Segers & Segers
[2024] FedCFamC1F 228
•5 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Segers & Segers [2024] FedCFamC1F 228
File number(s): CAC 486 of 2023 Judgment of: GILL J Date of judgment: 5 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –Where the wife made an application for adjournment on the basis of her capacity to conduct proceedings – Where the wife’s counsel advised that he was unable to obtain instructions from the wife – Adjournment granted – Appointment of litigation guardian on the Court’s own initiative Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – rules 3.12 – 3.15. Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 5 April 2024 Place: Canberra Counsel for the Applicant: Mr Selfridge Solicitor for the Applicant: Farrar Gesini Dunn Counsel for the Respondent: Mr Othen Solicitor for the Respondent: Campbell & Co ORDERS
CAC 486 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SEGERS
Applicant
AND: MR SEGERS
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
5 APRIL 2024
THE COURT ORDERS THAT:
1.Mr B is appointed as litigation guardian for Ms Segers.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
Yesterday I granted the wife’s application for adjournment of these proceedings. The adjournment application was in the face of the matter being listed for and called on for trial.
The basis of the application to adjourn related to the wife’s mental health and its impact upon her capacity to conduct the proceedings. In support of the application was an affidavit produced by the wife’s solicitor Ms Li annexing a report from the wife’s general practitioner and from a former psychotherapist who the wife had seen again to obtain support and material to support her application to adjourn.
The report from her general practitioner, Dr C, describes the wife’s attendance on him as being on an emergency basis and in summary, appeared stress-related due to marriage breakdown and to the proceedings. His recommendation was for deferral of the trial to allow the wife to consolidate her mental health. He made no recommendations regarding medication or regarding medication being an appropriate way of dealing with the wife’s issues.
The report from the psychotherapist, Ms D, was again on the basis of an urgent attendance. Whilst the wife had previously been consulting upon Ms D there had been a hiatus in those consultations. She identified underlying issues for the wife concerning marriage breakdown, allegations of an abusive relationship and apparently escalating issues for the wife during the week of the trial. Ms D recommended rest and recuperation to enable the wife to regulate her emotions. She noted the wife’s self-reported difficulties with her decision-making being compromised and she indicated a concern that the wife would be pushed past her ability to cope. Ms D recommended the deferral of the proceedings.
Pivotal to the application were the representations of the wife’s counsel, Mr Selfridge. Mr Selfridge advised the court that he regarded that he was unable to obtain instructions from the wife beyond those to secure an adjournment of the proceedings. His representations were implicitly on the basis that that was due to the wife’s state, and so an adjournment was granted on the basis of the incapacity of the wife to adequately conduct or to give adequate instructions for the conduct of the proceedings.
Although the general practitioner’s and psychotherapist’s evidence was limited, when it was coupled with counsel’s assertions, a compelling case was presented by virtue of the wife’s inability to provide instructions and to conduct the proceedings and an immediate adjournment was necessary.
The corollary on forming that view was the requirement that a litigation guardian would need to be appointed. Rule 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) expresses in such circumstances, where a person is not capable of adequately conducting or giving adequate instruction for the conduct of the proceedings that a litigation guardian is needed, and r 3.13 expresses that a person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by the person’s litigation guardian. The Rules indicate that a situation had then emerged that would mean that the litigation, on the part of the wife, would only be able to be continued via the appointment of a litigation guardian. Hence, while the wife continues under such incapacity, the duration of which is at present uncertain, a litigation guardian is required. The prompt appointment of a litigation guardian was further necessitated by the identification of available trial dates commencing on 29 April this year, following the vacation of current trial dates.
The matter was then stood over to identify potential litigation guardians and then to allow material to be filed in support of the appointment, such that I can be satisfied pursuant to rr 3.14 and 3.15. The first identified person Ms E has now indicated that she is not prepared to act as litigation guardian. This is understandable as the role of the litigation guardian can be considered to be onerous. A second person was identified by the parties who is a senior solicitor well known as the principal of a long-standing practice, with a long history of both general law matters and family law matters, a Mr B. Mr B has appeared today and indicated his preparedness to take on the onerous task of acting as litigation guardian from Ms Segers.
The appointment of a litigation guardian can be made on the application of a party or on the court’s own initiative. In this case, whilst the husband was prepared to make such an application, and whilst the wife’s solicitor and counsel were unable to do so, it is appropriate on the matters that have been determined by me that justified both an adjournment of the proceedings and the appointment of litigation guardian as its corollary to deal with the matter on the court’s own initiative.
I should observe that the appointment of a litigation guardian is designed to facilitate the administration of justice and involves the appointment of a person who will be empowered to act in the proceedings as though he was the wife. I note that it is an appointment that may be discharged as circumstances change, for example, should the capacity of Ms Segers be re‑established.
In order to make the appointment it is necessary that I be satisfied of the matters at rr 3.14 and at 3.15. Typically, the person who is undertaking the role of litigation guardian would in compliance with the Rules and consent by filing an affidavit of consent in the proceedings. Due to the urgency of this matter and the presence of Mr B in today’s proceedings, and his willingness to give sworn evidence, I discharge the obligation to file a consent affidavit and I note that on affirmation Mr B has given his consent to acting as the litigation guardian for Ms Segers.
I further note in accordance with the matters that I must be satisfied of as set out in r 3.14 that Mr B is:
(a)an adult;
(b)has no interest in the proceeding adverse to the interest of the person needing the litigation guardian; and
(c)can fairly and competently conduct the proceeding for the person needing the litigation guardian.
Mr B advises that he has no previous knowledge of the parties, and his experience having been admitted to the legal profession over 40 years ago, and having since that time practised across civil litigation, family law, estate, property and commercial law, guardianship, powers of attorney, contested guardianship and, for what it is worth crime, equips him ably to be able to fairly and competently conduct the proceeding for Ms Segers.
I note that Mr B will be able to be removed from the role as litigation guardian, including at his own request, and I note that should they be sought, facilitative orders pursuant to r 3.18 may be made to aid him in the task of litigation guardian, including an order in respect of the costs and expenses of the litigation guardian being met.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 5 April 2024
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