Stellard and Dresdon-Stellard

[2010] FamCA 971

FAMILY COURT OF AUSTRALIA

STELLARD & DRESDON-STELLARD [2010] FamCA 971

FAMILY LAW – PROCEDURE – Case guardian appointed for the wife

Family Law Rules 2004 Rules 6.08, 6.09

APPLICANT: Mr Stellard

RESPONDENT: Ms Dresdon-Stellard

FILE NUMBER: BRC 5986 of 2008

DATE DELIVERED: 22 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 22 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Reardon Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr James

SOLICITOR FOR THE RESPONDENT: Buchanan Legal

Orders

IT IS ORDERED

Case guardian

1. The necessity for the wife to file a response to the husband’s application in a case filed 8 June 2010, paragraph 2, to oppose the appointment of a case guardian for her but to seek that if one be appointed it be JS is dispensed with.

2. Pursuant to Rule 6.09 of the Family Law Rules 2004 JS is appointed case guardian for the wife in these proceedings provided that by 4.00pm on Friday 29 October 2010 he has caused to be filed in the Court a written consent to act.

3. If by that time and date no such written consent by Mr JS has been filed then Peter Sheehy, Solicitor, is appointed case guardian for the wife in these proceedings, with this order to operate as a self executing order.

Balance of wife’s application in a case filed 28 May 2010 and balance of husband’s application in a case filed 8 June 2010

1. The balance of the wife’s application in a case filed 28 May 2010 and the balance of the husband’s application in a case filed 8 June 2010 otherwise are dismissed.

Husband’s application in a case filed 5 October 2010

1. The husband’s application in the case filed 5 October 2010 be listed for hearing at 10.00am on Thursday 9 December 2010 before the Honourable Justice O’Reilly.

2. The parties discuss and endeavour to resolve the subject matter of that application and if consent orders are able to be reached forward them to the Associate by email.

Court documents for the wife

1. The solicitors for the wife, by arrangement with the Registry Manager, may be provided by the Court, at the usual Court cost, copies of filed documents in the proceedings, as well as orders and reasons.

Costs

1. The costs of the parties in relation to the applications filed 28 May 2010 and 8 June 2010 are reserved to the trial judge.

IT IS NOTED that publication of this judgment under the pseudonym Stellard & Dresdon-Stellard is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 5986 of 2008

MR STELLARD

Applicant

And

MS DRESDON-STELLARD

Respondent

REASONS FOR JUDGMENT

Application

1. The husband applies by application in a case filed 8 June 2010, par 2, that a case guardian be appointed for the wife in these proceedings.  His solicitors have obtained the written consent to act of Peter Joseph Sheehy, Solicitor.

2. The wife opposes that a case guardian be appointed, but through her Counsel, Mr James, applies that if one be appointed it be her friend JS whom she has known for 25 years.

Should there be a case guardian

1. The matter has a long history and is one in which I am satisfied a case guardian should be appointed for the wife. 

2. The proceedings concern the parties’ property.  They have been on foot since 1 July 2008.  To date, the husband’s legal fees outstanding are about $190,000 plus about $30,000 for Counsel, and the wife’s legal fees outstanding about $120,000.  The pool is about $2-3 million (the wife asserts about $2 million and the husband asserts about $3 million).

3. The wife has placed several medical reports before the Court. 

4. The earliest appears to be 17 September 2009 by Dr L, psychiatrist, addressed to Charles Cooper Lawyers, the wife’s former solicitors (affidavit Dr L filed 15 June 2010, annexure JLL1), the second last paragraph of which reads:

   It is my impression that at times over the past few months her state of anxiety and depression may have affected [the wife’s] understanding of the nature and possible consequences of the legal proceedings and it has certainly meant that at times she has been incapable of providing you with adequate instructions for the conduct of these proceedings.  However, as indicated above, her mood has started to improve over the past week and along with this there has been a significant improvement in her cognitive functioning.  I believe that [the wife] is now capable of providing you with ongoing instructions and it is not necessary to apply to the court for the appointment of a litigation guardian. (emphasis added).

5. The wife, by application in a case filed 28 May 2010, par 2, sought that the matter not be listed for three months, based upon a further report by Dr L 25 May 2010, again addressed to Charles Cooper Lawyers (affidavit Charles Cooper filed 28 May 2010, annexure CAC2):

   Further to our telephone conversation of 25 May 2010 I have to advise you that [the wife’s] mental state has deteriorated over the past few weeks and she is now very close to a complete mental breakdown.  She presents in a very distressed, agitated and disorganised state, her concentration and short-term memory are impaired, she describes feeling totally overwhelmed by the demands of the ongoing litigation and perceives that she is now unable to cope with this. 

