MARIN & SALMON - [2013] FamCAFC 88

FAMILY COURT OF AUSTRALIA

MARIN & SALMON

[2013] FamCAFC 88

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – where the appellant appeals an order appointing for her a case guardian – where the appellant alleges the trial judge erred in failing to consider certain evidence and in placing weight on evidence of her psychiatric health which was allegedly based on misinformation and errors – whether the trial judge erred – where no error demonstrated – where the appellant claims the trial judge failed to afford her procedural fairness – whether the appellant was denied procedural fairness – where ground not made out – appeal dismissed.

Family Law Act 1975 (Cth)
Guardianship and Administration Act 2000 (Qld)

APPELLANT:

Ms Marin

RESPONDENT:

Mr Salmon

INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

FILE NUMBER:

BRF

3924

2003

APPEAL NUMBER:

2011

DATE DELIVERED:

7 June 2013

PLACE DELIVERED:

Brisbane

DATE HEARD:

19 February 2013

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Murphy & Kent JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 July 2011

LOWER COURT MNC:

[2011] FamCA 664

REPRESENTATION

FOR THE APPELLANT:

Self-represented

FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

Orders

The appeal against the orders of Justice O’Reilly made on 15 July 2011 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marin & Salmon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 66 of 2011
File Number: BRF 3924 of 2003

Ms Marin

Appellant

And

Mr Salmon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ms Marin (“the mother”) appeals against orders made by O’Reilly J on 15 July 2011 appointing a case guardian for her in relation to proceedings between the mother and Mr Salmon (“the father”). The father and the Independent Children’s Lawyer resisted the appeal and sought to maintain her Honour’s orders.
Her Honour ordered (relevant to this appeal):
1.Pursuant to Rule 6.09 of the Family Law Rules 2004 [Mr S] is appointed case guardian for [the mother] in relation to these parenting and property proceedings.
2.Pursuant to Rule 6.14, Mr [S’s] costs of acting as case guardian be paid from the income and property of [the mother].
3.There be no order as to the costs of and incidental to the independent children’s lawyer’s application for appointment of the case guardian.
4.A transcript of today’s proceedings be prepared at the Court’s cost and provided to the parties.
Rule 6.08(1) of the Family Law Rules 2004 provides:
6.08 Conducting a case by case guardian
(1) A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian…
The dictionary to the Rules defines “person with a disability” as:
…a person who, because of a physical or mental disability:
(a) does not understand the nature or possible consequences of the case; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.
The procedural history of the matter is gleaned from the reasons of O’Reilly J.
The mother and the father married in 1994 and separated in 2001. They have three children, B born June 1995, R born June 1998 and S born December 2000. Proceedings between the parties relating to both parenting and property settlement issues have been before the Court since about 2003. They have not been determined.
The matter came before Carmody J in September 2005 for hearing, however the hearing dates were vacated. It seems that the Independent Children's Lawyer made an application to Carmody J that he appoint a case guardian for the mother. That application was dismissed. New hearing dates were allocated and the matter set for hearing for four days before O’Reilly J commencing in January 2006. The matter did not finish and further dates in June 2006 were set to complete the hearing (see [13]).
On 15 May 2006, while considering an application for interim orders brought by the mother, her Honour was informed that the mother had dispensed with the services of her lawyer. Apparently at an earlier time, her Honour had expressed the view that the mother was not capable of representing herself and, that it was “imperative that her lawyers continue to assist in the trial” (at [16]).
Her Honour referred at [17] to her reasons given on 15 May when she said:
8. I canvassed today with Ms Brasch of Counsel for the children’s representative whether the children’s representative could nominate a case guardian and obtain a consent so that of my own volition as the trial Judge I might appoint that person.
9. However, as Ms Brash (sic) properly has pointed out, if the child representative is seen to nominate a case guardian that might be seen by the mother as a conflict of interest, in particular on the basis that it might be seen to prejudge the issue of the mother’s mental state. Indeed, it seems to me that a conflict of interest does exist, so that it is not possible for me to ask the child representative to nominate a case guardian.
Thus, pursuant to Rule 6.11, her Honour requested the Attorney-General appoint a person to act as case guardian for the mother. That request was declined by the Attorney-General in May 2006.
On 5 June 2006 her Honour vacated the dates fixed for the further hearing of the matter and ordered that the mother attend for a psychiatric assessment to be arranged by the Independent Children’s Lawyer (see [20]). The trial judge further stayed the proceedings between the parties pending further order.
In September 2006 the father made an application to the Queensland Guardianship and Administration Tribunal (“the Tribunal”) for an order that a guardian be appointed for the mother. The Tribunal found that the father was not an “interested party” for the purposes of s 126 of the Guardianship and Administration Act 2000 (Qld) (“Guardianship Act”) and declined to consider his application. However, the Tribunal considered the matter itself and ordered the mother to undertake a psychiatric examination and provide a report of that examination to the Tribunal (see [23]).
On 7 April 2008 the Tribunal dismissed the application and noted:
That the Tribunal initiated application for guardianship is dismissed pursuant to Section 138A of the Guardianship and Administration Act 2000.
Section 138A of that Guardianship Act permits the Tribunal to dismiss an application if the Tribunal considers it to be frivolous, trivial or vexatious or is misconceived or lacks substance. No reasons were given as to why the application was dismissed or dismissed pursuant to this section.
Despite listing the matter before her on a number of occasions, the proceedings before O’Reilly J did not progress. At one listing in September 2008, the mother, in response to her Honour’s questions, conceded that she had not attended for psychiatric examination as ordered by the Tribunal in November 2006 (see [26]).
In September 2008 O’Reilly J continued the stay of proceedings and further ordered (see [28]) that the parenting and property proceedings not be listed until the mother provided to the Court “…a report by a specialist psychiatrist that she has the capacity to represent herself or has new legal representation.”
The proceedings were again listed before O’Reilly J on 15 June 2010 when her Honour, in effect, lifted the stay on the further progress of the proceedings. Her Honour ordered the Independent Children's Lawyer to arrange for a psychiatric assessment of both parties and directed both parties to attend (see [34]).
On 18 November 2010 a further mention of the matter occurred. On that day O’Reilly J ordered both parties to attend for psychiatric assessment with a nominated psychiatrist and further ordered that if either party did not attend her Honour would; “…without further notice proceed pursuant to Rule 11.02(2) of the Family Law Rules 2004 to dismiss all or part of that party’s case both as to children and property or proceed on the basis that the case against that party both as to children and property is undefended” (see [35]).
The matter was next listed on 7 December 2010 and her Honour re-made the orders she had made on 18 November 2010 in relation to the mother’s attendance on the nominated psychiatrist including the order as to what she might do if the mother failed to comply with that order (see [36]).
Her Honour quoted (at [37]) from her reasons for decision delivered on

