Eastman & Pellis

FEDERAL CIRCUIT COURT OF AUSTRALIA

Eastman & Pellis [2021] FCCA 1358

File number(s):	LEC 375 of 2013
Judgment of:	JUDGE L. TURNER
Date of judgment:	18 June 2021
Catchwords:	FAMILY LAW – interim – where litigation guardian appointed for wife in property proceedings in July 2019 – where wife seeks removal of litigation guardian – Held wife’s application for removal of litigation guardian dismissed – directions made as to filing of submissions as to costs
Legislation:	Family Law Act 1975 (Cth) s 121 Federal Circuit Court Rules 2001 rr 1.06, 11.08, 11.09, 11.11, 11.14
Cases cited:	Forster & Forster (No 3) [2012] Fam CAFC 214 Gallanders & Gallanders [2020] FamCAFC 29 LL & PL & SDP [2005] Fam CA 715
Number of paragraphs:	160
Date of last submission/s:	28 April 2021
Date of hearing:	8 March 2021
Place:	Brisbane
Counsel for the Applicant:	Ms Frizelle
Solicitor for the Applicant:	Beek & Gallagher Legal
Counsel for the First Respondent:	Ms McDiarmid
Solicitor for the First Respondent:	Crane Paskins Law
Counsel for the Second Respondent:	Ms Judge
Solicitor for the Second Respondent:	Australian Criminal And Family Lawyers

ORDERS

LEC 375 of 2013

BETWEEN:

MS EASTMAN

Applicant

AND:

MR PELLIS

First Respondent

MR MORTON

Second Respondent

ORDER MADE BY:	JUDGE L. TURNER
DATE OF ORDER:	18 JUNE 2021

THE COURT ORDERS THAT:

The application in a case filed by Beek & Gallagher Legal on behalf of the wife on 15 December 2020 be dismissed.
The respondents to the application file and serve written submissions as to costs, including the orders being sought, within 28 days from the date hereof.
The applicant file and serve written submissions as to costs, including the orders being sought, within 28 days of receipt of the written submissions referred to in Order 2.
The respondents file any reply to the applicant’s written submissions within 7 days of receipt of the written submissions referred to in Order 3.

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 under the pseudonym Eastman & Pellis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE L. TURNER:

INTRODUCTION

The wife and husband, after a relationship of some 18 years, including a marriage of 14 years, separated in 2013 with court proceedings being filed by the husband shortly thereafter.
In her response the wife was legally represented by one firm but within months had changed solicitors to another firm.
The third and current solicitors on record (Australian Criminal and Family Lawyers), were engaged by the wife in May 2018, with Mr BB (Mr BB) having and continuing to have carriage of the matter.
In mid-2019 after meetings and discussions with the wife and Counsel, Ms Judge, Mr BB filed, with the consent of the wife, an application seeking the appointment of a litigation guardian as Mr BB had grave concerns as the capacity of the wife (who had an acquired brain injury after a fall down a flight of steps in 2010) of being able to provide adequate instructions in the conduct of what was a complex property division of a pool worth in in the vicinity of $16,000,000.
In support of the application Mr BB filed:
(a)An affidavit by the wife.
(b)An affidavit by Ms F (Ms F) (the wife’s daughter and an attorney under the wife’s Enduring Power of Attorney).
(c)An affidavit by Mr BB.
(d)An affidavit by Dr G (Dr G), a clinical neuropsychologist who specialises in opinions as to capacity.
The suggested appointment by the wife of Mr Morton (Mr Morton), an accredited family law specialist and experienced litigation guardian, as the wife’s litigation guardian, was not opposed by the husband on the day of the hearing.
After consideration of the filed material Mr Morton was appointed by court order as the wife’s litigation guardian in July 2019 as it had been established the wife was not capable of adequately conducting or giving adequate instruction for the conduct of the property proceedings.
Since his appointment, Mr Morton has worked with Mr BB to provide instructions.
During the final hearing of the matter in September 2019 and after extensive negotiations (which the wife did not attend) a property division was reached with comprehensive final property orders being made by consent in September 2019.
Mr Morton continued to instruct Mr BB and work alongside the husband and his legal practitioners to implement the orders.
Hurdles presented and Mr BB and Mr Morton kept the wife’s attorneys Ms F and her sister Ms H (Ms H) (who have control of the wife’s financial affairs) abreast of their progress.
However both Mr BB and Mr Morton halted the progress of the matter when in October 2020 legal correspondence was received from the wife’s newly appointed lawyers, Beek & Gallagher Legal, informing them that they had instructions to take over the file and make an application for the removal of Mr Morton.
In December 2020 the application was filed by the new lawyers seeking amongst other orders, for the removal of the litigation guardian.

ISSUE

The primary issue for consideration is whether the litigation guardian be removed.
In considering this issue, throughout the judgment:
(a)The wife’s litigation guardian will be referred to as “Mr Morton”.
(b)The wife’s daughters and attorneys will be referred to as “Ms F” and “Ms H”.
(c)The wife’s current lawyers on record will be referred to as “Mr BB”
(d)The wife’s newly instructed lawyers will be referred to as “the new lawyers”

EVIDENCE

In considering this issue regard has been had to:
(a)The relevant filed material including all medical reports.
(b)The written submissions of the parties.
(c)The relevant legislation.
(d)The relevant authorities.
The parties are legally represented.
Cross examination did not occur and a decision has he made on the papers only.
The submissions of the parties have been properly considered in reaching a determination although each submission may not have been specifically addressed or responded to in the judgment (Baghti & Baghti [2015] Fam CAFC 71).
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.

THE LAW

An application to appoint a litigation guardian is able to be made pursuant to Rule 11.08(1) Federal Circuit Court Rules 2001 where “a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceedings or is not capable of adequately conducting, or giving adequate instruction for the conduct of the proceeding”.
The Full Court in Forster & Forster (No 3) [2012] Fam CAFC 214 cited at [24] the unreported decision of Drew v S where Young J in proceedings brought under the Protective Estates Act 1983 (NSW) for a declaration noted where a person is “incapable of managing her affairs”, then “the court does not look at this sort of case as ordinary adversarial litigation. The court’s duty is to see that if a person cannot look after her affairs, her affairs are properly supervised. On the other hand, the court must also make sure that a person who is capable of managing her affairs is able to conduct those affairs as she pleases, even though she may be wasteful to some extent. It is generally the right of every Australian to do what they like with their property.”
Rule 11.09(1) provides that “a person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceedings only by his or her litigation guardian”.
As to the duties of an appointed litigation guardian, the litigation guardian must do anything required by these Rules to be done by the party (Rule 11.09(2)(a)) and may do anything permitted by these Rules to be done by the party (Rule 11.09(2)(b)).
As to the costs of the litigation guardian, the court can order payment by a party (Rule 11.14(a)) or from the income and assets of the person for whom the litigation guardian has been appointed (Rule 11.14(b)).
As to the removal of a litigation guardian, the court has the power to do so at a request of a party pursuant to Rule 11.11(1).
The Full Court in LL & PL & SDP [2005] Fam CA 715 supported the findings of the first instance judge that a person for whom the litigation guardian has been appointed is able to bring an application for the removal of the litigation guardian noting at [23] “albeit for good reason, the appointment of a Case Guardian represents a substantial infringement of the fundamental legal rights of a citizen. It is not difficult to envisage situations in which the continued appointment of a Case Guardian may become unnecessary or even inconsistent with the legitimate interests or legal rights of the person the subject of an order for Case Guardianship. The Court appoints Case Guardians and must be vigilant to ensure that the appointment and regulation of the duties of Case Guardians are consistent with the underlying purpose of such appointments and the requirements of justice”.
The Full Court in Forster identified four basis for removal at [19]:
(a)“When it is established that the person under a disability no longer requires a Litigation Guardian”.
(b)“Where it is established that the Litigation Guardian has acted contrary to the interests of the person”
(c)“Where it is established that the Litigation Guardian… has conducted the litigation improperly”
(d)“Where it is established… the action is not for the benefit of the person”
Further the Full Court made findings at [19] that if the removal of a litigation guardian is due to the person no longer requiring a litigation guardian then “it is beyond doubt that the removal operates from the date of the order for the removal, and accordingly the removal does not of itself invalidate anything done by the Litigation Guardian prior to his or her removal”
As to any other applications being brought by a party who has an appointed litigation guardian, the Full Court in Gallanders & Gallanders [2020] FamCAFC 29 reiterated at [4] that it is only the litigation guardian who is able to bring such an application pursuant to Rule 11.09(1).

THE GROUNDS FOR THE REMOVAL OF THE LITIGATION GUARDIAN

It is not clear from the first reading of the material filed by the wife as to the ground(s) been relied upon for the removal of the litigation guardian.
In the supporting affidavit by the wife to her application for the removal of the litigation guardian, the wife states:
(a)“I seek this order on the basis that an independent assessment of my capacity was conducted on 18 September 2020 by Neurologist, Dr J who concluded that the disability I have as a result of receiving a traumatic brain injury in 2010, does not give rise to a Litigation Guardian because I have the capacity to give adequate instructions and also, that I have the ability to manage my own finances” [4]
(b)“I am dissatisfied with the work performed by Mr Morton in discharging the orders” [5].
In the letter of instruction to Dr J in July 2020 for the provision of an expert report the wife’s new lawyers wrote:
(a)“We were contacted by” the wife “in April 2020 in relation to the September orders and her concerns regarding the fact that whilst various orders had been discharged in accordance with the timeframes provided for, there were other orders which had not been complied with all”
(b)“In short” the wife “is unhappy with the work being carried out by… Mr Morton on her behalf in ensuring the orders are discharged and with Mr Morton’s inability to inform” the wife “(despite her requests for him to do so) and to keep her informed, as to why certain orders have not been upheld by” the husband “and what Mr BB is seeking to do in respect to rectifying these issues”
(c)“The wife is unable to remove the litigation guardian without leave from the court, which would then enable her to instruct a different solicitor. This is what” the wife “would seek to do should your assessment find she does not need a litigation guardian”
(d)“We would appreciate you examining our client and providing your expert opinion” as to whether the wife has “the mental capacity to give adequate instructions to a solicitor with carriage of her family law property matter, without the need for a litigation guardian” and whether the wife “has the mental capacity to manage her finances including but not limited to the funds which will be ultimately distributed to her… Being the sum of five point four million dollars ($5,400,000)”
However the wife’s evidence and the submissions do not suggest that there was anything untoward with respect to the final property orders reached by consent by the litigation guardian in September 2019 with the husband.
The final orders are long and complex with multiple steps required before the orders could be complied with.
The complaints of the wife are as to the conduct of the litigation guardian in the implementation of court orders and appear to arise due to perceived lack of communication between the litigation guardian and the wife, the concerns of the wife in not receiving monies pursuant to the orders and the delay in the order’s implementation.
However Ms H and Ms F, as the attorneys for the wife, have no issues with how the orders have been implemented.
The husband raises no concerns as to how the orders have been implemented.
The evidence supports that there were difficulties in the final property orders including problems with a valuation which has resulted in extensive negotiations and discussions as to how to resolve these issues including several preparations of amended court orders which have required counsel’s opinion.
Progress as to the implementation of the court orders and the possible need for amended court orders has halted because of the current application before the court.