   In my opinion as a result of [the wife’s] current state of severe anxiety and depression and associated cognitive impairment, [the wife] is not fit to adequately deal with the current legal proceedings or to reliably provide you with instructions. I believe that she needs a complete break from any involvement in this litigation for a period of at least three months during which time more intensive antidepressant therapy and psychotherapy will be undertaken. (emphasis added).

6. Then, by report dated 9 June 2010, also addressed to Charles Cooper Lawyers (affidavit Dr L filed 15 June 2010, annexure JLL5), Dr L said, last paragraph:

   I am hopeful that after the expiration of three months, [the wife’s] mental state will have improved sufficiently that she will again be capable of understanding the nature and possible consequences of the legal proceedings and be capable of adequately conducting or providing you with legal instructions with the conduct of the proceedings.  During this time [the wife] needs to be free from the stress of having to respond to any further legal correspondence generated from her husband’s solicitor, correspondence which she maintains is deliberately malicious, filled with lies and generated to ruin her.  I reiterate the statement I made in my initial report of the 17th September 2009, that the protracted and destructive nature of these legal proceedings has been a major factor in causing her psychiatric disturbance and the sooner that they can be concluded the better for [the wife].  At this stage I believe in three months time it is likely that [the wife] will be in a position to conduct her own affairs and that she will not require a case guardian to look after her interests in the proceedings.  I would of course be in a better position to confirm her ability to continue with the legal proceedings once three months has elapsed. (emphasis added).

7. On 15 June 2010, after considering the matter, I allowed the wife three months respite from the litigation by ordering that the various outstanding applications be listed on 5 October 2010.  These were then put over until today, for the reasons explained in the transcript of that date.

8. The most recent report of Dr L is 28 September 2010, addressed to the Registrar Family Court of Australia (comprising part of ex 1, 5 October 2010), which provides:

   As [the wife’s] psychiatrist I wish to advise that [the wife] is still unfit to provide instructions in her legal case due to persisting mental illness and cognitive impairment. 

   [The wife] was supposed to have a three month moratorium of all legal matters pertaining to her case to allow her mental state to improve, but unfortunately this has not been possible due to her need to file documents with the Legal Services Commission relating to the ethical conduct and fees of Charles Cooper, solicitor.  Accordingly it is requested that [the wife] be granted a further three month suspension of the court proceedings to allow her mental health to improve. (emphasis added).

9. That report, it is to be noted, was only about three weeks ago.

10. I have considered the affidavit of Stephen Buchanan filed by leave today. Mr Buchanan is the present and recently appointed new solicitor for the wife (although I note that he may have acted for her previously: see his affidavit, par 10, in its reference to going “back” on the record as her solicitor). Mr Buchanan’s opinion, based upon his having met the wife a number of times in the past few weeks “in relation to the matters before the Court” (Mr Buchanan’s affidavit, par 2) but having over the course of the past 18 months having met with her on no fewer than five occasions to discuss her matter while she still engaged the services of Charles Cooper Lawyers (his affidavit, par 3) is that the wife is able to give him “clear and concise” instructions, although “with the assistance of Mr [JS]” (same affidavit, par 10). 

11. After deposing to several other matters, including that he has not been able as yet to secure a full copy of the file, Mr Cooper being unpaid and no doubt claiming a lien, Mr Buchanan deposed that he has had the opportunity to speak not only with the wife but also Mr JS.  I will read in, so that it cannot be said that I have overlooked the nature and effect of Mr Buchanan’s evidence, the following paragraphs of his affidavit:

    10.[The wife] has explained that Mr [JS] has been and continues to be a trusted family friend and advisor to her.  I can inform the Court that in my meetings with [the wife] and [Mr JS] there has been clear and concise instructions provided by [the wife] with the assistance of Mr [JS] which has resulted in this firm going back on the record as her solicitor.

    11.I am aware that Mr Cooper, whilst still involved in the matter, suggested a case guardian be appointed to the matter for the benefit of [the wife].  I have been contacted by Mr Peter Sheehy, Solicitor and Family Law Specialist as he was the person initially nominated by Mr Cooper.

