Bahar and Sohrab (No. 5)

[2017] FamCA 766

FAMILY COURT OF AUSTRALIA

BAHAR & SOHRAB (NO. 5) [2017] FamCA 766

FAMILY LAW – COSTS – Where the wife seeks an order that the husband pay her costs of and incidental to the proceedings which led to final orders on an indemnity basis – Where the husband seeks that the hearing of that matter be adjourned on the basis that his current health and particularly his mental health do not allow him to respond to that application – Where the husband has supported his application by medical certificates – Where the husband’s presentation is significantly different to that at final hearing and is now presenting with thoughts of self-harm and suicide – Where the wife submits that the evidence falls short of demonstrating that the husband is a person with a disability and asserts he has fabricated his ability to represent himself or make submissions to the court based on material he has filed – Where the wife has not filed an application for a case guardian to be appointed for the husband – Where it is found on balance that the husband’s current mental health prevents him from adequately conducting his case and the wife is given liberty to restore her application in the event she seeks to lead fresh evidence on the question as to whether the husband continues to have a disability which prevents him from being capable or adequately conducing or giving adequate instructions for the conduct of the case

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Bahar

RESPONDENT: Mr Sohrab

FILE NUMBER: CAC 1429 of 2014

DATE DELIVERED: 27 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 13 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. The wife’s application for costs filed 6 March 2017 be stood over generally with liberty to restore upon the application of the wife on 28 days’ notice in the event the wife seeks to lead fresh evidence on the question as to whether or not the husband continues to have a disability which prevents him from being capable of adequately conducting or giving adequate instructions for the conduct of the case.

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. 5) 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 SYDNEY

FILE NUMBER: CAC 1429  of 2014

Ms Bahar

Applicant

And

Mr Sohrab

Respondent

REASONS FOR JUDGMENT

1. On 6 March 2017 the wife filed an Application in a Case seeking that the husband pay her costs of and incidental to the proceedings which led to final orders being made by me on 1 February 2017 on an indemnity basis. That application was supported by an affidavit of Ms PQ filed 6 March 2017. The husband sought that the hearing of that matter be adjourned on the basis that his current health and in particularly, his current mental health, did not allow him to respond to that application.

2. The husband, inter alia, supported that application by certificate from his treating psychiatrist, Dr KL.

3. On 12 April 2017 I made the following orders in chambers on an ex parte basis:

   1.      As soon as practicable after 30 June 2017 the husband provide to the Registrar of the Family Court of Australia, Canberra Registry, a certificate from his treating psychiatrist [Dr KL], setting our [sic] [Dr KL’s] opinion as to the husband’s ability and fitness to participate in proceedings and if it was the doctor’s opinion at that time that the husband was still unable and unfit to participate in proceedings, then what was the husband’s prognosis in terms of being able to do so in the future and what further time should the husband be given to provide further evidence of his fitness to participate in the proceedings.

   2.      The applications that are listed before Watts J on 2 May 2017 be stood over generally until the husband’s fitness to participate in the proceedings is known and applications 3 and 4 as sought in the husband’s application in a case forwarded to the court on 10 April 2017 and filed 12 April 2017 also be stood over generally.

4. The court received a further medical certificate provided by the husband from Dr KL dated 18 July 2017. Dr KL’s report of 18 July 2017 is set out in full in Schedule 1 to these Reasons. As a result of receiving that certificate the following order was made by me in chambers on 1 August 2017:

   1.      I mark as Exhibit X a medical certificate provided by the husband from [Dr  KL] dated 18 July 2017.

   2.      I note that [Dr KL], apparently in response to a request to express an opinion about the husband’s ability and fitness to participate in the current proceedings about costs, opined that the husband’s condition impacts upon his capacity to engage in legal proceedings in court hearings to the extent that the [sic] becomes very anxious before and during a hearing.

   3.      The husband is to request [Dr KL] to be available on the telephone to be asked questions by the wife’s lawyers in respect of his report at 9am on 13 September 2017. To participate in this listing by telephone the husband [Dr KL] should dial … and at prompt enter password ....

   4. To cover the contingency that the court may find the husband has a disability, the wife, if she so chooses, may file an application pursuant to rule 6.10(1) Family Law Rules, for the appointment of a person as a case guardian for the husband which can be made returnable on 13 September 2017.

5. On 29 August 2017 the husband filed an application to, inter alia, vacate today’s hearing until he regains the capacity to be able to represent himself in these proceedings and he seeks an order to file further affidavits and evidence in his own defence against the wife’s application for costs.