Conclusion

Having read all of the relevant material and having regard to the submissions I make the following findings as to the grounds that are able to be considered in respect to determining whether there is to be a removal of the litigation guardian:
(a)I find that there is insufficient evidence to support a finding that the possible ground for the removal of the litigation guardian is that Mr Morton has acted contrary to the interests of the wife.
(b)I find that there is insufficient evidence to support a finding that the possible ground for the removal of the litigation guardian is that Mr Morton has conducted the litigation improperly.
(c)I find that there is insufficient evidence to support a finding that the possible ground for the removal of the litigation guardian is that Mr Morton has taken action which is not in the benefit of the wife.
(d)As a litigation guardian was appointed by the wife because of the wife not being capable of adequately conducting or giving adequate instructions for the conduct of proceedings then I find that that the only valid ground for consideration by the court as to the removal of the litigation guardian is whether the wife is now capable of adequately conducting, or giving adequate instructions for the conduct of the proceedings.
I further find that is a factual exercise in determining the issue as to whether the wife is now capable of adequately conducting or giving adequate instructions for the conduct of the proceedings.
In order for this factual exercise to be undertaken in an unfettered manner I do not intend to get caught up in arguments as to whether rules have been complied with and in that regard I rely on Rule 1.06(1) Federal Circuit Court Rules 2001 which enables the court in the interests of justice to dispense with compliance, or full compliance of any of the rules at any time.
However, before giving consideration as to whether the wife has established that she has capacity to conduct or give adequate instructions for the conduct of proceedings, comment must be made as to the submissions.

SUBMISSIONS

I have read and re-read all submissions including the reply submissions and the submissions have been taken into account in determining the application for the removal of the litigation guardian.
I find however that the wife’s submissions are not comprehensive.
I make this finding based on the following:
(a)There is an underlying theme in the submissions, almost a presumption that the wife currently is able to instruct solicitors and therefore has capacity.
(b)As at the date of the filing of the submissions the wife by virtue of the orders made in July 2019 for the appointment of a litigation guardian does is not capable of adequately conducting or giving adequate instructions to others for the conduct of proceedings.
(c)This however does not prevent the wife from making an application for the removal of the litigation guardian.
(d)However the onus in on the wife to establish that there has been such a change in her capacity since July 2019 that the court is not able to make a finding that the wife is capable of adequately conducting or giving adequately instructions to others to conduct proceedings.
(e)There is nothing in the submissions to explain why, in the filed material, there are no reports as to the wife’s treating health professionals from July 2019 until the filing of the application in December 2020.
(f)There is nothing in the submissions to explain why, in the filed material, the wife refused to participate in an updated assessment by Dr G.
(g)There is nothing in the submissions to explain why the new solicitors have not provided an affidavit setting out why in their view the wife is capable of providing them with adequate instructions.
(h)Instead the submissions contain numerous submissions as to the alleged shortcomings of the litigation guardian.
(i)However a finding has been made that there is simply insufficient evidence before the court for this to be a ground capable of being relied upon for the removal of the litigation guardian.
(j)Even the wife’s written submissions do not go that far stating as the last submission that “the ongoing appointment of the litigation guardian is unnecessary particularly when considering the expert opinion of Dr J. It is submitted the wife no longer needs a litigation guardian as she is capable of managing her own affairs and legal proceedings” [89].
(k)Understandably the submissions rely heavily on the evidence of Dr J. I find it tongue in cheek however for the wife’s submissions to be critical of Mr BB obtaining a supplementary report from Dr G and not providing a copy of his letter of instruction (if any) when the reality is that no approach was made to the court by the new lawyers under section 121 Family Law Act 1975 for Dr J to be permitted to view court filed material for the purposes of preparation of her report.
I will now, despite the limitations of the wife’s submissions, carefully consider the evidence before the court to determine the question of whether the wife has established that she is now capable of providing her new lawyers with adequate instructions.

HAS THE WIFE ESTABLISHED THAT SHE IS CAPABLE OF ADEQUATE CONDUCT OR GIVING ADEQUATE INSTRUCTION FOR THE CONDUCT OF PROCEEDINGS?

In order to answer this question it is necessary to consider and make findings as to the evidence before the court as to the wife’s capacity and ability as to the following time frames:
(a)From the accident in April 2010 until the appointment of the litigation guardian in July 2019.
(b)From the appointment of the litigation guardian in July 2019 until the wife engaged new lawyers in April 2020.
(c)From April 2020 until the hearing of the application to remove the litigation guardian in March 2021.

I will now address each of these timeframes.

Wife’s capacity and ability from the accident in April 2010 to appointment of litigation guardian in July 2019

