Sofus and Cethenes and Ors

[2011] FamCA 793

FAMILY COURT OF AUSTRALIA

SOFUS & CETHENES AND ORS [2011] FamCA 793

FAMILY LAW – PROPERTY – Hogan order, Barro order, Trial adjourned part-heard

Family Law Act 1975 (Cth)

Strahan & Strahan [2009] FamCAFC 166; (2011) FLC 93-466
Zschokke and Zschokke (1996) FLC 92-693

APPLICANT: Mr Sofus

1^st RESPONDENT: Ms Cethenes

2^nd RESPONDENT: Ms Cethenes Senior

3^rd RESPONDENT: Mr Cethenes Senior

FILE NUMBER: SYC 3049 of 2009

DATE DELIVERED: 10 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Murphy J

HEARING DATE: 10 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Steggle

SOLICITOR FOR THE APPLICANT: Rosana Tyler Solicitor

THE 1^ST RESPONDENT: In person

COUNSEL FOR THE 2^ND & 3^RD

RESPONDENTS:

Mr Panayi

SOLICITOR FOR THE 2^ND & 3^RD

RESPONDENTS:

Barbayannis Lawyers

Orders

IT IS ORDERED

1. That leave is granted to the wife to make an oral application today for an adjournment of the trial part-heard and for the provision of $20,000 to defray her legal costs of the further hearing.

2. That the trial be adjourned part-heard before Murphy J to Monday 5 December 2011 at 10.00am.

3. That in the event that the wife fails to secure legal representation for the adjourned trial, the hearing shall nevertheless proceed with the wife unrepresented and her material for trial shall consist of her Amended Response, affidavit and financial statement all filed 7 September 2011.

4. That in the event that the wife does not secure legal representation and does not herself appear at the adjourned trial, the hearing shall proceed on the material referred to in the previous paragraph of this order but in the absence of the wife.

5. That not later than 4.00pm on Thursday 13 October 2011 each of the parties shall do all such things and sign all such documents as might be necessary so as to pay from the monies held in trust as at today by L Pty Ltd;

   (a)The sum of $20,000 to the trust account of solicitors nominated in writing by the wife with such nomination occurring by not later than 4.00 pm on Wednesday 12 October 2011; and

   (b)The balance as at today to the solicitors for the husband

   with each such sum to be used solely for the purposes of defraying the cost of representation of each of the respective parties at the further hearing on 5 December 2011 and the treatment of such funds to be determined at the adjourned hearing before Murphy J.

6. That subsequent to the payments referred to in the previous paragraph of these orders, and save for the payment of those sums, each of the parties be restrained from withdrawing, or authorising the withdrawal of, any funds from such monies as are standing to the credit of the L Trust Account from time-to-time pending further order of the Court.

IT IS FURTHER ORDERED

1. That that the wife be granted leave to file instanter a Notice of Address for Service.

2. That the rules relating to service of the Notice of Address for Service by the wife be dispensed with and, in lieu thereof, a Registrar of this Court forward to the solicitors for each of the parties a sealed copy of the said Notice of Address for Service.

3. That the solicitors for the second and third respondents shall give notice of these proceedings, the adjourned hearing and the orders sought by each of the respective parties to Ms M, a child of the second and third respondents and sister of the respondent wife.

IT IS NOTED THAT

A.The husband will arrange such interpreters as may be needed by him.

B.The third parties’ solicitor will make arrangements with the Court for interpreters to be appointed for the third parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC3049/2009

Mr Sofus

Applicant

And

Mr Cethenes

1^st Respondent

And

Ms Cethenes Senior

2^nd Respondent

And

Mr Cethenes Senior

3^rd Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This morning I commenced what was to be the final hearing of this matter and dealt initially with objections to the evidence of the parties.  The wife today represented herself, her previous solicitors having filed a Notice of Ceasing to act on 29 September 2011.  She applies orally to adjourn the trial.

2. The hearing before me proceeds in unusual circumstances with the husband, for reasons which might be seen to be the subject of evidence at the final hearing appears by video from Sydney, represented by his counsel, Ms Steggle.  The wife, as I’ve said, appears by herself. 

