Salmon and Marin (No 2)

Case [2011] FamCA 664

FAMILY COURT OF AUSTRALIA

SALMON & MARIN (NO 2) [2011] FamCA 664
FAMILY LAW – PRACTICE AND PROCEDURE – Case guardian appointed for the wife

Family Law Act 1975 (Cth) s 68LA(2), s 68LA(3)
Family Law Rules 2004 Rules 6.08, 6.09, 6.10, 8.02(4)

Guardianship and Administration Act 2000 (Qld) s 126, s 138A

N PJ, Managing Family Law Clients With Complex Needs, Family Law Residential 2007, Queensland Law Society website
APPLICANT: Mr Salmon
RESPONDENT: Ms Marin
FILE NUMBER: BRF 3924 of 2003
DATE DELIVERED: 15 July 2011
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: O’Reilly J
HEARING DATE: 15 July 2011

REPRESENTATION

THE APPLICANT: In person
THE RESPONDENT: In person, with Mr Ian Bruce Bell as McKenzie friend
THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hawdon

Forest Glen Lawyers

Orders

IT IS ORDERED

  1. Pursuant to Rule 6.09 of the Family Law Rules 2004 Mr N is appointed case guardian for Ms Marin in relation to these parenting and property proceedings.

  2. Pursuant to Rule 6.14, Mr N’s costs of acting as case guardian be paid from the income and property of Ms Marin.

  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.

AND IT IS FURTHER ORDERED

  1. The husband by 4pm on Monday 8 August 2011:

    a.file and serve on Mr N a balance sheet

    b.make disclosure under the Rules.

  2. The wife by her case guardian by 4pm on 29 August 2011:

    a.file and serve  a response to the husband’s balance sheet

    b.make disclosure under the Rules.

  3. The parties have discussions as to possible settled outcome of the parenting and property proceedings.

  4. If consent orders are able to be reached the case guardian file and serve on the husband and the independent children’s lawyer an affidavit in accordance with Rule 6.13(1)(d) and seek a listing of the matter before the Honourable Justice O’Reilly by arrangement with the Associate.

  5. Otherwise absent any prior listing for any reason, the matter be listed for mention at 9.30am on Monday 5 September 2011 before the Honourable Justice O’Reilly.

  6. All other applications by Ms Marin be listed at 9.30am on Monday 5 September 2011 for mention.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3924 of 2003

Mr Salmon

Applicant

And

Ms Marin

Respondent

REASONS FOR JUDGMENT

Application

  1. The independent children’s lawyer by application in a case filed 9 June 2011 seeks the appointment of a case guardian for Ms Marin and that the costs of and incidental to the application for appointment and the case guardian’s conduct of the proceedings be paid from the income or property of Ms Marin.

  2. The independent children’s lawyer has obtained the written consent to…

Continue reading Salmon and Marin (No 2)

Sign in free to access the full text

Details
AGLC
Salmon and Marin (No 2) [2011] FamCA 664
Case
[2011] FamCA 664
Decision Date

CaseChat Overview and Summary

This matter concerned applications for guardianship and administration concerning Ms Marin, initiated by the Tribunal itself after dismissing similar applications made by Mr Salmon. The dispute centred on Ms Marin's mental state and her capacity to understand and participate in Family Court proceedings. The Tribunal was required to determine whether Ms Marin had the capacity to understand the nature and effect of decisions in the Family Court proceedings, and her ability to instruct legal representatives or represent herself.

The court's reasoning was heavily influenced by the psychiatric evidence presented, particularly the report of Dr M. Dr M diagnosed Ms Marin with Delusional Disorder (Paranoia) of the Persecutory Type, with prominent paranoid and some schizotypal personality traits, and an auditory processing deficit. He found her beliefs about a "home invasion" to be delusional and noted that her delusions intensified when her husband had geographical access to her. Dr M concluded that while Ms Marin was not actively psychotic in her current environment, her delusions were entrenched and she lacked insight. He recommended long-term psychiatric treatment, including antipsychotic medication, acknowledging the difficulties in establishing a therapeutic relationship due to her suspicion and lack of insight, suggesting treatment might need to be initiated involuntarily.

