Adamson v Enever & Anor

1. All funds paid to the parties pursuant to the Deed of Release be deposited into the controlled monies account held on behalf of the parties by Lander & Rogers pending agreement or further Order.

1. The costs of the applicant husband be fixed in the sum of $5,500 and reserved to trial.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hallan & Alvery has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 10 July 2025, the Court made orders following the urgent hearing of an Application in a Proceeding filed by the applicant husband ("the husband") on 7 July 2025. The subject matter was the signing of a Deed of Release in settlement of proceedings in the Supreme Court of Queensland in which the parties are the plaintiffs. The husband sought that the respondent wife ("the wife") sign the Deed of Release, and in the event of her failure to do so, that pursuant to section 106A of the Family Law Act 1975 (Cth) ( "the Act"), the appointed litigation guardian of the wife in this proceeding (Ms D), or the husband's solicitor, be appointed to execute the Deed of Release on behalf of the wife.
2. The Independent Children's Lawyer sought to be excused from the hearing on the basis that the subject matter dealt solely with the competing final property order applications of the parties. That request was acceded to. The respondent, in her capacity as litigation guardian for Ms Alvery ("the wife"), opposed the making of the orders as sought by the husband save for order number 4 as made by consent.
3. The respondent filed a Response to the Application in a Proceeding on 8 July 2025. The respondent did not seek to rely on that document however, but rather sought orders as set out in an Outline of Case (Interim Hearing) Document filed 9 July 2025, and in particular Part E of that document, page 4 of 5. The orders sought by the respondent were as follows:

1. Within 7 business days or such other period as agreed by the parties in writing, [Ms D]:

(a) file a Form 13 Consent of Litigation Guardian in the Supreme Court of Queensland proceedings: [...] of 2025; and > > (b) make an application to that Court in those proceedings to obtain Court approval of the Deed pursuant to r98(1) UCPR.

1. All funds paid to the Parties pursuant to the Deed be deposited into the controlled monies account held on behalf of the Parties by Landers & Rogers pending agreement or further Order.

3. [Ms D] have liberty to apply on the giving of short notice to the Applicant.

4. The Applicant pay the Respondent's costs of and incidental to this Response.

1. Having heard and considered the matter on 10 July 2025, the Court made orders as sought by the husband for the reasons which follow.

(a) his Amended Application in a Proceeding filed 26 June 2025;

(b) his affidavit of evidence filed 26 June 2025;

(c) affidavits of Ms L, solicitor for the husband, filed 4 February 2025 and 7 March 2025;

(d) Reasons for Judgment of Carter J delivered 24 April 2025, paragraphs 13 to 19 inclusive;

(e) affidavits of Dr H filed 12 April 2024 and 23 May 2025; and

(f) documents tendered in evidence during the hearing.

1. The wife, by her litigation guardian, relied upon:

(a) her Response to Application in a Proceeding filed 8 July 2025;

(b) affidavit of Ms D filed 8 July 2025;

(c) affidavit of Dr H filed 23 May 2025; and

(d) her Outline of Case Document filed 9 July 2025.

1. The husband and the wife commenced their cohabitation in early2017. They married in 2022. Their child X was born in 2022. They separated on 1 April 2023.
2. The husband first commenced this proceeding on 4 October 2023. He filed an Amended Initiating Application for Final Orders on 5 October 2023 with a Further Amended Initiating Application on 1 December 2023. The husband sought final parenting orders.
3. The wife filed a Response to Initiating Application ("response document") on 11 December 2023. The wife sought final parenting orders and unparticularised final property orders, including an order for spousal maintenance.
4. In his Further Amended Initiating Application for Final Orders filed 29 January 2024, the husband also sought unparticularised final property orders. Each of the parties was, at that time, legally represented.
5. On 15 April 2024, the wife filed a second Response document. She was, at the time, a litigant in person.
6. On 5 June 2024, Senior Judicial Registrar Crocket made the following order, relevantly that:
   1. The parties forthwith do all acts and things and sign all documents necessary to place the Queensland property, at [B Street in Suburb C] on the market for sale ("the sale") by an agreed agent, with the father providing three names of proposed selling agents to the mother and in the event she does not choose one of those proposed agents within 7 days thereafter the father be permitted to choose his preferred agent of the three and the parties shall comply with all reasonable recommendations of the agent as to preparing the property for sale, the method of sale and the reserve price and upon settlement of the sale the net sale proceeds shall be applied as follows:

(a) First, to pay the costs and commission of the sale;

(b) Second, to discharge the loans encumbering the property;

(c) Third, the balance to be held in an interest-bearing joint account on trust for the parties pending further agreement or Order of the Court.