3. Her parents are represented by solicitor and counsel.  They are second and third respondents to the section 79 proceedings of the parties and seek orders that, if successful, will see them claiming an interest in two real properties which form the substantial part of the property of the parties or either of them within the meaning of section 79.

4. After the trial had commenced and after objections had been dealt with, the wife made what was, in effect, an oral application.  That application might be seen to be, at least as initially framed, an application for adjournment of the trial so as to allow her to receive legal representation and to be represented at the hearing. 

5. As discussion with the unrepresented wife proceeded it seemed clear that, together with that application and as an essential component of it, the wife also sought what might be conveniently called a “Barro order” or a “Hogan order” in the sum of $20,000 so as to allow her to facilitate the representation to which I have just referred.

6. It will be appreciated, then, that the application in each respect is firstly, made without any written application on the part of the wife and, secondly, in the absence of any affidavit by her or any other witness in respect of any such application.  Correspondence tendered in these proceedings as exhibits 1 and 2 indicates that a request had been made by the wife’s then solicitor for “funding” for the hearing which such request had been rejected by solicitors appearing for the husband. 

7. The application by the wife might be seen to enjoy, at first blush, little prospects of success by reference, in particular, to the chequered history of this matter.  The chronology which, in this respect at least, as I understand it, is uncontroversial shows proceedings resulting in what might conveniently be described as “procedural orders” dating back more than two years to about the middle of 2009.

8. Since that time there have been 13 appearances insofar as I can make it out at which various procedural orders have been made. 

9. It is, I think, not unfair to the wife to suggest that a significant number of those procedural hearings have been occasioned by her non-appearance or non-participation in the proceedings in one form or another. 

10. During those hearings the husband has been, as I understand it, represented at all times and it can therefore plainly be understood that his counsel would submit, as she did, that a further application is an unwarranted impost both financially and emotionally on her client. All the more so, Ms Steggle submits, in light of the procedural history to which I have referred much of which it is fair to say, I think, can be laid at the feet of the wife.

11. As against that, however, is my very significant disquiet at the fact that the self-represented wife has a significant psychiatric history.  There is before me a lack of precise evidence about that psychiatric history but it seems that there have been suggestions made that the illness or illnesses from which she suffers have been significant. For example, at least, reference is made to a psychotic illness. 

12. Coupled with that is the fact that the husband has issued a subpoena to the wife’s treating psychiatrist which such psychiatrist has objected by way of Notice of Objection filed on 3 October 2011. In that Notice of Objection it is contended on behalf of the psychiatrist that, “Release of medical information in court has potential to harm my patient and others.”

13. If that were the only fact in support of the wife’s application I might yet be disinclined to permit of the application.  A number of other matters persuade me that I should, nevertheless, accede to it. 

14. In particular, I should note that the wife has already filed material for use at trial at a time when she was represented by solicitors.  She has filed an affidavit on 7 September which was sworn on 31 August which can, it seems to me, be seen as being her trial affidavit in these proceedings and which canvasses the issues the subject of them.  So too, the wife has filed an Amended Response and a Financial Statement on the same day. 

15. Accordingly, as it seems to me that in accordance with the court’s Rules, and earlier procedural orders, that, on the face of it, no further material needs to be filed by the wife.

16. These factors reduce the potential for there to be yet further difficulties confronted by either the husband or the third parties in respect of meeting any case which might emerge from legal representation by the wife. 

17. Secondly, the wife tells me that she has had conversations with the solicitor who has, in the past, represented her and did so up until about two weeks ago.  She says that the solicitor has indicated a readiness and willingness to act on her behalf at the trial and to brief counsel for the trial. She says that, in effect, the only impediment to that occurring is, as she puts it, pre-payment of the fees associated therewith. Accordingly, she says, in effect, that the representation which she foreshadows is ready and able to be engaged subject to the payment of money. 

18. In light of the comments that I have previously made about the wife’s psychiatric condition I ought, as it seems to me, make mention of the potential for further delay by reason of the appointment of a case guardian.  The material before me would suggest that no such application would be made or, indeed, could be made. 