In 2010 the wife fell down 16 steps sustaining an injury to her head.
In February 2011 the wife attended upon Dr K (neuropsychologist) to undertake testing to determine her ability to drive.
The tests conducted by Dr K included selected subtests of:
(a)Wechsler Adult Intelligence Scale.
(b)California Verbal Learning Test.
(c)Rey Complex Figure.
(d)Test of Everyday Attention.
(e)Mazes.
(f)Delis-Kaplan Executive Function System
In March 2011 Dr K released a Neuropsychological Assessment with Driving Skills Focus Report which contained the following:
(a)The wife “sustained a traumatic brain injury… she had no recall of the actual fall and her first memory was of being in the neurosurgery award at least 8 days after her fall”.
(b)The wife “was taken by ambulance to the Town L Hospital where CT brain scans revealed a left subdural haemorrhage, left temporal contusion and right temporal skull fracture. Once stabilise she was transported by helicopter to the City M hospital where she was monitored in ICU for eight days before undergoing further recovery in the neurological ward. She then participated approximately 6 weeks of rehabilitation at the N Hospital Brain Injury Rehabilitation Unit which was followed by 4 days at Town O rehabilitation before she was discharged home”.
(c)The wife “reported that her only persisting symptoms were mild clumsiness… mild concentration difficulties, mild language comprehension problems, and greater than normal word-finding difficulties”.
(d)“At the time of the assessment” the wife’s responses “suggested she was not experiencing clinically significant levels of depression”.
(e)“The Dysexecutive Questionnaire… indicated the presence of a few infrequent executive problems in her everyday behaviour”.
(f)As to a summary of the tests administered while the wife “achieved average to above average scores in many of the neuropsychological tests administered there was evidence of impairment in some visual and verbal abilities including her visual scanning efficiency, particularly as the complexity of the stimuli increased, complex visuospatial attention, perception, memory and preplanning, verbal processing speed, immediate auditory attention a new memory formation” and “auditory divided attention possibly secondary to Perth hearing impairment”.
(g)“While the current assessment revealed impairment in some of” the wife’s “cognitive functions that may disrupt driving ability, it must be stressed that neuro psychological test results are ecologically restricted and only provide prediction of function not assessment of function”.
(h)An annexure containing numerous neuropsychological assessment results.
In April 2018 the wife executed an Enduring Power of Attorney effective immediately appointing Ms F and Ms H to conduct the wife’s financial affairs jointly and severally.
In August 2018 Ms H prepared an email setting out her observation and experiences having lived with the wife for the past four months which contained the following concerns as to the wife:
(a)No awareness of social cues.
(b)Interrupts others.
(c)Can be socially isolated and not initiate contact with others.
(d)Impulsive.
(e)Makes inappropriate and hurtful remarks.
(f)Acts irresponsibly and unable to follow direction.
(g)Resents supervision.
(h)Less tolerant of noise.
(i)Gets frustrated with help.
(j)Refuses to participate in group activities.
(k)Swearing, bad language and aggression.
(l)Laughs at inappropriate moments and discussions.
(m)Difficulty maintaining attention and focusing.
(n)Struggles with short-term memory and forgetfulness.
(o)Responses can be lengthy and provide little to no information.
(p)Unable to think her way through processes.
(q)Difficulty knowing when, where and how to ask for help.
(r)Easily persuaded by others.
(s)Careless about safety.
(t)Cannot find the words to express herself.
(u)Makes up stories and information to fill the gaps.
(v)Misunderstands instructions and comments.
(w)Needs information repeated.
(x)Cannot follow conversations.
(y)Easily confused by too much information.
(z)Cognitive ability deteriorates at the end of the day.
(aa)Tired easily.
(bb)Unstable.
(cc)A lot of difficulty controlling her emotions which can include a great deal of aggression then crying.
In August 2018 the wife attended upon Ms P (occupational therapist) for assessment for the purposes of a medico legal report as to her prospects as to future employment.
To assist in the preparation of the report Ms P had access to medical reports and documents together with the email from Ms H which provided a brief outline of some of the difficulties faced by the wife on a day-to-day basis.
In August 2018 Ms P released the medico legal report where under the heading “Presenting Complaints” Ms P recorded amongst other issues the following self-reported issues for the wife:
(a)Poor short-term memory.
(b)Reduced concentration.
(c)Easily distracted.
(d)More irritable.
(e)Difficulty making complex decisions.
(f)Needs to have information written down and to read things several times.
(g)Struggles to find the right words.
In completing a Behaviour Change Inventories questionnaire the wife informed Ms P that since the accident she perceives her behaviour and personality has changed as she is more “absent minded, angry, anxious, bashful, concerned, confused, cross/irritable, crude, depressed, distractible, down, easily upset, fearful, forgetful, frightened, gloomy, hostile, impatient, inhibited, irritable, loving, patient, sad, shaky, short tempered, shy, slow, temperamental, tense, tired and timid”.
As to the psychological impact of the injury the wife informed Ms P that “she has suffered from feelings of depression. She has attended counselling for this… her depression fluctuates depending on her circumstances… she is anxious regarding settlement of her divorce… she is more irritable with others since the injury… she can become easily overwhelmed”
Ms P had the wife complete a Blankenship Activity Questionnaire.
Ms P in her summary noted:
(a)The wife has functional limitations as a result of the accident.
(b)The wife is managing to work on the farm business in a basic processing job with the support of co-workers. The wife suffers fatigue and has difficulty quickly processing information, retaining information, making decisions and concentrating for more than 1.5 hours.
(c)In future employment the wife is likely to have difficulty learning and retaining new information or complex information. She may make errors and may work at a slower pace.
(d)The wife has word finding difficulties.
(e)As an employer the wife is able to mask her difficulties and to have her deficits overlooked.
(f)The wife will not be able to find commercial employment in the future.
In October 2018 Ms H in an affidavit for the wife stated:
(a)That following her injury the wife has changed significantly and is not the same person she used to be both emotionally and cognitively [4].
(b)Ms H returned home to live with the wife between March and July 2018 where she undertook a part-time role working for and with the wife in caring for the farm [5] and [6].
(c)In the 4 months residing at the farm Ms H assisted the wife in her financial affairs and noted on numerous occasions when Ms H tried to discuss financial matters with the wife that she would become visibly stressed, agitated and would lose her focus very quickly [10].
(d)The wife was forgetful and her short-term memory was significantly diminished [11].
(e)The wife refers to Ms H and Ms F as “bitches” [14].
(f)Despite the difficulties the wife commonly refuses help even when it is evidently clear that she requires it [16].
(g)The wife now becomes extremely angry and swears and behaves aggressively over very minor disagreements, shaking uncontrollably [18].
(h)The wife is easily overwhelmed with large amounts of information and cart to process the information [19].
In April 2019 Ms H received a text from the wife wanting to change lawyers with Ms H responding in the negative saying “you will not be changing lawyers… There has been too much money invested already in Mr BB and Lyn Judge” ([28] August 2019 affidavit).
In June 2019 Mr BB filed an application seeking the appointment of a litigation guardian for the wife.
In her affidavit in support of the application the wife described the ongoing impact of the injury upon her:
(a)“As a result of the injury, I went through a long and hard journey to recover where I spent months in rehabilitation” [3].
(b)“I have since my injury had difficulty coping with the changes that occurred due to my cognitive capacity. This has included difficulty in concentrating for long periods. I fatigue and tire easily whenever I try to focus” [4].
(c)“Unfortunately my injury has also impaired my short term memory and I have become very forgetful. I have to write everything down to make sure that I don’t forget it, however even then I forget to undertake tasks that I am required. This has also impacted my ability to instruct my lawyers” [5].
(d)“Since my injury I also have difficulty maintaining my emotions and I often get upset and angry very quickly. At times my emotions can impact the decisions and choices that I make in a negative way” [6].
In her affidavit filed in support of the application Ms F said the following about the wife:
(a)“Following the injury my mother changed significantly, particular with regards to her cognitive ability” [6].
(b)“I have noticed that my mother has difficulty with her short-term memory and she often forgets about the tasks that she is required to do, she is also forgetful of conversations that may have taken place” [7].
(c)“I have also observed my mother finding it difficult to maintain her emotions and she becomes angry very quickly, my mother was not previously an angry person. My mother can also become very irrational as a result of her inability to control her emotions and this impacts on decision-making ability” [8].
(d)“I am of the view that my mother no longer has the requisite capacity to instructor legal representatives in the current matter” [9].
(e)“I am also of the opinion that she can no longer make choices that are in her best interests given that the state of her impairment” [10]
(f)“My mother not only has significant trouble providing cogent instructions to her legal representatives, she has failed on a number of occasions to properly instruct legal representatives in a prompt and timely manner and has forgotten to provide her lawyers with instructions and key documents on numerous occasions” [11]
In his affidavit in support of the application, Mr BB stated:
(a)In June 2018 there was a conference with the wife and counsel where Mr BB formed the view that the wife was able to give competent instructions [4].
(b)Mr BB maintained this view until April 2019 where after subsequent conversations and interactions with the wife, Mr BB formed the view that the wife does not hold sufficient capacity to provide competent instructions to her solicitor or barrister [5] to [7].
(c)Mr BB noted that the wife over the past two months in his dealings with her was constantly forgetful, forgetting the advice she had previously received on multiple occasions. The wife forgot tasks she was asked to complete and documents she was asked to obtain and on occasion refused to complete certain tasks [7] and [8].
(d)Mr BB observed that the wife was not capable of providing rational instructions and becomes angry and annoyed very quickly which made dealing with the wife very difficult [9] and [10].
(e)Mr BB holds the firm view that the wife no longer has the requisite capacity to instruct her solicitor and counsel and is incapable of making choices that are in her own best interests with Counsel sharing the same concerns [11] and [12].
(f)In light of his concerns, Mr BB contacted the wife’s general practitioner Dr Q to have the wife’s capacity assessed and was informed that Dr Q did not have the relevant qualifications to make such an assessment [15].
(g)Dr Q referred the wife to see a neuropsychologist [16].
In July 2019 Dr G, the Head of the Department of Neuro and Clinical Psychology at R Clinic, Suburb S, a practicing Clinical Neuropsychologist and Fellow of the College of Clinical Neuropsychologists and College of Clinical Psychologists was requested to assess the wife as to her capacity.
In the letter of instruction from Mr BB to Dr G copies of the following were included:
(a)The affidavits of Mr BB, the wife and Ms F.
(b)The email from Ms H.
(c)The report by Ms P.
(d)The report of Dr K.
(e)A letter from Dr Q dated September 2017,
(f)The Cerebral CT scan result dated March 2012.
In July 2019 Dr G released her report which concluded that the wife is not able to provide adequate and competent instructions in her financial settlement [4.15d.].
In preparing for the assessment Dr G noted the following as to the medical documentation provided to her:
(a)Dr Q became the wife’s GP in August 2011 [1.1]
(b)When the wife was discharged from the Town O Rehabilitation Unit in June 2010, Dr Q noted that the wife presented with post-traumatic amnesia until April 2010, excessive dysphasia, mild receptive dysphagia, poor insight and poor concentration and fatigue [1.1].
(c)The wife’s previous GP had put in place a Mental Health Plan to help the wife with severe anxiety and the wife started on a different antidepressant by another GP in October 2011 when her anxiety worsened [1.2].
(d)The wife regained her driving license February 2012 following an Occupational Therapy driving assessment but suffered a grand mal seizure in April 2012 and was prescribed an antiepileptic medication which required her to refrain from driving for a another 6 months [1.3].
(e)The wife was referred to a neurologist Dr T who together with Dr Q have managed the wife’s care. Dr Q advised that the wife’s epileptic medication has changed from Epilim to Keppra and that the wife ceased anti-depressant medication in 2016 but has had intermittent psychological reviews [1.4].
(f)The wife has had to contend with other health issues since her brain injury and the wife has felt constant stress with her unresolved marital/divorce/property/business issues with such stress and anxiety persisting [1.4].
(g)Dr Q felt that the wife’s prognosis was good provided she is able to manage her stress, continue with anti-epileptic medication and seek psychological counselling or psychiatric review if needed [1.4].
(h)Dr K on assessment found signs of impairment in the wife’s attention, perceptual abilities, memory and some executive functions [1.6].
(i)The Cerebral CT scan documented evidence of post-traumatic encephalomalacia/gliosis involving the left temporal lobe [1.8].
(j)Ms P reported that the wife has ongoing functional limitations as a result of before including tinnitus and being limited to sedentary occupational lifting [1.9].
(k)Ms P commented on the wife’s subjective cognitive complaints which include difficulties of short-term memory, concentration, decision-making and fatigue [1.9].
(l)Ms P commented on the behavioural consequences of the wife’s accident including depression which fluctuated depending on her circumstances anxiety, difficulty with motivation, social withdrawal, difficulties with sleep and subsequent fatigue [1.09].
(m)Ms P noted that there were reports stating that the wife had difficulty with attending to financial matters and paperwork and requires assistance with cleaning, home and yard maintenance and car washing [1.09].
The wife during her interview was informed that Dr G’s role was to make “an independent assessment of her circumstances and abilities” with the “purpose of the assessment… to undertake a neuropsychological assessment and interview” and that the “information revealed… would not be privileged and could be used in her court case” [2.3] with the wife signing a consent form for the purposes of the report [2.4].
During the interview the following was discussed between the wife and Dr G:
(a)“Ms F had provided her with a great deal of help and assistance… Ms H had also been very supportive” [2.8].
(b)“She had lost a huge sum of money. This includes money in shares, stocks, land and loans amounting to $700,000” [2.11]
(c)“She… accused her ex-husband of deliberately hiding assets”. When asked if she had discussed the matter with her lawyer she responded “he is useless, he does nothing, he tells me to deal with it all” [2.11] and [2.12].
(d)When asked if there was any independent investigation of the matter it was “very difficult to follow her conversation as she provided information out of context and in an extremely digressive manner” [2.12].
(e)The wife repeatedly said “that she had informed her lawyer about the concern she had, but that he was ‘incompetent and doesn’t do his job. He needs this assessment, not me, you should examine him” [2.12].
(f)Dr G “eventually learned that she had a forensic accountant looking into matters for her. She told me that the business accountant was not providing the information necessary for the forensic accountant to investigate. Therefore the process was being unnecessarily held up” [2.12].
(g)The wife told Dr G that “her lawyer does not fully understand the situation she is in, or the position her ex-husband has put her in… She becomes stressed and frustrated and cannot make decisions. She accepted that she continually changes her mind, but does so because she is ‘stressed’… She had already engaged two previous lawyers to deal with the matter, but they had both lied to her and had been incompetent… she was considering instructing another lawyer to take over from Mr BB” [2.14]
(h)Dr G asked the wife on several occasions why her lawyer felt that the wife needed a litigation guardian where the wife “initially avoided the question, repeating allegations about her ex-husband… she felt her lawyer needed a neuropsychological assessment… she had made 90% recovery and was perfectly competent to deal with her settlement and general affairs” [2.14].
(i)After being redirected several times by Dr G the wife “eventually conceded that she, the barrister and her lawyer had a meeting in Sydney after which they decided she would need a litigation guardian. However she was unable to specify the reasons for their decision. She eventually told me that the barrister ‘a really nice lady’ was being ‘led’ by her lawyer” [2.14]
(j)The wife was unable to provide Dr G “with any specific reasons why her legal team had concerns about her capacity to deal with her financial settlement, her business or why she could not provide legal instructions” [2.14].
(k)Dr G directed the wife to her lawyer’s affidavit and the concerns he raised, which the wife denied stating “she was not forgetful and… ‘I chose not to provide the information he asked for, why should I when he doesn’t reply to my emails or do what I ask’” [2.16].
(l)When asked about her anger, the wife “laughed stating ‘anger what anger? Do you think I have a problem with anger?’” [2.16].
(m)When asked about Ms F’s affidavit, the wife replied “Ms F knows I’m better, she said I’m finally on track”. When it was pointed out to the wife that her “view was not consistent with what Ms F had said” the wife said “she could not remember what Ms F had written and did not wish to review it because ‘it stresses me out, I don’t like this’. I run a large company, I manage on my own, I don’t need to stress” [2.17]
(n)When the wife was directed to her own affidavit where she had signed it and agreed she required a litigation guardian the wife said “Mr BB made me sign stuff, I only did it for that reason, I don’t know what he made me put, I don’t need all this stress” [2.18].
(o)When the wife was asked whether she needed a litigation guardian she replied in the negative [2.19].