    12.In my discussions with Mr Sheehy I have indicated to him that I have been able to obtain instructions from [the wife] with the assistance of Mr [JS].  I advised Mr Sheehy that I had spoken to [the wife] and Mr [JS] in my most recent meeting with them the role of the case guardian.  I can advise the Court that both [the wife] and Mr [JS] were vehemently opposed to the appointment of a case guardian.  I can inform the Court that should it be adamant a case guardian be appointed I would respectfully ask that Mr [JS] be considered for such appointment.  He has the trust and faith of [the wife] and knows the background of the matter so far.  He is also known to [the husband] and does not have a personal interest in the matter.  I believe he fits the necessary requirement to be considered as a Case Guardian.

    13.In my dealing to date with [the wife] I am confident that if the Court were to appoint a lawyer in the role of case guardian it may only serve to have an adverse effect on the proceedings as a whole as it appears clearly the case [the wife] has a very strained opinion of lawyers given her dealing to date.

    14.I believe I have gained the trust of [the wife] and I am sure she completely respects and trusts the opinion of Mr [JS].

    15.I respectfully ask the Court to consider Mr [JS] as an appropriate person to be appointed as the case guardian if the Court decides such an Order should be made.  I can advise the Court I will be able to obtain the necessary information from Mr [JS] in an affidavit within seven days if the Court so Orders.

12. It has been convenient to put in those paragraphs of Mr Buchanan’s affidavit as a whole, rather than to break them up. 

13. Leaving aside however for present purposes Mr Buchanan’s request, on the wife’s behalf, that if there be a case guardian it be Mr JS, importantly in relation to my consideration as to whether there be the appointment of a case guardian at all it is plain that Mr Buchanan deposes that there is what was described in argument by Mr James of Counsel, for the wife, a “mechanism in place” for Mr Buchanan to take “clear and concise” instructions from the wife directly but with the “assistance” of Mr JS. 

14. However, the view to which I have come having regard to Dr L’s evidence, which I accept, is that whilst it may be that the wife is able from time to time to give instructions, the collocation of Dr L’s evidence is and has been for some time of inability to give instructions with this being stated as recently as about three weeks ago that the wife is “still unfit” to provide instructions.

15. I would say further that if the “mechanism in place” described by Mr Buchanan should break down there would be the risk at any time of a further request for three months respite, as indeed presently yet again there is, as evidenced by Dr L’s fourth report set out above. 

16. The husband on the material is in dire financial circumstances.  He has an application filed on 5 October 2010 for a partial property settlement order to be able to pay his legal fees, his solicitors having intimated that they will not carry the fees into the future, such that if his application cannot come on urgently he may be required to be self represented.  His application for partial property settlement is set down for 9 December 2010.  It would be grossly unfair to the husband if he is at the risk of further litigation delays not only in relation to his application set down for 9 December 2010, but ultimate disposal of the whole proceedings, by reason of the wife’s unfortunate health circumstances.

17. The litigation already has been protracted and must be brought on to a final hearing.  Already this year, the husband has lost the months between May and October, in that there has been zero progress in the matter in that time because of the wife’s state of health.

18. Even if those matters were not so, however, I am satisfied on the basis of Dr L’s evidence that the wife presently does not have the mental capacity to give instructions to a lawyer on a continuing basis and therefore is under a disability within the meaning of Rule 6.08 of the Family Law Rules 2004, so that it is proper that I appoint a case guardian.

Who should be the case guardian

1. Rule 6.09 provides:

FAMILY LAW RULES 2004 - RULE 6.09

Who may be a case guardian

              A person may be a case guardian if the person:

(a)         is an adult;

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

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

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

1. Mr Sheehy fulfils all of these criteria.  He has acted in the role of case guardian and litigation guardian in 3 previous cases.  He acts as solicitor for the Public Trustee of Queensland in Family Court and Federal Magistrates Court related matters where the Public Trustee is appointed as a case guardian or litigation guardian and he is required to advise the Public Trustee on the conduct of those cases and the requirements for it as  guardian.  He has 8 current files of that nature.  He deposes that if appointed he is aware of the requirements on him as the substitute decision maker for the person represented and the relevant case law and rules that govern the appointment.  By his affidavit filed 15 October 2010, in which those matters are set out, he also gives his written consent to appointment, if deemed appropriate. 

2. Mr Buchanan said in his affidavit, in the several paragraphs to which I have referred, that the wife has a “very strained opinion” of lawyers “given her dealing to date”, and that it is his view that if the Court were to appoint a lawyer in the role of case guardian it may serve to have adverse effect on the proceedings.