1. On 19 August 2024, Judge Champion made the following orders, relevantly:

THE COURT ORDERS THAT:

...

1. Pursuant to section 106A of the Family Law Act 1975 (the Act) the Applicant Husband's solicitor be, and is hereby, appointed to do all things and execute all documents necessary on behalf of the Wife to comply with:

a. paragraph 10 of the Orders of 5 June 2024 with respect to the sale of the property at [B Street, Suburb C] in the State of Queensland (the Queensland property); and

b. paragraph 11 of the Orders of 5 June 2024 with respect to the sale of the [Motor Vehicle 1].

1. For the purpose of activating the preceding order under s106A, it is sufficient proof of the Wife having failed or neglected to execute a document necessary to give effect to this Order if the solicitor for the Husband provides an affidavit deposing:

a. to the necessity for a document to be executed to give effect to this Order;

b. details of how such document was provided to the Wife for execution and return;

c. that no less than 7 days has elapsed since the document was provided;

d. the Wife has not returned the document duly executed;

with such Affidavit to be filed and served on the Wife by the email address as last notified to the Court.

1. Within 7 days the Wife provide the Husband's solicitors with all information with respect to the mortgage encumbering the Queensland property registered to [K Financial Services] [in mid] 2024.

2. The Husband and the Wife be and are hereby restrained from further encumbering the Queensland property without the prior written consent of the other party pending sale.

3. The Wife do all things necessary and sign all documents necessary to facilitate the discharge of the mortgage to [K Financial Services] in order to facilitate the sale of the Queensland property.

4. Upon the sale of the Queensland property pursuant to Order 10 of the orders of Senior Judicial Registrar Crocker dated 5 June 2024, which remain in full force and effect, the balance is to be invested in a controlled monies account in the joint names of the parties and administered by Lander & Rogers pending further order.

...

1. 13. The Respondent's costs be reserved in the amount of $3,171 but otherwise by paid by the Mother in accordance with the applicable scale.

...

(As per the original)

1. On 20 September 2024, Deputy Registrar Bracewell made an order pursuant to section 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), transferring the proceeding to the Federal Circuit and Family Court of Australia (Division 1).
2. In late 2024, the parties entered a Contract of Sale for the sale of the property at B Street, Suburb C in the state of Queensland ("the Queensland property"), for a sale price of $5.1 million. The husband's lawyer, Ms L of Lander & Rogers, signed the Contract of Sale on behalf of the wife pursuant to the section 106A Order made on 19 August 2024 as described in paragraph 13 above.
3. The purchasers defaulted on the Contract of Sale, and the applicant and respondent subsequently issued proceedings in the Supreme Court of Queensland to enforce the purchasers' obligations under the contract, a matter to which I shall return.
4. The Queensland property was again placed on the market for sale pursuant to the orders of 5 June 2024.
5. On 8 January 2025, the wife became, again, legally represented.
6. In early 2025, a further offer was made to purchase the Queensland property for the sum of $4.8 million and a second Contract of Sale was signed by the purchasers and the husband. The agent sent an email to the wife at 5.45pm [on a date in early] 2025, informing her of same and recommending that the offer be accepted. The wife confirmed receipt of that email. The second Contract of Sale was then sent to the wife by DocuSign on the same day.
7. In early 2025, the second Contract of Sale was viewed by the wife.
8. Three days later, correspondence was sent to the wife's lawyers requesting that the wife sign the second Contract of Sale and putting those solicitors on notice of the following:

In the event that your client fails to sign the Contract of Sale by 4:00 pm on Thursday [...] 2025, please note that the writer will execute the Contract on her behalf on Friday [...] 2025.