7 December where she said:
6. The mother categorically has stated from the Bar table that she will not attend that appointment, being firmly of the view that she has no need to.
7. The mother has said she will not attend on the basis that in her view she does not require assessment.
Her Honour listed the proceedings for further hearing on 14 March 2011. On the father’s application, her Honour adjourned the trial dates and further ordered at [39]:
10. Any application by the independent children’s lawyer for the appointment of a case guardian for the mother, in relation to both the parenting and the property proceedings be listed before the Honourable Justice O’Reilly at 10.00am on 15 June 2011.
(Original emphasis)
The Independent Children's Lawyer subsequently filed an application for the appointment of a case guardian for the mother. The hearing date of 15 June 2011 was adjourned at the mother’s request and the matter listed for hearing on 15 July 2011.
At the conclusion of the hearing on 15 July 2011 her Honour made the orders which are the subject of this appeal.
In her reasons the trial judge indicated at [40] that she was no longer of the view previously expressed by her that there may be a conflict of interest if the Independent Children's Lawyer applied for the appointment of a case guardian or nominated the person who might be appointed to act.
Her Honour at [45] then turned to the question for her determination; “…whether [the mother] is a ‘person under a disability’ within the meaning of the Dictionary definition I have set out, for the purposes of Rule 6.08(1).”
Her Honour found that the mother had refused to attend psychiatric examination as ordered by the Tribunal and later ordered by her in December 2010 (see [46]).
Her Honour observed that an appointment had been made for the mother and father to attend a psychiatrist in January 2011. Her Honour continued:
50. The transcript 4 February 2011…records [the mother] informing me that she did not attend the appointment with Dr [R] on
17 January 2011, and in response to my asking the reason why she did not attend, a series of answers that were non-responsive. …Rather as is apparent from the transcript, [the mother], did not have the intention to attend or had the intention not to attend.
The trial judge considered the mother’s psychiatric history.
Her Honour had before her a report from Dr F, a psychiatrist who saw the mother and reported in January 2006. At the request of the Independent Children's Lawyer, Dr F consulted with Dr W, a psychiatrist who had seen the mother on two occasions in 2004 and reported on those consultations. Dr F also consulted with Dr J a psychiatrist who had treated the mother. Her Honour observed that, as well as consulting the other psychiatrists, Dr F had clinical notes of Dr B a consultant psychiatrist who had seen the mother, three family reports and other documents (see [54]).
Her Honour incorporated into her reasons at [55], extensive quotes from Dr F’s report, including his Axis 1 diagnosis that the mother had a Delusional Disorder (Paranoia) of Persecutory Type and his recommendation:
…[The mother] should have active and long-term psychiatric treatment by a Psychiatrist. The most important component of that treatment would be the administration of long-term antipsychotic medication. It is true that Delusional Disorder often responds poorly to such treatment but by no means always so. The problem is the difficulty or impossibility of establishing a positive treatment relationship with someone who is continually suspicious, actively deluded and lacking in insight…
(Original emphasis)
Similarly, the trial judge at [56] set out large parts of Dr W’s reports in which he concluded that the mother was suffering from a psychotic disorder “which could either be a Delusional Disorder or Paranoid Schizophrenia” and his recommendation that she “may benefit from ongoing treatment if she consents to this course of action. Delusional disorder is notoriously difficult to treat however she may improve with appropriate medication and therapy.”
Her Honour said:
57. The circumstance that [the mother] has not presented for psychiatric examination recently, as ordered, has effect that I need to rely on the early psychiatric reports of Dr [F] and Dr [W] extracted above. I am conscious, indeed, that in order to satisfy the Dictionary definition of a “person with a disability” I need to find first that [the mother], as at the date of today’s hearing, has a “mental disability” and secondly, that such has effect that in relation to the case, because of that mental disability she either does not understand the nature or possible consequences of the case or is not capable of adequately conducting or giving adequate instruction for the conduct of the case (see Rule 6.08) before it would be appropriate for me to appoint a case guardian for her.
58. Certainly, as at the date of Dr [F] and Dr [W’s] reports, there is no doubt that [the mother] suffered a “mental disability”, being the diagnoses described.
59. There is no recent psychiatric assessment of [the mother]. That has been impossible by her refusal to attend such. It is the case thus that there is no expert evidence as to whether currently [the mother] suffers a mental disability, nor, if she does, its effect in terms of the Dictionary definition.
60. In these circumstances, I am entitled to take into account Dr [F’s] and Dr [W’s] earlier diagnostic opinions, and Dr [F’s] further opinion that [the mother’s] psychiatric condition is long-term, and conclude that because she has not received the long-term treatment her condition has not abated.
61. As to whether her diagnosed mental disability has effect that she does not understand the nature or possible consequences of the case or that she is not capable of adequately conducting or giving adequate instruction for the conduct of the case, as the trial judge I have been able to form my own conclusion that whilst [the mother] does understand the nature and possible consequences of the case, that is, both the parenting and property proceedings, in the sense that she understands that the parenting proceedings concern the best interests of the children and the property proceedings concern financial division of assets with finality, I have formed the view based on [the mother’s] courtroom conduct that [the mother] is not capable of adequately conducting or giving adequate instruction for the conduct of the case.
62. This is amply demonstrated, in my view, even without the need for psychiatric opinion, by [the mother’s] utterances in the transcripts to which I have referred, characterised on many occasions by insistent monologue, refusal or inability to focus on discrete issues at hand and refusal or inability to respond to the Bench in relation to discrete issues or instructions, but engaging instead on the insistent monologue, on a miscellany of matters, relevant or not, either ignoring or incapable of understanding intimation from the Bench as to matter which are relevant or irrelevant to an application or proceedings at hand.
63. The monologues, as the transcripts demonstrate, on occasions are unintelligible, with thought process meandering from one topic to another topic, persecutory accusations and inability to focus on the issues at hand, either substantively or procedurally.
64. In effect, as the transcripts demonstrate, [the mother], in her inability to focus on the issues, in my view has no more ability to give instruction for the conduct of the case than she is of conducting it for herself.
(Original emphasis)
After considering, and rejecting the mother’s submission that legal aid funds should be provided to her to enable her directly to instruct solicitors, her Honour said:
70.I am conscious that my own observations of [the mother] alone would be insufficient to appoint a case guardian because as a judge I am not qualified to assess whether [the mother] is a person with a mental disability. However, there is the existing diagnosis of mental disability to which I have referred. Although not current, [the mother] has not, despite Court order, undergone recent psychiatric assessment. Putting these two matters together, that is, the existing diagnosis of mental disability and my observations as the trial judge, and as the only judge of this Court who has handled the matter for the last 5 years, I would conclude that [the mother’s] diagnosed mental disability continues with effect that she cannot conduct her case or give adequate instruction for the conduct of her case.
(Original emphasis)

