Zau and Uong (No 2) - [2013] FamCAFC 193

FAMILY COURT OF AUSTRALIA

ZAU & UONG (NO. 2)

[2013] FamCAFC 193

FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – where the applicant seeks to review the exercise of power by the Regional Appeals Registrar – where the court was notified by facsimile that the applicant was still an in-patient at a hospital and was unable to attend the hearing – where the respondent seeks that the application be dismissed – where a medical report was received at the conclusion of the hearing which provides the information required by the court as to the applicant’s medical condition – application adjourned.

FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – COSTS – where the respondent seeks costs – where until more is known of the applicant’s circumstances it is inappropriate to consider the question of costs – application adjourned.

Family Law Act 1975 (Cth)
Mental Health Act 1986 (Vic)

APPLICANT:

Ms Zau

RESPONDENT:

Mr Uong

FILE NUMBER:

MLC

3931

2012

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

7 November 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

EX TEMPORE JUDGMENT OF:

Strickland J

HEARING DATE:

7 November 2013

LOWER COURT JURISDICTION:

LOWER COURT JUDGMENT DATE:

Order of Southern Appeals Registrar

LOWER COURT MNC:

REPRESENTATION

THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Mr Strum

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

The Amended Application in an Appeal filed by the applicant on 1 October 2013 be further adjourned for mention in Melbourne at 9:00am on Friday
17 January 2014.
The oral application for costs made on behalf of the respondent be reserved.
This matter is certified fit for counsel.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 29 of 2013
File Number: MLC 3931 of 2012

Ms Zau

Applicant

And

Mr Uong

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

This is the adjourned hearing of an Amended Application in an Appeal filed by the applicant on 1 October 2013. That amended application initially came before me on 10 October 2013, and on that date I adjourned the application to today, and made other orders which I will come to in a moment.
The applicant has failed to appear today either by herself of by way of a legal representative.
On 10 October 2013, the applicant also failed to appear. I delivered ex tempore reasons for judgment and I will not repeat all that I said in those reasons, but in summary it was apparent at that time that the applicant was an in-patient at a hospital, and that was known as a result of a facsimile received from an intern at that hospital on the evening before the hearing of the matter. However, there was no medical evidence as to why the applicant was in hospital, what her medical condition was, what treatment she was receiving and for how long she would remain in hospital. The facsimile from the intern gave no information as to her medical condition, but indicated that the applicant would be unable to attend a court hearing until 6 November 2013.
As a result, I adjourned the matter to today namely, 7 November 2013. I also made an order that the applicant file and serve, on or before the close of business on 4 November 2013, an affidavit annexing a medical report providing complete details as to her hospitalisation, her medical condition, and her medical treatment for that condition, and I made an order for costs in favour of the respondent.
Since that hearing there has been email correspondence passing between the court and the hospital, and between the applicant and the respondent’s legal representatives. The applicant did file an affidavit in purported compliance with the order I made, and that was filed on 4 November 2013. However, it was not served on the respondent’s solicitors until today. The problem with that affidavit, as Mr Strum has highlighted, and as is obvious from its content, is that it does not in fact comply with my order in that it provides no detail of the applicant’s medical condition, it provides no detail of the medical treatment she is receiving, and although it annexes what appear to be two letters from the hospital dated 30 October 2013 and 31 October 2013 respectively, those letters are inadequate. What I needed to know, and what the respondent needed to know was why the applicant is in hospital, what her medical condition is, what treatment she is receiving, what the prognosis is and when she would be released from hospital. None of that information is contained in either of the two letters from the hospital.
However, what the letter of 31 October 2013 does tell me, and this is significant in terms of what I do with this application, is that the applicant was admitted to that hospital in October 2013 for treatment under the Mental Health Act 1986 (Vic).
The implication from that information is that the applicant is an involuntary patient being held at that hospital. That is also confirmed in a number of other places in the affidavit itself, and in email correspondence which is annexed to an affidavit tendered today on behalf of the respondent, and which is an affidavit of the respondent’s solicitor.
The situation that confronts me in this matter now is that I still do not have any detail of the applicant’s medical condition, her medical treatment and for how long it is likely that she will be in hospital. Significantly though, I am now aware that she is being held under the State Mental Health Act, and as such is an involuntary patient. Prima facie that explains the applicant’s inability to attend the hearing today, and explains perhaps her inability to attend the court on 10 October 2013. I say it “perhaps explains that” because at that time, and as I set out in my reasons for judgment, I had serious concerns about what the applicant was telling the court and the respondent in relation to her hospitalisation and her inability to attend. Of course it is not just a matter of whether she was able to attend or not, she was still able to instruct lawyers to appear for her but she chose not to do that.
Mr Strum has suggested that I could imply from the fact that the applicant is being held as an involuntary patient under a State Mental Health Act, that she is incapable of giving instructions, and may be suffering from a disability such that she is unable to conduct these proceedings, and would need a guardian for that purpose. I am not prepared to make that implication. Indeed, from the affidavit that she has now filed, and also from the email correspondence I have read, my assessment is that the applicant is perfectly capable of conducting these proceedings. She knows what her application is, she knows when it has been listed, and although English is not her first language, and her affidavit and email correspondence and facsimiles are somewhat difficult to understand, I am still content to proceed on the basis that the applicant is capable of conducting these proceedings herself.
That then begs the question as to why she has not instructed a lawyer to appear on her behalf. What has happened is that she has attempted to run this case by way of correspondence not only from her, but from a social worker at the hospital, an intern at the hospital, and a doctor at the hospital. In my view that is an unsatisfactory way to conduct these proceedings, even if the applicant is physically unable to attend the court because she is being held as an involuntary patient.
In that regard, apart from the reservations that I expressed in my reasons of