1. On 28 January 2025, Carter J made procedural orders including for the vacation of the 3 February 2025 trial date and relisting of the trial to commence on 5 May 2025 at 10.00 am as a five-day matter with priority listing.
2. In early 2025, the husband's solicitor, Ms L, signed the second Contract of Sale on behalf of the wife, pursuant to Orders 3 and 4 of the 19 August 2024 orders. It became subsequently necessary for the husband's solicitor to also sign other documents on behalf of the wife (pursuant to the 19 August 2025 orders) to effect a settlement of the sale of the Queensland property.
3. On 3 February 2025, the wife again became a litigant in person.
4. In mid-February 2025, the parties engaged their solicitors to file the Supreme Court of Queensland proceedings against the defaulting purchasers as earlier referred to.
5. On 18 March 2025, a Notice of Address for Service in this proceeding was filed by R Lawyers, acting on behalf of the wife.
6. In early 2025, the net proceeds of sale of the Queensland property were placed by Lander and Rogers in a controlled monies account on behalf of the parties.
7. On 22 April 2025, Carter J. made orders, relevantly, as follows:

THE COURT ORDERS THAT:

1. At the final hearing of the matter commencing 5 May 2025, the respondent's participation will be limited to the cross examination of witnesses and the making of submissions.
2. The respondent and her representatives are granted leave to attend electronically at the final hearing commencing 5 May 2025.

1. On 24 April 2025, in a judgment which supported the making of the 22 April 2025 orders, Carter J said, relevantly at [13] to [19]:

Senior counsel for the applicant advised that on about 7 April 2025 - being the day that the respondent's trial material was due to be filed under the extended timetable - correspondence was sent by [Mr M's] office to the applicant's solicitors advising that they would be filing a Response the following day and the respondent's trial affidavit within one to two more days.

Neither of those documents have been filed.

[Mr M] advised he has not commenced a 'working draft' of the respondent's trial affidavit. Although he has prepared a draft Amended Response, he had not been able to obtain instructions from his client to enable him to finalise that document and serve it on the applicant and the Independent Children's Lawyer.

By way of explanation for the delay in filing, [Mr M] advised that the respondent has been experiencing "computer issues", and that she had been unable to recover her own draft version of a trial affidavit. In addition, he said his client has been moving homes, and that there was a 'lot of work' to be done in responding to the Notice to Admit which the applicant had filed.

The explanation proffered by [Mr M] as to the respondent's failure to finalise her trial material being due to computer issues, or a lack of time is wholly insufficient. As the solicitor on the record, the respondent's trial material is to be settled by them. Accordingly, the respondent's inability to provide her solicitors with her 'draft' of the affidavit is not relevant. Moreover, the respondent took it upon herself to draft a 57-page document entitled "Sensitive and Confidential Written Submissions of the Mother" which she filed with the Court on 16 April 2025. She also prepared an Application in a Proceeding on her own behalf, filed on 22 April 2025, in which she sought a raft of orders.

Apparently, the respondent's computer worked sufficiently well for her to prepare this material.

No explanation was given as to why the respondent had the time and ability to prepare an Application in a Proceeding and a 57-page set of submissions, but insufficient time to attend upon her solicitors and provide instructions for the preparation of her trial material.

1. On 5 May 2025, Carter J made two sets of orders. The first orders made were as follows:

THE COURT ORDERS THAT:

1. The wife attend upon [Dr H] electronically this day, 5 May 2025 at 2.00 pm for assessment as to her capacity to:

(a) understand the nature and possible consequences of the proceeding; and

(b) her capacity to conduct, or give adequate instructions for the conduct of the proceeding;

with the husband to meet the costs of that assessment at first instance.

AND THE COURT NOTES THAT:

1. The wife's counsel asserted she was unable to obtain instructions from her client and made an oral application that the trial be adjourned to enable her client to be assessed as to her capacity to conduct or give adequate instructions for the conduct of the proceedings. That application was resisted by the husband.

2. That oral application was granted, and orders were initially made this day for the wife to file and serve an affidavit from an appropriately qualified psychiatrist as to her capacity on or before 4 August 2025.

3. Arrangements were subsequently made to enable the wife to be assessed by [Dr H] this day, a course to which all parties agreed.

4. Accordingly, the earlier orders as referred to in Notation B herein were discharged.

...