19. Firstly, nothing on the file that I have seen suggests that any application to that effect has previously been made or foreshadowed to the court in any meaningful way despite numerous procedural mentions and orders.  Secondly, the affidavit filed by the wife for trial, to which I have made reference, contains no such indication of any such need and, indeed, no such indication is given despite the fact that that same affidavit refers to her psychiatric condition.

20. Thirdly, I have had the opportunity, albeit brief, to observe the wife during the conduct of proceedings today.  Of course, I don’t in that sense purport to provide, as it were, my own opinion as to her condition but it is important to observe that I have seen nothing in her appearance before me today and the manner in which she has conducted herself that would suggest that she is unable to provide instructions to any lawyer to conduct proceedings on her behalf. Certainly, material filed only about four weeks ago suggests that cogent instructions were able to be provided by the wife to her then solicitors. 

21. Accordingly, it seems to me that despite the concerns about the wife’s psychiatric condition there is negligible potential for further delay being occasioned by any application of the type to which I have just referred.

22. It will be immediately obvious from what I have said that there is before me a lack of the sort of material that the court would normally demand if an application was going to be made for what is sometimes called a “Barro order” or a “Hogan order” or for an order for interim property in the sense in which that expression was used in Strahan.

23. One possibility open to me was to adjourn the wife’s oral application so as to allow the filing of a written application and an affidavit in support.  It seems to me, however, that this course begs the very question to which the application is, in any event, directed.  Secondly, there is the potential for there to be significant further delay in the compiling of any such material and the hearing of it, a delay which I am not prepared to countenance given the history of this case.

24. Counsel for the husband makes the concession, with respect, properly in my view, that if the second and the third respondents’ case is wholly successful and the husband’s section 79 case is, in light of that, wholly successful then the wife would nevertheless receive, at a minimum, greater than the $7000 which she has already received and the $20,000 that she seeks in respect of the current application. 

25. I reiterate that concession seems to me to be properly made and therefore it seems to me that any amount so ordered to the wife is “reversible” in the sense in which that expression was used in the decision of the Full Court in Zschokke.

26. It is, I immediately concede, an unusual set of circumstances that would see the trial adjourned and an order made for the provision of funds to secure legal representation in the circumstances to which I have just referred. 

27. The husband can legitimately argue, as it seems to me, that there is the potential for injustice to him as I have earlier indicated.  The second and third respondents, who are the parents of the mother, make no such submission in respect of her application.  In effect they are, as might be understood, silent in respect of it. 

28. However, I am ultimately persuaded by the profound sense of disquiet that I experience in allowing the matter to proceed with the wife at what I consider to be a significant disadvantage in circumstances where she suffers from the psychiatric condition to which I have earlier referred and in circumstances where it seems that there is a very limited potential for further delay and where the final resolution of the trial can take place within a short period of time.

29. I have, as a result of all of those factors, tried to balance the potential for injustice by firstly ensuring that this trial concludes as soon as possible. In this particular instance that can occur within eight weeks. 

30. Secondly, I have determined to adjourn the trial part-heard so that I remain seized of the matter and am therefore well aware of the issues which are at the centre of the current application. 

31. Thirdly, I intend to make orders that will see the trial proceed before me on those adjourned dates whether the wife is represented or not.  Indeed, in order to provide further, as it were, security for the husband and the third parties in that respect I will order that, in the absence of legal representation and if the wife herself chooses not to appear at the trial then the trial will nevertheless proceed in her absence on the material already filed by her on 7 September to which I have earlier referred.

32. I have also attempted to meet the potential for injustice by providing funding for both the wife and the husband from the funds to which I earlier made reference and by ensuring that those funds are used solely for the purpose of defraying legal expenses in respect of the final hearing. 

33. By reference to those matters it seems to me, reluctant though I am to do so, that justice demands that the proceedings be adjourned part-heard so as to enable the wife to attempt to obtain legal representation in the manner in which she has indicated is likely and possible and to provide funding to each of the parties as I have earlier indicated. 

34. I order accordingly.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 10 October 2011.

Associate: 

Date:  13 October 2011