6. The proceedings on 13 September 2017 were conducted by electronic means. The applicant wife appeared with her lawyer. The husband was also on the line. Having announced his appearance he said that he was feeling dizzy and sick and had been suffering from anxiety attacks all morning. At the conclusion of the proceedings the husband indicated that whilst he had been on the line he had not followed any of the conversation that had taken place.

7. Dr KL, the husband’s treating psychiatrist, did not appear. The husband had sent an email dated 21 August 2017 to the court indicating that he had a consultation with Dr KL on 19 August and had provided him with a copy of the orders of 1 August 2017. The husband indicates in that email that Dr KL indicated to him that he would be unavailable to attend this hearing by telephone or in person. The husband asserted he was not in a financial position to offer Dr KL any compensation to attend. The lawyer for the wife indicated that he had spoken to Dr KL’s assistant and she had confirmed that he was not going to be giving evidence in the proceedings before me.

8. The husband also relies upon medical certificates by his general practitioner, Dr LM. On 23 May 2017 Dr LM had provided a medical certificate in the following terms:

   He [the husband] has a diagnosis of chronic pain in relation to lumbar degenerative disease, anxiety and depression. These diagnoses have been made by me in taking a history, examining the patient, and interpreting investigations. I have also read through the medical history and notes from [Mr Sohrab’s] previous doctors in Canberra in relation to these conditions. It is in my opinion therefore that he is not medically fit to attend any hearing where he is required to give evidence or to deal with any complex legal issues until the end of June 2017 as previously stated. He will be reviewed at this time by his psychiatrist [Dr KL] and the ability to attend the hearing will be reassessed.

9. Dr LM provided a further medical certificate dated 31 August 2017 which was in the following terms:

   In my opinion, he [the husband] is suffering with anxiety with an increasing frequency of symptoms which render him disabled and he will therefore be unable to represent himself in court on September 13 2017. This diagnosis is supported by [Dr KL], psychiatrist.

10. The lawyer for the wife informed the court, and I accept, that he had a letter from Dr LM dated 12 September 2017 indicating that she would not be giving evidence in the matter before me.

11. The wife opposed the husband relying upon Dr KL’s report or the medical certificates provided by the husband’s general practitioner on the basis that the doctors were not available to be tested on their opinions. I was informed by the lawyer for the wife that the wife had attempted to provide both doctors with copies of material filed by the husband in 2017. The lawyer for the wife indicated that the purpose of providing this material to the doctors was to be in a position to invite them to revise their opinion based on the manner in which the husband had been able to conduct the proceedings in 2017. I pointed out to the lawyers for the wife that I had none of that material before me.

12. I determined that I would allow the husband to tender the medical certificates subject to submission as to what weight they should be given.

13. Although the wife seeks to obtain a costs order against the husband, she acknowledges that she does not know of the nature or location of any assets held by the husband against which any such costs order could be enforced. If the wife obtains a costs order, her intention is to attempt to seek an enforcement order against what remains of the husband’s Public Service periodic pension payments.

14. The report of Dr KL dated 18 July 2017 (Schedule 1) specifically addresses questions raised by order 1 made by me on 12 April 2017.

15. In setting out his opinion as to the husband’s ability and fitness to participate in the proceedings, Dr KL opines that the husband continues to be significantly affected by ongoing disorders, namely:

    15.1.Generalised anxiety disorder;

    15.2.Major depressive disorder;

    15.3.Pain disorder.

16. In consultation with Dr KL, the husband’s predominate focus has been on his concern in relation to these legal proceedings. Dr KL opines that the husband’s underlying medical conditions impact upon his capacity to engage in legal proceedings and court proceedings, specifically he becomes very anxious before and during such proceedings. Dr KL refers to an opinion expressed by the husband’s previous general practitioner, Dr MN expressed in a letter of 27 February 2017 to the following effect:

    Despite the care he is receiving [the husband] continues to harbour suicidal thoughts. His condition has been aggravated by ongoing legal issues which have rendered him homeless and in a desperate financial state. He has very little in the way of support in Canberra and as a result will leave Canberra and travel to where he will have both emotional support and physical shelter.

17. Dr KL also records that in Dr LM’s letter of referral dated 21 March 2017, the husband admitted to feelings of self-harm and suicidal thoughts that have been ongoing for some months and had not changed with his move to Tasmania.

