Pranata & Pranata
[2022] FedCFamC2F 1663
Federal Circuit and Family Court of Australia
(DIVISION 2)
Pranata & Pranata [2022] FedCFamC2F 1663
File number(s): CAC 1432 of 2020 Judgment of: JUDGE W J NEVILLE Date of judgment: 10 November 2022 Catchwords: FAMILY LAW- Property – capacity to conduct proceedings – discharge order appointing a Litigation Guardian Legislation: Family Law Act 1975 (Cth) s102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r.3.15
Cases cited: Forster v Forster (2013) 47 Fam LR 77
L v The Human Rights and Equal Opportunity Commission (2006) 233 ALR 432
Division: Division 2 Family Law Number of paragraphs: 17 Date of hearing: 10 November 2022 Solicitor for the Applicant Self-represented by her Litigation Guardian, Ms Jayadi Solicitor for the Respondent Prudential Legal Solutions ORDERS
CAC 1432 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PRANATA BY HER LITIGATION GUARDIAN, MS JAYADI
ApplicantAND: MR PRANATA
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
10 NOVEmber 2022
THE COURT NOTES THAT:
A.The Litigation Guardian for the Applicant made a series of very serious complaints (including claims of criminal and/or negligent conduct) against the Australian Federal Police and the Husband’s lawyer. The Litigation Guardian also claims there is government interference in the matter;
B.The Litigation Guardian for the Applicant has consulted 40 or 50 different lawyers, whose advice is said to be relatively consistent. In the Court’s view, to consult so many lawyers (on this fact alone) indicates the significant difficulty for the Litigation Guardian to adequately engage in the processes of the Court;
C.The Litigation Guardian for the Applicant confirmed it is a matter for the Court whether or not she remains as the Litigation Guardian; and
D.The s102NA Order made 21 March 2022 precluding the Litigation Guardian for the Applicant from cross-examination will be amended to preclude the Applicant from cross-examination. It is requested the solicitor for the Respondent assist the Applicant to notify Legal Aid ACT of this change; accordingly,
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.Order 1 of the Orders dated 3rd March 2021, appointing Ms Jayadi as the Litigation Guardian for the Applicant, be discharged.
2.Orders 1 and 2 of the Orders dated 21st March 2022 be amended such that the Applicant is precluded from directly cross-examining the other parties. The self-represented Applicant is directed forthwith to attend upon the office of the Legal Aid Commission to apply for representation for the Final Hearing so that cross-examination, if it is to occur, is via a legal representative.
3.The Application in a Proceeding filed 7th November 2022 (which makes the allegations noted above and set out further in the reasons of the Court) by the Litigation Guardian for the Applicant be dismissed.
4.The matter be listed for Final Hearing on 10th March 2023 commencing at 10:00am in CANBERRA.
THE COURT FURTHER ORDERS IN CHAMBERS THAT:
5.Evidence in chief at the Hearing be by way of Affidavit. Oral evidence in chief will only be permitted by leave. Affidavits must comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
6.The Applicant is to pay any Hearing fee or seek a waiver of the fee no later than 14 days prior to the Final Hearing.
7.No later than 21 days prior to the Final Hearing, each party is to file and serve:
(a)one affidavit setting out any further evidence in chief;
(b)one affidavit of each lay witness intended to be relied upon at trial; and
(c)one updated financial statement.
8.The parties cannot rely on any material filed later than 21 days prior to the Final Hearing without the leave of the Court.
9.No later than 7 days prior to the Final Hearing, each party is to file and serve on all other parties and the Court a case outline, setting out:
(a)the final orders sought;
(b)a summary of the issues in dispute;
(c)a list of documents intended to be relied upon;
(d)a list of authorities intended to be relied upon; and
(e)a statement of asserted assets and liabilities.
10.No later than 7 days prior to the Final Hearing, an editable Microsoft Word copy of the case outline must be emailed to [email protected].
11.Subpoenæ be returnable no later than 7 days prior to the Final Hearing.
12.A pre-hearing compliance check will be conducted by email approximately two weeks prior to the Final Hearing.
AND THE COURT NOTES IN CHAMBERS THAT:
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties;
F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross- Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the Final Hearing;
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet;
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court;
I.Failure to comply with Hearing directions could result in Orders for costs (including personal costs Orders) and the possibility that the Court will not hear the matter on the scheduled dates;
J.Should the matter settle prior to the Final Hearing, or should the Final Hearing be listed to another date, the party who put any expert on notice must notify them that they are no longer required to give evidence, at the earliest possible time. Failure to do so may result in Orders for costs (including personal costs Orders) for hearing related expenses incurred by that expert; and
K.All parties and practitioners must attend the Final Hearing in person.
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 a pseudonym Pranata & Pranata has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
The following reasons have been revised from the Transcript.
The matter commenced on 7th July 2020 with an Initiating Application filed by the Wife.
