RUSKEN & JENNER - [2017] FamCAFC 187

FAMILY COURT OF AUSTRALIA

RUSKEN & JENNER

[2017] FamCAFC 187

FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – property adjustment – where the wife was admitted to a mental health facility – where the wife sought an adjournment on the basis that she was unable to prepare her case as a result – where the primary judge dismissed the adjournment application – where the husband sought that the matter be summarily dismissed – where the primary judge dismissed the wife’s Initiating Application – where justice demanded that the orders be set aside to afford the wife an opportunity to make and prosecute her case – where substantial injustice would occur if leave was refused – application for leave to appeal allowed – appeal allowed – costs certificate issued to the husband.

FAMILY LAW – APPLICATION IN AN APPEAL – adduce further evidence – where the evidence to be adduced included a large number of mental health records in respect of the wife’s admission to hospital – where leave was confined to pages identified during the course of the appellant’s oral argument.

Family Law Act 1975 (Cth) ss 93A(2), 94AAA(3), 114AA
Mental Health Act 2016 (Qld)

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

Ms Rusken

RESPONDENT:

Mr Jenner

FILE NUMBER:

BRC

2167

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

6 September 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

6 September 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 May 2017

LOWER COURT MNC:

[2016] FCCA 3348

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Quirk

SOLICITOR FOR THE APPELLANT:

Muir Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Shoebridge

SOLICITOR FOR THE RESPONDENT:

Pullos Lawyers

Orders

The appellant have leave to file an Amended Notice of Appeal in accordance with the draft Amended Notice of Appeal dated 31 August 2017.
Time be extended so as to permit the appellant to file an application for leave to appeal and to rely on an affidavit filed by Mr E filed 9 August 2017.
The Application in an Appeal filed 9 August 2017 to adduce further evidence pursuant to s 93A(2) of the Family Law Act 1975 (Cth) and filed on 9 August 2017 be granted, limited to those pages of annexure “EAM-7” in the affidavit of Mr E filed 9 August 2017 identified during the course of the appellant’s oral argument.
The appellant be granted leave to appeal the order made by Judge Lapthorn on 23 May 2017 refusing the appellant’s application for an adjournment.
The appeal against the order refusing adjournment and the appeal against the balance of the orders made by Judge Lapthorn on 23 May 2017 be allowed.
The orders made by Judge Lapthorn on 23 May 2017 be set aside.
The matter be remitted for such further directions or hearing as might be required before a judge in the Federal Circuit Court of Australia other than Judge Lapthorn.
That the court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The court grants the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the respondent in respect of the costs incurred by the respondent in relation to the new trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rusken & Jenner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 21 of 2017
File Number: BRC 2167 of 2015

Ms Rusken

Appellant

And

Mr Jenner

Respondent

EX TEMPORE

REASONS FOR JUDGMENT[1]

[1]As indicated orally during the delivery of the reasons, citations, quotations and the like referred to during oral delivery of the reasons have been added to the settled reasons. Headings have also been added for ease of reference.

This is an application for leave to appeal and an appeal against orders made by Judge Lapthorn on 23 May 2017 dismissing the wife’s application for adjournment and summarily dismissing an Initiating Application for final property adjustment.
This case highlights the profound sadness and frustration in seeking to deal with what is in essence a straightforward case for settlement of property when one party is suffering from significant mental health issues. That frustration and the difficulties inherent in such a case are apparent in the reasons of Judge Lapthorn underlying the orders made by his Honour the subject of this application and appeal.
On 4 August 2017 the Chief Justice made an order pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single judge and it is heard by me today on that basis.

Application to Adduce Further Evidence

At the outset of the proceedings the wife’s Application in an Appeal to adduce further evidence was allowed. The evidence sought to be led pursuant to s 93A(2) of the Act comprised, relevantly, a large number of documents obtained apparently via freedom of information in respect of treatment received by the wife, for mental health issues.
Because the evidence sought to be adduced was relatively voluminous it was made clear to Mr Quirk, counsel for the wife, that the order granting leave to adduce the evidence was confined to such pages of the relevant annexure to Mr E’s affidavit as were identified by him during the course of oral argument. Mr Quirk identified a number of pages which were relevant to the argument in that respect.
The principles governing receipt of further evidence on an appeal are well‑known but should be repeated here, I think, given the importance of the evidence to the outcome of the appeal and application for leave to appeal. The principles governing the receipt of further evidence are frequently referenced to the decision of the High Court in CDJ v VAJ where McHugh, Gummow and Callinan JJ held:[2]
… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
[2](1998) 197 CLR 172, 202.
And further:[3]
The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by [s 93A].
[3]Ibid, 203–204.
The evidence here relates to significant mental health issues suffered by the wife. At the time of the making of the relevant orders the wife was self-represented before his Honour. The evidence reveals a limited capacity on the part of the wife to so conduct those proceedings. The evidence reveals that subsequent to trial directions being made by his Honour on 6 February 2017, the wife was admitted to hospital and between then and the date of the proposed trial on 15 May 2017, the wife was subject to an Involuntary Treatment Order pursuant to the Mental Health Act 2016 (Qld), and was hospitalised pursuant to that order apart from periods of day release. She was released on 12 May; noting that the mooted trial was to take place some three days later. It is on that later date that the wife made her application for an adjournment.
Mr Shoebridge who appears today on behalf of the husband, with respect sensibly, effectively conceded that the test for the receipt of further evidence was well satisfied in this case when reference is had to the appropriate principles. It is for those reasons that the further evidence to which I have referred, limited in the manner which I have referred, was permitted to be led.