The appeal

The mother prepared and filed the grounds of appeal. She further provided the court with a written summary of argument extending to more than 80 pages. During the appeal hearing the mother confined her oral submissions to highlighting the important points she sought to make in the written argument.
The father appeared on his own behalf. Instead of filing a summary of argument, he relied on an affidavit filed by him in opposition to an earlier application by the mother seeking an extension of time to file appeal books. That document is not entirely helpful on the issues to be determined in the appeal. However, we understand his position to be that he opposes the appeal and seeks to maintain her Honour’s order.
The Independent Children's Lawyer also appeared and filed a written summary of argument. He too seeks to maintain her Honour’s order.
The mother’s written summary of argument does not necessarily align with the grounds of appeal. The mother conceded that some of her appeal grounds raised the same point but from slightly different perspectives. During the appeal hearing she agreed that those grounds of appeal could be conveniently considered together. We have adopted that helpful concession.
The issues raised by the mother in her appeal fall within two broad issues; the reliability of the reports which the trial judge considered in coming to her decision and errors made by the trial judge in considering the evidence of capacity and the jurisdiction of the Family Court to make the order appointing a case guardian for the mother.
We set out the appeal grounds referable to each topic.

Reliability of the reports and errors made by the trial judge in considering the evidence

Grounds 1, 2 and 5 of the mother’s notice of appeal contain a similar complaint about the reliability of the reports and errors made by the trial judge in considering the evidence. These grounds provide:
1.The appellant was denied natural justice and procedural fairness by not being given sufficient opportunity to produce updated and accurate information pertaining to the GAAT (QCAT) determination she holds capacity as an adult.
2.Too much weight was given to the report of Doctor [F] which was heavily based on Doctor [W’s] report and they did not specifically deal with the issue about whether the appellant had legal capacity. (In paragraph:- on page 52 her psych test results recorded “Normal”).
5.Insufficient weight was given to the previous decision by the Guardianship and Administration Tribunal (QCAT) on 7 April 2008 when they dismissed the application by the father based on the accurate and updated information (facts versus hearsay) in regard to the Court Reports submitted by ICL on 15 July 2011 under s.138A (vexations/malicious/without substance). (Errors as in original)

Unreliability of expert reports – Ground 2

Central to the mother’s challenge in this respect is the reliability of

Dr F’s opinion. The mother argued that Dr F’s opinion was heavily reliant on the earlier reports of Dr W which, themselves, were substantially based on unfounded allegations made by the father in relation to the mother’s psychiatric health and on other hearsay assertions. Further, the mother argued that Dr F ignored or failed to have real regard to the opinions of other practitioners who had treated the mother and which contradicted his opinion that she has a psychiatric illness.
The mother argued that Dr F had substantially relied on Dr W’s report to come to his conclusion which was “factually flawed and contains…considerable hearsay evidence…” (transcript 15 July 2011 page 42 line 45).
It is pertinent to observe that neither Dr F nor Dr W expressed an opinion about the mother’s capacity to conduct the proceedings or to understand their nature and effect. Their opinions were solely directed to whether the mother had a psychiatric condition and, if so, what.
Both doctors had been provided with documents as background to their assessments. Each listed those documents in his report.
The mother argued that the trial judge erred in relying on Dr F’s opinion. She argued that the collateral documents given to him were unreliable in several respects and contained hearsay statements and unfounded allegations about her made by the father. She argued that the foundation of the diagnoses was the conclusion by the doctors that her beliefs were wrongly held and thus delusional. She said that without cross-examination and otherwise testing of the underlying assertions, that conclusion could not be safely drawn and the diagnoses could not be sustained.
The crux of the mother’s argument is demonstrated by a submission made in the appeal hearing when she said; “the allegations of my mental health did not come from my medical practitioners and that’s where psychiatrists should get their information from”. (Transcript of the Appeal hearing 19 February 2013 page 16 lines 24-25)
The essence of the mother’s criticism of the expert opinion can be seen in her argument to the trial judge:
