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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCWA 17
Decision Date: 6 FEBRUARY 2020

CaseChat Overview and Summary

In the matter of Manzo and Giudice, the court was faced with a situation where a trial was scheduled to commence, and concerns were raised by counsel regarding the defendant's capacity to adequately provide instructions. The case was heard in the Supreme Court, where the presiding judge had to consider whether the trial should proceed given the expressed doubts about the defendant's ability to participate effectively. The nature of the dispute involved the potential incapacity of a party to engage in the trial process, which necessitated an immediate judicial response.

The court was tasked with determining the appropriate course of action when there were concerns about a party's mental capacity to participate in their own defence, particularly in the absence of any medical evidence to substantiate these concerns. The legal issues centred around the procedural obligations of the court in handling such a situation, the rights of the defendant to a fair trial, and the need to ensure that all parties could participate meaningfully in the proceedings.

In addressing these issues, the court considered the fundamental principle that every person has the right to a fair trial, and the court must ensure that this right is not compromised by any disability that might affect the defendant's capacity to engage in their defence. Given the lack of any medical evidence to support the claims of disability, the court concluded that the matter was not suitable for trial at that time. The judge decided that the appropriate action was to vacate the trial and to direct further steps to ascertain the defendant's capacity, if necessary, before any future hearings. This decision aimed to balance the defendant's rights with the need for a fair trial and to ensure that the defendant's ability to participate was not prejudiced.

Orders