The Context for the Primary Judge’s Orders

The parties were married for nearly eight years prior to their separation in February 2014. Subsequent to their separation the parties continued to live in a property that was their former matrimonial home.
On 11 March 2015, the husband filed an Initiating Application seeking an injunctive order that the wife (and her brother) be “restrained from entering or remaining at [the former matrimonial home]” and that the wife be restrained from damaging the home and property therein. The application provided for interim orders that the wife “collect all her belongings within seven (7) days”. It should be noted that no order for property adjustment was sought at that time.
The husband made application for his application to be heard ex parte. That request was dismissed by his Honour on 21 April 2015 and directions for service to the wife were made. The matter was relisted before his Honour on 15 June 2015.
On that date, the wife did not appear. Her brother, however, appeared on her behalf and informed the court that she was unwell. The matter was adjourned for two days with orders made that “in the event the wife fails to appear … the matter may proceed by way of undefended hearing”. It was also ordered that the wife provide a medical certificate.
The wife did not appear on the adjourned date, though, again, her brother did appear and he tendered on her behalf three medical certificates. Those certificates stated broadly that the wife was “unfit to attend court” due to “chronic [symptoms]” and “[ongoing pain]”. His Honour proceeded to hear the application undefended and the orders sought by the husband were subsequently made.
The wife did not file a Notice of Appeal in respect of those orders.
However, on 1 July 2015, the wife filed an Application in a Case seeking that the 17 June orders be set aside; that the husband pay the wife “$50,000.00 by way of spousal maintenance”; and, that leave be given for the wife to file a Response to the husband’s Initiating Application. Subsequently a Response was it seems prepared which sought a property adjustment “equal to 35% of the determined property value” (although it appears that the Response was ultimately never filed in court).[4]
[4]The unsealed Response was attached as an annexure of the husband’s solicitor’s affidavit affirmed on 10 July 2015; however the document does not appear on the court file nor does it appear to have been lodged electronically.
Notably, in support of that Application in a Case, the wife instructed her solicitor to prepare an affidavit which said:
2.Whilst I have … instructions, I am not confident that [the wife] is fully capable of making accurate rational decisions and I have filed the application in the case and make this Affidavit to protect her position.
I should note at this point, that on occasion the wife has been self-represented and the wife’s solicitor, who had acted for her, was without instructions. As will be seen, despite the fact that the wife’s solicitor was without instructions, with commendable courtesy to both the court and the opposing solicitors and with what appears to be considerable care and concern for his client the wife, the solicitor has nevertheless continued to assist her in ways which will become apparent.
The husband sought that the wife’s application be dismissed and a declaration be made that, attached to the injunctions ordered on 17 June 2015 was a power of arrest pursuant to s 114AA of the Act.
A Notice of Discontinuance was filed by the wife on 8 July 2015 in respect of her Application in a Case. Leave was given to withdraw that notice pursuant to an oral application made before his Honour on 13 July 2015 and directions were made in respect of the wife’s application.
On 26 August 2015, the parties attended court and sought to enter into a “Heads of Agreement”. Due to the absence of any application for property adjustment, that agreement could not be effected by consent orders. It was also agreed that the parties required more time to finalise the terms of the agreement. It was ordered that the “Heads of Agreement” be placed on the court file, and the parties were given three months “to finalise the agreement which would have involved the dismissal of all outstanding applications upon receipt of a joint letter to that effect”.[5] The parties were unable to finalise that agreement.
[5]Reasons, 22 December 2016, [7].
An Amended Application in a Case was filed by the wife on 5 July 2016. It appears at this time that although the wife had assistance from her solicitor, she acted on her own behalf. That application sought the following final orders:
1. The Heads of Agreement dated 26 August 2015 be set aside.
2.The [husband] pay to the [wife] the sum of $250,000.00 or such other sum as the Court deems appropriate.
3.The [husband] deliver to the [wife] all her personal items and furniture retained by him at her direction and at his cost.
…
The husband sought summary dismissal of that application on the basis that any property adjustment would be limited to an assessment of s 75(2) factors and, if the matter went to trial, “the parties would incur costs greater than any likely adjustment that the wife would receive”.[6]
[6]Ibid, [26].
The application was heard on 18 August 2016 with orders made on 22 December 2016. Those orders dismissed the husband’s application for summary dismissal; and deemed the “Amended Application in a Case filed 5 July 2016” to be “an Initiating Application for Final Orders in relation to property adjustment between the parties”.[7]
[7]Transcript, 18 August 2016, p 17 ln 6–11.
A directions hearing was held on 6 February 2017, requiring both parties to file and serve material in preparation for a final hearing which was ordered to take place on 15 May 2017. No such material was filed by the wife. As will shortly be seen by reference to the further evidence adduced pursuant to the wife’s application, the dates just referred to of 6 February 2017 and 15 May 2017 are each important.
When the matter came before the court on 15 May 2017, His Honour noted that the Bar Association had advised his Associate on 12 May 2017 “that many attempts were made to contact the wife but to no avail”.[8] I think it appropriate to quote that letter from the Bar Association dated 15 May 2017 which stated:
[The wife] attended in the Bar Association Office today at 1.20pm seeking the assistance of a barrister to represent her in a family law property matter. The request was for a matter in court this afternoon at 2.15pm.
We undertook a search for a pro bono barrister on a direct brief basis, however, with such short notice, we were not able to locate a barrister to take this matter.
Should the matter be adjourned, the Association, with more time available to it, would be able to locate a barrister (pro bono and direct brief) to assist [the wife].
[8]Reasons, 23 May 2017, [13].
Consequently, the wife was self-represented at the final hearing on 15 May. At that hearing, the wife “asked [His Honour] to adjourn the final hearing of her application on the basis that she [had] been unwell and unable to prepare her case”.[9] In support the wife tendered a medical certificate dated 12 May 2017 from the … Hospital and Health Service which stated:
This notice is to confirm that [the wife] was admitted to hospital on February 9^th, 2017 suffering from a medical condition. At the time of writing, she is an inpatient receiving treatment on the Extended Treatment Mental Health ward at […] Hospital, and is currently due for discharge on May 12^th 2017. She will continue to receive treatment and be followed up in the community.
[9]Reasons, 23 May 2017, [1].
Counsel for the husband opposed the adjournment and sought, by way of primary relief, summary dismissal of the wife’s Initiating Application.
By reasons dated 23 May 2017, his Honour dismissed the wife’s adjournment application and summarily dismissed the wife’s Initiating Application. At the commencement of those reasons his Honour said that the May orders and reasons “should be read along with my judgment delivered 22 December 2016”.
It is the orders made on 23 May 2017 that are the subject of the application for leave to appeal and appeal.