10 October 2013, Mr Strum has pointed out there is yet another question mark about whether the applicant is able to attend court hearings despite being held as an involuntary patient, and the concern comes from the jurat clause of her affidavit filed on 4 November 2013. That indicates that the applicant’s signature was taken by a Registrar of the Magistrates Court of Victoria, at the Magistrates Court in William Street, Melbourne. One wonders how that could have happened if the applicant is being held in hospital such that she is unable to attend the court. There may be an explanation for it, but as I indicated on the last occasion, there was sufficient for me to be concerned about what the true position was, and that adds to my concern.
Be that as it may, I do not consider that I can assume anything beyond the fact that the applicant is being held under the State Mental Health Act as an involuntary patient in hospital, and I proceed on the basis that that is the reason she is not able to attend today.
As to what I then do with this application, given that further information coming to light since the last hearing, I am not prepared to dismiss the application today. That of course was again Mr Strum’s primary application. Thus, it seems to me I have two other options. One is to strike out the application and the other is to adjourn it. Mr Strum has urged me to strike it out arguing correctly that that would not necessarily prejudice the applicant because she would be able to file a fresh application in due course, if that was what she chose to do. However, in the circumstances of the applicant not being here, and this court proceeding on the basis that the reason for that is she is being held under the State Mental Health Act as an involuntary patient at a hospital, I am not prepared to strike the application out, albeit that there may not be any prejudice in the sense of her not being able to restart the application. There would however clearly be prejudice to her in terms of timing and the like, and the need for her to prepare fresh documents, and I cannot dismiss those issues as being irrelevant to what I do today. My general concern about it though is that I still need to know, as the judicial officer hearing this matter, what the applicant’s medical condition is, what the treatment is and what the prognosis is, and I consider that in the absence of the applicant it would be inappropriate to do anything other than to further adjourn the amended application.
In the circumstances Mr Strum makes an application for costs. However, I have indicated that I am not prepared to make an order for costs today and I propose to adjourn that application as well. Again, I am concerned to know what the medical condition is that the applicant is suffering from, the circumstances surrounding that, and I want to know whether the application will be proceeded with or not. In short, although I was satisfied to make an order for costs on the last occasion, circumstances have now changed and I want more information about the applicant and her position before I make any orders in this matter beyond adjourning it.
There is one other matter that I need to mention at this stage. The orders made by the Regional Appeals Registrar on 16 July 2013 which provided for the preparation for the hearing of the appeal filed by the applicant on 17 May 2013 against orders made by Justice Cronin on 23 April 2013, provide for the applicant to file and serve her appeal books no later than 8 November 2013. Of course that is tomorrow, and in the circumstances it would be unlikely that she will be complying with that order. The consequences of the applicant failing to comply with that order is that the appeal will be deemed abandoned. That, in the usual way, will be brought to her attention by way of correspondence from the Appeals Registrar, and I do not want to say more about what might happen to that in the future.
However, looking at this from a practical perspective, my preliminary view about the effect of the deemed abandonment of the appeal upon the application that I am about to adjourn is that the application would fall by the wayside as well, given that it is an application in that appeal, and if the appeal is no longer on foot having been deemed abandoned, it seems to me the application cannot proceed either. In any event, that is a matter for another day.
Thus, whether the application can proceed on the adjourned date is problematic, but certainly the application for costs can proceed, and I am looking to be able to complete that costs application in the context of having as much knowledge as I can of the applicant’s circumstances, and in particular her medical condition.
I note that I had just completed dictating the orders that I propose making in this case when I was handed a facsimile received yesterday by the court from the hospital. It is a Medical Report signed by Doctor H which provides some insight into the medical condition of the applicant.
In summary the Report (which I will make “Exhibit 4”) tells me that the applicant is suffering from bi-polar disorder, she was brought to the hospital by the Police under s 10 of the Mental Health Act 1986 (Vic) in October 2013, and she has been made an involuntary patient and held at the hospital since then. Her medications have included an anti-psychotic and mood stabiliser. Significantly, the Report tells me that while in hospital the applicant has continued to exhibit bizarre and inappropriate behaviour, disorganised thinking, rapid and uninterruptable speech, and lack of legal competence particularly in light of the lack of legal representation. I stress that because as I referred to earlier in my reasons for judgment there was a question as to the applicant’s competence to be able to conduct these proceedings. Prima facie on the basis of this Report it seems that may in fact be the case and that the applicant does need a Case Guardian. As Mr Strum has rightly pointed out that would apply not only to the appeal proceedings but also the first instance proceedings which are on foot.
The Report goes on and indicates that it is unclear for how long the applicant will need to remain as an in-patient, and it concludes that current court processes should be deferred for a period of at least two months.
That Report is obviously helpful and frankly confirms my view that these proceedings need to be adjourned, including the question of costs, and it seems that the date for the adjourned mention fits in with that requested period of two months. By then it may become clearer what the position is. Indeed the first instance proceedings are listed some time later this month and clearly the judicial officer hearing that would need to have regard to the question of appointment of a Case Guardian. It may be that that is dealt with at first instance level and by the time the matter comes back before me there is a Case Guardian in place or there is a process for that to occur.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 7 November 2013.

Associate:

Date: 3 December 2013