1. The second orders made were relevantly, as follows:

Upon [Mr N KC] and Ms Swann of Counsel for the Applicant husband, [Ms O] of Counsel for the Respondent wife and [Ms P] of Counsel for the Independent Children's Lawyer advising the Court:

(a) [Dr H] conducted an assessment of the wife's capacity this day;

(b) Counsel have jointly conferred with [Dr H] this day; and

(c) [Dr H] has advised the wife does not have the requisite capacity to conduct or give adequate instructions for the conduct of these proceedings:

THE COURT ORDERS THAT:

1. The final hearing listed to commence on 5 May 2025 is vacated.

1. Within 14 days the wife's solicitors file and serve an application seeking the appointment of a litigation guardian pursuant to Rule 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

....

1. On 15 May 2025, the lawyers then acting for the wife ceased to act.
2. On 3 June 2025, Carter J made further orders, which included the appointment of Ms D as litigation guardian for the wife.
3. On 19 June 2025, the appointed litigation guardian for the wife filed a Notice of Address for Service indicating that Romer Maud Family Lawyers were now acting for the litigation guardian in her capacity as litigation guardian for the wife.
4. In mid-2025, an in-principle settlement having been reached, the defaulting purchasers agreed to pay the applicant and respondent the total sum of $496,695.51. A Deed of Release was prepared by the lawyers acting for the purchasers, and the applicant and respondent were required to sign it as soon as possible in final settlement of the Supreme Court proceedings. Pursuant to the Deed, the sum of $110,000 was to be paid immediately and the balance of $386,695.51 within 30 days of the date of execution.
5. In mid-2025, the parties' solicitors in the Supreme Court proceedings sent the following email to the wife, with the Deed of Release, undated, attached:

Hi [Ms Alvery],

In respect of the proceedings concerning the first Buyers default under that Contract of Sale for the above property, they have agreed to settle the proceedings by paying the amount of $496,695.61.

The attached Deed, which contains the terms of the settlement, needs to be signed by you and witnessed by a third person. That third person can be any individual.

Could you please sign and return the attached Deed to me as a matter of urgency.

...

1. The Deed of Release, undated, included the following:

...

1. The parties hereby agree that the Defendants will pay to the Plaintiffs the sum of $496,695.61 Australian dollars (the "settlement Sum") in full and final settlement of the dispute as provided in the following clauses of this deed.

2. The amount of $110,000.00 released from the Property Trust Account of [Q Property Agents] into the trust account of solicitors for the Defendants pursuant to the consent order made on or about 17 June 2025 in the Proceeding (the Consent Order) is paid to the Plaintiffs immediately in partial satisfaction of the Settlement Sum.

3. The Defendants must pay to the Plaintiffs the balance of $386,695.61 within 30 days of the date of execution of this deed by the parties in full and final satisfaction of the Settlement Sum, and with time to be of the essence.

4. The payment provided by the preceding paragraph must be made by means of Electronic Funds Transfer to the trust account of the solicitors for the Plaintiffs, the details of which are set out in the Consent Order.

5. Should the Defendants default on their obligation to pay the balance of the Settlement Sum within the 30 days provided in clause 4 above, they irrevocably submit and consent to judgment being entered against them in the Proceeding in the unpaid amount of the Settlement Sum.

...

1. The parties' solicitors did not receive a response from the wife.
2. The wife's litigation guardian in this proceeding deposed in her affidavit of evidence that she had liaised on a number of occasions with the wife concerning the execution of the Deed and that the wife had informed her that she intended to execute the Deed. The delay on the wife's part was explained by the wife as her not having been provided with copies of any of the documents filed in the Supreme Court proceedings, which she wished to view before executing the Deed. The documents were provided to the wife on 25 June 2025.
3. The litigation guardian also stated that the wife had difficulty printing the Deed such that the litigation guardian arranged for a hard copy of the Deed to be posted to where the wife was then staying for it to be signed and returned. The wife did not return the signed Deed.