On 2nd February 2021, the parties attended a conciliation conference, with the Applicant Wife then being legally represented. This conference concluded with an offer being made by the Wife, which the Husband requested further time to consider. On one occasion following this offer, the parties requested a further adjournment to consider matters generally. The Wife’s solicitor then came off the record.
On 3rd March 2021, at the request of the Applicant, the Applicant’s daughter Ms Pranata was appointed as the Litigation Guardian for her Mother who has a range of health and related issues. At that time, Ms Pranata provided the Court with her Enduring Power of Attorney for the Applicant. The offer made at the conciliation conference seems simply to have lapsed or otherwise to have fallen into abeyance.
Unfortunately for all concerned, since the appointment of the Litigation Guardian in March 2021, the matter has made little, or no, progress. The parties have been allocated six further dates for a “follow-up” conciliation conference, on 2nd February 2021, 3rd June 2021, 26th August 2021, 17th August 2022, 15th September 2022 and 2nd November 2022. Alas, all to no avail.
Throughout the proceedings, both parties have alleged outstanding non-disclosure against each other at various times, and yet confirmed that disclosure had been completed at other times, including as long ago now as 15th June 2021.
The Wife has had ongoing challenges in obtaining legal representation for her Litigation Guardian, despite advising the Court on multiple occasions that she had a Legal Aid grant, as well as a s.102NA Order being made in her favour. The Wife has had various solicitors appear on her behalf, most of which only remained on the record for one appearance.
The matter cannot now drift, as it has done since the original conciliation conference. Accordingly, to ensure the finalisation of this matter, it will be listed for final hearing on 10th March 2023, with trial directions to be made in Chambers.
The Litigation Guardian Issue
I note, and remind myself, of the basic principles that apply to the appointment of a Litigation Guardian, both under the Rules of Court, and according to unchallenged, and long-standing, Full Court decisions, such as L v The Human Rights and Equal Opportunity Commission (2006) 233 ALR 432, and Forster v Forster (2013) 47 Fam LR 77.
It is accepted that the current Litigation Guardian seeks to be helpful in every way but, for reasons already indicated in the course of the brief hearing today, and the voluminous amount of detail set out in the most recently filed affidavit in support of an Application in a Proceeding that was filed on 8th November 2022, there are (a) incredibly serious claims made against, amongst other things, the police and the Respondent Husband’s lawyer; and (b) there are regular, consistent claims made by the Litigation Guardian of having consulted either 40 or 50 lawyers whose advice, to speak generally, is said to be relatively consistent. What that advice is or its relevance or import for the current matter remains unexplained. Consultation with so many lawyers, perhaps of itself, speaks of some of the significant difficulties that the Litigation Guardian has encountered in the conduct of the matter.
It should also be recorded that the Litigation Guardian’s Affidavit in support of her Application in a Proceeding runs to 67 pages. At p.3 (par.2), among many examples from this Affidavit, the Guardian asserts that “it has been extremely difficult to put this together because the legal practitioners do not know how to handle this case…” In par.3, the Guardian deposed that she is forced to represent the Applicant without legal representation because “no legal practitioner knows how this case should be handled when the Public Advocate and police have made an arrangement to not take action on the relevant matters.”
Par.5 of the same Affidavit begins, stating: “There is extensive criminal conduct associated with these proceedings …”. It is entirely unclear where or how such a claim (and others of similar nature) can be made in these basic property proceedings.
A further significant claim made by the Litigation Guardian is that there is government interference and influence in the case. It should not need to be stated, but it will, but (as already noted) to consult so many lawyers indicates – and this is not a criticism, but simply a statement of fact – significant difficulty for the Litigation Guardian adequately to engage in the processes of the Court.
The Husband’s Lawyer confirmed in oral submissions that he seeks an Order that the Litigation Guardian be removed.
In my view, because of the matters set out in these abbreviated reasons, which simply reflect more extensive and unsubstantiated claims set out throughout the Affidavit in question, respectfully, it serves no useful purpose, and otherwise risks delaying matters even further, for the current Guardian to remain in place.
For these reasons, pursuant to rule 3.15(2) of the Federal Circuit and Family Court of Australia (Family law) Rules 2021, the Litigation Guardian will be discharged. That Order now being made, it must follow that the Application in a Proceeding, filed 7th November 2011, must fall away and be dismissed.
The section 102NA Order that was previously made will apply to the Applicant Wife directly. I request that the Respondent’s lawyer, in order to assist the Applicant, recognising that he does not act for her, notify the Legal Aid Office that the section 102NA Order has been transferred to the Wife so that, hopefully, some clearer way forward and preparation for the final hearing is able to be undertaken as a matter of urgency. This will hopefully ensure that both of these parties, which desperately and understandably need the matter to be resolved, are able, if they are not able to resolve it as between themselves, to have the Court make a determination after hearing the evidence and the submissions next March.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 10 November 2022
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