STEVENS & STEVENS
[2015] FCCA 63
•15 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STEVENS & STEVENS | [2015] FCCA 63 |
| Catchwords: FAMILY LAW – Property – interim applications – application for Appointment of Litigation Guardian – application granted – application for Summary Dismissal of substantive proceedings – application dismissed – husband admitted to nursing home but removed overseas by his adult children without the knowledge or consent of the wife – wife remains in former matrimonial home – dispute as to whether there was any intention to separate – disputed issues of fact more properly determined at trial. |
| Legislation: Family Law Act 1975, s.79 Federal Circuit Court Act 1999, s.17A |
| Latorre v Maddock (2012) 47 Fam LR 206 George (a bankrupt) v Fletcher (Trustee) [2010] FCAFC 53 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Shearer & Defazio [2013] FCCA 1596 Starkey & Starkey (No.2) [2009] FamCA 432 |
| Applicant: | MR STEVENS |
| Respondent: | MS STEVENS |
| File Number: | BRC 2856 of 2013 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 7 October 2014 |
| Date of Last Submission: | 7 October 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 15 January 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Peter Sheehy Solicitor |
| Solicitors for the Respondent: | Wrightway Legal |
ORDERS
That the Response filed 3 July 2014 be dismissed.
That the Public Trustee of Queensland be appointed as Litigation Guardian for Mr Stevens in these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Stevens & Stevens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2856 of 2013
| MR STEVENS |
Applicant
And
| MS STEVENS |
Respondent
REASONS FOR JUDGMENT
Introduction
I am asked to determine two preliminary matters in these proceedings. The applicant is seeking an order that the Public Trustee of Queensland be appointed as Litigation Guardian and the respondent is seeking summary dismissal of the substantive proceedings. The substantive proceedings relate to property adjustment orders pursuant to s.79 of the Family Law Act 1975.
Although it would not be necessary to make an order for a litigation guardian if the matter is summarily dismissed I propose to consider the issue of the appointment of the litigation guardian first as in doing so will assist my consideration of the summary dismissal application.
Brief Background
The husband is 87 years of age having been born on [omitted] 1927. The wife is 68 years of age. She was born on [omitted] 1946. The parties are from New Zealand. They were married and commenced to live together on 9 May 1986. Both parties had been previously married and divorced. They have adult children from their prior marriages.
In 1988 they entered into a Matrimonial Property Agreement under New Zealand Law which provided for the husband’s retiring allowance from the Government Superannuation Fund to be split evenly between the husband and wife. There is no suggestion that they were separated at the time. They moved to Australia in 1992.
In May 2010 the Husband was admitted to an aged care facility on the Gold Coast but in August of that year he was removed from the facility and taken to [omitted] where his son Mr S lived. The wife’s case is that this was done without her knowledge or consent. The husband has again been moved, this time to [W] in New Zealand where he has been placed in a retirement home. The husband’s daughter lives in [W]. This move seems to have happened after November 2010. The husband’s case is that separation occurred in August 2010.
On 13 May 2011 the Queensland Civil and Administrative Tribunal (“QCAT”) appointed the Public Trustee as administrator for the financial matters of the husband. In making that decision the Tribunal members considered the conflicting medical evidence as to the husband’s capacity and found that the husband: is easily influenced, that he exhibits short term memory loss, and as a result is unable to retain the consequences of decisions in his memory. The Tribunal made a declaration that the husband did not have capacity for personal and financial matters.
The evidence suggests the parties have property in Australia primarily being the former matrimonial home on the Gold Coast. The wife still lives in this property. The parties had a lengthy relationship and the evidence would suggest they each made contributions to the acquisition, conservation and improvement of their property throughout their relationship.
Application for the Appointment of a Litigation Guardian
In support of the application for the appointment of a litigation guardian the court was directed to the Initiating Application filed 28 July 2014 and the affidavit of Mr M filed 23 May, 2014. Mr M is the Director of Disability Services with the Public Trustee of Queensland. In his affidavit Mr M indicated his consent to act as Litigation Guardian.
The respondent argued that if she is successful in her application for summary dismissal any appointment of a litigation guardian would be wasted. She did not otherwise oppose the appointment of the Public Trustee, however raised concern that it is the children of the applicant who are pressing the application and their interests could be said to be adverse to those of the husband.
Rule 11.08 of the Federal Circuit Court Rules 2001 provides:
For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
In the brief background above I set out the finding of QCAT as to the husband’s capacity in 2011. The reasons of QCAT were annexed to the respondent’s affidavit filed 19 September 2014. Whilst I am not bound by the decision of QCAT in determining the husband’s current capacity there is no suggestion from either party that his capacity could have improved since that time. I am therefore satisfied that the husband would have cognitive difficulties in adequately conducting or giving adequate instructions for the conduct of the proceedings.
I am satisfied the Pubic Trustee does not have an interest in the proceedings adverse to the interest of the husband and the appropriate consent has been forthcoming as is required by Rule 11.11 (2). I therefore am satisfied that it has been established that there is a need for the appointment of a litigation guardian and that the public trustee is the appropriate body for such appointment. I will order accordingly.
