Sofous and Cethenes and Ors

[2010] FamCA 883

FAMILY COURT OF AUSTRALIA

SOFOUS & CETHENES AND ORS [2010] FamCA 883

FAMILY LAW – PROPERTY – Settlement

Family Law Act 1975 (Cth)

APPLICANT: Mr Sofous

FIRST RESPONDENT: Ms Cethenes

SECOND RESPONDENT: Mrs Cethenes Senior

THIRD RESPONDENT: Mr Cethenes Senior

FILE NUMBER: SYC 3049 of 2009

DATE DELIVERED: 8 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 8 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Steggall

SOLICITOR FOR THE APPLICANT: Rosana Tyler Solicitor

FOR THE FIRST RESPONDENT: No appearance

FOR THE SECOND RESPONDENT: In person

THIRD RESPONDENT: No appearance

Orders

THE COURT NOTED

1. There is no appearance by or on behalf of the Wife at 10:20 am today.

2. There is no appearance by or on behalf of the 3^rd Respondent at 10:20 am today.

THE COURT ORDERED

1. These proceedings are adjourned for mention before Justice Loughnan at 9:30 am on 22 November 2010 AND leave is granted to the legal representatives to attend by telephone on that date provided that not later than 18 November 2010, those legal representatives provide a relevant contact telephone number to Justice Loughnan’s associate.

2. In the event that the parties are legally represented the parties are excused from personal attendance on that date should they so wish.

3. In the event that either or both the 2^nd and 3^rd Respondents intend to attend personally on the adjourned date the Registry manager is requested to provide interpreters in the Greek language for any of them who will so attend.  They should be engaged for half a day.

THE COURT FURTHER NOTED

1. That in the event that the 2^nd and 3^rd Respondents have not identified a proposed case guardian for the wife by the adjourned date, on the adjourned date the husband’s application for the appointment of an appropriate case guardian will be heard.

2. That the provisions of Rule 6.09 of the Family Law Rules which provide that a person may be a case guardian if that person:

   (a)is an adult;

   (b)has no interest in the case that is adverse to the interest of the person needing a case guardian;

   (c)can fairly and competently conduct the case for the person needing a case guardian; and

   (d)has consented to act as the case guardian.

3. The document titled “Orders” is Exhibit 1, that document contains orders sought on behalf of the husband today AND the Court adjourned consideration of those orders to 9:30 am on 22 November 2010.

THE COURT FURTHER ORDERED

1. The substantive proceedings are stayed until further order.

2. Leave is granted to any party to apply to restore the proceedings to the list on giving 7 days’ notice to each other and by arrangement with Justice Loughnan’s associate.  That notice is to be accompanied by either a formal application or a letter setting out the reason for the restoration of the proceedings to the list.

AND THE COURT FURTHER NOTED

1. The Court is strongly of the view that the 2^nd and 3^rd Respondents require legal representation.

IT IS NOTED that publication of this judgment under the pseudonym Sofous & Cethenes and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3049 of 2009

MR SOFOUS

Applicant

And

MS CETHENES

1^st Respondent

And

MRS CETHENES SENIOR

Second Respondent

And

MR CETHENES SENIOR

Third Respondent

REASONS FOR JUDGMENT

1. These are proceedings for property settlement.  The third respondent in the proceedings is here today and she is assisted by an interpreter.  I will arrange for these reasons to be taken out and to be sent to each of the parties so that the interpreter doesn’t feel obliged to translate the entirety of these reasons immediately.

2. The background to the case involves a husband who is 36 and his wife who is 29.  They were married in 2001 and separated on 6 or 7 February 2009.  There is no evidence that their marriage has been dissolved but it may have been. The proceedings were commenced by the husband in May of last year.  The matter came before the court on 22 June 2009. A solicitor appeared on behalf of the wife by telephone from Melbourne. In the application to attend by electronic means, the solicitor indicated, among other things – “you may not be aware but our understanding is that the wife was recently hospitalised for a period of time for a number of psychiatric and mental-related illnesses.”

3. On 22 June 2009 I made some orders. The matter was adjourned to 24 August 2009. I made some orders restraining the dispersal of funds, being the proceeds of rent of a site in T. The parties were also restrained from encumbering or dealing with a property at C in the State of Victoria.  On 24 August 2009, the husband was represented by a solicitor and the wife by that same solicitor from Victoria. Further orders were subsequently made by agreement, continuing the orders that have been made by me pending further order.

