Valdo & Samburg

[2021] FCCA 1971

FEDERAL CIRCUIT COURT OF AUSTRALIA

Valdo & Samburg [2021] FCCA 1971

File number(s):	ADC 2100 of 2019
Judgment of:	JUDGE KARI
Date of judgment:	20 August 2021
Catchwords:	FAMILY LAW – appointment of litigation guardian – where Public Trustee decline to intervene – request for appointment of litigation guardian by the Attorney–General
Legislation:	Federal Circuit Court Rules 2001, rr 2.08, 11.08(1), 11.11 (1), 11.12(3)
Number of paragraphs:	37
Date of last submission/s:	20 August 2021
Date of hearing:	20 August 2021
Place:	Adelaide
Counsel for the First Applicant:	Mr Lewis
Solicitor for the First Applicant:	Duncan Basheer Hannon
Solicitor for the Intervener	Mr Lawton of Public Trustee
Solicitor for the First Respondent:	Ms Detchon of the Legal Services Commission Duty Solicitor

ORDERS

ADC 2100 of 2019

BETWEEN:

MS VALDO

Applicant

AND:

MR SAMBURG

Respondent

ORDER MADE BY:	JUDGE KARI
DATE OF ORDER:	20 AUGUST 2021

UPON NOTING:

A.That Public Trustee has declined the request of the Court to act as a litigation guardian for the Respondent.

B.That the Court requests the Commonwealth Attorney General’s Department to do all things necessary to expedite the appointment of a litigation guardian.

THE COURT DECLARES THAT:

1.Pursuant to sub-rule 11.08(1) of the Federal Circuit Court Rules 2001 (the Rules), the Respondent requires a litigation guardian to be appointed on his behalf in these proceedings.

AND THE COURT ORDERS THAT:

2.Pursuant to sub-rule 11.11(1) of the Rules, the Court forthwith appoints a litigation guardian for the Respondent in these proceedings.

3.Pursuant to sub-rule 11.12(3) of the Rules, it is requested that the Attorney-General appoint a person to be a manager of the affairs of the Respondent for the purposes of the appointment of a litigation guardian.

4.Pursuant to rule 2.08 of the Rules, leave is granted to the relevant officer of the Attorney-General’s Department and any person appointed as the manager of the affairs of the Respondent to have a copy of any court document filed in these proceedings together with a copy of any orders made and the transcript from the hearings from March and May of this year.

5.That Public Trustee be provided with a copy of the orders made this day and the reasons for judgment.

6.That unless appointed by the Attorney General as the manager of the respondent’s affairs pursuant to the order made this day, Public Trustee are excused from further participation in these proceedings.

7.That the proceedings be adjourned for Mention only to 22 October 2021 at 10.00am such hearing to be conducted by telephone conference through AAPT Global Meet.

To join the telephone conference, please follow the following steps:

a.      Dial the telephone number: 1800 132 423

b.      Enter the guest passcode: 871 587 1863 followed by #

The telephone conference will not commence until the Court joins the conference. If you dial into the conference before the Court joins, you will hear hold music. If you are experiencing connectivity issues, please hang up and dial the above number and passcode again.

The telephone conference is a virtual courtroom and you must adhere to all Court protocols as if you were in physical attendance at the Court and in particular:

a.      You must place your telephone on mute until your matter is called on;

b.      You must not place your phone on hold – this will play hold music into the Court room;

c.      You must not have your phone on speaker function – this interferes with the Court recording system.

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 under the pseudonym Valdo & Samburg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE KARI

1. These proceedings come before me ostensibly in relation to the question of property settlement. 

2. The matter initially came before me on the Initiating Application of the wife, filed on 24 May 2019.  When the wife filed that application, she sought, among other things, orders for the settlement of property as between her and the respondent.

3. The respondent in these proceedings was difficult to serve. I have the benefit of an affidavit of attempted service filed on behalf of the applicant on 1 July 2019.  Ultimately, however, service was in some way able to be effected, and I know that because a Notice of Address for Service was ultimately filed on behalf of the respondent by solicitors Mahony’s Lawyers on 2 August 2019. 