[The mother]: … The application before me (sic) is that, as Ms [H] clearly pointed out to this court, both Dr [W] and Dr [F] allege I have delusion on the basis that [the father] is not violent, so therefore the evidence that I'm bringing is a) that [the father] is violent, and then I will show very clearly that the other misinformation before this court that I haven’t complied, and whether there was reasonable cause that I even be asked to see the psychiatric – seek psychiatric assessment, … I have seen Dr [F], and his psychiatric assessment that I held clear – no psychiatric test results was clear. The test results was clear, his opinion is flawed on the basis of the evidence that I’m giving you now, your Honour.
(Transcript 15 July 2011 page 52 lines 23-32)
The mother argued to the trial judge that if her assertions about the father and events she said were orchestrated by him were demonstrated to have in fact occurred, then Dr F was wrong in his conclusion that she had a delusional disorder.
It seems from Dr F’s report that while he certainly did not accept every assertion made by the mother, his focus was not necessarily on the event itself but the mother’s interpretation of it. As part of this argument, the mother asserted that Dr F’s opinion was significantly influenced by the father’s allegations about her in circumstances where those allegations were, as she argued, baseless.
Dr F’s report does not mention the father’s allegations. Dr W interviewed both parties for the purposes of preparing a report for the proceedings. Dr W sets out the allegations and counter allegations made by the each party against the other in his reports.
The mother argued that the genesis of the opinion of Dr F (and

Dr W) that she had a psychiatric condition was in allegations made by the father. She referred to a letter written by her general practitioner, Dr M in 2002 and other reports included or extracted in the Disputed Appeal book and observed that in none of those documents was it suggested that she had a mental illness. Although not reproduced in the appeal books, the mother then referred to a redacted extract of a report by Ms V who had prepared a number of Family Reports in the proceedings. In so much of the extracted paragraphs of the report as appear, Ms V noted:
44)[The father] questions whether [the mother] may suffer from Munchausen’s Syndrome By Proxy … (following four lines redacted) … he produced a report from a speech pathologist in which she notes that [S] has made remarkable development and his language skills are now well above average.
45)In my opinion, there is no data to support his claim. It is arguable that his actions here might be construed as attempting to place a seriously disturbing slant on [the mother’s] parenting. I note that he has been looking for information on the Internet to ‘fit’ her behaviour and he stretches the facts in an attempt to conclude that this assertion is probable ... (balance of paragraph redacted).
In the course of argument on the appeal the mother was asked what relevance she attributed to these passages and she said:
[The mother]: Well, it’s relevant because it’s what happens later to cause those reports to embellish this allegation. … So, if there was no data then how did Dr [W] write that I had a medical condition that no one else who was involved in our family, where did he get it from? He got it from [the father] and I can prove that.
(Transcript of the Appeal hearing 19 February 2013 page 15 lines 4-11)
We observe that neither Dr F nor Dr W made a diagnosis of Munchausen’s Syndrome by Proxy nor mentioned it in their reports.
The mother further asserts that in forming his opinion, Dr F gave no or no proper weight to the reports of her primary physicians, in particular, Dr M and Dr J although she conceded that Dr F had their documents.
In the preamble to his report, Dr F lists the documents presented to him by all parties. Included in that list are reports from Dr J, Dr M’s letter and an extract from her clinical notes and a copy of a report by a psychologist, Mr C. In relation to these reports, the mother argued that Dr F had not paid sufficient regard to their contents, rather placing heavy and unwarranted reliance on Dr W and other reports, less favourable to the mother.
The mother further argued that Dr F failed to take into account information about her that contradicted his conclusion. She referred particularly to her work and education history. Dr F recorded her past work and education history in his report.
In effect, the mother argued that the flaws inherent in Dr W’s reports were adopted and relied on by Dr F, ignoring the relevant information and incorrectly relying heavily on misinformation and hearsay, producing a “snowball” effect of errors.
We reject that contention.
The mother’s argument neglects the fact that both doctors conducted mental state examinations of her and based their opinions on their findings from those assessments. In addition, Dr F conducted extensive psychometric testing of the mother and, in his report, carefully considered and discussed the results of that testing in coming to his ultimate opinion.