When interviewed Ms F informed Dr G as to the following:
(a)“Ms F has significant concerns about her mother’s cognitive ability. She said that while she has made a significant improvement from the time of her accident, there were ongoing problems in terms of memory and behaviours associated with executive functioning. Ms F said there were some issues that were becoming more apparent in the past few years. In particular, when dealing with serious or complicated matters, her mother becomes ‘fixated’ on small or insignificant points and fails to see the big picture” [2.29].
(b)“Ms F also said her mother fails to see the consequences or seriousness of her actions… she did not make the best decisions regarding her safety or in relation to decisions that could have long-term consequences. In terms of safety, Ms F is concerned about her mother’s vulnerability, geographic and social isolation. She has driven away many of her friends as a result of her behaviour” [2.30].
(c)“Ms F is extremely concerned and believes her mother could fall victim to a ‘love scam’… Ms F believes her mother will pay for everything when she is in a relationship. Ms F also believes her mother gave $10,000 to one man she had a brief relationship with” [2.32].
(d)“Ms F explained that she has access to the mother’s bank accounts, emails et cetera and that she can see when she gives money away. She often corresponds with other men in the evenings when she is alone drinking alcohol. Ms F also said that her mother makes mistakes costing her money. She will miss a flight and will have to repurchase it. She tries to hide her errors” [2.32].
(e)“She said that on a day-to-day basis, many people would be unable to pick up what is going wrong with her mother. She said her mother has learned how to mask the difficulties she has very well… her mother could betray a normal façade for others to see which is why people, like lawyers, do not initially notice that there are problems… her mother had real difficulty comprehending things… her mother also gets emotional and extremely stressed, very easily” [2.33]
(f)“As a result of these problems, Ms F does not feel her mother can give accurate or consistent legal instructions. She said it all depends on how she is feeling on a particular day, and that her mother continually changes her mind… with respect to the settlement proceedings, her mother is on to her ‘third’ lawyer and is already looking at engaging another. Ms F finds this very distressing. She said the longer the proceedings drag on, the costlier they become” [2.34].
(g)Ms F “said her short-term memory was not good. She has to write everything down and she has seen her mother doing this. She also said that her mother only hears what she wants to hear. She would also forget things easily, or would misinterpret what she believes she may have heard… her cognitive abilities decline in the afternoon. This leads to her having increasing difficulty understanding even simple conversations” [2.37].
(h)“Ms F believes that because she is lonely, isolated and somewhat depressed, she drinks alcohol regularly each evening” and “consumes half a bottle of wine… then goes straight to bed” [2.38].
(i)“In terms of financial management… her mother does not pay bills. These are paid from the joint business account” [2.40].
(j)“Ms F is extremely concerned that her mother is financially vulnerable… she feels her isolation, poor judgment and need for attention put her at risk of exploitation… Ms F wants to make sure her mother receives a regular allowance and that she can continue to enjoy the lifestyle she has been accustomed to and deserves, but that her funds should be protected” [2.41].
(k)“After completing a IQCODE screening test for assessing changes in the mother’s memory over the past 10 years overall, Ms F rated her mother’s memory as ‘much worse’ on items such as remembering things that have happened recently, recalling conversations a few days later, making decisions in everyday life, handling money, handling financial matters and using her intelligence to understand what’s going on and reason through things… overall the pattern of responses does suggest that there has been significant changes in her mother’s memory following the accident and that these persist” [2.43].
Dr G enquired of the wife if she could contact her GP but was told “not even go there, no, don’t go there” as “her GP was ‘over it all, doesn’t want to get involved, just wants to do her job and be a GP’” [2.45].
For the purposes of the assessment Dr G conducted the following subtests on the wife:
(a)Wechsler Adult Intelligence Scale – Fourth addition.
(b)Verbal Comprehension Index.
(c)Behaviour Rating Inventory of Executive Functioning – Adult version.
(d)Novaco Anger Scale.
In respect to the testing Dr G assessed:
(a)Based on the wife’s “general intellectual ability, education and occupation she should be performing within the average range. She performed within the low average range on a predictive test designed to calculate pre morbid intellectual ability” [3.1].
(b)“Her attention for digit span forwards and in reverse fell ‘just’ within the average range… her performance on another test of working memory (mental arithmetic) fell just within the ‘low average range’. However she tended to give up easily rather than think through the answers. She also required repetition of several items. Her overall working memory index… therefore fell within the low average range” [3.3].
(c)“She performed poorly on a test of verbal abstract reasoning (between low average to borderline range). She performed within the extremely low range on a test of verbal general knowledge. Her overall verbal intellectual ability therefore fell within the borderline range” [3.4].
(d)“She performed variably on tests assessing processing speed… with performance falling within the average to extremely low range. Her overall PSI fell within the low average range” [3.6].
(e)“Her copy of a complex figure was extremely poor. She approach this task in a disorganised manner. Her copy score fell within the low average range. Her 3 minute copy fell within the borderline range” [3.7].
(f)“In terms of executive functioning, she performed variably. Phonemic fluency fell within the borderline range. She managed to complete a test of visual scanning with average range performance. She had far more difficulty on the more working memory loaded item (extremely low range performance). Her performance on a test of inhibition was variable. On the easier items, she performed and then the borderline to low average ranges. On the more complex switching sections, she performed within the average ranges, however, she made a number of errors” [3.8].
(g)“Abstract verbal reasoning had fallen just within the low average range. Her performance on tests assessing working memory loaded tasks was below expectations… behaviourally however, there were signs of dysexecutive impairment. She was extremely rigid and tangential in conversation with perseveration and difficulty staying on track” [3.9].
(h)The wife “does not view herself as having any significant day-to-day problems” [3.11].
(i)Dr G asked Ms F “to complete the observer version. Her endorsement of items was in stark contrast to the mother is a self-appraisal. Ms F’ observations led to elevations in all the overall indexes. All the individual scales were considered valid suggesting that” the wife “has significant difficulty with aspects of her executive function. There were concerns about her ability to modulate and maintain her emotions, monitor her social behaviour, and just to changes in routine or when the demands of a task change. There were concerns in terms of her ability to plan, organise and follow through with things. There were concerns about her ability to initiate and problem solve” [3.12].
(j)“The profile suggests that” the wife “has significant problem-solving rigidity with emotional dysregulation. The BRIEF report notes that ‘individuals with this profile have a tendency to lose emotional control when their routine or perspectives are challenged and/or flexibility is required” [3.13].
(k)“On qualitative assessment of her mood” the wife “endorsed all but one item as ‘zero’ i.e., does not apply to me. This suggested that” the wife “feels she is experiencing no significant ranges of depression, anxiety or stress” [3.14].
(l)As to the anger scale the wife in her responses “were scored within a category that is associated with unusually low about of anger. Only a small percentage of the population would score as low on the test. It suggests the test taker might want to examine whether their answers were honest and whether they are possibly denying their angry feelings” [3.15]
(m)The wife refused to participate in the assessment of her memory function. The wife admitted that her short-term memory was all and she was “very stressed” and that she did not need an assessment. The wife reminded Dr G that it was her lawyer that should have an assessment she was fine. Without the patient’s consent it was not possible for Dr G to make an accurate assessment of the individual’s memory functioning and assessment ceased at that point [3.17].
Under the heading “Discussions” Dr G noted the following:
(a)“Records suggest post-traumatic amnesia till the 30 April 2010. This would classify her brain injury is very severe. A brain injury of this magnitude suggests there will be ongoing neurobehavioral problems. The only neuropsychological records I had were in relation to an assessment conducted in March 2011… with a focus on her return to driving. There were impairments noted” in the wife’s “visual scanning, particularly as the complexity of the stimuli increased. There were impairments in complex visuospatial attention, perception, memory and preplanning. Impairments were noted in her verbal processing speed, immediate auditory attention and new memory formation” [4.3].
(b)The wife’s “current neuropsychological profile suggests that she is performing below expectations in terms of her working memory, verbal intellectual functioning and processing speed. Very limited assessment of her memory was possible due to non-compliance. However, on two tests of visual memory, her performance fell significantly below expectations. No assessment of her non-verbal intellectual ability was possible, again, due to non-compliance… she performed below expectations on many aspects of executive functioning… there was evidence of very poor insight. She denied any difficulties managing her anger and her scores on a questionnaire were below that would usually be reported by other individuals of her age. She denied any significant day-to-day difficulties with executive functioning. However this was in stark contrast to my behavioural observation and Ms F’s endorsement of her mother’s day-to-day abilities” [4.7].
(c)“Behaviourally” the wife “was initially very reserved but soon relaxed after I provided her with reassurance and guided her through the purpose of the interview. However, her mother shifted easily and was noted to rapidly change, becoming guarded and defensive. She became extremely rigid and tangential in conversation with perseveration and difficulty staying on track. She provided details about her circumstances in a disjointed fashion. Crucial details were not provided in a succinct and organised manner.” The wife “did not provide me with coherent reasons why her lawyer or daughter feel she is incapable of providing legal instructions or dealing with her financial settlement. She perseverated continually when pressing the details, saying she was stressed and could not remember, or claimed she had not been given reasons” [4.8].
(d)“It was evident during the conversation that as she became challenged, her reactions became emotional and further affected her ability to provide coherent and logical explanations” [4.9].
(e)“She has signed an affidavit agreeing that she no longer has the capacity to give legal instructions or deal with her financial settlement. On interview however she alleges she was ‘forced’ to sign. She no longer agrees that she lacks the requisite capacity. Likewise” the wife “presented for the session with the understanding that her competency will be assessed. In spite of this, she refused to participate in a full assessment of her cognitive functioning insisting she did not need to demonstrate her competency. I feel these issues highlight the extent to which” the wife “is not capable of clear decision-making” [4.12].
(f)“Overall I have significant concerns about” the wife’s “cognitive and emotional status. I am of the opinion that her cognitive and emotional functioning has been having a negative impact on her capacity to make carefully considered judgments, on her ability to reason, problem solve and deal with her current legal matters” [4.12].
Under the heading “your questions” Dr G write:
(a)“I am of the opinion that” the wife “has difficulty maintaining her emotions and anger. I am not of the opinion that she can make decisions about her financial settlement or to provide legal instructions without being negatively influenced by her emotions” [4.15].
(b)“I am not of the opinion that” the wife “can provide adequate and competent instructions in her financial settlement” [4.15].
(c)“Whilst” the wife “has no language based impairment affecting her comprehension, her verbal intellectual abilities fall below expectations, her processing speed and working memory also fall below expectations. Visual memory functioning was extremely poor. There is clinical evidence of poor short-term memory. There were also impairments noted on tests of executive functioning. There appears to be ongoing misuse of alcohol which together with prescribed anticonvulsants medication, may further undermine her cognitive and emotional abilities. I believe these factors make it very difficult for” the wife “to understand complex legal or financial documents or complex business structures” [4.15]
(d)“I am of the opinion that” the wife “is suffering from a DSM-5 major neurocognitive disorder with personality change due to her traumatic brain injury” [4.16].
(e)“I had no evidence to suggest that” the wife “had any cognitive or behavioural problems prior to her fall. Therefore I am of the opinion that her cognitive and behavioural problems are secondary to her suffering a severe traumatic brain injury as a result of the fall in 2010” [4.16].
(f)“Cognitive impairments following a traumatic brain injury are usually stable. However abuse of alcohol or other substances along with psychological disturbances may impact negatively on her cognitive impairments. I believe that” the wife’s “injuries may decline further as she ages. Individuals with traumatic brain injury are at an increased risk of developing dementia in comparison to individuals without traumatic brain injury” [4.16].
(g)The wife “requires cognitive rehabilitation along with a psychiatric assessment of her emotional functioning and use of alcohol. If she is compliant with these recommendations, relevant treatment is available to her” [4.16]
In July 2019 by order of the court and the consent of the husband, Mr Morton was appointed as litigation guardian for the wife.