4. Shortly thereafter, a Response to the application for the settlement of property was filed on behalf of the respondent.  That Response effectively also sought orders by way of finalisation and settlement of property as and between the parties.

5. The proceedings so far as their life before the Court are such that the respondent first appeared on his own behalf of 8 July 2019.  That is a date prior to solicitors acting for him.  On that date, I made orders for the respondent to file answering documents and I referred the matter to a Conciliation Conference on 10 October 2019.  Within short compass of me making that order, the respondent became represented by Mahony’s Lawyers.

6. As I understand it, the parties participated in the Conciliation Conference with a Registrar of the Court on 23 October 2019.  I am aware from the brief note from the Registrar, that both parties were present and in attendance at the Conciliation Conference.  There is, however, a note from the Registrar that conducted the conference, namely Registrar De Corso, that the respondent’s solicitors were to apply for a litigation guardian to be appointed on behalf of the respondent.  The Registrar recommended that thereafter there be a further Conciliation Conference.

7. Not long after the Conciliation Conference on 19 November 2019 an Application in a Case was filed on behalf of the respondent seeking the appointment of a litigation guardian. 

8. Preceding the filing of that application, an affidavit was filed at the respondent’s end on 18 October 2019, annexing various medical reports in relation to the respondent that his solicitors had obtained, presumably to support the application for the appointment of a litigation guardian.

9. Significantly, the report from B Medical Clinic, at page 9 of 12 of that affidavit, indicates that the practice had been treating Mr Samburg since 8 September 2015.  The report sets out that in terms of Mr Samburg’s significant medical history, he was suffering from “alcohol misuse”, “liver failure”, and a range of other health complications and difficulties, including “liver cirrhosis”, “depression” and “anxiety”, and “a medical condition”.  The doctor who prepared the report indicated that the respondent’s conditions were “not yet stable”, that he was attending a “psychologist regularly”, as well as taking anti-depressant medication.

10. In addition, in support of the Application in the Case was a further affidavit prepared and sworn by the respondent’s sister.  The respondent’s sister was promoting herself to be the respondent’s litigation guardian.  Annexed to the affidavit of the respondent’s sister, sealed on 18 November 2019, were some further documents and reports.

11. Significantly, there was a report prepared by the respondent’s psychologist, Ms C, dated 18 November 2019.  In that report, among other things, Ms C commented, on page 11 of 14 of her report, that the respondent has a “complex and traumatic family background, which has included several family deaths”.  The report goes on to say that the respondent has “learning difficulties, which include difficulties with the alphabet, spelling, maths, and he reported that he was illiterate”.  The report sets out that the respondent had been “quite dependent on his partner for anything to do with paperwork”, that he was currently on a disability pension, but no further detailed history was able to be provided for the purpose of the report.

12. The report goes on to say that therapy with Ms C had focused on the respondent’s “self-care, as well as psycho-education and cognitive behavioural techniques to discuss boundaries, family and relationship dynamics, healthy communication, helpful-versus-unhelpful thinking, and adjustment to his changed circumstances.  In recent months, legal issues relating to property settlement with his former partner have arisen and he was encouraged to seek legal advice.” 

13. Further, on page 12 of 14 of the affidavit, Ms C comments as follows:

    (a)That the “theme of betrayal and loss of trust carried through discussions” with her and he considers that others have taken advantage of him due to his illiteracy issues or due to him being too trusting.  He also expressed concerns about trusting family members, authority figures, and even his lawyers.

    (b)Ms C commented, “it is difficult to discern whether he has an element of paranoia magnified by his mental state or whether he is justified in his cautiousness, based on past bad experiences.  He has also appeared emotionally more labile in recent months, has not been sleeping well, and had made passing references to suicide ideation and thoughts of aggression in relation to his former partner.  He appears to have some fixed views leading, perhaps, to some inflexibility, being impulsive, and has difficulties with boundaries, eg, sending texts after hours, including on the weekend, to a professional when previously advised by me not to do so, and noting some texts were somewhat incoherent nor of any urgency. Some of these issues may pertain to personality traits and not just stemming from his mental health.  Some clients have had such difficulty adjusting to changed circumstances, that they may be vulnerable to mental breakdown or psychotic episode.  I was sufficiently concerned regarding Mr Samburg’s mental state and recently spoke with Mr Samburg’s treating doctor, suggesting a psychiatric assessment was warranted.”