18. In response to the question as to prognosis, Dr KL was of the opinion that the husband’s condition is likely to remain much the same as it is for the foreseeable future. In response to the question as to how long the husband should be given to provide further evidence as to his fitness to participate in the proceedings, Dr KL was unable to specify any time frame, saying that any timeframe would be arbitrary.

19. The lawyer for the wife submits that Dr KL’s opinion on the face of his report falls short of demonstrating that the husband is a person with a disability in the sense that that term is used in the Family Law Rules 2004 (Cth). The dictionary to the Family Law Rules defines “person with a disability” as follows:

    Person with a disability, in relation to a case, means a person who, because of a physical or mental disability:

    (a) does not understand the nature or possible consequences of the case; or

    (b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

20. The lawyer for the wife refers to comments that I made at paragraphs [31], [32], [314], [318] and [330] of my Reasons for Judgment dated 1 February 2017. At [31] and [32] I record:

    31. After the initial days of the final hearing, where the husband was represented, the matter was adjourned part heard. During the second phase of the final hearing, the husband represented himself. [Dr BB], the father’s treating psychiatrist, in a short report dated 28 November 2016 (Exhibit 82) which is referred to below, wrote:

    “The conditions which [Mr Sohrab] suffers form [sic] in addition to the medication all have the propensity to impair focus and memory and thus I would ask that this be taken into account in any court proceedings.”

    32. The husband is an articulate and intelligent man. Whilst on a few occasions during the hearing he seemed to be in some physical discomfort, I formed the view that he understood what was being said and involved himself, sometimes passionately, but always intelligently, in arguments around issues in the proceedings.

21. The observations and findings made at paragraphs [314], [318] and [320] are of no great significance in this application.

22. I am mindful that the effect of the orders made under s 79 of the Family Law Act 1975 (Cth) (“the Act”) was to transfer to the wife all interest in all real estate in Australia, including the property in which the husband was residing. That order meant that the husband had to leave the home in which he was living.

23. Although it was a hearing by electronic means, the husband’s oral presentation was significantly different from the presentation that I described at [32] of my Reasons of 1 February 2017. I am mindful that the husband’s general practitioner in Canberra prior to him leaving Canberra reported the husband’s suicidal thoughts. In March 2017 Dr LM reported the husband admitting to feelings of self-harm and suicidal thoughts and has reported increasing frequency of anxiety symptoms which render the husband disabled and unable to represent himself.

24. So far as I am aware, self-harm and suicidal thoughts were not a feature of the husband’s symptomatology at the time of the property hearing.

25. It is the wife’s submission that the husband has fabricated his ability to represent himself or to make submissions to the court. That submission was made based upon what the lawyer for the wife referred to as the “volume of material that the husband has filed since the orders of 1 February 2017”. That material was not placed before me but I gave the lawyer for the wife an opportunity to send me a list of the documents that have been filed in other proceedings in this court since my judgment of 1 February 2017.

26. The documents set out in the wife’s list are as follows and I make comments in brackets about those documents:

    26.1.Application in a Case and Affidavit of Mr Sohrab filed 10 April 2017 [I assume this is the affidavit sworn on 10 April 2017 and filed on 12 April 2017];

    26.2.Application in a Case and Affidavit of Mr Sohrab filed 20 April 2017 [nothing was filed by the husband on this date];

    26.3.Application in a Case and Affidavit of Mr Sohrab filed 26 April 2017 [I assume this is the affidavit sworn on 26 April 2017 and filed on 27 April 2017];

    26.4.Affidavit of Mr Sohrab filed 18 May 2017;

    26.5.Affidavit of Mr Sohrab filed 29 May 2017 [I assume this is the affidavit sworn on 29 May 2017 and filed on 30 May 2017];

    26.6.Minute of Orders Sought by Mr Sohrab on 28 May 2017;

    26.7.Notice of Objection of 30 May 2017 [I assume this was the document filed on 1 June 2017];

    26.8.Affidavit of Ms Bahar filed 22 August 2017; and

    26.9.Application in a Case and Affidavit of Mr Sohrab filed 24 August 2017 [I assume this is the affidavit sworn on 24 August 2017 and filed on 29 August 2017.

27. I have looked at those documents. On the whole the documents are well drafted and written in a logical and well-reasoned manner. In each affidavit the husband says that he has received assistance in drafting the document. However, in each document the husband references his disability and depression saying that his health has deteriorated since the final orders were made in February 2017.

28. In the husband’s affidavit filed on 12 April 2017 he comments that he has considered suicide since the final orders were made.