4. There was a Case Assessment Conference on 18 September 2009 and the wife was ordered to file documents by November.  A Conciliation Conference was appointed for December and directions were made for filing documents and for valuations. A Conciliation Conference was appointed for 16 December 2009 and the wife failed to attend. The matter was listed on 3 March 2010 and further directions were made for filing documents. However, the matter was relisted on 19 February 2010. Again, there was no appearance for the wife.  Ms Barabayannis, a solicitor from Melbourne, appeared for the proposed interveners, the wife’s parents. Counsel appeared for the husband. The registrar noted that the wife had failed to file any documents, a Response or Financial Statement and noted that it would appear that the wife is not participating. The wife’s parents were given leave to join the proceedings. The listing on 3 March was vacated and further directions were made for filing documents. The matter was adjourned to 9 April 2010 to check compliance. On 9 April 2010 there were the same appearances - Ms Barabayannis for the second and third respondent, by phone from Melbourne;  Ms Steggall for the husband and no appearance for the wife. Further directions were made for valuations, or appraisals at least. Orders were made for the filing of evidence in-chief and the matter was listed for a procedural hearing on 23 June 2010 by telephone.

5. On 23 June 2010, some orders were made in chambers. The registrar noted that the husband had filed his material; no single expert had been agreed in relation to the T property; orders were made to identify a single expert. On 26 July 2010 the matter came before me. There were the same appearances;  Ms Steggall of counsel for the husband, no appearance for the wife, and Ms Barabayannis, solicitor by telephone for the wife’s parents. I ordered that the matter be listed for final hearing over three days commencing 8 September 2010. I made some orders for filing documents including case outline documents and a chronology and so on. I noted that unless within 14 days from that date the wife had made an application on notice to the other parties to take active part in the proceedings or for the appointment of a case guardian, the hearing of 8 September 2010 – that is today – would be conducted and orders would be made in the wife’s absence.

6. So we come to today.  On 3 September 2010, Ms Barabayannis filed a Notice Ceasing to Act for the second and third respondents.  When the matter was called today, there was an appearance for the husband, represented by solicitor and counsel; no appearance by or for the wife; Mrs Cethenes Senior, the third respondent is present; she is assisted by an interpreter in the Greek language but has no lawyer.  I described the process of the hearing.  I satisfied myself that she wanted the matter to proceed. She did not ask for an adjournment. Unfortunately, I was not satisfied that she understood what I was saying. I asked her what orders she wanted, and received an unresponsive answer.  I showed her the document that represents the most recent set of orders sought by her, which is an Amended Response to an Initiating Application filed 7 April 2010, and asked whether those were the orders that she sought, and she wasn’t able to tell me. I then asked her to tell me what orders she did seek, and she told me that she wanted a house at C transferred to herself and her husband; she wanted damages for broken furniture; she didn’t know how much, but when pressed, she thought $50,000; she wanted to be repaid for a dowry that she and her husband had paid in respect of their daughter, and said that was something like, at least $35,000; she said that she and her husband would like returned to them moneys that the parties, the husband and wife, had drawn on a mortgage in the sum of $30,000, she thought; she wanted damages for rent that she and her husband had to pay for 11 months when they did not have access to a property, at nearly $11,000; and unquantified damages for pain and suffering associated with that period. The wife’s mother seeks a distribution – I’m not quite sure of what, but perhaps the premises and business on the T site – as to 75 per cent to their daughter, and they seek maintenance in an unquantified amount for their daughter, until she gets better.

7. Some of those applications are similar to the applications sought on behalf of the second and third respondents in their Amended Response.  Some of them aren’t. Some of the orders that are sought in the Amended Response were not mentioned by Ms Cethenes Senior today. Some of the prayers for relief seem to relate to the natural jurisdiction of the Family Court. Some may well relate to Part VIIIA of the Family Law Act in relation to third parties.  Some seem to be claims in relation to other forms of relief, possibly relying on the accrued jurisdiction of the court. Some of there are forms of relief that could only be sought by their daughter. 