Trial judge failed to take into account relevant information - Ground 1

We then turn to the mother’s assertions that the trial judge was wrong to accept Dr F’s report and that she failed to take into account updated assessments and accurate information.
The mother argued in her written summary that the trial judge erred when determining the issue of disability in not taking into account that the psychiatric reports were “old”. During the hearing before the trial judge and in her submissions on appeal, the mother referred to “updated medical assessments” and argued that the trial judge was wrong not to rely on them in coming to a determination of her capacity. She said that there were two updated assessments; one conducted in 2007 and the second in 2008.
The mother included in the Disputed Appeal Book a letter from Mr H, Health Information Manager Integrated Mental Health Service, N District Health Service. The letter indicates that the mother sought the letter from the service and says:
… [The mother] was accessed by our service on 22^nd March 2007 and at this time there was no evidence of mental illness and no further care was required.
In oral argument on the appeal, the mother said, referring to that document:
…However, it’s enough for me to be able honestly to say to you, they accessed all the information from the [L] Mental Health Service and [L] Hospital. I was also seeing a psychologist at that particular organisation, so they had access to Dr [F’s] and Dr [W’s] and everybody else’s opinion, prior to doing that assessment.
(Transcript of the Appeal hearing 19 February 2013 page 8 lines 17-21)
We understand from this that we were to accept that in preparation of the note, the maker had had regard to all of the documents to which the mother referred in her submission. Of course, as we explained to the mother, our function is not to determine the primary issue but to determine the issues on appeal.
The transcript makes it clear that the mother did not bring this letter to the trial judge’s attention during the hearing on 15 July 2011. It is not included in the appeal books. It is included in the Disputed Appeal Book.
However during submissions to the trial judge, the mother did refer to a psychiatric assessment conducted in 2008. The mother handed to the trial judge a document from X Hospital dated 11 July 2008 and which is in the following terms:
The doctor treating me has advised me that I could suffer permanent disability or die as a result of my medical problem.
I am aware that I may return to the emergency department at time (sic) if I am worried about my condition.
I have been given an instruction sheet if relevant to my present complaint.
The document is apparently signed by a doctor and a nurse. It does not indicate the nature of the condition to which the document relates or any other information about the mother’s presentation to hospital.
The mother said to the trial judge:
[The mother]: … I had a back injury, which is why I went there, but instead of treating my back injury, they forcibly psychiatrically assessed me, because of the referral of the four statements from this court.
(Transcript 15 July 2011 page 120 lines 4-6)
When asked for a copy of the assessment, the mother told the trial judge that it was in her medical records but despite her attempts to obtain them through Freedom of Information processes, she had been unable to have access to them.
Thus it seems that neither document was produced to the court.
The mother argued on appeal that the trial judge was wrong not to have accepted her when she told her of these updated assessments and should have relied on this information in determining what weight was to be attached to the opinion of Dr F. Further, the mother argued that the trial judge ought to have made an order to produce the updated assessments.
Whether or not the trial judge accepted the mother’s account that there had been updated assessments, we struggle to see how the mother’s assertion would have provided the trial judge with any information to bring to bear on whether to accept the opinion of Dr F.
As to the second point; during the submissions on the 15 July 2011 when the mother raised the issue of there being more recent medical assessments and that she was having difficulty obtaining copies of the documents, she did not seek an order from the trial judge that they be produced. That is a significant matter in our opinion. First, the documents although referred to as “more recent” were created years before the hearing and while the mother said she had encountered difficulty in obtaining them, she had had years in which to seek some advice about how to secure their production. This is particularly acute against the context of the hearing which was the mother’s refusal to comply with orders made for a psychiatric assessment of both parties to prepare the matter for hearing and when the principal, indeed only issue for determination by the trial judge was whether the mother had a disability of the type that would require the appointment of a case guardian. In those circumstances, we reject the mother’s contention that the trial judge was wrong not to have, of her own motion, ordered production of the documents.
The mother further argued that the trial judge failed to have proper regard to evidence of her treating doctors in determining the issue, particularly Dr M and Dr E.
Dr E is a general practitioner practising from an Aboriginal Medical Centre. At a number of places in her various documents, the mother has included letters from Dr E. His letters are addressed to Housing NSW, apparently in support of the mother’s application for housing. In April 2010 Dr E wrote on the mother’s behalf. In the letter he sets out her medical history. He makes no mention of any psychiatric illness. Equally, so much of Dr M’s records as are available make no mention of any mental illness in the mother.
The mother contended that the trial judge did not give sufficient weight to the documents to which she referred and which do not indicate that she had a psychiatric illness.
The assessment of the evidence and the attribution of weight to it is a matter quintessentially for the trial judge. The mother has not demonstrated any appealable error in the approach taken by the trial judge and the exercise of her discretion.