14. This was the evidence put forth by the respondent’s solicitors in support of an application for the appointment of a litigation guardian.

15. When the matter came before me in relation to that application on 24 November 2019, I made a notation that the respondent had been referred for psychiatric treatment and that it was hoped that a report would be prepared during the adjourned period.  I thereafter adjourned the application to 11 February 2020. 

16. Unfortunately, a week prior to the hearing on 11 February the respondent’s solicitors, Mahony’s Lawyers, withdrew from acting for the respondent.  What that meant is that there was no one representing the respondent, and there was no one agitating the Application in Case for the appointment of a litigation guardian.

17. The proceedings from there took on a significant turn.  Ultimately, I dealt with the matter for property settlement on an undefended basis.  I comment from the outset, as I have commented to counsel in recent hearings, now, in hindsight, I have some grave reservations as to me having proceeded to deal with the matter on an undefended basis.  I ultimately, however, acknowledge that I did so and that I made orders for the settlement of property on 28 August 2020.  Those orders, were made in circumstances where the respondent did not engage in the process beyond his solicitors withdrawing from acting for him. Those orders were made in default of his appearance and participation.

18. The orders for property settlement made on 28 August 2020, significantly, provided for the respondent to pay the applicant a sum in the amount of $162,009.  If that payment was not made, then the property, being the former relationship property at Suburb D in which the respondent continues to reside, was to be sold. 

19. Ultimately, and perhaps somewhat unsurprisingly given the background to which I have just described, the respondent did not comply with those orders.

20. The matter ultimately came back before the Court as a consequence of a Contravention application filed by the applicant on 9 December 2020.  It is that application which is presently, effectively, being agitated by the applicant.  The applicant, in very broad terms, is seeking that the final orders for property settlement be enforced.  Ultimately, to deal with that topic, a further Application in the Case was filed by the applicant on 3 March 2021, seeking by way of enforcement orders that a warrant for vacant possession be made for the Suburb D property.

21. As a consequence of those applications being filed by the applicant, ultimately, the respondent did engage in these proceedings.  The matter came back before the Court regarding the Contravention application before Registrar Brown on 27 January 2021. I am cognisant that there was no appearance by the respondent on that occasion. 

22. The matter then proceeded, and came before me on 9 March 2021.  On that occasion, the respondent appeared, and he appeared in person before me at a face-to-face hearing.  At that hearing, I requested the attendance of the duty lawyer to assist the respondent that day.  I made orders dismissing the Contravention application in circumstances where I was told that the application in the case seeking a warrant of possession in relation to the Suburb D property was that which was being pursued at the applicant’s end.  I made orders for the respondent to file answering documents and a Notice of Address for Service, and I adjourned the matter to a hearing on 5 May 2021.

23. When the matter came before the Court on 5 May 2021, I am mindful that there had been – and there to date has been – no compliance by the respondent in filing any responding documents with respect to the Application in the case filed 2 March 2021. 

24. The respondent appeared at the hearing on 5 May 2021.  I indicated at that hearing, again, in circumstances where I requested the assistance of a duty lawyer, that I was very concerned about whether or not the respondent had capacity and whether or not he sufficiently understood what was occurring in these proceedings.

25. I recall that at both the hearing on 9 March 2021 and at the hearing on 5 May 2021 the conduct of the respondent, and the inability of him to engage meaningfully in these proceedings was a very obvious and pressing concern, from my perspective.  That is the reason that I ultimately sought the assistance of the duty lawyer on both of those occasions.

26. I am also cognizant that at both hearings the respondent repeatedly advised the Court that he was illiterate.  On that topic, I note that Ms C, the respondent’s psychologist, has already commented about this issue. 