3. Mr Selfridge of Counsel, for the husband, submitted that having regard to rule 6.09(c) Mr JS ought not be appointed, not only because of the “higher qualification”, as it was put, of Mr Sheehy for the role, but because Mr JS is unknown to the Court with effect that whether he “can fairly and competently conduct the case” for the wife cannot be known. Further, Mr Selfridge submitted that Mr JS would not be an appropriate person to appoint having regard to oral evidence which I permitted to be given today by the husband concerning Mr JS. The husband said he has known Mr JS for about 25 years, and that he was a friend of both himself and the wife during the marriage, but that after their separation on 3 October 2007 Mr JS sided with the wife such that he and the husband have had no contact since then except by telephone. The husband said he opposes Mr JS being case guardian for the wife because during the time prior to the separation he found Mr JS to be dishonest. Although some examples of this allegation were given, largely they were based on hearsay rather than personal experience. More seriously, however, the husband alleges in his oral evidence that since the separation Mr JS has assisted the wife in removing property of the husband from a locked shed on locked premises, shortly after certain orders were made by Burnett FM, seemingly the orders made 20 October 1999. The property, he said, is in three categories: first, cars and equipment including a Valiant, an EH Holden, a 1922 Ford, a camper trailer, tools and toolboxes; secondly, guns; and thirdly about $80,000 worth of jewellery and personal effects, this category being taken from his home. These matters have not been tested at a trial and at this stage are assertions only. Moreover, it is somewhat curious that in the husband’s affidavit filed 8 June 2010, in support of this very application by him to appoint a case guardian, which I am now hearing, at par 13, the husband deposed:

   13.I know members of [the wife’s] family probably better than anyone, and in respect of the appointment of a case guardian, I can suggest the following people should be considered:

   …

   (d) [JS] who is a close friend of [the wife’s] and has been for about 25 years.  He is [a tradesman] and lives at […].  He is approximately 47 years of age.

   …

4. In my view it is important in this particular case that the wife enjoy the trust of and confidence in any person who is to have the role of giving instructions on her behalf to a lawyer.  Whilst Mr Sheehy enjoys the trust and confidence of the Court, and is very well qualified ably to assist the wife, I am not inclined to oust the wife’s choice, as it were, for her own case guardian.  It seems to me that the circumstance that the wife does not have capacity to give instructions in the case to a lawyer does not mean that she does not have capacity to nominate her choice of guardian.

5. There are two other aspects of the matter which persuade me to appoint the wife’s choice. 

6. First, if Mr Sheehy is appointed there would be another set of fees.  Mr Sheehy, who gave brief oral evidence today, said that if a lawyer is appointed as case guardian fees are payable such that if he is appointed he would not act as lawyer for himself as client but would engage a separate firm of solicitors, but whether that be Mr Buchanan’s firm or another firm would be a decision for later down the track.  Thus, if Mr Sheehy is appointed, there is the potential for the yet a further change of solicitors to be on the record for the wife, but also the actuality of Mr Sheehy’s professional fees, which would add to the wife’s costs burden, particularly as the cost of a lawyer case guardian necessarily would come out of the wife’s ultimate property apportionment.

1. Secondly, Mr Sheehy candidly said in his oral evidence:

   If there is someone else out there who can perform the role with no cost, all the better.

2. I have carefully considered all of the other submissions ably put by Mr Selfridge of Counsel for the husband.

3. However, in my view, it is appropriate that I accede to the wife’s choice and in that regard I reject that Mr JS is not a person, on the evidence, who can fairly and competently conduct the case for the wife.  The allegations by the husband are yet to be tested. It would be inappropriate to make findings.  The wife can be cross examined at the trial as to this aspect of the matter if she is up to it.  There is no suggestion that Mr JS would be likely to be a witness at the trial.  If such were the case, I would not have hesitated to appoint Mr Sheehy, or alternatively to have called for a second nomination by the wife and left the matter open for a short while. 

4. I am conscious that as yet Mr JS has not provided a written consent.  That task is yet to be undertaken. Mr Buchanan said that it can be done within 7 days. In these circumstances what has been proposed is that if I am minded to appoint Mr JS, I do so on the basis that if he has not within 7 days filed with the Court a written consent to act, in default Mr Sheehy be appointed. 

5. That is what I will order.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 22 October 2010.

Associate: 

Date:  27 October 2010