Arellano & Arellano
[2023] FedCFamC1F 998
•8 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arellano & Arellano [2023] FedCFamC1F 998
File number(s): MLC 6603 of 2018 Judgment of: JOHNS J Date of judgment: 8 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – appointment of litigation guardian – where the husband’s lawyers seek leave with withdraw raising issues of capacity – where the husband has an acquired injury resulting from an accident in childhood – where the husband underwent a neuropsychiatric assessment – where the assessor found the husband would have significant difficulty giving evidence – rule 3.12(1) – order made for appointment of litigation guardian – costs reserved Legislation: Family Law Act 1975 (Cth) s 102NA(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 3.12(1)
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 8 November 2023 Place: Melbourne Counsel for the Applicant: Mr Salamanca Solicitor for the Applicant: Gold Stone Family Lawyers Counsel for the First Respondent: Mr Ellis Solicitor for the First Respondent: Melbourne Law Offices Counsel for the Second & Third Respondents: Mr Goddard Solicitor for the Second & Third Respondents: Belleli King & Associates ORDERS
MLC 6603 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARELLANO
Applicant
AND: MR ARELLANO
First Respondent
MR B ARELLANO
Second Respondent
MS C ARELLANO
Third Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
8 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to Rule 3.15(2) of the Federal Circuit and Family Court of Australia (Family Court) Rules 2021, a litigation Guardian be appointed for the respondent husband, MR ARELLANO, as soon as practicable, AND IT IS REQUESTED that the Attorney-General of the Commonwealth of Australia appoint a person to be the Litigation Guardian in satisfaction of the requirements of Rule 3.14.
2.All extant applications be listed for mention before Johns J on a date to be fixed upon confirmation of the appointment of a Litigation Guardian pursuant to order 1 hereof.
3.The orders made 5 October 2023 and orders 3, 4 and 5 of the orders dated 8 May 2023 be discharged.
4.The final hearing listed to commence at 10am on 20 November 2023 be vacated.
5.The question of all parties’ costs of this day be reserved.
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).
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 by this Court under a pseudonym Arellano & Arellano has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
This matter comes before the Court today for mention upon request of the practitioners representing the interests of the first respondent husband. Those lawyers seek leave to withdraw from representing the husband in the proceedings.
The matter is listed for a final hearing to commence before me on 20 November 2023. It is listed for a hearing of 10 days. The principal issue in dispute relates to the adjustment of property interests as between the husband, who is the first respondent in the proceedings, the wife who is the applicant, and the second and third respondents who are the husband's parents.
The matter has had a long history before the Court. The applicant wife, Ms Arellano, is aged 39 years and lives in the former matrimonial home with the parties' two children, X, who is aged 16 years and Y, who is aged 14 years.
The first respondent is Mr Arellano, who is aged 47 years. He is a Disability Pensioner. He has an acquired injury sustained in an accident that he was involved in as a child.
As I have noted, the second and third respondents are the husband's parents and they have an interest in and seek to maintain their interest in the former matrimonial home currently occupied by the wife.
The husband and the wife commenced cohabitation in about 2006. They were married in 2007 and separation occurred in 2015.
At a previous hearing, I have made orders pursuant to section 102NA(2) of the Family Law Act 1975 (Cth). The husband's lawyers have been appointed pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme which provides funding for representation in such matters.
Those lawyers now submit to the Court that they are no longer in a position to continue to act for the husband and seek leave to withdraw.
In addition to that issue, concerns have been raised as to the husband's capacity to provide instructions in the proceedings. This was an issue initially raised at a mention before me on 8 May 2023. Notation (b) to the orders made that day provides as follows:
The Respondent Husband intends to obtain a neuropsychiatric assessment and it is requested that VLA provide funding for the purpose of obtaining a Report.
A report has been obtained from a Clinical Neuropsychologist, Dr B. That report, which is dated 25 October 2023, is annexed to the affidavit of Dr B filed 27 October 2023. Dr B was asked a series of questions in relation to her assessment as to the husband's capacity to provide instructions. Those questions included:-
·Whether the husband has the ability to understand the nature of the case between him, his ex-wife and his parents;
·His ability to understand the consequences of the case;
·His ability to understand the issues in the case;
·His capacity to provide verbal instructions and to communicate his instructions in relation to issues; and
·His ability to understand documents.
Dr B has provided a detailed assessment as to the husband's functioning.
She identified a range of issues as to the husband's executive functioning. She observed that there was impairment in his executive functioning and that that impairment was evident in his behaviour upon interview and on formal testing. She noted that the husband was tangential and perseverative in conversation, that he was unable to regulate his emotions and quickly and easily became agitated and angry during the interview.
She also observed that there was evidence of concrete thinking and impaired reasoning; that the husband tended to think in simplistic and concrete ways about matters, that it was difficult for him to shift his thoughts or conversation from preconceived notions, and that he gave disorganised accounts of events that were difficult to follow.
She additionally observed him to have a clear lack of insight into his behaviour changes and cognitive difficulties. She noted that his planning and organisation abilities were impaired. She further noted that the husband was overwhelmed when presented with lengthy and complex information. Dr B expressed the view that the husband would struggle to give evidence in Court in a clear and meaningful way due to his executive dysfunction. She noted that the husband's emotional ability, disinhibition and tendency to be tangential and perseverative would present significant challenges if he were asked to give evidence.
It was the view of Dr B that the husband would be able to provide instructions provided that there were appropriate supports but raised significant concerns as to his capacity to give evidence.
The situation that now presents itself to the Court in circumstances where the husband's lawyers seek to withdraw from the proceedings is that the husband will be faced with the prospect of representing himself at trial. That circumstance squarely raises the issue as to whether or not a Litigation Guardian ought be appointed to represent the husband, having regard to the information contained in Dr B’s report and her assessment as to his capacities. Given that Dr B has assessed the husband would have significant difficulties in giving evidence, it is clear that he would have similar if not greater difficulties in representing himself in what are complex property proceedings.
The question of the appointment of a Litigation Guardian is addressed at Part 3.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth). Rule 3.12 provides as follows:-
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
a.does not understand the nature and possible consequences of the proceeding; or
b.is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
Having regard to the assessment provided by Dr B, I am well satisfied that there are significant concerns as to the capacity of the husband to adequately conduct the proceedings on his own behalf as is contemplated in Rule 3.12(1)(b).
The matter was stood down to enable the parties to consider that issue. I am informed that there is no person who can be identified as appropriate to be appointed as a Litigation Guardian for the husband. In those circumstances, the only course open to the Court would be to make a request to the Attorney-General's department for such assistance for the husband.
Sensibly, neither counsel for the wife nor the second and third respondents opposed orders appointing a litigation guardian for the husband.
I am satisfied, having regard to the contents of Dr B’s report, that the husband is not capable of adequately conducting the proceeding on his own behalf and that it is a matter appropriate for the appointment of a Litigation Guardian for the husband. Accordingly, I will make an order to that effect with a request to the Attorney-General's department for assistance in the provision of a Litigation Guardian.
In the circumstances of the case, it will be necessary to vacate the final hearing listed to commence on 20 November to enable the appointment of the Litigation Guardian. Given that position, I am also satisfied that it is appropriate that I vacate and set aside the previous trial directions made until such time as the Litigation Guardian is appointed and can be heard as to further directions that ought be made.
The wife's Counsel has sought an order that costs be reserved. All parties are affected by the decisions I have made today and all parties are impacted by the adjournment. Therefore, I will make an order reserving the question of all parties' costs of this day.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex-tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 8 November 2023
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