Dunbar and Dunbar (No 2)

[2010] FamCA 752

FAMILY COURT OF AUSTRALIA

DUNBAR & DUNBAR (NO. 2) [2010] FamCA 752

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of case guardian

APPLICANT: MR DUNBAR

RESPONDENT: MR DUNBAR

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 3294 of 2009

DATE DELIVERED: 16 AUGUST 2010

PLACE DELIVERED: BRISBANE

PLACE HEARD: BRISBANE

JUDGMENT OF: YOUNG J

HEARING DATE: 16 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR GORDON

SOLICITOR FOR THE APPLICANT: BERCK & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR SCOTT-MCKENZIE

SOLICITOR FOR THE RESPONDENT: BUTLER MCDERMOTT LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER MS McLENNAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER FAMILY LAW SOLUTIONS

Orders

IT IS ORDERED:

1. THAT MR Y be appointed as the Case Guardian of the mother, MS DUNBAR in respect of all children’s and other matters listed for hearing in this Court.

2. THAT otherwise the application in a case filed 10 August 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Dunbar & Dunbar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3294 of 2009

MS DUNBAR

Applicant

And

MR DUNBAR

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Dubar is before the Court for a final defended hearing.  The matter is in the Magellan list of cases and has a somewhat long and involved history.  In the application before me today, Mr Gordon of counsel appears for the mother.  I say that with the qualification that the mother is not in Court and is presently an inpatient of the Acute Mental Health Unit at E Hospital.  There is a letter before the Court which has been marked as exhibit “M1” and which was written by Dr C, consultant psychiatrist of that hospital.  That letter advises of the fact that the mother is an inpatient, and it further advises: 

   “As her treating medical officer, I feel she is unable to attend due to current mental health state, and I would appreciate you considering an adjournment of this matter.” 

2. That document was produced to Court this morning.  Whilst the mother is not at Court Mr Y is at Court and he is a cousin of the mother and a second cousin to the three children who are the subject of these proceedings, those children being aged seven, five, and three years respectively.  Mr Scott‑Mackenzie of counsel appears for the father, who is in Court.  Ms McLennan appears as counsel on behalf of the three children, briefed by the Independent Children's Lawyer, and Ms Day, from the Department of Communities, appears amicus curiae to advise or assist the Court on certain matters of and concerning the welfare and best interests of the children.

3. The preliminary application before the Court, and with which I first deal, is that filed 10 August 2010 by the solicitors then acting for the mother.  The document is identified as number 71 in the Court index.  The order therein sought is as follows: 

   “That [Mr Y] be appointed as a case guardian in respect of the children's matters, and be authorised to obtain any and all information that the mother would have been able to obtain.”

4. In support of that application, Mr Y has filed two affidavits:  the first on 10 August of this year, and the second filed by leave this day, 16 August 2010.  I have read each of the affidavits.  Mr Y is not required for cross‑examination, but he is in Court.  I will not read the contents of each of the affidavits into these ex tempore reasons for judgment but I will refer to certain facts identified therein.  There has been some discussion between Mr Y and the E Hospital on or about last Friday, 13 August. Those telephone calls are recorded in his second affidavit. 

5. Significantly he also received a call from the mother at 8 pm on Saturday 15 August, and that is identified in paragraphs 4 and 5 of that affidavit.  At that time, the mother had intended to discharge herself from the hospital and return to stay with Mr Y on the Sunday evening, that is yesterday, but that would have been a subject of concern and objection by Mr Y, who preferred her to receive proper treatment in hospital.  That, seemingly, is the case, and the mother remains at the E Hospital at this time, although I am somewhat unsure as to whether she is held on an involuntary basis or otherwise has consented to ongoing treatment knowing of her medical needs. 

6. That then is the background to the information before the Court.  The order for the appointment of the case guardian remains actively sought by counsel appearing for the mother.  The application is not opposed by counsel appearing for the father, or on behalf of the children, and Ms Day has no view to express to the Court on the application, though clearly the department does not oppose this appointment.  In support of the order, Mr Gordon first filed an outline of argument, filed with the Court as a case information document on 13 August 2010. 

7. I have read that outline of argument, which cross-references evidence from Dr W and Dr L, to which I will take reference shortly.  A further document filed today by Mr Gordon was a summary of the submissions relied upon, which identifies the relevant Rule within the Family Law Rules, and the particular evidence of each of the specialist medical practitioners.  I was first referred to the report of Dr W filed 22 March 2010, which is document 19 in the Court file.  I have read the opinion of Dr W therein.  At that time - and the report was written on 25 February of this year - he identified: 

   “A paranoid illness which is psychotic in intensity.” 

8. Dr W was then of the opinion that the mother had, or was having, or likely would continue to have, delusionary thoughts and actions.  In particular, the penultimate paragraph of that report identifies those matters, and her over concern of the actions of her in‑laws and husband, and the continuing paranoid beliefs which have been the subject of substantial investigations in this Court.  Dr L has filed a further affidavit on 16 August, which is document 70 in the Court index.  I have read that report, and, in particular, it is important to give very considerable weight to his conclusion as expressed in the penultimate paragraph on page 13 of the document, which reads as follows:

   “I am of the view, and share with Dr [D], that this lady has developed a paranoid illness and is frankly delusional.  It would appear to have developed over a period of time, as focused on her husband to the extent that she now raises allegations of him sexually abusing their youngest daughter in a supervised contact centre.