The Tribunal ordered that the parenting proceedings be stayed until Ms Marin complied with specific directions. These directions included undertaking a psychiatric examination and providing a report on her capacity to understand Family Court proceedings and instruct legal representatives. Ms Marin was also directed to provide a comprehensive list of specified psychiatric and psychological reports to the examining psychiatrist. The Tribunal had previously dismissed Mr Salmon's applications for guardianship and administration, finding he was not an interested party, but had itself initiated separate applications for these orders, which were adjourned pending the psychiatric assessment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Thus, I need to look at the history of the psychiatric evidence in the matter concerning Ms Marin. Ms Marin has been diagnosed as having a psychiatric disorder. It has been recommended that she undergo “long-term psychiatric treatment by a psychiatrist”, “the most important component” of which would be “long-term antipsychotic medication”. See the report of Dr M, psychiatrist, p 55, annexed to his affidavit filed 23 January 2006. Dr M interviewed Ms Marin and caused to be carried out psychological testing in January 2006. His report, as I have mentioned, is dated 20 January 2006 annexed to his affidavit filed 23 January 2006. As is evident from his report Dr M, at the request of the then children’s representative, consulted with Dr O, psychiatrist, whose two earlier reports I will refer to below, and with a Dr Y, psychiatrist, who had previously treated the mother. In addition, Dr M referred to Dr O’s earlier reports, documents including clinical notes subpoenaed from a Dr P, consultant psychiatrist, three family reports prepared by Ms U, social worker, as well as numerous other documents set out at pages 2 and 3 of his report. Dr M’s report is 55 pages in length and annexes psychological testing results and other material, some of which was provided to him by the mother. Although I have had regard to the whole report it seems to me that certain parts bear setting out. pages 35-36 (Mental State Examination): I find I have little hesitation in regarding her beliefs about the “home invasion” as bizarre and delusional. It is highly likely that in order to attain these entrenched beliefs she experienced delusional perception as well as selecting a particular paranoid explanation from a range of possible alternatives. It beggars belief that her husband would have had the ability or the motivation to perpetrate these remarkable actions and it is even more incredible that they could have been perpetrated by a group of people at his instigation. In the delusional process there is often a component of retrospective delusion or delusional memory. While she is not actively psychotic now in the sense that she is not experiencing any ongoing hallucinations or delusions, she holds fixedly to her memory of these events and their delusional interpretation.I disagree with [Dr O’s] estimate of her IQ as being in the low average range. I think it is above average.She had quite marked obsessional traits.Some of the phenomena noted may be due to difficulties with the auditory processing but I think most are defensive or personality-based in nature. pages 52-53 (Plain Language Comment on Psychometric Testing):Both the personality profiles i.e., the scores for the major dimensions measured, were surprisingly normal as will be seen from the descriptions in the above. The characteristics suggested by these scores were quite inconsistent with what is known of her history and behaviour both in the long term and over the last few years. I have commented already on her observed tendency to underscore relative to what is clearly true in regard to her reactions and situation. I draw the reader’s attention to the clearly false characteristics described under Somatic Complaints, Anxiety, Anxiety Related Disorders, Depression, Paranoia, Borderline Features, Antisocial Features, Stress, Dominance. The only abnormal score is the very significant positive impression (PIM 57T), which suggests she responded in a manner to portray herself relatively free of the common shortcomings most people will admit to. If she was able to do this, how much more so would she be able to portray herself free of more severe psychopathology. The MMPI-II however, provides an explanation for the marked inconsistency between the clinical picture and the profile. This explanation is given under the heading “normal K+ profiles”. It is to be noted that she conforms to the five characteristics listed at the beginning of this discussion. It is to be noted that this particular profile is associated with serious psychopathology. Spike 3, though only low, is of some relevance, but most apposite are the remarks about characteristics associated with Code Type 3-4/4-3. Most notably people conforming to this code type “report little psychological or emotional distress and describes (sic) themselves as less depressed and anxious than do most psychiatric patients. Behavioural problems are more likely to occur in this code type than in any other code type that includes Scale 3.There is no suggestion being made that [Ms Marin] is consciously or deliberating (sic) dissimulating. She is answering according to how she sees herself and how she rationalises her behaviour and her relationship with reality. She is answering the tests according to a fantasised (and partially deluded) view of herself and her environment. page 54 (Diagnosis and Discussion):The diagnosis is as follows:Axis Ia) Delusional Disorder (Paranoia) of Persecutory Type. b) One or more previous Major Depressive Episodes and/or Adjustment