The Primary Judge’s Reasons

Reasons delivered on 22 December 2016

It will be recalled that his Honour dismissed the husband’s application for summary dismissal at that time and declared that the wife’s application, deficient as it was as to form, nevertheless be treated as “an Initiating Application for Final Orders in relation to property adjustment”. Reference to his Honour’s reasons on that day reveal that his Honour had regard to the following:
a)The wife “informed the court [that] the nature of her application for final orders is for a property adjustment order” [8];
b)“Although there is little … dispute as to the husband’s acquisition of the assets there is a factual dispute in relation to the maintenance and improvement of those assets” [27];
c)There was a concern “surrounding [the] future needs of each of the parties” [27];
d)Although there is merit in the husband seeking that the application be dismissed, his Honour was “not satisfied [that it was] appropriate to summarily dismiss the wife’s application” [27].

Reasons delivered on 23 May 2017

It can be seen, in my view, that the core of his Honour’s decision to dismiss the adjournment application and Initiating Application can be seen at [15]–[18] of the reasons. Again, seeking to summarise:
a)According to an affidavit affirmed by the husband on 15 May, “the wife and her brother drove onto … the former matrimonial home” [15];
b)According to an affidavit affirmed by the husband’s solicitor on 15 May, “the wife had made numerous posts on social media wherein she referred to the upcoming proceedings and stat[ed] specifically on 22 and 23 April that she was attending to her papers for the proceedings and would be receiving legal advice” [15];
c)The wife had told his Honour “that she did not have access to her phone or computer while in hospital” but then “changed her position to say that she did have access to her phone and later … said that her phone was only given to her by some nurses” [15];
d)“[The wife] said she had been force fed psychotic drugs and was still affected by them” such that on her account, nothing said by her could be taken seriously [15];
e)His Honour “formed the impression that the wife was able to work on preparing her documents for court notwithstanding she was receiving treatment in hospital” [15];
f)“[T]hese proceedings have been before the court for over two years” [16];
g)“[T]he husband … incurred legal fees in preparing his case” [16];
h)The wife had not complied “with the trial directions made on 6 February 2017 and [had] failed to prosecute the proceedings with due diligence” [17];
i)“Although the wife argued that it would be unfair to her if she [did] not receive any financial payment … it [would be] … unfair to the husband if these proceedings … continue[d] when he [had] complied with the directions in readiness for trial and the wife [had] not” [17]; and
j)Although his Honour noted in the reasons on 22 December that there were “factual issues in dispute that warranted a trial … [t]he wife [had] been given an opportunity to prosecute her case and [had] failed to do so” [18].