1. The essential issue for my consideration of these competing applications is whether the wife has the capacity to sign a limited document, being the Deed of Release, which provides for she and the husband to receive a considerable sum of money which will be held in trust for both pending the outcome of this litigation, and held by a solicitor acting in this litigation.
2. That is, can the wife understand "the nature and effect of...her decision" in respect of this discrete matter;[1] is the wife capable of "freely and voluntarily" deciding about this discrete matter;[2] and finally, is the wife capable "of communicating her decision" as to this discrete matter?[3] In my view, each of those considerations are satisfied in respect of this very limited matter.
3. The limited purpose of this issue is the affixing of the wife's signature to the Deed of Release to conclude litigation conducted successfully by the parties, and to benefit the parties by approximately $496,000, with such monies being preserved in the trust account of the husband's solicitors for application between the parties as determined by the outcome of this litigation.
4. In considering this matter, the evidence of Dr H is relevant. The relevant parts of that evidence are set out below:

(1) In early 2024, when Dr H assessed the wife over the course of three interviews with her, he formed the opinion that the wife suffered from multiple (at least three) episodes of a psychotic disorder although it was difficult for him to be clear of the cause of such disorder. The two diagnostic possibilities were drug induced psychotic disorder or in the alternative, a delusional disorder.

(2) Dr H noted also the wife had, a history of alcohol and illicit drug use disorders, together with mild, ongoing post traumatic symptoms in respect of which there may have been a delusional basis to some of her beliefs.

(3) Dr H opined that the wife required further psychological assessment to determine whether she had a diagnosis of a personality disorder.

(4) In April 2024, Dr H did not believe that the wife required a litigation guardian but that she would benefit from legal advocacy.[4] He further opined that the wife's mental state had impacted upon her ability to care for the party's child in the past, but noted that at that time, her mental state had appeared more stable than it had been previously.[5]

(5) Dr H again assessed the mother on 5 May 2025 via video link and opined that she appeared to understand the nature and purpose of the interview.[6]

(6) Dr H observed that Ms Alvery did not appear overtly distressed or agitated but she had significant difficulty answering the questions as posed and appeared to be focused solely on her inability to present her side of the case. She remained of the belief that the subject child in this proceeding had been sexually abused.

(7) Dr H was asked to consider whether the wife required a litigation guardian in this proceeding. Accordingly, he indicated that in his opinion, on balance, she did so to conduct this proceeding which I observe relates to complex property and child matters.

(8) He observed that the wife understood that there was a proceeding on foot and that it was in relation to the care arrangements with the parties' child. She was clear that she wanted the primary custody of the child. It was his opinion however that at the present time:

[Ms Alvery] is unable to be able to understand the process in relation to the Court weighing up the evidence and is unable to understand that she may not succeed in obtaining the orders she seeks. She is unable to appreciate her impairment in not meeting the Court deadlines. She is unable to appreciate the evidence presenting in terms of concerns about her and unable to give instructions in relation to this. [7]

1. The pursuit of an application to the Supreme Court of Queensland to have someone other than the wife sign the Deed would be a costly and time-consuming process, in circumstances where the parties may lose the benefit they currently have of concluding litigation which shall result in an augmentation of their asset pool in this proceeding. Further, such added complexity is not necessary.
2. The signing of the Deed is a simple financial decision for the wife in the context of the nature and degree of her impairment as described by Dr H, and in the context of the wife being financially independent as she is, with control over her own finances. The wife has indicated to her litigation guardian her intent to sign the document. Both her litigation guardian in this proceeding and her solicitor in the Supreme Court proceeding have encouraged her to sign the Deed.
3. It is a very different decision for the wife to make the decision here contemplated, as opposed to her making decisions, multiple, in respect of the current conduct of this proceeding which involves the living arrangements of her child and her future wide-ranging financial security including provision for her child. As was said by Applegarth J. in Adamson v Enever & Anor at [6] and [7]:[8]

Capacity is decision specific. A person may lack capacity for some decisions but not others. For instance, a person may lack capacity to manage and invest a very large sum but have the capacity to manage a smaller amount. A person may lack capacity to agree to a complex settlement of a large commercial dispute but not to settle a simpler claim.

Therefore, it is necessary to define in this case the legal or financial "matter" about which there is a capacity issue.

(Citations omitted)

1. I am satisfied that, in this instance, the wife has the necessary capacity.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.

[1] Adamson v Enever & Anor [2021] QSC 221 at [42].

[2] Adamson v Enever & Anor [2021] QSC 221 at [46].

[3] Adamson v Enever & Anor [2021] QSC 221 at [50].

[4] Dr H's Report dated 7 April 2024, paragraph 153.

[5] Dr H's Report dated 7 April 2024, paragraph 154.

[6] Dr H's Report dated 5 May 2025, paragraph 16.

[7] Dr H's Report dated 5 May 2025, paragraph, 32.

[8] [2021] QSC 221.