Conclusion

Based on the evidence before the court I make the following findings:
(a)The wife since the accident and prior to the appointment of the litigation guardian had received treatment from numerous health professionals including:
(i)The Town L Hospital.
(ii)The Region U Hospital.
(iii)N Hospital Brain Injury Rehabilitation Unit.
(iv)The Town O Rehabilitation Centre.
(v)Various GPs including Dr Q.
(b)The wife since the accident and prior to the appointment of a litigation guardian had engaged in and obtained medico/medico-legal reports from:
(i)Dr K neuropsychologist.
(ii)Ms P occupational therapist.
(iii)Dr G clinical neuropsychologist.
(c)In preparing the reports the medical practitioners had access to the available medical records and conducted testing considered appropriate in assessing the wife’s capacity.
(d)Ms P and Dr G had access to the email written by Ms H who had lived with the wife for four months in 2018.
(e)Dr G had further access to the affidavits by the wife, Ms F and Mr BB, prepared for the purposes of the application for the appointment of the litigation guardian.
(f)Dr G spoke to various persons that had provided information to seek clarification and further information about issues regarding the wife.
(g)The medical assessments conducted in 2011 (Dr K), in 2018 (Ms P) and in 2019 (Dr G) gave no indication that the wife was improving in the behavioural challenges faced by her since her accident in 2010.
(h)There is commonality in the three reports as to the wife’s condition including but not limited to the following:
(i)Functional difficulties.
(ii)Limited cognitive functions.
(iii)Difficulties with memory.
(iv)Difficulties with perception.
(i)Dr P and Dr G also reached similar conclusions as to the wife’s condition including but not limited to the following:
(i)Reduced concentration.
(ii)Easily distracted.
(iii)More irritable.
(iv)Difficulty making complex decisions.
(v)Needs to have information written down.
(vi)Struggles to find the right words.
(vii)Has suffered depression and anxiety.
(viii)Is easily overwhelmed.
(ix)Has difficulty retaining new information for processing complex information.
(x)Masks her difficulties and her deficits to others.
(j)Dr G raised additional concerns including:
(i)The wife’s refusal to allow Dr G to contact her GP in order to conduct a memory test upon the wife.
(ii)The wife failure to answer the questions to the anger scale test accurately.
(iii)The wife having had issues with depression and anxiety for which she was previously medicated but had not taken medication since 2016.
(iv)The wife benefiting from a psychiatric intervention regarding her issues and taking into account her alcohol intake.
(v)The wife being prescribed anticonvulsants medication after April 2012 because of a grand mal seizure with the wife being on Keppra.
(vi)The wife misusing alcohol when on prescribed anticonvulsants medication that may be undermining her cognitive and emotional abilities.
(vii)The wife lacking insight refusing to acknowledge having any significant day-to-day problems.
(viii)The wife’s repeated insistence that it was her lawyer that required assessment and not her.
(ix)The wife’s inability to plan, organise and follow through with things and her inability to initiate and problem solve.
(x)The wife performing below expectations in terms of her working memory, her verbal intellectual functioning and processing speed,
(xi)The wife being extremely rigid and tangential in conversation and having difficulty staying on track and providing details in a disjointed fashion.
(xii)When challenged, the wife reacting emotionally which affected her ability to provide coherent and logical explanations.
(xiii)The wife is suffering from a DSM-5 neurocognitive disorder due to the traumatic brain injury.
(xiv)That the wife needing to undergo cognitive rehabilitation as well as a psychiatric assessment of her emotional functioning so as to properly address the issues.
(xv)The likelihood that there would be a decline in the wife’s condition as she ages.
(k)The wife has acknowledged the difficulties (albeit at times downplayed) faced by her since the accident, as evidenced by the following:
(i)The completion of questionnaires.
(ii)The participation (albeit at times limited) in the testing and assessment process for the obtaining of the medico/medico-legal reports.
(iii)The granting of the Enduring Power of Attorney to her two daughters Ms F and Ms H to handle her financial affairs.
(iv)The provision of an affidavit for the purposes of the application to appoint a litigation guardian.
(l)The wife has acknowledged the ongoing support and assistance provided to her since the accident from Ms F and Ms H.
(m)Ms F and Ms H have observed differences in the wife’s behaviour since the accident including:
(i)The impact on her cognitive ability.
(ii)Short-term memory loss.
(iii)Forgetting tasks she is required to do and conversations she has had.
(iv)The ability to maintain her emotions.
(v)Becoming aggressive and angry.
(vi)Being irrational which impaired on her decision-making capacity.
(vii)Not making good choices.
(n)Mr BB, her lawyer, noted a deterioration in the wife’s ability to provide instructions leading up to the application being made for a litigation guardian such as:
(i)Being constantly forgetful and forgetting the advices she had received previously on multiple occasions.
(ii)Failing to complete tasks requested of her by her lawyer as she had forgotten about the tasks.
(iii)Failing to obtain documents requested of her by her lawyer as she had forgotten about the documents.
(iv)Refusing to carry out tasks requested of her by the lawyer.
(v)Failing to provide rational instructions.
(vi)Becoming angry and annoyed very quickly with her lawyer making dealings with the wife very difficult for her lawyer.
(o)The medical evidence accompanied by the observations of family and lawyers supported the appointment of a litigation guardian as the wife did not have the ongoing capability to adequately conduct or give adequate instructions for the conduct of proceedings.

Wife’s capacity and ability since appointment of litigation guardian until April 2020 when wife engaged new lawyers

After his appointment as litigation guardian Mr Morton spoke to the wife to obtain background information with the wife voicing her objection when she did not agree with a decision that was made on her behalf ([11] Mr Morton’s affidavit dated March 2021).
Mr Morton and Mr BB kept Ms H and Ms F informed as to the tasks they were performing on behalf of the wife ([12] Mr Morton’s affidavit dated March 2021).
In August 2019 Ms P prepared a supplementary medico legal report having read the neuropsychological assessment undertaken by Dr G where Ms P concluded.
(a)“I see no reason to question the findings or recommendations of Dr G”.
(b)“Dr G’s findings further reinforce the fact that” the wife “would struggle to sustain employment”.
(c)The wife “would benefit from cognitive rehabilitation and case management, however because of her short insight may not be compliant with this”.
(d)“Based on the report of Dr G where” the wife “was observed to minimise her difficulties, it is possible that” the wife “may have underestimated her care and support needs to me during the assessment”.
(e)“It is possible that” the wife “may need increasing levels of care if her intellectual capacity declines with age because of her brain injury and her disposition to develop dementia”.
In August 2019 the parties prepared their affidavit material in anticipation of the final hearing in September 2019 with Mr Morton preparing an affidavit of financial circumstances for the wife.
At the final hearing in September 2019, the wife did not attend, with negotiations spanning days between the wife’s legal representatives instructed by Mr Morton and the husband’s legal representatives instructed by the husband.
Final consent orders for property were made by the court in September 2019 with Mr Morton filing an affidavit setting out the facts relied upon to satisfy the court that the orders made were in the wife’s best interests.
Mr Morton informed Ms F and Ms H of the settlement and the steps that have been taken since settlement for the implementation of the orders ([12] Mr Morton’s affidavit dated March 2021).
In December 2019 Mr Morton, the wife and Ms F attended upon V financial advisers in Brisbane to obtain preliminary legal advice about the management of property settlement funds to be received.
In January 2020 after the sale of the former matrimonial home the wife with the assistance of her daughters relocated to the Region U.
Various problems arose with the implementation of the court orders ([14] to [23] Mr Morton’s affidavit dated March 2021) together with delays due to communications between the parties and their lawyers ([24] Mr Morton’s affidavit dated March 2021).
The delays were attributable to:
(a)The husband being overseas.
(b)Mr BB and Mr Morton being in different states.
(c)Instructions been obtained firstly by Mr Morton from Ms F and Ms H before being communicated to Mr BB.
(d)The impact of Covid-19 ([24] litigation guardian’s affidavit dated March 2021).
In addition there were GST considerations in relation to the Town W units ([25] litigation guardian’s affidavit dated March 2021).
In February 2020 Mr Morton provided the wife, Ms F and Mr BB with details of the expenses from the sale of the crop together with tax invoices.
In February 2020 the wife ceased communication with her daughter and attorney, Ms F.
In March 2020 minutes of consent were being drafted to formalise the amendments necessary to the September 2019 final orders because of the amendments to property values and to correct uncertainties in the order with the litigation guardian informing Mr BB of the need to get counsel’s opinion as to the proposed amendments.

Conclusion

Based on the evidence before the court I make the following findings:
(a)Ms P in her updated report upheld the findings and recommendations made by Dr G.
(b)Mr Morton and Mr BB, after consultation with the wife’s attorneys were taking the necessary steps in the circumstances to complete the implementation of the final property orders made by consent in September 2019.
(c)The wife and Ms F were kept informed as to what was happening in the implementation of the court orders.
(d)There is no evidence that there was any change in the wife’s condition and behavioural issues for the better and if anything concerns continued given that the wife has ceased communication with Ms F.

