MANZO and GUIDICE

[2020] FCWA 17

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MANZO and GUIDICE [2020] FCWA 17

CORAM: O'BRIEN J

HEARD: 30 JANUARY 2020

DELIVERED : Ex tempore

FILE NO/S: PTW 173 of 2018

BETWEEN: MR MANZO

Applicant

AND

MS GUIDICE

Respondent

Catchwords:

PRACTICE & PROCEDURE - Where matter listed for trial and counsel expresses concern that party may be under a disability and unable to give adequate instructions - Where no medical evidence available - Trial vacated.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Rynne
Respondent	:	Mr Hedges SC

Solicitors:

Applicant	:	Carr & Co
Respondent	:	FMD Legal

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Manzo and Guidice has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1The preliminary matter for determination is the Form 2 application filed on behalf of the wife on 24 January 2020 seeking that, pursuant to Rule 6.10 of the Rules, the Public Trustee for the State of Western Australia be appointed as Case Guardian for her. The application sought further that the trial listed to commence today be vacated.

2The application is opposed by the husband by his Form 2A response filed on 28 January 2020, and costs are sought.

3The issue first arose, in a formal sense at least, shortly prior to the status hearing which took place on 21 January 2020. The solicitor for the wife wrote to the Court, appropriately copying that correspondence to the solicitors for the husband, squarely raising his concerns as to the wife’s capacity to give instructions and alerting both the husband and the Court to those concerns albeit at that stage without any formal application. In raising the matter in that way the solicitor for the wife met his obligations both to the Court and to his client.[1]

[1] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114

4The application filed on behalf of the wife, when filed, was supported only by an affidavit from the relevant officer confirming the willingness of the Public Trustee to be appointed as Case Guardian for the wife. That consent was expressed to be subject to the trial being adjourned for not less than six months to permit proper preparation. The affidavit otherwise confirmed the Public Trustee’s ability to meet the relevant obligations of a Case Guardian.

5The solicitor for the wife had also sworn and filed an affidavit on 24 January 2020 outlining efforts taken to that point to obtain relevant medical opinion from the wife’s treating psychiatrist [Dr B] as to the wife’s capacity to understand the issues in the case, give instructions to her solicitors in the conduct of the case, provide written and/or oral evidence to the Court, participate in the trial and be cross examined, and any other matters considered relevant.

6As was pointed out by counsel for the husband at an earlier hearing, the opinion sought from Dr B addressed issues which are appropriately distinguished; put shortly, the issue as to whether a party is a person under a disability in the relevant sense differs from the consideration of the capacity of that party to give evidence or, more particularly, withstand the potential rigours of cross examination.

7The enquiries set out in the solicitor’s affidavit were begun by letter dated 19 December 2019. Having received no reply, a follow-up letter was sent on 7 January 2020. Exhibited to the solicitor’s affidavit is a letter provided to the wife by Dr B on 10 January 2020 the full text of which is set out below:

re-: [the wife]

Established diagnosis: Attention Deficit Hyperactivity Disorder

I refer to your correspondence dated 19 December 2019 on 7 January 2020. I apologise for my delay in responding, however I have no record of having received your letter dated 19 December 2019.

I have been treating [the wife] since 5 September 2017.

I have had no clinical reason to believe that the condition I treat her for has impaired her ability to make decisions.

8It will be seen that the final sentence of that letter has a number of qualifications which are problematic for present purposes. It states that Dr B has had (in the past tense) no clinical reason to believe that the condition she treats the wife for (Attention Deficit Hyperactivity Disorder) has (in the past tense) impaired her ability to make decisions (as distinguished from the relevant criteria to determine whether a litigant is a person under a disability).

9The submission on behalf of the husband in the written outline filed on 29 January 2020 that “relevantly the doctor opined in January 2020 that there were no competency concerns by reason of ADHD”, with respect, overstates the position.

10The solicitors for the wife recognised the inadequacy of the evidence presently available to the Court in relation to the relevant issue. On 16 January 2020 they wrote further to Dr B requesting more specific responses to their questions. They were advised that Dr B was away from the practice until yesterday, and would not be checking emails during her absence.

11Faced with those issues, on 21 January 2020 the wife’s solicitors wrote to a psychiatrist formerly involved with the wife prior to her coming under the care of Dr B. They received a prompt response stating firmly that, to put it as neutrally as possible, the doctor was unable to assist.

12At the request of the solicitors for the wife a subpoena for Dr B to give evidence this morning was issued.

13They were subsequently advised by Dr B that, quite apart from issues as to her availability, she did not consider herself qualified to undertake the necessary assessment to permit a finding as to whether or not the wife is a person under a disability. That advice was received only late yesterday.

14Against that background, I am satisfied that the solicitors for the wife have made appropriate and timely efforts to obtain and place before the court the medical evidence necessary to enable a determination of the issue as to whether the wife is a person under a disability, and accordingly requires the appointment of a Case Guardian.

15Those efforts have been unsuccessful, and the position is now faced where the relevant concerns have been squarely raised, are not conceded, and cannot be determined today.

16In those circumstances those representing the wife then applied for an adjournment of the trial. That application was opposed.

17Properly, before the application for adjournment was argued, counsel for the husband advised the Court and those representing the wife that there is no longer a dispute between the parties as to the appropriate alteration of their property interests. He advised that the husband does not oppose orders for alteration of property interests being made in the terms of the Minute filed on behalf of the wife prior to trial.

18That position having been explained, on the husband’s case the matters remaining for determination were the dispute between the parties about the quantum and duration of any order for spousal maintenance, and the husband’s application to be appointed as sole trustee for sale of the home, based on what he would characterise as being obstruction to that sale by the wife who continues to live in it.

