Bahar and Sohrab (No. 3)

[2017] FamCA 729

FAMILY COURT OF AUSTRALIA

BAHAR & SOHRAB (NO. 3) [2017] FamCA 729

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT –  Application for adjournment – Whether applicant lacks capacity – Weight to be afforded expert evidence

Family Law Act 1975 (Cth) s 79A

APPLICANT: Ms Bahar

RESPONDENT: Ms Sohrab

FILE NUMBER: CAC 1429 of 2014

DATE DELIVERED: 18 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 18 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar, Gessini and Dunn

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

1. All outstanding proceedings other than the application for costs before Watts J and the application for disqualification before Watts J are adjourned for hearing on 2 June 2017 at 10 am, and the husband is at liberty to attend on that day by video link from the registry of the Family Court closest to where he lives.

2. The husband is directed to file and serve, by close of business on 26 May 2017, a minute setting out each of the orders that he seeks from the court in a consolidated form along with a document identifying what affidavits he intends to rely upon and what paragraphs of those affidavits he intends to rely upon on 2 June 2017.

3. The material attempted to be filed by the husband in the Canberra registry in the last two days will be accepted for filing and made returnable on 2 June 2017 for hearing. Notation: the husband has raised issues concerning orders that he may seek pursuant to proceedings brought under section 79A of the Family Law Act 1975, but, as yet, has not filed any application pursuant to that section.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bahar & Sohrab (No. 3)  has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1429 of 2014

Ms Bahar

Applicant

And

Ms Sohrab

Respondent

REASONS FOR JUDGMENT

1. In this matter an adjournment has been sought by Mr Sohrab to adjourn the proceedings to a point in July following further material from his psychiatrist, presumably Dr KL.  The basis for the adjournment relates to Mr Sohrab’s capacity to participate in proceedings.  He is self-represented and dealing with complex legal matters, and his case is that he is hampered by virtue of medical conditions that he suffers from.  His capacity, then, is based upon health-related matters.  The material that he has relied upon or that he has been permitted to rely upon is as follows: 

2. From his affidavit of 10 April 2017 a portion of annexure A, which is a certificate provided by Dr LM, his treating general practitioner, to Centrelink on 6 April 2017.  That certificate was not prepared in the context of the court processes and it was not prepared for court.  It is set out that Mr Sohrab suffers from depression and anxiety.  In setting those matters out, the consequence was an assertion that he was unfit for work or study.  It is unclear what material was relied upon by Dr LM, that is, how substantially based the view was, particularly as the certificate was not prepared in contemplation of the court process and not directed towards engagement with the court process. Without more information as to how the conclusions were arrived at, it is a piece of evidence which can be given little weight.

3. Mr Sohrab also relied upon material contained in annexure B of the same affidavit.  Firstly, material prepared by Dr MN from 27 February this year.  Dr MN records that Mr Sohrab suffers from a long history of major depression.  He is also on multiple forms of medication.  He has been suffering from suicidal thoughts.  That report was directed to court-related processes and it was specifically being directed towards the capacity of Mr Sohrab to give evidence in proceedings.  The conclusion was that he was capable of giving evidence in proceedings, but that he should do so by telephone, that is, despite the problems which beset Mr Sohrab, he was found to have capacity at least to give evidence in proceedings.

4. It was not a matter which went to his incapacity to participate in the proceedings as long as it was accommodated by him being able to do so by telephone.  A report was prepared by Dr BB from 28 November 2016.  Dr BB is a psychiatrist.  That report outlined that Mr Sohrab suffers from anxiety, depression, and also from chronic pain.  He takes a number of medications, including one which was described as Endone and as being strong, such as to impair focus and memory.  That material urged that this impairment be taken into account in relation to court proceedings.  Again, it did not equate to an unfitness to participate, but a need to provide some accommodation to Mr Sohrab in the conduct of the proceedings.

5. Next was material provided by Dr NP from 17 November 2016 which set out that Mr Sohrab suffers from depression and pain, consequences of which involve poor concentration and poor energy, and it was said that it can severely impact thought processes and his cognitive capacity.  Some of the medications he was taken could also make him very drowsy, again affecting poor concentration and poor cognition.  It was said that it would be very difficult for him to process complex legal matters and would adversely affect his ability to perform under pressure.

6. However, that material was provided six months ago.  It was provided in the context of Dr BB having provided a report which did not indicate that he was unfit to participate.  The weight to now be accorded to a report prepared six months ago is little – it goes little towards Mr Sohrab’s current state or ability to participate in the proceedings.  It was also notably post-dated by the report prepared by Dr MN which indicated a capacity to give evidence in proceedings.  On balance, I am not persuaded that Mr Sohrab is unable to participate to a sufficient degree in these proceedings such as to necessitate an adjournment to July 2017 and beyond.  Accordingly, I will set matters down for hearing on 2 June 2017 in order for all outstanding matters to be consolidated, other than the application for Watts J to disqualify himself and the application for Watts J for the costs in relation to the final hearing of the matter.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 May 2017.

Associate: 

Date:  23 May 2017