Wife’s capacity and ability from April 2020 until hearing of the application to remove the litigation guardian in April 2021

In April 2020 the wife instructed the new lawyers.
In May 2020 the wife ceased communication with her daughter and attorney, Ms H.
In May 2020 the wife emailed the litigation guardian stating “I am in the process of having you removed as my litigation guardian and I need a copy of the medical report in order for me to do so”.
In May 2020 the wife emailed the litigation guardian again stating “would you agree to removing yourself as my litigation guardian? If you do not agree, please provide me with your reasons”
In May 2020 the litigation guardian replied to the wife’s emails stating:
(a)“I do not agree to ‘removing myself’ as a litigation guardian”
(b)“A litigation guardian be removed in one of three ways:-
(i)The litigation guardian seeking an order from the court that he/she be removed.
(ii)The person for whom the litigation guardian was appointed, is now able to conduct is/her own case and instruct lawyers. This would be based on medical evidence; or
(iii)A court remove the litigation guardian”
(c)“Currently I am your litigation guardian instructing Mr BB”
(d)“I am unsure whether you have approached Mr BB indicating that you have either sufficient capacity to instruct him directly or alternatively, that you are obtaining consent of another person to act as litigation guardian”
(e)“In the meantime as we discussed last week your case is at a point with respect to implementation of the orders, where it currently requires continuity of instructions to lawyers on the parts of the orders which have yet to be performed”
(f)“Having regard to the issues involved, to have a change to a new litigation Guardian representing you, or a change of your legal representation, would at this stage severely prejudice the process of the implementation of the orders”
(g)“I hope you understand my position that as litigation guardian I need to continue to provide what I believe are appropriate instructions to Mr BB based on legal advice from him and from Counsel with respect to the steps required to finalise the implementation of the court orders”
In May 2020 the wife ceased communicating with the litigation guardian.
In July 2020 the wife’s new lawyers provided Dr J with a letter of instruction which contained the following:
(a)A copy of the expert guidelines as set out in the Federal Court Practice Note.
(b)Authorities as to admissibility of expert evidence.
(c)Background information as to the wife, the property proceedings and the appointment of the litigation guardian.
(d)The reason provided as to why the new lawyers were contacted by the wife was because of concerns as to the timely discharge of the final property orders explained as follows “in short” the wife “is unhappy with the work being carried out by Mr BB and Mr Morton on her behalf in ensuring the orders are discharged and with Mr Morton’s inability to inform” the wife “(despite her request for him to do so) and to keep her informed, as to why certain orders had not been upheld by” the husband “and what Mr BB is seeking to do in respect of rectifying those issues”.
(e)The wife is unable to remove the litigation guardian without the leave of the court which would then allow her to instruct a different solicitor and this is what the wife will seek to do should the assessment find that the wife does not need a litigation guardian.
(f)The wording of Rule 11.08 was provided.
(g)A request was made for Dr J to examine the client and provide an assessment as to the wife’s:
(i)“Mental capacity to give adequate instruction to a solicitor with the carriage of her family law property matter, without the need for a litigation guardian”
(ii)“Mental capacity to manage her finances including but not limited to the funds which were ultimately be distributed to her… being the sum of five point four million dollars ($5,400,000)”
(h)Included in the letter were copies of:
(i)The affidavits of Dr G (clinical neuropsychologist), Ms P (occupational therapist) and Dr K (neuropsychologist).
(ii)The affidavits of Mr BB, Ms F and the wife.
(iii)The medical notes from Dr Q, Town O Hospital Rehabilitation Unit and the Region U University Hospital.
(i)Dr J also had access to an MRI brain scan and EEG report from September 2020.
Dr J interviewed the wife in September 2020.
In making her assessment of the wife, Dr J undertook the following:
(a)Obtaining a full comprehensive history from the wife.
(b)Examining the wife.
Dr J for the purposes of the report:
(a)Did not conduct any tests or questionnaires on the wife.
(b)Did not speak to the wife’s medical practitioners.
(c)Did not speak to the wife’s daughters as the wife’s attorneys.
(d)Did not speak to Mr Morton.
(e)Did not speak to Mr BB.
(f)Did not speak to the wife’s new lawyers.
(g)Did not speak to the wife’s friends or acquaintances.
Dr J states that the opinion was based solely on the interview with the wife and the medical information provided ([1.6] Dr J’s September 2020 report).
Dr J recognised the deficiencies in the information available to her stating:
(a)“It would be useful to obtain collateral history from her financial planner and accountant to corroborate” the wife’s “testimony of her discussions with her professional advisers” [2.2].
(b)“Her treating psychologist may also be able to give insights into” the wife’s “psychological condition during the last 4 years to confirm that most of” the wife’s “issues were related to ‘stress’” [2.2].
(c)“I have no notes from” the wife’s “psychologist… except her GP notes that she benefited from antidepressant medication. This would be an important source of information” [4.11].
In September 2020 the report was released by Dr J which contained the following:
(a)“Based on the information provided in your letter of instruction, I confirm that my specialty is appropriate for the conduct of this assessment. I am a Consultant Neurologist with over 30 years’ experience in the treatment of Neurological disorders, specialising in Peripheral Nerve Diseases, Migraine, Epilepsy, Electrodiagnostic testing and EEG”.
(b)“I have been asked to assess” the wife’s “neurological status as she suffered a full basic brain injury in 2010” [1.1].
(c)The wife “is now applying to remove the litigation guardian because of concerns about his competency to manage her financial affairs” [1.3].
(d)“I interviewed the wife today for the purposes of assessing her mental state and emotional control and to gather information about decisions regarding removal of the litigation guardian” [1.4].
(e)“I would opine on today’s examination that” the wife “is emotionally and neurologically confident to undertake the role of her finances and the legal proceedings” [2.1].
(f)“She has been… able to manage her home life, social life and business concern despite having the traumatic brain injury” [2.2].
(g)“I noted the concerns of her daughter and lawyer about” the wife’s “emotional control and memory. In my opinion there are circumstances other than her brain injury that need to be considered as causative factors contributing or causing emotional outbursts” [2.3].
(h)“Traumatic brain injuries can cause several deficits depending on the site of the lesion. However, epilepsy, medications and psychosocial circumstances are contributing factors to patient’s emotional health and regulation” [2.4].
(i)“It appears from the reading of Dr Gs… report… that she concluded that” the wife’s “irrational behaviour was exclusively due to the traumatic brain injury without considering the possibility that it could be a side effect of” the wife’s “medication or epilepsy phenomena. It is also well-recognised psycho-social pressures influence patient emotions irrespective of an underlying brain injury” [2.5].
(j)“I would disagree with Dr Gs interpretation of the data and content that the primary reason for” the wife’s “behaviour was a medication side effect in conjunction with the psycho social pressures of her legal and financial situation” [2.6].
(k)“I would therefore conclude that” the wife “is competent to undertake management of her financial affairs and direct a lawyer of her choice” [2.7].
(l)“Comparing the neuropsychological report dated 2011… and the report of Dr G in 2019 the deficits noted as a consequence of the traumatic brain injury were stable.” The wife “shows impairment on these parameters… In terms of comparative to general population the parameters of borderline to low are less than 3^rd percentile and would below the 97^th percent of the general population. The question of whether these cognitive parameters are significantly impaired is necessary for competency and understanding the nature and possible consequences of a proceeding, or other quickly conducting or giving instructions for legal and financial proceedings” [4.14].
(m)“When asked today why” the wife “was now looking to remove her litigation guardian, she replies she had concerns about his competency and ability to manage her finances” [7.1].
(n)The wife “was concerned about the Neuropsychological Assessment that had been tabled in 2019” [7.2].
(o)The wife “denies having emotional outbursts… Although her children feel she has emotional changes she does not think so” [7.4].
(p)“She reports she has several friends, none of whom had complained about her memory or behaviour… when asked specifically about world affairs she had a good knowledge of current events… aware of the Covid19 situation… able to name the Prime Minister” [7.5].
(q)The wife “reports she had no problem with memory that she is aware of” [7.6].
(r)“She remembers appointments with her financial advisor and her accountant. She is competent in activities of daily living and can look after herself, care for herself and maintain her home. She is also able to maintain and manage a significant business venture” [7.6].
(s)The wife’s “critical neurological examination… was unremarkable. Her appearance was tidy and her demeanour normal. She appeared somewhat fragile and likely to anger easily but was able to control this when asked challenging questions in the interview. She had normal speech and normal verbal comprehension. There were no changes in the visual fields to confrontation. There were no focal neurological signs” [9].
(t)For the wife “there is no evidence of damage to the frontal lobe structures… Epilepsy may present as emotional outbursts depending on the site of the excitor focus. However” the wife’s “EEG is within the stable range and it seems unlikely that her ‘emotional outburst’ were related to epileptic phenomena” [10.6].
(u)“Keppra… is well-recognised to increase and mood disturbance and this is more likely to occur in the injured brain. In addition, her reported emotional instability and anger outbursts occurred after this medication was commenced and were not noted prior. This makes Keppra a likely candidate for emotional irritability which may well have been treated by” the wife’s “social circumstances” [10.7].
(v)“Added to the mix is the psycho social situation of dealing with severe acquired brain injury and court proceedings, coupled with frustration at not being able to access her funds” [10.8].
(w)“In conclusion it is my opinion that” the wife “is competent to manage her own financial affairs and legal proceedings” [11.1]
(x)“Should her emotional state deteriorate at any time in the future, then consideration should be given to the contribution from her anti-epileptic medication… this could be reviewed by the treating neurologist with a view to a change of medication to one without these potential side effects. In my opinion she will continue antiepileptic medication lifelong in view of the degree of scarring noted on the MRI and the associated high risk of epileptic seizures” [11.2].
In October 2020 the new lawyers in an email to Mr BB (copying in Mr Morton), wrote:
(a)The wife in September 2020 had attended upon Dr J who after examining the wife concluded that the wife “is competent to manage her own financial affairs and legal proceedings” and “direct a lawyer of her choice” with a copy of Dr J’s report attached to the email.
(b)The wife has instructed the new lawyers to take carriage of her family law matter with a request made for the file to be delivered to the new lawyers with an authority signed by the wife attached to the email.
(c)The wife instructed her new lawyers for the litigation guardian to be removed.
In October 2020 the wife’s new lawyers emailed Mr Morton (copying in Mr BB) stating:
(a)“We are instructed to request that you do all acts and things and sign all necessary documents so as to facilitate your removal from the court record as” the wife’s “litigation guardian”.
(b)“We look forward to confirmation that you agree to remove yourself as” the wife’s “litigation guardian” within 7 days.
In October 2020 Mr BB in an email to the new lawyers responded:
(a)Correspondence should not be sent directly to the litigation guardian as he is their client and that all future correspondence should be directed to them.
(b)Mr Morton did not intend to remove himself as litigation guardian and that instructions could not be taken from the wife until such time as the court had terminated Mr Morton’s role as litigation guardian as it is the court’s decision to determine his removal.
(c)Having read Dr J’s report Mr BB held the view that there were no grounds to justify Mr Morton’s removal.
(d)As to the medico-legal report:
(i)Dr J used the term “assessing competence” in referring to the need of a litigation guardian which does not accord with Rule 11.08 which refers to not understanding the nature and possible consequences of the proceeding or not capable of adequately conducting or giving adequate instructions for the conduct of the proceeding.
(ii)The report makes reference to removing the litigation guardian because of concerns about Mr Morton’s competency to manage her legal affairs when Mr Morton is not managing the wife’s financial affairs but providing instructions in the implementation of final orders. The role of the litigation guardian continues after the occasion order is made and is needed for the purpose of effecting the terms of the order. The more complex financial affairs of the wife are managed by her attorneys.
(iii)The financial competency of the wife was not the predominant reason for the appointment of the litigation guardian as the reason was because of the inability to obtain adequate instructions from the wife. The report does not assist in reaching a conclusion that is contrary to Mr Morton’s appointment.
(iv)Dr J disagrees with Dr G’s opinion but Dr J appears to be conflating the question of competence when it is the question of the ability to give adequate instructions that gave rise to the litigation guardian.
(v)The best person to provide evidence of the need for the appointment of a litigation guardian when it comes to the issue of ability to give adequate instructions is the lawyer who has been acting on behalf of the client prior to the appointment.
(vi)It was the inadequacy of the ability to get instructions that provided the need for a litigation guardian.
(vii)The fact that the wife can manage her own day-to-day financial affairs and personal matters on a daily basis is not indicative of ability to give adequate instructions for the conduct of litigation and the report of Dr J is limited in that respect.
(viii)Dr J indicated that her opinions were based solely on what the wife had relayed to her and she conceded the need for further evidence to corroborate what the wife had been saying about the management of her affairs and her psychological condition.
(ix)The management of the units is done dominantly by Town X Real Estate Agent where they were responsible for employing tradesperson’s to work on the property.
(x)As to financial planning Mr Morton spoke with Ms Y at Z who had not had much contact with the wife.
(xi)There were no details given as to the “business concern” for which the wife is responsible.
(xii)Even accepting the fact that the wife has the ability to manage her home life social life and a business concern is not necessarily supportive of the argument that she can manage her complex legal matters especially when it is reasonably complicated and at an advanced stage and involves the obtaining of a private tax ruling from the ATO.
(xiii)Overall Dr J did not obtain from the wife a complete understanding of the current issues involving the finalisation of the orders, the size and extent of the asset pool and how the wife would manage the coordination of that using lawyers, accountants and financial planners.
(xiv)The wife has been able to access funds and her level of frustration is not being able to access the full amount of capital received so far from the property settlement. This will be determined by the attorneys and not something to be determined by Mr Morton in his role as litigation guardian.
(xv)Mr BB is not of the view that the wife is competent to provide adequate instructions as to the final implementation of court orders and is satisfied with the instructions received from the litigation guardian.
(xvi)It would be detrimental to have the current litigation guardian discharged with his knowledge of the various aspects of the matter.
(xvii)A copy of Dr J’s report will be sent to Dr G for her comment.

