that the relevant material was the report from the husband’s treating mental health team, which made clear the problems faced by the husband and their medical opinion that he was unable to deal “with the issues arising from his [f]amily [l]aw [m]atter as these are likely to trigger a negative health outcome” (affidavit of respondent filed 24 July 2023, Annexure MSC-1). His Honour appointed the litigation guardian based upon that material.
No more was required of the primary judge. It may have been different had the appellant made submissions. However, having elected to make no submissions against the appointment of a litigation guardian, the reasons for appointment are clear. It is fatuous to contend that the appellant could not from the transcript “identify the basis of the judge’s decision” (Candle v Falkner [2021] FedCFamC1A 102 at [97]).
There is no merit to Grounds 3 and 4.
Ground 2, 5 and 6(a)
2.His Honour erred by admitting the evidence objected to by the [appellant] (“the disputed evidence”), as set out in the [appellant’s] objections to evidence annexed hereto.
…
5.His Honour erred in law, in that the criteria set out in rule 3.12(1) for the appointment of a litigation guardian were not correctly applied.
6. His Honour erred as to the facts, in that:
(a) The evidence did not support findings of fact as to the matters set out in rule 3.12(1).
(Emphasis added)
The appellant conceded that there was a degree of overlap in the grounds and accordingly, it is appropriate to deal with these grounds together.
In support of these grounds, the appellant submitted:
22. In essence, the evidence was irrelevant because it did not address at all the criteria set out in rule 3.12(1), either expressly or by inference. Even assuming the admissibility of evidence adduced on behalf of the husband, that evidence did not support the drawing of inferences as to the matters required to be established under rule 3.12(1).
Rule 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides as follows:
3.12 Person who needs a litigation guardian
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a)does not understand the nature and possible consequences of the proceeding; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2)Unless the court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
Attached to the affidavit of the respondent was a medical practitioner report from a psychiatric registrar identifying that the husband had been an inpatient at B Hospital since mid-2023 and remained an inpatient pursuant to the terms of the Mental Health Act under the care of a psychiatrist. The report recorded that he was suffering from a manic relapse of his bipolar affective disorder and that he would require hospitalisation for at least the next two to three weeks. The psychiatric registrar opined “[w]e do not consider [the husband] being able to deal with the issues arising from his [f]amily [l]aw [m]atter as these are likely to trigger a negative health outcome” (affidavit of respondent filed 24 July 2023, Annexure MSC-1).
The report recorded that upon his discharge, the husband would “require a Community Treatment Order (under the NSW Health Act) for mandated ongoing treatment for his mental health” (affidavit of respondent filed 24 July 2023, Annexure MSC-1). The evidence was clearly relevant. There is no basis to the submission that the medical report was irrelevant to the determination either expressly or by inference.
The appellant’s submissions went on to contend:
28. That document asserts that [the husband] was an inpatient. It does not say whether he was a voluntary or involuntary inpatient. It asserts that an order will be required after he is discharged from the hospital. It does not identify a specific provision of the Mental Health Act 2007 (NSW) nor what that provision of the legislation says.
29. It says that he has had day leave from the hospital. An inference can and should be drawn from that information to the effect that he was capable of managing many decisions.
30. There is no explanation of what is meant by “… not … being able to deal with the issues arising from his Family Law Matter” except for the vague and superficial assertion that dealing with those issues is “likely to trigger a negative health outcome.” That does not address any of the criteria set out in rule 3.12(1), and the document is therefore irrelevant to the issues that had to be determined under rule 3.12(1).
All of these submissions go to the weight that the Court might give the evidence. The submissions may have had some force had they been made to the primary judge. Fatal to this appeal, however, is that they were not. Despite being asked by the primary judge to make submissions, the appellant’s counsel declined to do so.
The transcript reveals the following:
HIS HONOUR: Well, your material doesn’t help on this issue, because we’re here about a litigation guardian. The only evidence that is relevant is the medical certificate from his current mental health team.
[COUNSEL FOR THE APPELLANT]: Right.
HIS HONOUR: So why won’t I – why can’t I appoint a litigation guardian.
[COUNSEL FOR THE APPELLANT]: Well, on the basis that my objections to evidence haven’t been heard, your Honour, I have no submissions to make - - -
HIS HONOUR: Very good.
[COUNSEL FOR THE APPELLANT]: - - - in that regard.
HIS HONOUR: I order that a litigation guardian be appointed for the respondent in the proceedings. …
(Transcript 25 July 2023, p.6 lines 10–26)
For reasons that are unexplained, the appellant’s counsel elected to make no submissions to the primary judge. Having elected to take that course, she cannot now be heard to complain on appeal. The appellant is bound by the way her counsel conducted the hearing (see OP v TP Conduct of Counsel (2003) 30 Fam LR 281). It was not submitted that any of the mitigating circumstances identified in OP v TP Conduct of Counsel were apposite.