8. There are on foot proceedings in the Supreme Court of Victoria. I think that those proceedings largely relate to a property at C in the State of Victoria. I am told that those proceedings have been adjourned. It is asserted in an affidavit of the third respondent that that adjournment is to abide the outcome of these proceedings. I have not been taken to any order of the Supreme Court that actually says that. I am told that there was representation in those proceedings for the second and third respondents and the wife. I understand that one legal firm and one barrister represented those three parties. I am told that it was pointed out in those proceedings that as the second and third respondents were seeking orders against the wife, there was a conflict of interest and that caused a problem. 

9. In my view it is not possible for there to be a hearing of the issues raised by the second and third respondents whereby, with the best will in the world, the third respondent conducts the proceedings through an interpreter and without a lawyer. I am not sure what caused the second and third respondents to be without a lawyer.  I think the situation is that they decided they don’t want to pay for a Melbourne lawyer to arrange for agents to either appear here, or to travel to Sydney to conduct the matter. That begs the issue of whether Sydney is the proper venue for the proceedings, with three of the parties living in Melbourne and one in Sydney.

10. Ms Cethenes Senior said to me, “Well, we could get a lawyer in Sydney,”. Perhaps that was not done because Ms Barbayannis ceased to act immediately before the hearing.

11. I’ve told Ms Cethenes Senior that she cannot afford not to have legal representation.  She would be at such a disadvantage in relation to what is a case of some considerable complexity.  In my view some of the applications she makes are simply inappropriate, and if she had proper legal advice, she may well be guided in the right direction. In any event, the problem for today is obvious.  The first port of call is, “What orders do you want,” and there would be no way I would go through a process of either her adopting her response, which she refused to do or declined to do, or then, by some process, have the things that she told me that she wanted, reduced to writing so that I could put them to Ms Steggall to see whether the husband would agree to an amendment of the pleadings in the case to allow those issues to be determined by me. That would be a denial of natural justice.

12. There is evidence that Ms Cethenes Senior, at least earlier this year, was still in paid employment; that she owns real estate in Sydney, and of course she has a claim she seeks to agitate in relation to property in Melbourne. Therefore this is not a case where she says there are insufficient funds for proper legal representation.  She needs to be legally represented. In addition her case was hamstrung, to some extent. Her husband has filed an affidavit and he isn’t here.   We didn’t get to that point, but Ms Steggall would be quite right to object to that affidavit being relied on, if he’s not here to be tested in cross-examination.  Ms Cethenes Senior attended court with a large plastic shopping bag stuffed full of documents that she thought the court would be able to rely on. I haven’t seen them, but whether they are in a state to be presented as evidence, whether they’re business records or whatever they might be, one wouldn’t be sanguine about it.

13. Without seeking to be offensive to Ms Cethenes Senior or to her interpreter today, a few times I asked questions of Ms Cethenes Senior and she gave me an answer that wasn’t addressed to my question. Now, that might be because I’m not very articulate.  It might be because Ms Cethenes Senior understood the question quite well and decided not to answer it, I don’t know what it might be, but it’s another example of an activity which is difficult enough for lawyers, being conducted, not only by a layperson, but by a layperson for whom English is a second language.

14. Therefore, I am not prepared to conduct a hearing in relation to the interest of Mr and Mrs Cethenes Senior. It may be that on another day I will be satisfied that they have chosen, after all of the advice, not to have legal representation and therefore they should expect the outcome that flows from their case not being properly represented. But that is not today.

15. I note that none of that is the responsibility of the husband. It may be that any costs thrown away by him will end up being met by Mr and Mrs Cethenes Senior and/or by their daughter if the court is satisfied at some point that they have chosen not to take meaningful part in the proceedings. 

16. That said, the more serious problem is that both the applicant and the second and third respondents want orders adverse to the interests of the wife. The Family Law Rules provide at rule 6.08:

    A child or a person with a disability may start, continue, respond to or seek to intervene in a case only by a case guardian.

    A person with a disability is defined in the dictionary of the Rules:

    in relation to a case means a person who because of a physical or mental disability:

    (a) does not understand the nature or possible consequence of a case or (b) is not capable of adequately conducting or giving adequate instruction for the conduct of the case. 

17. Rules can be dispensed with but this is a rule aimed at a fundamental principle in relation to litigation. In the case that I am presented with, the court is charged to make a just and equitable distribution of property of the parties to a marriage. The process by which that is decided must also be an equitable process. The effect of the Rules is that the proceedings cannot continue, if the wife needs a case guardian, until she has a case guardian.  I referred above to the letter that her erstwhile solicitor sent indicating that the wife has been hospitalised and that she had suffered psychiatric illness.