Failure to give sufficient weight to the determination of the Queensland Guardianship and Administration Tribunal – Ground 5

The thrust of the mother’s argument under this ground seems to be that the Tribunal had demonstrated expertise in determining issues of capacity, had more, accurate, reliable and recent information at its disposal on the question of the mother’s capacity and had dismissed the application pursuant to s 138A of the Guardianship Act representing the Tribunal’s conclusion that the application was vexatious. Further the dismissal of the application indicated a rejection of the opinions of Dr F and Dr W.
Thus the mother contended that the trial judge, being aware of this should have regarded the finding of the Tribunal as being, if not conclusive of the issue of her competency, of significant weight. Further, for the trial judge to persist in hearing and determining the Independent Children’s Lawyer’s application in the light of that knowledge was vexatious to and oppressive of the mother.
We will consider some of the underlying assumptions to this ground when dealing with the second issue raised in the mother’s appeal, namely the jurisdiction of the Family Court. However, we note that the trial judge correctly, in our opinion, rejected the mother’s contention that the dismissal of the application meant that the Tribunal regarded it as having been vexatious.
This argument is, in our opinion, flawed. It attributes to the decision of the Tribunal an effect unsustainable on the evidence and which flies in the face of common sense.
The mother has failed to establish an error in any of the three grounds to which we have referred.

Jurisdiction

The mother challenges the jurisdiction of the Family Court to make the order appointing a case guardian in grounds 3, 4, 6 and 7 of the notice of appeal. The mother argues that the Tribunal has exclusive jurisdiction in that regard. She further argued that that previous decisions of other courts and tribunals had conclusively determined the issue of her competency and the trial judge erred in considering the application.

Ground 4

Ground 4 of the mother’s notice of appeal provides:
4.That Justice O’Reilly erred in the making of an order for the appointment of a case guardian.
The basis on which the mother argued that the trial judge was wrong in making the order was that the Family Court lacked jurisdiction because the Tribunal had exclusive jurisdiction to determine issues of competency.
The mother argued that s 4 of the Guardianship Act provides the basis for the argument that the Family Court lacked jurisdiction to make the order. That section states:
4. Act binds all persons.
This Act binds all persons, including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and the other states.
The argument thus was that this section of the act gives the Tribunal exclusive jurisdiction to determine issues of competency. Further, the mother argued that the Tribunal has demonstrated expertise in issues relating to competency and has much more extensive information before it than the Family Court. Thus she argued, the Tribunal having heard and dismissed an application in April 2008, the issue had determined once and for all and it was not open to the Family Court to revisit the matter and her Honour was in error in determining the issue.
The Guardianship Act is a state Act and the states’ plenary power is subject to the Australian Constitution. Only the Commonwealth Parliament may make laws about the matters listed in s 51 of the Constitution including “(xxi) marriage” and “(xxii) divorce and matrimonial causes and in relation thereto, parental rights, and the custody and guardianship of infants.” Thus the legislative power of Queensland does not extend to proceedings under the Family Law Act 1975 (Cth) or the rules of court made pursuant to s 123 for the management of the proceedings before it.
As to the effect of the Tribunal’s dismissal of the application in April 2008, the mother’s written argument developed the point about the information available to the Tribunal in coming to its decision.
In her written summary of argument the mother argued that the Tribunal:
4.1being the Guardianship and Administrative Tribunal (they had considered all of the available facts (over the Father’s hearsay) and the Court reports of Dr [W] and Dr [F] and dismissed the application to appoint a Guardian for the Mother on 7 April 2008, under the Guardianship and Administration Act 2000, s.138A “…vexatious, malicious, without substance…” application.
4.1.1their determination considered the Legal decision of Justice Carmody, Family Court on 12 September 2005, he dismissed the Independent Children’s Lawyer’s application and Dr [W’s] reports of 2004.
4.1.2their determination considered the Legal decision of Queensland Rail after a Private Investigation in 2007, which verified the Mother was competent at observing, recording, reporting incidents to protect people and property and that there was no evidence of a mental health condition (this was based on a psychiatric assessment in March 2007)
4.1.3their determination considered the determination of the Supreme Court 2007, who dismissed an application by the Father to remove the Mother’s total human rights. (Errors as in original)

Legal dispute with mother’s employer

The mother included some documents in the Disputed Appeal Book in relation to her action against her employer, however, they are incomplete. It seems that the mother complained in April 2007 that she had been unfairly treated in her workplace, having been informed that she could not go to the workplace without having “further tests”. The complaint was investigated and the investigators concluded:
Of critical import to this matter is whether or not [the mother] should have been excluded and required to attend a company medical appointment. The investigators would argue that without [the mother] having demonstrated inappropriate actions or behaviour in the workplace… [the … employee] should not have requested [the mother] to attend a medical on these grounds in any event, much less excluded from duties until such attendance.