29. In the husband’s affidavit filed on 27 April 2017 he says his medical condition has worsened since the final orders were made and he has had suicidal thoughts, been distressed and fragile physically and psychologically. He says he had taken opiate drugs and “was in significant pain and suffered a dizzy and exhausted mind” at a court appearance on 11 April 2017.

30. In his affidavit filed on 30 May 2017 the husband says that after a hearing before Gill J on 18 May 2017 he became violently sick and collapsed.

31. In an affidavit of the wife filed 22 August 2017 the wife says that she observed the husband in proceedings at the NSW Supreme Court on a day in August 2017 where he was represented by solicitors and counsel. She says he was physically able, walking out of the court carrying a bag in one hand and wheeling a suitcase in another. She says that he has sent numerous correspondence in relation to his incapacity to attend hearings due to his poor health but says he is capable and able to attend court, travel and obtain legal representation as she observed on that day in August. The husband in an affidavit filed 29 August 2017 says he was followed by the wife and her brother on that day in August 2017 and received a death threat, abuse, psychological harassment, aggression and intrusion into his privacy. He says after this incident he had an anxiety attack, felt dizzy, lost consciousness and collapsed to the ground. He says he has experienced repeated anxiety attacks since the final hearing and suffered from major depression. Ironically, there is an inability to test this competing evidence unless the husband has the capacity to participate in the proceedings.

32. I am also mindful that in a Notice of Objection filed 1 June 2017 the husband says that at the final hearing he lacked the mental capacity to comprehend complex court procedures or to comprehend questions or to be able to formulate appropriate, cohesive and truthful responses and says that he was relying on powerful opiate drugs making him feel disoriented, fatigued and confused and that he later realised his evidence was not necessarily true or accurate as he lacked the mental capacity to focus and remember past events. He says the court had been advised of his severe state of health and his incapacity to represent himself. I have set out above my findings about the husband’s presentation at the final hearing in 2016 and my conclusion about the change in his presentation.

33. On balance I am unable to find if the husband has fabricated his current inability to represent himself.

A case guardian?

1. As indicated, on 1 August 2017 I made an order in the following terms:

   4. To cover the contingency that the court may find the husband has a disability, the wife, if she so chooses, may file an application pursuant to rule 6.10(1) Family Law Rules, for the appointment of a person as a case guardian for the husband which can be made returnable on 13 September 2017.

2. The lawyers for the wife have not filed any application that a case guardian be appointed on behalf of the husband.

1. The lawyer for the wife indicated that no application was made by the wife for the appointment of a case guardian for the husband because there was no person who was available to stand in the shoes of the husband as a case guardian. He said that any public body in the ACT would require an indemnity to act as case guardian. I accept the submission that the husband has sought and been denied legal aid and is not able to give an indemnity. The lawyer for the wife submitted that it would be not reasonable for the wife to fund the costs of a case guardian for the husband in litigation against her. That of course is a forensic decision that the wife makes, presumably on the basis that she may form a view that she is throwing good money after bad.

2. In relation to Dr LM’s most recent medical certificate, the lawyer for the wife points to the fact that Dr LM says, “[t]his diagnosis is supported by [Dr  KL], Psychiatrist”. The diagnosis to which Dr LM refers is the husband’s generalised anxiety disorder.

CONCLUSION

1. Notwithstanding the wife’s inability to test the opinion that the husband is not currently capable of adequately conducting the case, I am satisfied on the basis of the medical certificates provided that on balance the husband is not capable of adequately conducting his case. I am also concerned about the opinions stated by both general practitioners that the husband has had suicidal thoughts and suicidal ideation.

2. I accept Dr KL’s opinion that the time frame for any adjournment of the application would be arbitrary.

3. I also accept that the husband’s disability and the inability to have a case guardian appointed leads to an unsatisfactory stalemate in respect of the wife’s application for costs but that is the unfortunate result on the facts as they present themselves.

4. The order I make is that the wife’s application for costs filed 6 March 2017 be stood over generally with liberty to restore upon the application of the wife on 28 days’ notice in the event the wife seeks to lead fresh evidence on the question as to whether or not the husband continues to have a disability which prevents him from being capable of adequately conducting or giving adequate instructions for the conduct of the case.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 27 September 2017.

Associate: 

Date:  27.9.2017

SCHEDULE 1

[Mr Sohrab] is my patient. I first saw him on 29.03.2017 and subsequently on 26.04.2017, 27.05.2017, 11.07.2017 and 14.07.2017.

