Lestari & Hidayat (No 3)
[2022] FedCFamC1F 445
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lestari & Hidayat (No 3) [2022] FedCFamC1F 445
File number(s): SYC 585 of 2016 Judgment of: ALDRIDGE J Date of judgment: 17 June 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to appoint a litigation guardian – Where the applicant does not have capacity to attend the final hearing, give evidence or to instruct legal representatives – Rule 3.12(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Orders made appointing a litigation guardian for the applicant. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.12, 3.14, 3.15 Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 14 June 2022; 17 June 2022 Place: Sydney Counsel for the Applicant: Ms Reid Solicitor for the Applicant: Savage Solicitors Counsel for the First Respondent: Mr French (on 14 June 2022) The First Respondent: Litigant in person (on 17 June 2022) ORDERS
SYC 585 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HIDAYAT
Applicant
AND: MR LESTARI
First Respondent
MS LIPARI
Second Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
17 JUNE 2022
THE COURT ORDERS THAT:
1.Ms D is appointed as Litigation Guardian for Ms Hidayat in these proceedings.
2.The costs of the Application in a Proceeding filed on 23 May 2022 are reserved to the final hearing.
NOTATION:
A.The first respondent was represented by Mr French of counsel at the hearing on Tuesday, 14 June 2022, and appeared self-represented at the hearing on Friday, 17 June 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Lestari & Hidayat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an application by the solicitor for Ms Hidayat for the appointment for a litigation guardian for her in respect of these proceedings.
The proceedings are property proceedings between Ms Hidayat and Mr Lestari and include Ms Hidayat’s mother as the second respondent. She claims an interest in the property, which is said by Mr Lestari to be property of the parties available for division by this Court.
The Court may appoint a litigation guardian pursuant to r 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Rule 3.12 identifies a person who needs a litigation guardian in relation to a proceeding as a person who “does not understand the nature and possible consequences of the proceeding” or “is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding”.
The solicitor for Ms Hidayat deposes that having been the solicitor on record a number of years, Ms Hidayat has presented as mentally stable and well able to conduct the proceedings, save for periods when she had been hospitalised seeking treatment.
However, as a hearing in May 2022 approached, the solicitor became increasingly concerned about the mental health of Ms Hidayat and it seemed to the solicitor that Ms Hidayat was anxious, stressed and extremely scared about attending court. Ms Hidayat raised with the solicitor that she was having some mental health concerns which she was attempting to deal with the assistance of her psychiatrist. It became apparent to the solicitor on 3 May 2022 that there were potential difficulties with Ms Hidayat’s mental health and an appointment was made to see her psychiatrist.
Dr B is a consulting psychiatrist who has been treating Ms Hidayat for some time. The current mental health plan with Dr B includes regular reviews with him on a monthly basis, plus the prescription of a significant number of various medications to assist with her mental health.
He opined that the main thing that would help Ms Hidayat to stay relatively healthy is for her not attend Court in person and not to be cross examined which is very stressful for her. He opined that the significant stress that Ms Hidayat is under is likely to significantly impact her mental health and memory and that Ms Hidayat does not have the capacity to attend Court for three days. He said “[c]ompelling her to do so would be quite dangerous and deleterious to her mental health and would risk the need for re hospitalisation and increase her risk of suicide” (Affidavit of Ms Savage filed on 23 May 2022, Annexure “PLS-5”, p.2).
He further added, in his opinion, Ms Hidayat did not have capacity to give evidence as a witness at the hearing because the stress would impair her judgment and communication but that she was currently able represent her own interests.
Ms Hidayat consulted Dr E, a consultant psychiatrist who prepared a report on 7 June 2022 which is a short time, but a significant time later than Dr B. Dr E refers to the medications currently taken by Ms Hidayat and refers in particular to a medication which he says is used in quite severe psychiatric illnesses.
On examination, she was found to have clear deficits in short term memory and concentration and only a partial understanding of the trial. Dr E concluded that Ms Hidayat was “likely to be on the severe spectrum of a psychotic illness such as Schizoaffective illness with a parallel Panic Disorder” (Affidavit of Dr E filed on 7 June 2022, Annexure “A”, p.2). This led him to conclude that the combination of her illness and treatments impair her ability to remember, reflect and reason and to do so in a rational way.
This led him to also conclude:
In the broader description of capacity, I do not believe that the combination of her cognitions and her psychiatric disturbance means she can properly instruct her legal representatives in the proceedings. It is unlikely she could follow the legal process and have a clear sense of the function of the judge, the lawyers or the jury.
I also do not believe she can appear at the various hearings, including the final hearing. She does not have capacity to do so. It is likely she will become highly overwhelmed. Nor does she have the clear thought processes to understand the ins and outs of the court processes.
(Affidavit of [Dr E] filed on 7 June 2022, Annexure “A”, p.3)
Counsel for Mr Lestari criticised this report because it talked about legal processes and the concept of pleas of guilty, judges and juries and was therefore was clearly directed to criminal proceedings as opposed to family law proceedings. I do not think that matters at all.
Clearly the opinion of Dr E, if accepted, meets the criteria of r 3.12 of the Rules and there is no reason to me why it should not be accepted. The difference in view between Dr B and Dr E can easily be explained by the short but significant passage of time between the reports.
Accordingly, I am satisfied that Ms Hidayat is a person who needs a litigation guardian.
Ms D has sworn an affidavit asserting that they are a friend of Ms Hidayat, who she knows of being part of the same Country C community and attend the same church. She says that she is available and capable of attending the final hearing on behalf of the Ms Hidayat from 5 July 2022 to 7 July 2022. Her affidavit otherwise satisfies me that Ms D is a person who meets the requirements of r 3.14 of the Rules.
Mr Lestari who appeared for himself today said that there is no express consent given by Ms D to be the litigation guardian. Whilst that is true, but the only sensible way to read her affidavit is that she is consenting to act.
The other point made by Mr Lestari is that if Ms D is appointed as a litigation guardian he would be obliged to seek costs against her, whereas he would not if she was simply to assist as Ms Hidayat’s McKenzie friend. It is quite clear from the reports of Dr B and Dr E that is most unlikely that Ms Hidayat will attend the hearing let alone conduct the proceedings herself and she will certainly not be giving evidence, so the question of a McKenize friend is completely otiose.
At this stage also, Ms Hidayat and her mother are represented by the same lawyers and that is something that Ms D will need to consider as a matter of urgency to ensure that there is no conflict of interest.
As for costs, it is entirely up to Mr Lestari in due course whether he will seek a costs order against any particular person. He is of course, not obliged to, simply because someone has been appointed litigation guardian. In any event, any applications for costs will be dealt with on their merits in due course.
Therefore, the appropriate order to make is that I appoint Ms D as litigation guardian of Ms Hidayat in relation to these proceedings.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 21 June 2022
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