The letter from Mr H of May 2007 is in some way associated with the workplace dispute, it being addressed to the employer and we are prepared to consider that it was related to her action.
The mother included in the Disputed Appeal book a list of documents before the Tribunal. That list does not include the order of Carmody J or the order of Lyons J. To the extent that the submission rests on the Tribunal having considered those orders, we reject it.
There is no reference to any document later than March 2007 and no reference to the documents relating to the mother’s case against her employer in the list of documents held by the Tribunal.
However, to the extent that the argument rests on the basis that the determination of the Tribunal finally concluded the issue of the mother’s competency, we reject it. The application with which her Honour was dealing was quite distinct, that is whether the mother was, by reason of a disability unable to conduct the proceedings on her own behalf. The matters for her Honour’s consideration were limited to the trial before her. She was not enquiring into the mother’s capacity in other aspects of her life. The issues before the Tribunal are significantly different to those considered by the trial judge in determining whether the mother required the appointment of a case guardian.

Grounds 3 and 6

Grounds 3 and 6 of the mother’s notice of appeal provide:
3.Insufficient weight was given to the previous decision of Carmody J. in October 2005 when he dismissed Dr [W’s] report on the basis of Dr [J’s] report and dismissed the application to appoint a case guardian for the appellant.
6.Insufficient weight was given to the determination by Justice Lyons in the Supreme Court [in] August 2007 to dismiss the father’s application as without substance. (Errors as in original)
The mother argued that, not only did the Tribunal dismiss the application for the appointment of a guardian for her in 2008, but that similar applications had been dismissed by Carmody J in 2005 and Lyons J in 2007.
The mother argued to the trial judge that the effect of Carmody J’s dismissal of the Independent Children's Lawyer’s application for the appointment of a case guardian was a determination on the merits of the application and amounted to a rejection of the opinions of Dr F and Dr W. This was correctly rejected by the trial judge who observed that the application was dismissed because the Independent Children's Lawyer had not obtained the consent of a person prepared to act as the mother’s case guardian.
Her Honour also rejected the mother’s submission that the effect of dismissing the application, was that Carmody J had considered and rejected the opinion of

Dr W. (Transcript 15 July 2011 page 35)
The trial judge was entirely correct to reject the mother’s argument as to the effect of the determination by the Tribunal in 2008 and the order of Carmody J.
The mother refers to a determination by Lyons J in the Supreme Court of Queensland. In August 2007 an order was made by Lyons J dismissing an application brought by the father with no order made as to costs. There is no other document to assist in understanding either the substance of the application or why it was dismissed. However we observe that in her written summary of argument the mother refers to this as “…The Supreme Court 2007, who dismissed an application by the Father to remove the Mother’s total human rights” (at [4.1.3]).
It would also seem that the mother considered the report of Mr H and the determination of the investigators in relation to her complaint against her employer as being a further decision which was contradictory to the determination of the trial judge.
Further the mother argued that the repeated attempts through the Family Court to have a case guardian appointed for her in circumstances where the trial judge was aware of the order of the Tribunal in April 2008 and the earlier dismissal of the Independent Children’s Lawyer’s application by Carmody J was oppressive and vexatious.
Seminal to that argument is the assertion by the mother that the order by the Tribunal in April 2008 and the order of Carmody J in 2005 amounted to a consideration and rejection of the opinions of Dr F and Dr W. We have already rejected that contention.
We reject the argument that the proceedings in the Family Court to have a litigation guardian appointed were oppressive of the mother or were vexatious.

Ground 7: Denial of Procedural Fairness

This ground contends that the trial judge failed to afford the mother procedural fairness. The ground and the associated particulars spans 11 pages and we will identify the various particulars within the ground by the headings used by the mother.

1.1 The Court relied upon Errors of fact within court records that had already been considered dismissed as vexatious, malicious and without substance and evidence of this was within the Mother’s affidavit 13 October 2010… (Errors as in original and numbering as in original)

The thrust of this complaint is that the trial judge gave no or no proper attention to the previous proceedings in which the appointment of a guardian for the mother was sought. As we have indicated the mother’s submissions in respect of the earlier applications proceed on the misapprehension that they had the effect of concluding the issue of whether she was a person for whom a case guardian should be appointed. The mother has not demonstrated any substance in this alleged error.