When I saw [Mr Sohrab] on 11.07.2017 he provided me with a copy of the ex parte order made by Justice Watts on 12.04.2017 ordering “the husband” ([Mr Sohrab]) to provide, as soon as practicable after 30.06.2017, a certificate from me setting out my opinion on the following matters:

• [Mr Sohrab’s] ability and fitness to participate in proceedings;

• If in my opinion [Mr Sohrab] is still unable and unfit to participate in proceedings, what his prognosis [is] in terms of being able to do so in the future;

• What further time [Mr Sohrab] should be given to provide further evidence of his fitness to participate in the proceedings.

Mr Sohrab’s ability and fitness to participate in proceedings

[Mr Sohrab] last consulted me on 14.07.2017.

[Mr Sohrab] continues to be significantly affected by ongoing conditions, as follows:

(1) Generalised Anxiety Disorder;

(2) Major Depressive Disorder; and
(3) Pain Disorder.

His symptoms include moderately severe anxiety and depression, for which he is being prescribed medication (Sertraline, Diazepam). He is also being prescribed strong pain medication (Endone, Mobic, Panadeine Forte, Endep).

At each of [Mr Sohrab’s] consultations with me subsequent to the first consultation (on 29.03.2017) his predominant focus of concern has been the legal proceedings in which he is involved.

[Mr Sohrab’s] conditions impact upon his capacity to engage in legal proceedings and court hearings. Specifically, he becomes very anxious before and during a hearing and has become disoriented after a hearing. After participating in hearings he feels exhausted.

I first saw [Mr Sohrab] on 29.03.2017. However, he is reported as having had a lengthy history of depression, for which he has received treatment from Psychiatrists and General Practitioners: I refer to comments made by his previous General Practitioners and Psychiatrist:

• [Dr BB], Psychiatrist, commented (in a letter dated 28.11.2016): “The conditions which [Mr Sohrab] suffers from in addition to the medication all have the propensity to impair focus and memory…”’

• [Dr MN], General Practitioner, commented (in a letter dated 27.02.2017): “Despite the care he is receiving [Mr Sohrab] continues to harbour suicidal thoughts. His condition has been aggravated by ongoing legal issues which have rendered him homeless and in a desperate financial state. He has very little in the way of support in Canberra and as a result will leave Canberra and travel to where he will have both emotional support and physical shelter.”

• [Dr NP], General Practitioner, commented (in a letter dated 17.11.2016): “As a result of his medical conditions and the effects of his treatment regime, I believe [Mr Sohrab] would find it very difficult to process complex legal matters and would adversely [sic] his ability to perform under pressure.”

[Dr LM], General Practitioner, Hobart, Tasmania, who referred [Mr Sohrab] to me commented (in her referral letter, dated 21.03.2017): “[Mr Sohrab] admits to feelings of self-harm, suicidal thoughts. These have been ongoing for some months and haven’t changed with his move [to Tasmania]…”

If in my opinion [Mr Sohrab] is still unable and unfit to participate in proceedings, what his prognosis [is] in terms of being able to do so in the future

[Mr Sohrab] has a lengthy history of treatment for his mental health conditions:

• [Dr MN], General Practitioner (letter dated 27.02.2017) refers to [Mr Sohrab’s] “long history of major depression”;

• [Dr NP], General Practitioner, had seen [Mr Sohrab] since late 2014 (letter dated 17.11.2017);

• [Dr BB], Psychiatrist, had seen [Mr Sohrab] since July 2015 (letter dated 28.11.2017);

• Prior to mid-2015 [Mr Sohrab] had consulted Psychologists and Counsellors since 2002;

• In 2015 [Mr Sohrab] was hospitalised briefly in the Canberra Hospital because of his mental health condition.

From the information available to me, it appears that [Mr Sohrab’s] condition has been largely stable since mid-to-late-2015. In view of the long-term nature of [Mr Sohrab’s] mental  health conditions (which apparently date back for more than a decade) and the fact that he has received Psychiatric treatment since mid-2015 (from [Dr  BB] in 2015/2016 and myself in 2017), as well as mental health treatment by three General Practitioners, my opinion is that his condition is likely to remain much the same for the foreseeable future.

What further time [Mr Sohrab] should be given to provide further evidence of his fitness to participate in the proceedings

I am unable to specify any time frame within which [Mr Sohrab] should be required to provide further evidence of his fitness to participate in the proceedings. Any time frame which I would nominate would be arbitrary.