L and L
[2007] FMCAfam 562
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & L | [2007] FMCAfam 562 |
| FAMILY LAW – Property proceedings – capacity question of fact – capacity – power to order psychiatric assessment – common law position. |
Guardianship and Administration Act 2000 (Queensland)
Blackstone Laws of England
Ditchburn v Fearn [1842] 6 JUR 201
| Applicant: | V L |
| Respondent: | J L |
| File number: | CSC482 of 2007 |
| Judgment of: | Coates FM |
| Hearing date: | 6 July 2007 |
| Date of last submission: | 6 July 2007 |
| Delivered at: | Cairns |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mrs Cope, Cope Family Law |
| Counsel for the Respondent: | Mrs Willis |
| Solicitors for the Respondent: | William Royds |
ORDERS
The interim application of the respondent be dismissed.
Costs be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC482 of 2007
| V L |
Applicant
And
| J L |
Respondent
REASONS FOR JUDGMENT
In this matter the wife brought an application to Court seeking an order for psychiatric or psychological assessment of the husband to show the Court and to show her that he had full capacity to make decisions in relation to a property settlement.
There is much property in the relationship, some millions of dollars worth.
She worries about the future once a decision of the Court is made.
She worries that due to acts, which she alleges the husband now engages in, that he may waste the money and claim his acts are the result of unsoundness of mind and that in the future, rely on unsoundness of mind to reopen these proceedings.
If that were to occur, of course, he would have to show that he was of unsound mind during the course of giving his lawyers instructions to proceed in this matter.
Her application is not improper but I think it is misconceived. I raised the issue this morning as to whether the Court has the power to order a person to have a psychiatric assessment, especially so in circumstances relating to proceedings between adults and to this proceeding in particular.
Counsel for the husband is saying that in the circumstances here I do not have such power.
That raises an issue as to whether there is a tenet of common law which says every person is presumed to have capacity.
Counsel for the father says, "Yes".
The wife says the husband acts in a manner whereby he is drinking excessively, where he is aggressive when he drinks, where he has been spending money at an extraordinary rate and, on one occasion, where he gave a bank access card to a female and later claimed to have had money stolen from his account.
She says in her opinion that indicates instability of the mind of the husband.
I am referring to "Words and Phrases Judicially Defined" volume 3. It is certainly not one of the new editions, it is quite an old edition but under the heading of "insane delusion" this volume refers to the case of Ditchburn v Fearn [1842] 6 JUR 201.
Two centuries ago courts held that behaviour on its own is not indicative of someone having an unsound mind and I will just read from the quote taken from that case:
“…The disposition of the property of the testator however capricious or unjust could not of itself lead to the conclusion of unsoundness of mind. Their Lordships have arrived at the conclusion that however unnatural or immoral the conduct of the testator may have been there is no evidence of his ever having been under any insane delusion.”
I do not understand that the law expressed there relating to unsoundness of mind has changed in the year 2007. Courts have always held that people are free to conduct their affairs as they see fit. To be sure that I am right in such a conclusion I have gone back to "Blackstone's Laws of England" volume 1 at page 121 where this was said:
The absolute rights of man considered as a free agent endowed with discernment to know good from evil and with power of choosing those measures which appear to him to be most desirable are usually summed up in one general appellation and denominated the natural liberty of mankind.
A strong inference can be drawn from that quotation in Blackstone that the law has always recognised that a person has capacity to choose to do any act that they consider doing as long as it is done lawfully and as long as it is done as a free choice.
I have gone further in my researches as, indeed, Ms Cope did in hers. The Guardianship and Administration Act 2000 (Queensland), at s.7 and in s.1 of the Schedule of Principles, states and provides that:
“An adult is presumed to have capacity for a matter.”
I conclude that that is a restatement of what is apparent in the common law.
Earlier I said and I raised with counsel for the parties whether in fact it was a matter of law for a Court to find that a person lacked capacity.
I was incorrect because it has always been a matter of fact, which the tribunal of fact decides. It is a matter of law that the court's leave to a jury or a judge or a judicial officer sitting alone to find as a matter of fact that a person lacks capacity.
On all of that I will not accede to the application.
It appears to me that the case should proceed as a property case normally does.
I do not in any of the material, which I have viewed of the husband's, or any of the allegations of the wife, consider that he lacks capacity.
That means of course that he is free not only to spend what he likes and how he likes, but to give his lawyers instruction.
While I could not predict that he would never make an application in the future should his circumstances be such that he felt forced to apply to reopen the property proceedings, I would observe that I would think that he would have great difficulty in doing so based on an issue of his capacity.
The application is dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Coates FM
Deputy Associate: Debra Horold
Date: 31 August 2007
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