   I would agree with Dr [D] that in these circumstances, this lady's most likely diagnosis is a delusional disorder.  She requires treatment, and clearly, the effects this has had upon not only the children, but upon the family structure, are deeply concerning.”

9. I have also been referred to the affidavit of the family consultant, Ms A, filed 4 August 2010, document 69 in the Court index.  Ms A is, of course, not psychiatrically trained, and the report is received on the basis that she is the family consultant engaged to report upon this family.  Her qualifications as a social worker are annexed to the report.  I have read the report, and Mr Gordon, in particular, has identified paragraph 54 thereof, as it highlights that her current actions self focus upon herself, rather than any form of priority of the needs or wellbeing of the children.  I, therefore, have had particular regard to those three affidavits and their evidence before the Court. 

10. I have also had a more recent report from Dr W, which is exhibit 1, as tendered by the independent children's lawyer.  That is a substantial 11 page document that has been prepared in recent time.  It is written with the knowledge and information of Dr L’s report and a substantial background of the children, the father and the issues in these proceedings.  I have, in particular, carefully read and evaluated the opinion expressed at pages 10 and 11 of that report.  The mother’s actions are said to be consistent with someone with a diagnosis of delusional disorder of a paranoid subtype. 

11. It is said, in particular, that she would appear to require psychiatric treatment with anti‑psychotic medication.  Her prognosis was expressed to be guarded, and her recovery will, it was said by Dr W, be lengthy.  It is further identified in the report that whilst the mother labours under these delusions, she should not have unsupervised time spent with the children.  Dr W cross‑referenced his opinion to that expressed by Dr L.  Thereafter, and for matters more relevant to subsequent issues and judgments which may arise in these proceedings, Dr W then examines the children's current circumstances and their growing relationship with their father. 

12. I will, for completeness, have the outline of argument prepared by Mr Gordon marked as exhibit “M2”, and I will have the submissions from Mr Gordon submitted to Court marked as exhibit “M3”, and those documents will be retained upon the Court file.  The Family Law Rules deal with the appointment of a case guardian in part 6.3.  Who may be a guardian is explained in Rule 6.09, and the basic requirements are that such person would be an adult, have no interest in the case adverse to the interest of the person needing the case guardian, can fairly and competently conduct the case for that person, and has appropriately consented to act in such a role. 

13. Clearly, on the affidavit of the proposed case guardian, he has both consented and is an adult.  There is nothing to suggest that he could not fairly and competently conduct the case.  I am particularly aware of his family relationship to the mother and his recent discussions with her and his involvement at her side in Court conferences and the like.  The only matter that remains to be considered is subparagraph (b), and that is that he would have no interest in the case adverse to the interest of the mother. 

14. I am wholly satisfied that the primary interests of Mr Y are for the wellbeing and best interests of these three young children.  He has an understanding of the mother's circumstances and has no doubt been exposed to her behaviour and demeanour.  All matters considered, I am satisfied that he has no interest adverse to the interests of the mother, and his appointment as a case guardian can properly be considered. 

15. In determining the need for an appointment, there is the reality of the defended proceedings before the Court.  These matters have been ongoing for a very lengthy period, and ultimately, the interests of the children require some level of decision, be it ultimately final or on a continuing but established and more solid basis.  The interests of the mother do need to be represented.  I am satisfied that she is not capable, in her current circumstances, of self-representation, and by that I mean giving instructions to her solicitor to brief counsel to place her case before the Court.

16. The evidence of Dr W and Dr L, to which I have referred, do well and truly highlight the current emotional issues that substantially confront the mother.  They are real and genuine issues.  They do prevent her giving meaningful instructions and I am satisfied that she could not, or would not be able to properly consider her circumstances within the ambit of the welfare and best interests of the children in her current emotional and delusional state.  I would therefore find for the purposes of this application to appoint a Case Guardian that the mother does have a disability.  She could not or would not understand the nature or possible consequences of the case. 

17. I am comfortable in finding that she could not capably or adequately give instructions for the conduct of the case.  They are findings upon which is based the appointment that I intend to make of the case guardian.  Mr Gordon has referred me to the decision of the Full Court of the Family Court in Willshire [2009] FamCAFC 130, reported as at 21 July 2009, a case on appeal from a decision of Benjamin J. I have perused the reasons for judgment, and in particular paragraphs 45 and thereafter to which I was referred. For reasons which I have already given, and reinforced by the reasoning of the Full Court in this case, I conclude it is appropriate in all of the circumstances, and a proper outcome, for the appointment of the case guardian to be so made.

18. I am further fortified in that circumstance on the basis that it is certainly not opposed, and there is, across the bar table, a very strong and applied level of active support for the order to be made.  For all of those reasons provided in this brief ex tempore judgment, I will order the appointment of Mr Y as the guardian for the purposes of this litigation of the mother, Ms Dunbar.  I will shortly draft orders that give effect to that appointment.  I will have these reasons transcribed, placed upon the Court file, and made available to all parties. 

19. It would be prudent for the solicitors for the mother to bring this decision to her knowledge, either personally or through Mr Y, as soon as practicable.  I do not prescribe how that can and should be done in the particular circumstances of the mother, but clearly, one of the very live issues in this case will be not only the mother's ongoing treatment and period of time that she spends in the E Hospital, but her response or reaction to orders made, and how that will impact upon her and upon the family, and particularly upon the children, but they are matters of different issue and perhaps for differing orders or outcomes.

I certify that the preceding nineteen
(19) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 16 August 2010.

Associate: ……………………

Date:  ……………………