Summary Dismissal Application
In support of her application for summary dismissal the respondent wife relied on:
a)Her Response filed 3 July 2014;
b)Her Affidavits filed:
i)3 July 2014; and
ii)19 September 2014.
c)Her financial statement filed 18 September 2014.
The applicant relied on:
a)His Initiating Application filed 23 May 2014;
b)The Affidavit of Mr M filed 23 May 2014;
c)The Affidavit of Financial Circumstances in Accordance with Rule 24.02(1)(B) by Mr M filed 23 May 2014; and
d)The Affidavit of Peter John Sheehy filed 19 September 2014.
The respondent argued that the court will find that it is not just and equitable that any property adjustment order be made between the parties and therefore the applicant’s case should be summarily dismissed at this stage in the proceedings. The applicant urged upon me that it would not be appropriate to summarily dismiss the application without affording his litigation guardian the opportunity of presenting his case.
The legal representatives of the parties provided thorough written submissions which were most helpful.
Legal Approach to Summary Dismissal
The Court has power to summarily dismiss an application in certain circumstances. S.17A of the Federal Circuit Court Act 1999 provides:
17A(1) The Federal Circuit Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
17A(2) The Federal Circuit Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
17A(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
17A(4)This section does not limit any powers that the Federal Circuit Court has apart from this section.
Rule 13.10 of the Federal Circuit Court Rules2001 reflects s.17A and reads as follows:
13.10 The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
The approach to be taken when considering an application pursuant to s.17A is to be similar to that undertaken by the Federal Court pursuant to s.31A of the Federal Court of Australia Act 1976 which is in virtually identical terms.[1] This provision was considered by the High Court in Spencer v Commonwealth of Australia.[2] In that case Hayne, Crennan, Kiefel and Bell JJ held the power to dismiss an action summarily is not to be exercised lightly but full weight must be given to the expression “no reasonable prospect” as a whole. Their honours said:
[58] How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. ……
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
[1] Latorre v Maddock (2012) 47 Fam LR 206 [8]-[10]; George (a bankrupt) v Fletcher (trustee) [2010] FCAFC 53 at [75] and [105]
[2] (2010) 241 CLR 118
Discussion
The respondent argued that the facts in these proceedings were similar to those in a decision I delivered on 11 October 2013: Shearer & Defazio.[3] In that case the husband had been admitted to a nursing home while the wife remained living in the former matrimonial home. The application was brought by a relative of the husband. The husband subsequently died. I found in that case that there was no evidence that the parties had separated in the sense that their marriage had broken down but there had been a physical separation when the husband had been admitted to a nursing home. Although I noted separation was not necessary to attract the jurisdiction of the court the circumstances of separation may be relevant when the court has to consider the question of whether it is just and equitable to make any property adjustment order. I ultimately found on the facts in that case that it would not be just and equitable to make a property adjustment order and summarily dismissed the application.
[3] [2013] FCCA 1596
The Respondent submitted I would come to a similar decision in this case. I am not so persuaded. Although there are some similarities between this case and Shearer & Defazio there are also significant questions of fact that can only be determined at a hearing. It was argued that the marriage between the husband and wife had not broken down. This is in dispute. The letter of Dr F dated 5 August 2013 annexed to the affidavit of Mr Sheehy suggests that the husband has told him that he wanted a divorce. The doctor who is a specialist physician and geriatrician in New Zealand considered the husband to have sufficient capacity to reason and understand the effect of a divorce. The respondent argued that the husband’s daughter was present during this assessment. That might well be the case and I have already noted the findings of QCAT that the husband has been found to be easily influenced. These issues though are questions of fact to be determined not in a summary way but at trial. The court may well find as was asserted by the respondent that the husband’s children have deliberately brought about the physical separation and have influenced the husband but that is not something that can be determined without the benefit of having evidence tested. In Shearer & Defazio the issue as to any intention to separate was more easily determined summarily.
I am not satisfied that it could be argued that the husband’s claim is frivolous or vexatious given the disputed question of fact as to separation and his interest in the former matrimonial home.
If the wife was arguing, and it is not entirely clear, that the relief sought is an abuse of process because the proceedings are being driven by the husband’s children for their own ultimate benefit, I would not be prepared to determine that allegation without the benefit of having the evidence tested. In Starkey & Starkey (No 2)[4], Murphy J considered an allegation that property proceedings were initiated and maintained contrary to the purposes of the Family Law Act. His Honour said:
[19] However, an assertion of the type just mentioned is a very serious assertion and, essentially, amounts to an assertion that a party or parties are using the Family Law Act, and more particularly the procedures of this Court, for an improper purpose. I would not be inclined to make a finding to that effect unless there was clear evidence before me of which I could be well satisfied that such an assertion has been made out.
[4] [2009] FamCA 432
The question of the level of influence, if any, the husband’s children may have asserted over the husband will be a significant and relevant matter for determination at trial, as will the circumstances surrounding the physical separation.
Whilst it may be that after a final hearing I come to the conclusion that it would not be just and equitable to make a property adjustment order it is not appropriate to summarily dismiss the application at this stage as I cannot be satisfied that the husband has no reasonable prospect of successfully prosecuting the application.
For these reasons I dismiss the application for summary dismissal and order that the Public Trustee of Queensland be appointed the Litigation Guardian for the husband.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 15 January 2015
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