An assertion that there was a necessity for the primary judge to strictly follow the requirements of the Rules and a failure to do so amounts to appealable error is erroneous. In Dimmick & Harrison [2023] FedCFamC1A 30, the Full Court observed as follows:
9First, the Rules are a guide to sound forensic practice, not a judicial straight-jacket. They are meant to be applied flexibly to meet the ends of justice. It does not matter that the appellant did not apply for relief from compliance with the Rules. The appeal registrar could act of his own volition and was entitled to dispense with the Rules as needed (r 1.31) to ensure the quick, inexpensive and efficient conduct of the proceedings (s 67(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
While in Sigley and De Santis [2022] FedCFamC1A 201, the Full Court observed:
36.… the appellant is mistaken to think the procedural anomaly amounts to an error of law which invalidates the appealed orders. … His Honour was not obliged to rigorously apply the Rules (r 1.31), so it cannot be reasonably contended it was obligatory for his Honour to do so and therefore an appealable error not to do so.
The Full Court’s observations are apposite to the situation that was before the primary judge.
There is no merit to Grounds 2, 5 and 6(a).
Ground 6(b)
6. His Honour erred as to the facts, in that:
…
(b) There was no evidence that an order had been made in relation to the husband under the applicable New South Wales mental health legislation.
(Emphasis added)
The ground is asserted to be an error of fact. Neither the ground nor the submissions in support identify what was the erroneous finding of fact made by the primary judge.
The ground does not articulate error but merely stated that there was no evidence about a particular fact. The ground does not identify how the primary judge erred. It appears from the Summary of Argument the appellant relied upon a misquote by the primary judge as inviting a conclusion of appealable error. The Summary of Argument accurately recorded the primary judge acknowledging that he misstated words. The appellant’s submission recorded:
46. … However, it is submitted that that does not allay the concern that, when the order was made appointing a litigation guardian, His Honour’s decision about the appointment of a litigation guardian was coloured by a misperception that the husband was detained under an order.
Beyond asserting an unallayed “concern”, neither the ground nor submission articulate the finding of fact erroneously made by the primary judge. Absent clear articulation of the erroneous factual finding made by the primary judge and upon such articulation demonstrating that it was material to the ultimate determination (see De Winter v De Winter (1979) 23 ALR 211 at 217), neither of which was done, there is no merit to Ground 6(b). Appellate intervention does not arise for such a mistake in expression which is corrected.
CONCLUSION
For completeness, something should be said about the appellant’s submissions that assuming error were established, leave should be granted as the appellant would suffer substantial injustice. The appellant contended a substantial injustice would be occasioned in the following circumstances:
15. …
7. …
(a) The husband has been erroneously relieved of personal responsibility for the conduct of the proceeding including disclosure of documents, which may be relevant to the credibility afforded to his evidence in the substantive proceeding.
(b) The appointment of a litigation guardian effectively determines, against the [the husband] and without a proper examination of the evidence, a major disputed issue in the substantive proceeding, namely whether the husband suffers from mental health conditions that may affect his future needs.
(c) The appointment of a litigation guardian may have the effect of shielding the husband from cross-examination at the trial of the substantive proceeding.
Adopting the same lettering:
(a)The litigation guardian is required to comply with the obligation of disclosure. In the event that the appellant makes a case for non-disclosure at the final hearing, then the clearly settled jurisprudence makes plain the consequences. The mere appointment of the litigation guardian does not in that context establish a substantial injustice nor relieve that party from their obligations of disclosure.
(b)The appellant’s submission that the appointment of a litigation guardian determines the issue of the husband’s mental health and any future needs is absent foundation and erroneous. It is noted that no authority is cited for the proposition. The appointment goes to the issue of the capacity to understand the proceedings or conduct them and no further or more. It does not establish his health at the time of hearing or future needs. The Rules makes plain that a single expert can be appointed to determine “any significant issue in dispute” (r 7.02). If the husband’s health remains an issue, then the appellant can seek the appointment of a single expert. Further, the appellant may at any time apply for the removal of a litigation guardian (r 3.15(1)). No substantial injustice is made out by this submission.
(c)While the husband might not be cross- examined, that in and of itself does not establish a substantial injustice. The appellant has a case to prove, as does the litigation guardian. The absence of ability to cross-examine the husband is a matter that the Court can consider in assessing the weight to be given to the evidence relied upon by the litigation guardian. It may be that a court determines that little, if any, weight can be given to it.
There is no merit to the appellant’s submission that she would suffer substantial injustice (assuming she had established error) if leave were refused.
The appellant has failed to demonstrate appealable error and accordingly leave to appeal will be refused and the Notice of Appeal dismissed.
COSTS
Section 117 of the Family Law Act 1975 (Cth) governs the circumstances in which costs are awarded in appellate proceedings. The appellant does not oppose the order for costs by the respondent, save in relation to the issue of the Application in an Appeal. I am satisfied that it is appropriate to order costs in circumstances where the appellant has been wholly unsuccessful. I will order that the appellant pay the respondent’s costs as agreed or assessed of the appeal, not including any costs of the Application in an Appeal.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 22 December 2023
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