27. I am also mindful that the applicant herself had also commented in that regard when she filed her initiating application and in particular the affidavit in support on 24 May 2019.  Significantly, the respondent commented, at paragraph 31, that the respondent was “illiterate” and that he had “trust issues with lawyers”.  She was cognizant at that time that the respondent’s sister was assisting him in relation to these proceedings and legal representation.  She also pointed out that the respondent had a significant shoulder injury in 2005 and that he had stopped working approximately three years prior to her filing her affidavit in 2019.  She commented that the respondent had become an alcoholic and suffers from depression, and she commented at paragraph 28 that the respondent was refusing to engage with her solicitor and that she had attempted through her solicitors to engage the respondent to deal with the question of property settlement on numerous occasions, to no avail.

28. Ultimately, my concerns in relation to this matter on 5 May 2021, as a consequences of what occurred on 9 March 2021 and 5 May 2021, were such that when I made orders on 5 May 2021, I indicated that I was considering the appointment of a litigation guardian pursuant to rule 11.02 of the Federal Circuit Court Rules, and that I would be inviting the Public Trustee to act in that regard. To assist in that process, I published the transcripts from the hearing on 9 May 2021 and 5 May 2021, and they were made available to the Public Trustee.

29. The matter came before me as a consequence of those orders earlier this week on 17 August 2021.  At that hearing, the respondent was present at the Court in person.  The applicant’s counsel was present in person and a solicitor appearing on behalf of the Public Trustee was present virtually.

30. At that hearing, I acknowledged my frustration at being advised by the Public Trustee that they were not prepared to act as the respondent’s litigation guardian.  I inquired of the Public Trustee whether they had undertaken any form of assessment of the respondent’s capacity and ability to understand and instruct in these proceedings, and I was advised that this had not occurred as Public Trustee are unable to compel that process.  In all of the circumstances, and despite the concerns of the Court, the Public Trustee maintained the position that they were not prepared to act as the respondent’s litigation guardian.  Public Trustee advised the Court that without an order from SACAT appointing someone to manage the respondent’s affairs, effectively, Public Trustee were helpless.

31. I was told by Public Trustee that if such an order was made, and if Public Trustee were appointed to manage the affairs of the respondent, then, and in those circumstances, they would be prepared to act as the respondent’s litigation guardian.  The view of the Public Trustee was that the appropriate person likely to bring that application was the applicant. 

32. That is something that surprised me in circumstances where I commented that it was hardly in the applicant’s interests to undertake the making of that application, leaving the issues of conflict aside, in circumstances where she would be put to some significant expense to do so, given what had already occurred to date in these proceedings.

33. Public Trustee also advised the Court that an inquiry had been made of the respondent’s sister, Ms E, in circumstances where she had previously volunteered to act as the respondent’s litigation guardian.  Public Trustee advised the Court that the respondent’s sister was not prepared to undertake that task in circumstances where there had been a falling out between Ms E and the respondent.  That is something that the Court, to some regard, was alive to because at the hearing in March 2021, I think it was, I raised the prospect of Ms E assisting the respondent and he was not enamoured with that request.

34. Counsel for the applicant, admittedly without instructions, acknowledged that it would be unlikely that his client would take the view that that application be brought in all of the circumstances at her end. 

35. Ultimately, I adjourned the matter to give some further consideration as to how to proceed. The applicant’s solicitor referred the Court to part 12 of the Federal Circuit Court Rules and the referral of the respondent for legal assistance. That is something that I am not prepared to contemplate in circumstances where I have very grave concerns about the respondent’s capacity to enable the respondent to obtain legal advice. To make such a referral I have to be satisfied that he has the capacity to understand and meaningfully engage and instruct solicitors. I am not satisfied that that is the case for all of the reasons that I have already pointed out.

36. During the hearing earlier in the week, I commented to the parties that I was contemplating making an order pursuant to rule 11.12 of the Federal Circuit Court Rules, directing the Attorney-General to appoint a person to be the manager of the affairs of the respondent and thereafter for that person to be appointed as the litigation guardian for the respondent. Having reflected on the matter, and for the reasons I have now given, I am satisfied that this the appropriate course of action in these proceedings. Accordingly, for all of those reasons, I make the following orders.

1. NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kari.

Associate: 

Dated:       20 August 2021