In March 2021 the husband’s lawyers filed the response seeking the following orders:
(a)The wife’s application in a case be dismissed.
(b)The wife pay the husband’s costs of incidental to the application as agreed or assessment.
In the supporting affidavit the husband stated:
(a)The property settlement has been complex and litigation has extended for almost 8 years [3].
(b)The wife has changed legal representation three times whilst the matter was before the court [4].
(c)Since the appointment of Mr Morton, the running of the case has improved significantly [5].
(d)The wife did not attend court at the final hearing and was not available to give evidence because of her medical condition [6].
(e)Since the making of the final property orders, matters have arisen as to the amendments of the orders [7].
(f)The implementation of the orders continue requiring the cooperation of Mr Morton with the husband and the husband’s lawyers [13].
(g)The husband has found Mr Morton to be approachable and open to discussion regarding the issues and possible methods of resolving the issues [18].
(h)The husband has not observed Mr Morton conducting himself unprofessionally or inappropriately in his role as litigation guardian [19].
(i)A change in legal representation for the wife at this time would result in time delays and extra costs [20].
(j)The husband was financially disadvantaged by the current delay brought about by the application to remove Mr Morton [28].
(k)The husband is of the view that the matters are too complex for the wife to understand due to her acquired brain injury [29].
(l)The husband has concerns as to the accuracy of the factual matters and history provided by the wife to Dr J [30].
(m)If the wife was left to manage the remaining litigation the finalisation of the matter could be well delayed and may involve more litigation at a cost to both parties [31].
(n)With the involvement of Mr Morton the property settlement has now been well advanced and is in the final stages of settlement [32].
In March 2021 Mr BB filed a response to the application in a case seeking the following orders:
(a)Mr Morton’s costs be paid from the estate of the wife on an indemnity basis or in the alternative such further order as to costs as the court deems fit.
(b)The application for costs against Mr BB be dismissed.
(c)The husband’s costs be paid by the wife’s new solicitors on an indemnity basis or in the alternative such further order as to costs as the court deems fit.
In the supporting affidavit Ms H stated:
(a)In April 2018 the wife executed an enduring Power of Attorney appointing Ms F and Ms H jointly and severally in respect to her financial issues with the appointment effective immediately.
(b)Ms H has read the affidavit of the litigation guardian and agrees with the contents.
(c)Ms H understands the distinction between Mr Morton’s role as litigation guardian and Ms H and Ms F’s role as financial managers of the wife’s financial matters under the enduring power of attorney.
(d)Mr Morton has kept Ms H and Ms F informed of the decisions he intended to make and when appropriate has sought Ms H and Ms F’s views about decisions that would affect the financial position of the wife.
(e)Ms H and Ms F ensure that the wife has access to sufficient cash income to fund her lifestyle and day-to-day living expenses. The net rentals received by the wife each month are currently $13,400 per month and the wife has her own bank account in which these funds are banked and Ms F and Ms H do not oversee or manage that account.
(f)Ms H and Ms F determined that the sale proceeds be managed by them in the interim pending an overall decision to be made on the wife’s behalf in respect to purchasing a home for the wife.
(g)The wife is to receive assets in excess of $8 million.
(h)The wife ceased communicating with Ms F in February 2020 and with Ms H in May 2020. Whilst Mr Morton had been instructed by the wife not to communicate with Ms F and Ms H, Mr Morton has maintained contact with the daughters as to the implementation of the orders and the decision making as it affects Ms H and Ms F’s position as financial managers.
(i)Ms H and Ms F found suitable accommodation for the wife after the sale of the house property in early 2020.
(j)Ms H and Ms F have considered advices from professionals as to the long-term management and investment of the capital funds on behalf of the wife.
(k)Once final figures are available then Ms H and Ms F will enter into a final financial management plan in order to purchase a house for the wife.
(l)In the interim Ms H and Ms F do not believe it is in the exercise of their powers to allow the wife to have access to substantial capital that will come from the sale of the units.
(m)Any balance of sale funds after payment of the legal fees and the fees of the litigation guardian will be banked in an account in Ms H and Ms F’s name to be held on trust for the wife pursuant to the written declaration of trust that they have made.
(n)Ms H does not believe the wife’s condition has changed to the extent that the wife now has the capacity to manage her financial affairs, particularly with decision-making about complex financial matters.
(o)As attorneys for the wife Ms H and Ms F have confidence in the way Mr Morton has exercised his role as litigation guardian in his provision of instructions to Mr BB.
(p)The finalisation of the terms of the property settlement orders have had a number of complexities that needed to be addressed which Mr BB and Mr Morton have addressed appropriately keeping Ms H and Ms F informed as the wife’s attorneys.
(q)Ms H does not believe the wife has the capacity or knowledge of the issue sufficient to make decisions on some of the complex issues involved and then provide adequate instructions to new lawyers to finalise the remaining parts of the orders.
(r)At this critical stage of the matter where variations of the orders have been decided upon, a change in legal representation would be detrimental to the wife’s case both time wise and financially whilst new lawyers familiarise themselves with the matter.
(s)As at the date of the affidavit Ms H has not received any indication of the wife’s new lawyers as to an application to have the enduring power of attorney revoked or varied and until such application has been served upon them, Ms F and Ms H will continue in their roles as attorneys for financial matters.
(t)Fees incurred by Mr BB in conducting the matter under instructions from Mr Morton has been deducted from trust account funds under the authorisation of Ms F and Ms H and Mr Morton also has his fees paid from funds held by Mr BB.
(u)Ms H and Ms F have encouraged the wife to go see a psychologist but as far as Ms H and Ms F are aware the wife has failed to do so.
In the supporting affidavit Mr Morton stated:
(a)In the past 10 years Mr Morton has acted as case/litigation guardian in over 30 matters in the family courts and the state courts [2].
(b)For 15 years Mr Morton has acted for the public trustee in family law matters [3].
(c)Mr Morton is an accredited family law specialist and an accredited mediation specialist [4].
(d)As a litigation guardian and an officer of the court, Mr Morton is subject to removal by the court and therefore cannot either consent or oppose the wife’s application for his removal [5].
(e)Mr Morton has concerns about the application and the evidence provided [5].
(f)The role of the litigation guardian continues in providing instructions to perfect court orders [6].
(g)The property orders made in September 2019 required a number of significant matters that needed to be attended to, some of which were complex and which required the litigation guardian to provide continued instructions to Mr BB from time to time. At all times Mr BB provided Mr Morton with appropriate advice and has followed Mr Morton’s instructions [7].
(h)The September 2019 order provides Mr Morton with the ability to sign documentation on behalf of the wife and that has been attended to and is a continuing requirement [8].
(i)It was agreed between the parties’ lawyers that for this purpose it was cost-effective for Mr Morton to liaise directly with the husband, whose external accountant, partnership bookkeeper and superannuation fund administrators and if there was any disagreement the husband and Mr Morton would engage their respective lawyers [9].
(j)In performing these tasks Mr Morton needed to obtain information from the wife. The wife has disagreed with some of Mr Morton’s decisions and has voiced her objection when a decision has been made that did not accord with the wife’s expressed views or wishes [11].
(k)Mr BB and Mr Morton have kept the wife’s daughters, as attorneys informed of the decisions made [12].
(l)Mr Morton set out a chronology of events involving the property division since the making of the order in September 2019 are set out in detail [13] to [25].
(m)Mr Morton addressed in detail the concerns raised by the wife as to how he has dealt with the property division [Part 2] to [38].
In March 2021 the matter proceeding to interim hearing and orders were made for the filing of written submissions.