18. By way of background, the husband says that the wife was beaten and badly treated – cruelly treated – by her parents.  That is denied. I assume, because there has been no compliance with the directions, Ms Cethenes Senior would rely on an affidavit that she swore in April.  Without assuming that the contents are true, she asserts in turn that the wife was cruelly, viciously treated by the husband.  She reiterates allegations of:

    severe domestic violence inflicted by the husband against our daughter.  I suspect that one of the reasons why our daughter is too frightened to participate in these proceedings and her mental state has deteriorated to such a level –

    and she goes on to make allegations about the husband’s mental state which is another issue.  She says:

    On 11 November, the husband became agitated and angry and he pushed a glass door onto our daughter which smashed around her.

    That occurred at C on the wife’s birthday.

    13 May, our daughter telephoned me and advised me that her husband was consistently hitting her on the head, telling her she would not last long with all the beatings.  Our daughter sounded extremely distressed.  My husband and I telephoned the police to attend to the [C property].  We also attended.  The police arrived before us.  The police went into the house and rescued [the wife].

    That is the wife in the proceedings:

    She was clearly very badly beaten.  I am not a medical practitioner –

    says Ms Mrs Cethenes Senior –

    I am not able to depose as to whether she –

    that’s the wife –

    has the capacity to make an informed decision as to whether she should participate in these proceedings.  My husband and I are in a very difficult position as we would prefer to represent our daughter in these proceedings and for the entire proceedings to be concluded.  However, from an emotional point of view, I do not honestly believe that my husband and I taking on the proceedings for and on behalf of [the wife] as well as in her own right will be helpful psychologically to [the wife].  We have witnessed [the wife’s] mental state by caring for her full-time since February 2009.  It is evident she is extremely frightened of the husband and one reason why she may not be participating in these proceedings. 

    Annexed here to and marked with the letters VC11 is a copy of script of medication prescribed to [the wife] and a copy of the card from the Alfred Hospital and a copy of a brochure in relation to psychosis.  She says:

    Our daughter suffers from psychosis.  She had been treated by Dr [E] – at […].

    She has also been admitted in 2009 for approximately one month to [a Melbourne] Hospital. 

19. So I have proceedings whereby both the remaining parties seek orders, on the face of it, adverse to the interests of the wife.  There is evidence that the wife received psychiatric treatment.  There is evidence that she was in a psychiatric hospital for a month last year.  There is evidence that a solicitor was concerned in relation to her mental health. This is evidence that may not be accepted. Indeed it may not survive the objection process. No doubt some of it will be challenged and the court may not accept the allegations. However, the concerns about the wife’s mental health are consistent with a background which indicates a reason for an exacerbation of a psychiatric or psychological condition or the causation of a psychiatric or psychological condition.

20. On the face of it, there is evidence to suggest that the wife is a person under a disability in the relevant sense. Perhaps she is well enough to conduct the proceedings. Perhaps she just needs some assistance. However, the first port of call would be that she would need legal representation. It could be that she is simply somebody who, for whatever reason, won’t leave her home or is incapable of leaving her home. I don’t know that that will be the evidence of her mother, but if that were the case, and that was the only problem, with some cooperation we could probably craft a hearing whereby her evidence was taken by telephone, for example. Provided she had legal representation in court.

1. There may be issues as to whether the proceedings would more comfortably, from her point of view, be heard in Victoria. That is another possibility. A halfway house, perhaps, would have her evidence being taken in Victoria.  In my view the first step is to check with the wife’s doctors to see whether there is an easy answer to this issue. Once that’s been done, it might be that there is an agreement between the other parties that the wife needs a case guardian, or there is another proposal for dealing with the matter. My concern is that if I just launch in to this, with the enormous problems we already have, it is impossible to imagine a process that would be accessible to Mrs Cethenes Senior and yet fair to the husband, without me entering into the fray.

2. These things change, of course. For example, if the lay opinion about psychosis is correct, it might be that the wife is prone to psychotic episodes and yet she is quite capable of conducting her affairs and giving instructions and so on when she is properly medicated or when she is well. That is another possibility, but I don’t know any of that today.

3. I note that the court is strongly of the view that the second and third respondents require legal representation.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan

Associate: 

Date:  30 September 2010