Disorders. c) Reading Disorder (Mild),Axis IIPersonality Disorder with prominent paranoid traits and some schizotypal ones.Axis IIIAuditory Processing Deficit.I don’t think there is any doubt about her beliefs in regard to the home interference being delusional. She still holds them without reservation. She is not actively psychotic in the sense that there are no continuing psychotic phenomena while she is living in [Z Town]. The delusions developed and propagated while she was living in the same city as her husband and having more or less contact with him. It is noteworthy that on a recent return to the marital home, some kind of ceiling collapse occurred and she believed this was due to further invasion through the roof. She is terrified of her husband and when he has practical geographical access to her she becomes more actively psychotic. The purpose of his machinations is by no means clear. Certainly since [Dr O’s] report and her treatment in [AA Hospital], he has been, she believes, actively discrediting and slandering her. It is very concerning indeed that the children to some degree have been involved in her delusional thinking and that one of them was seen as acting as an agent for the father. page 5 (Recommendations):[Ms Marin] 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. Treatment can therefore often only be delivered under the Mental Health Act. Some psychological approaches can be theoretically helpful e.g., Cognitive Behavioural Therapy, but once again the problem would be in getting her to accept any approach which questions the validity of her beliefs and the justification of her behaviour. The reaction [Dr Y] describes is typical. Psychological treatment attempting to address other problems she may have is unlikely to be of any benefit unless the psychosis is treated. The hope with the treatment is that while it may need to be initiated involuntarily, if it is successful and insight is gained, the patient may become a willing participant. Unfortunately in my experience this rarely happens. The treatment of the disorder is not uncommonly compounded by comorbidity particularly Major Depression to which she is prone. (emphasis added)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On 2 April 2007, I ordered that the parenting proceedings be stayed until Ms Marin complied with pars 5(b) and (c) of the order made by the Tribunal 2 November 2006. It is appropriate at this juncture to set out that order in full:DECLARATION1.The Tribunal finds that [Mr Salmon] is not an interested party in these proceedings pursuant to section of [sic] 126 of the Guardianship and Administration Act 2000.GUARDIANSHIP2.That the application by [Mr Salmon] for the appointment of a guardian for [Ms Marin] is dismissed.ADMINISTRATION3.That the application by [Mr Salmon] for the appointment of an administrator for [Ms Marin] is dismissed.ADJOURNMENT4.That the hearing of the Tribunal Initiated applications for guardianship and administration are adjourned to a date to be fixed.DIRECTIONS5.The Tribunal directs that:(a)[Ms Marin] provide the Tribunal within twenty-eight (28) days written advice as to whether [Ms Marin] currently has legal representation on the record in the proceedings before the Family Court of Australia.(b)[Ms Marin] to undertake a psychiatric examination with a qualified psychiatrist and provide the Tribunal with a report as to the following:(i)[Ms Marin’s] capacity to understand the nature and effect of decisions likely to arise in the course of the Family Court proceedings.(ii)[Ms Marin’s] ability to give instructions to her legal representatives in the Family Court proceedings and if she is not legally represented, whether [Ms Marin] has the capacity to represent herself in these proceedings.(c)[Ms Marin] to provide to the psychiatrist making the report referred to in these directions the following documents in complete form:(i)Report of [Dr O], Psychiatrist, dated 21 December 2004.(ii)Report of [Dr O], Psychiatrist, dated 05 September 2004.(iii)Report of [Dr P], Psychiatrist, dated 31 January 2005.(iv)Report of [Dr M], Psychiatrist, dated 20 January 2006.(v)Fascimile of [Dr M] to [Mr R], dated 15 May 2006.(vi)The Health Professional Report of [Dr S], General Practitioner, dated 01 September 2006.(vii)The Health Professional Report of [Ms T], Probationary Psychologist, dated 04 September 2006.(viii)Letter from [Ms T], Probationary Psychologist, dated 20 September 2006.(ix)Report from [Ms U], Social Worker, dated 19 April 2005.(x)The Health Professional Report of [Ms U], Social Worker, dated 11 July 2006.(xi)A copy of this Order.(d)[Ms Marin] provide a copy of this Order to the Family Court of Australia.(e)[Ms Marin] is to provide a copy of the Psychiatrist’s Report referred to in Direction (b) of this Order to the Tribunal within seven (7) days of [Ms Marin’s] receipt of this Report. Imperatively, it is to be noted that whilst the Tribunal in that order dismissed the father’s applications for appointment of a guardian and/or administrator for Ms Marin on the basis that he was “not an interested party” to the proceedings under the Guardianship and Administration Act 2000 (Qld), his two applications being numbered 3151 and 3152 of 2006, it is plain that the Tribunal itself initiated two further applications for guardianship and administration, those being numbered 5342 and 5365 of 2006 (see the matter numbers on the first page of the order). Further, by par 4 of the order, the Tribunal directed that the “Tribunal Initiated” applications for guardianship and administration be adjourned to a date to be fixed, and by pars 5(b) and (c) ordered the mother to undertake psychiatric examination and that she provide to the psychiatrist the documents listed.