19The difficulty faced is that the uncertainty as to whether or not the wife is a person under a disability, and the inability to properly resolve that uncertainty today based on evidence, calls into question not only whether the trial can proceed so as to resolve the identified disputes, but also as to whether counsel for the wife is properly in a position to move for orders in the terms of the wife’s Minute, or the wife is herself in a position to properly consent to them being made.

20The relevant legal principles as to the consideration of the application for an adjournment may be briefly stated.

21The consideration of an application for an adjournment, whether at a late stage or otherwise, is a matter for the exercise of discretion. As French CJ observed in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in the proper exercise of that discretion, applications for adjournment are not to be considered solely by reference to whether any prejudice to either party can be compensated by costs. Whatever costs may be ordered, as his Honour observed, and as has been stressed by counsel for the husband in this case, there can be an irreparable element of unfair prejudice in unnecessarily delaying proceedings.

22Justice is the paramount consideration in determining an application for adjournment and, save insofar as costs may be awarded, such an application is not the occasion for punishment of the party making it.

23I am required to consider the prejudice to the wife if the adjournment sought is not granted, and to weigh that against the prejudice to the husband if it is.

24The potential personal prejudice to the wife is readily identified. If, in fact, she is a person under disability then the trial proceeding today would present an intolerable burden for her, and place those representing her in an invidious position. In circumstances where her counsel has openly expressed his concern as to her capacity to properly instruct him, and when the stakes at trial as defined by the relief sought by each of the parties albeit narrowed this morning remain high, little more need be said about that.

25The other prejudice to the wife is also readily identified. If the concerns of her senior counsel and experienced instructing solicitor are in due course shown to be well-founded, she does not have the capacity to instruct them.

26The potential prejudice to the husband if the trial was adjourned is also readily identified. He would be denied the opportunity to now finally have the long-running proceedings between the parties determined, and he will have incurred costs which will effectively be thrown away. I accept the submissions of his counsel as to the personal toll in the sense of stress, disappointment and frustration at not being able to move on with a post litigation life that would be imposed by a delay in proceedings.

27I invited submissions from counsel as to any potential financial prejudice to the husband other than in terms of costs thrown away.

28Sensibly he acknowledged, having had the opportunity to take more detailed instructions, that there is no meaningful prejudice to the husband of that nature in the short term, in the sense of any adjournment requiring him to continue to meet payments which he would if the trial proceeds seek to discharge.

29I do not regard case management principles, in the usual sense of a consideration of the efficient allocation of court resources and the potential detriment to other litigants if time allocated is not used, to be of relevance in the present circumstances given the nature of the issues which give rise to the application for an adjournment.

30I do, however, regard as relevant overarching issues as to the duty of the Court to ensure that trials proceed in a manner that ensures justice is served and is seen to be served.

31Additionally, of course, if the trial proceeds and evidence is subsequently obtained which if accepted would confirm that at the time of the trial the wife was a person under a disability, obvious and significant issues then arise. It should not be ignored that such issues would have significant impact on both parties, not merely the wife.

32In this case the Court is being asked by the husband to proceed with the trial in the face of the issues properly raised by the senior legal practitioners representing the wife, when there is an explanation for the absence of appropriate medical evidence to permit a determination as to whether or not the wife is under a disability, and I regard that explanation as satisfactory in all the admittedly unfortunate circumstances.

33While I understand and have some sympathy for the husband’s frustration, and I remain open to the possibility that any scepticism he may have as to the central issue may prove to be well-founded (in which case, I have no doubt that matter would be raised in relation to the issue of costs) it is, in my view, clear that the potential prejudice to the wife if the adjournment is not granted outweighs the potential prejudice to the husband if it is. In any event, the interests of justice would not permit the trial to proceed in the face of the current uncertainty as the wife’s capacity.

34The trial will be adjourned to afford the wife the proper opportunity to adduce adequate evidence to enable a determination of the question of whether she is a person under a disability for the purposes of the Rules.

35I will hear from counsel as to the timeframes which should be set in that regard, and the steps to be taken from this point.

36I have in mind, as foreshadowed with counsel during submissions, that a timeframe should be set within which an affidavit from the wife’s treating psychiatrist or another assessor, based on an up-to-date review, and specifically addressing the matters required by the rules to be addressed in assessing whether a person is under a relevant disability, must be filed and served.

37Depending on the content of that affidavit, it may be that the parties then reach agreement as to whether or not a Case Guardian is appointed.

38I am open to allocating a further directions hearing before myself within whatever the parties consider to be a sensible time frame, to either hear any argument about the appointment of a Case Guardian, or to make further directions to progress the matter to trial as quickly as possible.

39Once either a Case Guardian is appointed, or it has been established that a Case Guardian is not required, any remaining interlocutory issues including the question of the appointment of the husband as sole trustee for sale of the home can be properly addressed. I have in mind that the parties would be given the opportunity to address them as soon as the Court could accommodate that, and without waiting for the availability of trial dates.

40I have in mind further that with the agreement of the Chief Judge I would be in a position at any directions hearing to direct list the matter to trial if that was appropriate, thereby bypassing the delays associated with waiting for a position in a callover. I am not prepared to direct list the matter to a further trial date today, both in the absence of the agreement of the Chief Judge and more particularly when I do not know whether a Case Guardian will be appointed.

41At the request of counsel, they will have the opportunity to make the necessary enquiries, confer, and prepare a Minute to reflect these reasons.

These reasons are the reasons for decision delivered on 30 January 2020, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

6 FEBRUARY 2020