Issues Arising from the Reasons

Leaving aside the further evidence which I will refer to more specifically in a moment, I have concerns arising from his Honour’s orders being informed by irrelevant considerations.
For example, his Honour takes account of the proceedings having continued for “over two years”. The fact is that eight months, at the very least, was due entirely to the court’s own listing practices. The finding as to the wife’s noncompliance with trial directions fails to take account of matters relevant to that failure including what she had to say of the difficulties she had experienced by reason of the, admittedly, then broadly expressed health difficulties.
Additionally, to the extent that there was recalcitrance by the wife, it is not insignificant, in my view, that although the wife failed to appear before the court on two occasions in June 2015, and despite her being self-represented at that time, she adduced medical evidence, through her brother, which prima facie suggested an appropriate reason for her failure to appear. In that respect it is also significant of itself in my view, that the wife’s brother, either on her request or on his own volition, appeared for her, rather than her simply failing to appear.
On 15 May 2017, the wife appeared self-represented and tendered a medical certificate which again sought to explain why she was unable to prepare her case. That certificate indicated that she had been admitted to a mental health facility for the entire period between February and May 2017 albeit that the certificate was in the barest of terms. In considering the relevance of that certificate, his Honour had regard to two affidavits affirmed by the husband and his solicitor, respectively, on 15 May. Those affidavits alleged the wife “had made numerous posts on social media wherein she referred to the upcoming proceedings” and had, on 16 April 2017, driven “onto the property of the former matrimonial home in likely contravention of [a] domestic violence protection order”.[10]
[10]Reasons, [15].
An apparent lack of consistency in the wife’s assertion as to whether or not she had access to a phone or computer whilst in hospital, apparently informed his Honour’s “impression that the wife was able to work on preparing her documents”. Even on the evidence then before his Honour, the wife was an inpatient at a mental health facility and offered credible reasons for failing to prepare for trial. Furthermore, the wife’s solicitor, despite not representing the wife in the proceedings below, sought to communicate the wife’s hospitalisation to both the husband’s solicitors and the court.

Issues Arising in Light of the Further Evidence

As Mr Shoebridge, again with respect quite rightly, effectively conceded, the further evidence adduced before the court this morning renders what the wife said as to her reasons for not preparing for the trial and for seeking an adjournment compelling. In summary:
a)She was admitted to hospital on 9 February 2017;
b)She was the subject of an Involuntary Treatment Order as and from 2 March 2017;
c)She was hospitalised with only very limited periods of day release until 12 May 2017, some three days before the trial was due to commence;
d)A diagnosis of very severe mental health issues was made, including importantly a diagnosis of a psychotic disorder;
e)The wife’s condition rendered it difficult to use her phone. There is evidence pointed to by her counsel this morning about difficulties observed by the nursing staff in her doing so, in particular, her attempting to dial and to access the phone whilst it was locked with an apparent lack of comprehension to that effect;
f)The wife’s court papers are recorded in the hospital notes as having been locked away in a storeroom as access to them by her was, it seems, causing her significant disturbance;
g)Numerous entries in the hospital records adduced by way of further evidence on behalf of the wife this morning, record aspects of her significant mental illness relevant to her capacity to prepare for trial including the preparation of documents. They record for example, a lack of insight into her condition and in some cases specifically refer to a lack of capacity to produce documents;
In my view, there can be no doubt that the wife was very significantly mentally unwell during, at the very least, the period when she was hospitalised between 9 February 2017 and 12 May 2017.
In my view, justice demands that the orders made by Judge Lapthorn be set aside so as to afford the wife an opportunity to make and prosecute her case for settlement of property.
To the extent that it is necessary to give reasons for the granting of leave separate from the reasons I have otherwise referred to, I rely in particular on the injustice which would result if leave were not given.
For those reasons, I will make the orders that I have indicated immediately prior to the delivery of these reasons. In that respect I should also record that before me this morning were formal applications to amend the Notice of Appeal and to allow an affidavit filed by Mr E to be relied upon. Formal orders to that effect will be made as I have indicated.

Costs

It was conceded by both counsel that s 117(1) of the Act applies. The respondent seeks, and in my view should be granted, a costs certificate for the appeal and the rehearing. I will make that order.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 September 2017.

Associate:

Date: 12 September 2017