1.2 The Court did not receive evidence from the Independent Children’s Lawyer that the allegations the Mother held a mental health condition relied upon there being no Child Harm and Domestic Violence. Thus the Court report writers could not weigh or rely upon any of the material now compiled in the Mother’s affidavit of 13 October 2010…

1.3 The Court without proper evaluation and reference to the Law, relied upon assertions by the father which were untrue and rebutted in available evidence from 2003 to 2011, my affidavits of 13 October 2010 and 01 February 2011…. (Errors as in original and numbering as in original)

These particulars repeat the assertions made under other Grounds namely that the opinion of Dr F was accepted by the trial judge when it was unsafe to do so because it was based on untested, unfounded assertions about the mother. We reject the complaint and find that the trial judge did not err as asserted.

1.4 The Court gave no due weight to the evidenced criminal threats by the father against the life of the mother. …

Her honor erred failed to give due weight to the evidenced, long history of the father…

Her Honor erred and her discretion miscarried in that she failed to give due weight to the evidence that the father, for reasons pertaining to his known duplicity and evidenced connections with India, is very likely to return to India permanently and remain there and not allow the return to Australia of the children….

Her Honor erred and her discretion miscarried in that she failed to give due weight to the complete contempt of the father, on many occasions including recently, thwarting the children from spending time with their mother as compared to merely ‘having a holiday’ with him in India. (Errors as in original and original numbering)…

These matters, if they are relevant, appear to be a continuation of the mother’s argument that before the trial judge could safely rely on Dr F’s opinion that she was delusional, the trial judge was obliged to determine that the mother’s assertions against the father were not true, she arguing that if they were true, then she was not delusional. We reject the basis of the argument. The trial judge did not err as asserted.

Her honor erred when she didn’t consider the Mother was on a medical certificate until 28 February 2011 and entitled under legislation to time out for rest and recovery. It is very exhausting to have to constantly answer dishonest statements, false statements and multiple applications and affidavits lodged by the Father. It is also costly…. (Errors as in original and original numbering)

It seems that this is a reference to the father’s applications to various courts and tribunals and the mother’s contention that the repeated applications were oppressive. We have rejected this argument.

Her honor erred when she didn’t consider the Mother’s training, her medical history or the Children’s medical history within her affidavit of 13 October 2010… (Errors as in original and original numbering)

In the particulars under this heading, the mother refers to her completion of a university degree, that she has held training and service roles and has managed the children’s health difficulties in the past.
The thrust of the mother’s argument is that the information about the mother’s achievements and her proven parenting capacity were matters that contradicted Dr F’s opinion and were matters that the trial judge ought to have taken into account in determining the issue of the mother’s capacity.
As we have already indicated, the weight or importance given to evidence is squarely a matter for the trial judge. The mother has not made out any error in her Honour’s consideration of the evidence.

Her honor erred when she didn’t consider that the Mother had competently self-represented as she was without legal aid assistance/legal counsel… (Errors as in original and original numbering)

The trial judge made a specific finding that the mother “…is not capable of representing herself and that it is imperative that her lawyers continue to assist in the trial.…” (see par [16.4]).
In the particulars of this complaint, the mother refers to having represented herself in various matters with some success. However, the trial judge’s finding above was based on her observations of the mother in the context of the Family Law proceedings before her. It was a conclusion open to her and she made no error in finding that the mother was not competent to represent herself.

Her Honor erred when deciding that a person who simply holds a “…disability…” is incapable of giving instruction, which presumes Legal Counsels conduct was ethical at all times…. (Errors as in original and original numbering)

Her Honour did not find as the mother asserts. The trial judge clearly distinguished between a person with a “disability” and the effect of that disability on that person’s capacity to conduct or give adequate instructions for the conduct of the case (see [60]-[61]).

Her Honor erred when determining that the “Adult Guardian” could be paid out of [the mother’s] property division….(Errors as in original and original numbering)

The provision for payment of the case guardian from the proceeds of any eventual property division to the mother seems to us to be entirely appropriate and no error has been demonstrated.

The mother requested on 15 June 2010 and on 15 July 2011 that the Father’s application be dismissed under s.118 Family Law Act 1975 given the determinations by the Supreme Court and the Guardianship Tribunal…. (Errors as in original and original numbering)

The mother did refer to s 118 of the Act several times in her submissions to the trial judge in July 2011. However, the trial judge acted on the application of the Independent Children's Lawyer and made orders consistent with that application and, inferentially rejected the mother’s submission that the application was vexatious. We fail to see how or in what respect the trial judge had any relevant application of the father’s to which the section would apply.
The mother has failed to establish any ground of appeal and demonstrate error by the trial judge. We will thus dismiss the appeal.

Costs

As is customary, we sought submissions on the question of costs at the conclusion of the appeal hearing. Neither the mother nor father had legal representation. The father indicated that, if he were to seek an order for costs against the mother in the event that the appeal was unsuccessful, he would seek a payment to him of about $10, on reflection he indicated that he would not seek an order for costs. The Independent Children's Lawyer did not seek an order for costs in the event that the appeal was unsuccessful.
We will make no order as to costs.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy & Kent JJ) delivered on 7 June 2013.

Associate:

Date: 7 June 2013