Conclusion

Based on the evidence before the court I find that the wife has not established that she is capable of adequately conducting or giving adequate instructions for the conduct of proceedings.
I make this finding based on the following:
(a)Recommendations were made both by Dr G and Ms P as to the steps to be undertaken by the wife to improve her condition; such as cognitive rehabilitation and psychiatric assessment.
(b)It appears from the evidence (or lack thereof) that such recommendations have not been undertaken by the wife.
(c)It was within the wife’s rights in April 2020 to approach another firm of solicitors for the sole purpose of making an application for the removal of the litigation guardian despite the restrictions imposed by Rule 11.09(1) that a person who needs a litigation guardian can only be included as a party to proceeding by the litigation guardian
(d)However the limitation of the wife’s ability given the appointment of a litigation guardian seems to have been lost on the new lawyers who were actively taking steps to try and arrange for a transfer of the property file from Mr BB.
(e)Putting that issue aside it is clear from the authorities that the obligation is on the wife in the application to remove the litigation guardian to prove to the court on the balance of probabilities that the wife has had such a change in her capacity since July 2019 that she now has the capability to adequately conduct or give adequate instructions for the conduct of the proceedings.
(f)For reasons unknown to the court and not addressed in the affidavit material the wife refused to undergo a further assessment Dr G.
(g)The totality of the evidence that the wife now has capacity to justify the removable of the litigation guardian is restricted to the unsupported evidence of the wife and the report of Dr J; a report commissioned by the wife’s new lawyers without consultation or input from Mr Morton or Mr BB.
(h)Other evidence you would expect to see in an application of this nature is non-existent such as:
(i)Independent evidence from the wife’s existing treating health professionals as to any improvements in the wife’s capacity since July 2019.
(ii)Independent evidence from friends or family to support the wife’s contention that there has been improvements in her capability since July 2019.
(iii)An affidavit by the new lawyers setting out how they have satisfied themselves as to the wife having capacity to provide instructions. Whilst the new lawyers informed Mr Morton, Mr BB and the husband’s lawyers that they had applied the assessment principles recommended by the NSW Law Society and NSW Department of Justice in determining the wife capacity to instruct, this information and how it was applied has not been provided to the court.
(i)As to the report by Dr J, I give no weight to the report based on the following:
(i)The letter of instruction provided by the new lawyers to Dr J was confusing and misleading because:
(A)The extensive information provided in the letter of instruction as to the wife’s concerns as to Mr Morton and Mr BB not properly carrying out of the orders detracted from the true purpose of the report, namely whether the wife now has the capability to adequately conduct or give adequate instruction for the conduct of the proceedings.
(B)The questions asked by the new lawyers which formed the basis for the opinion sought from Dr J did not reflect what is contained in the legislation or what is required for an application for the removal of a litigation guardian.
(C)The questions as to whether the wife has “the mental capacity to give adequate instructions to a solicitor… without the need for a litigation guardian” and has “the mental capacity to manage her finances including but not limited to the funds… of five point four million dollars” did not address what was required from Dr J for the purposes of the report in support of an application for removal of a litigation guardian.
(D)The confusion as to the role of Dr J and what is required from here is evident from her opening paragraph to her introduction where Dr J states “I had been asked to assess” the wife’s “neurological status after she suffered a brain injury” and later in the report where Dr J states “I interviewed the wife today for the purposes of assessing her mental state and emotional control and to gather information about decisions regarding the removal of the litigation guardian”. That is not the role of Dr J or the purpose of the report. The sole and appropriate role for Dr J for the purpose of the report is to assess to whether the wife now “is capable of adequately conducting or giving adequate instruction for the conduct of the proceedings”.
(ii)Dr J did not undertake any testing in her assessment of the wife, relying on and/or criticising testing previously conducted by Ms P and Dr G.
(iii)Dr J did not speak to any of the medical practitioners who had previously been involved with the wife, including Dr G.
(iv)Dr J did not enquire about or speak to any of the medical practitioners who are currently treating the wife.
(v)Dr J did not speak to the litigation guardian, Mr BB or the new lawyer about their concerns or perceptions about the wife’s capacity.
(vi)Dr J did not to speak to Ms F and Ms H, the wife’s attorneys who look after the wife’s financial affairs.
(vii)In summary Dr J chose not to speak to any other persons other than the wife, therefore accepting on face value what was told to her by the wife and therefore acting upon that information in making her assessment without obtaining corroboration.
(viii)Dr J flagged the limitations of her report when she noted that additional information would have assisted her in her assessment if she had information from accountants, financial planners and psychological services the wife may have engaged in.
(ix)These choices by Dr J put into question the validity of the report.
(x)I give weight to and adopt the concerns raised by Dr G as to the inadequacies and limitations of Dr J’s report.
(xi)Dr J in her report concentrated on limited aspects of the wife’s demeanour choosing to exclude what Dr G considered to be significant important issues such as her forgetfulness, frustration, lack of honesty, her alcohol use and refusing to participate in testing, to name a few.
(xii)Dr J ignored, in accepting everything the wife had to say was true, the concerns noted by Dr G as to the wife not answering tests appropriately, denying her difficulties with day-to-day functioning and becoming frustrated and stressed when not wanting to answer the difficult questions.
(xiii)Whilst Dr J comments that she challenged the wife and was not confronted with difficulties from the wife although the report does not address what these challenging questions were. It is hard to accept that the wife was challenged when everything she said appeared to be accepted willingly on face value by Dr J.
(j)In disagreeing and disputing Dr G’s findings on the basis that the wife’s medication is causing her emotional dysregulation the report does not explain how then Dr J came to the conclusion that the wife can make her own decisions. It does not make sense. No matter what is the cause of the wife’s anger, irrational behaviour and emotional outbursts, whether that is from medication or the brain injury or both, it clearly impacts on the wife’s capacity. This issue has not been properly addressed in Dr J’s report.
(k)I give significant weight to the supplementary report of Dr G and her findings that the wife does not have the capacity of adequately conduct or give adequate instructions for the conduct of the proceedings.
Given the lack of evidence as to any change in the wife’s capacity and given the difficulties and limitations identified with Dr J’s report, I find that the only outcome in respect to the application in the case filed by the wife for the removal of Mr Morton as litigation guardian is for the application to be dismissed as the wife has not established any change in her capabilities as is required for such an application to be successful.
Put simply it has not been established from the balance of probabilities that the wife is now is capable of adequately conducting or giving adequate instructions for the conduct of the proceedings.
Mr Morton therefore remains the litigation guardian and the file therefore remains with Mr BB.

COSTS

The issue of costs was raised by all parties.
As the wife has been unsuccessful in her application then directions had been made for the respondents to file and serve written submissions as to costs to be followed by written submission by the applicant and then a right of reply.
I find it is appropriate, for the purposes of future discussions between the parties as to costs and before the parties are put to the expense of submissions, to make some comments about the new lawyers involvement in this matter.
It is unfortunate that apart from what could be gleaned from correspondence and the affidavits supporting the application that a comprehensive affidavit was not filed by the new lawyers as to their approach to this matter.
It is not my practice when it comes to the legal profession to refer to the old adage of “coulda, shoulda, and woulda” meaning in essence "it is unfortunate that this occurred, and there are things we could have, should have, or would have done to avoid it”.
But in reality there were many red flags that should have been detected by the new lawyers both at the beginning of the matter, during the matter and just prior to filing the application in a case before proceeding with the application for the removal of the litigation guardian.
At the beginning of the matter the new lawyers were presented with a client who had an enduring Power of Attorney appointing her daughters to handle her financial affairs and a litigation guardian who had only been appointed several months before and where that appointment was court ordered after a comprehensive report had been prepared assessing the capacity of the wife.
A reading of any of the supporting affidavits filed for the purposes of the appointment of the litigation guardian would have informed the new lawyers about many demeanour and behavioural issues suffered by the wife, which should have alerted the new lawyers as to whether they wished to act for the wife including her ability to mask and disguise her shortcomings, not always be honest in her responses to questions, not being trusting of her legal representatives and only hearing what she wanted to hear.

The wife also had a history of shutting people out of her life such as her friends and daughters and in more recent times Mr BB and Mr Morton.
Further on the issue of capacity, the medical reports spanning from 2011 to 2019 did not detect any improvement in the wife’s demeanour and behavioural issues.
Another red flag was that the wife had already had changes of solicitors with Mr BB being her third solicitor.
The new lawyers, once they had decided to explore the possibility of the removal of the litigation guardian, then should have conducted an information gathering process to ascertain whether the wife had sufficient evidence to support an application to remove the litigation guardian, such as speaking to Mr BB, speaking to the litigation guardian, speaking to the attorneys and ascertaining details as to the wife’s current treating health professionals, speaking to them about whether there had been a change in the wife’s capacity and issuing relevant subpoenas.
The new lawyers should have concentrated on the issue of whether there was sufficient evidence to support an application for the removal of the litigation guardian rather than treating the approach by the wife as an opportunity to act for a client in her large property law matter.
Although there is correspondence from the new lawyers (which in retrospect is inappropriate) asking that the litigation guardian to remove themselves there is also correspondence from the new lawyers which indicates that they were aware very early on in their involvement that the only possible way a litigation guardian could be moved was by way of court application and court order.
However it took several months before such an application was filed by the new lawyers.
In the meantime without explanation the reasonable request by Mr BB for the wife to be further assessed by Dr G was rejected.
The report by Dr J was commissioned with Dr J not receiving the correct instructions nor independent information to enable an adequate report to be completed as to capacity.
Granted, findings have been made as to what has been described as flaws in Dr J’s report.
The concerns as to the inadequacy of the wife’s case and the limitations of Dr J’s report were brought to the attention of the new lawyers by both Mr BB and the husband’s lawyers.
Requests were made for an adjournment to enable discussions and further investigations.
The new lawyers were also warned that if they proceeded with the application for the removal of the litigation guardian, costs orders would be sort not only against the wife and her estate but also against the new lawyers.
However the new lawyers decided to proceed with the application which has now been dismissed.
I raise these concerns as I have no doubt that in the written submissions there will be orders sought personally against the new lawyers for costs and given the circumstances of this matter these are orders which I may need to consider.
I encourage the parties to have discussions to try and resolve this issue without any further costs being incurred.

I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of Judge L. Turner.

Dated: 18 June 2021

[2021] FCCA 1358

18 June 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Procedural Fairness

Statutory Construction