Sirola and Sirola and Ors (No 2) - [2018] FamCA 1132

FAMILY COURT OF AUSTRALIA

SIROLA & SIROLA AND ORS (NO. 2)

[2018] FamCA 1132

FAMILY LAW – PRACTICE AND PROCEDURE – Application for appointment of case guardian – Property proceedings – Where the interveners and the wife seek the appointment of a case guardian for the husband – Court finds that the husband has mental health concerns which mean he is not capable of adequately conducting or giving adequate instructions for the conduct of the case – Orders made for the appointment of a case guardian.

Family Law Rules 2004 (Cth) rr. 6.08, 6.09

R v Sirola [2018] NSWSC 1893

APPLICANT:

Ms Sirola

RESPONDENT:

Mr Sirola

INTERVENOR:

Ms T Sirola and Mr U Sirola

FILE NUMBER:

SYC

5380

2014

DATE DELIVERED:

13 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

13 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Harris Freidman Lawyers

SOLICITOR FOR THE RESPONDENT:

Family Law Practice Australia Pty Ltd

SOLICITOR FOR THE INTERVENOR:

Prime Lawyers

Orders

Mr D be appointed as Case Guardian of the First Respondent, pursuant to rule 6.09 of the Family Law Rules 2004 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sirola & Sirola and Ors (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5380 of 2014

Ms Sirola

Applicant

And

Mr Sirola

Respondent

EX TEMPORE JUDGMENT

This matter concerns an application to appoint a case guardian to act on behalf of the Respondent husband, Mr Sirola, (“the husband”) in the property proceedings between the parties.
The parenting proceedings between the parties were finalised on 16 December 2016, and at the conclusion of those parenting proceedings, the property proceedings were adjourned to permit the intervention of certain parties, including Ms T Sirola and Mr U Sirola (“the interveners”), who remain parties to the proceedings today.
The background and history of this matter are set out in earlier judgments of the Court. The application for the appointment of a case guardian is made in circumstances where the husband is incarcerated and facing serious criminal charges and where his mental health has been brought into question in those proceedings.
The solicitor for the interveners, Mr JJ, has helpfully provided an Outline of Argument document (“Exhibit “A”) and has referred me to evidence upon which he relies, which is not challenged in these proceedings. That evidence includes the following:
a)Affidavit of Mr JJ filed on 19 October 2016;
b)Affidavit of Mr JJ filed on 10 December 2018;
c)Affidavit of Mr II filed on 1 August 2018;
d)Affidavit of Ms T Sirola dated 28 November 2016;
e)Affidavit of Mr D filed on 11 December 2018;
I have also been provided with a copy of a decision of Rothman J in the matter of R v Sirola [2018] NSWSC 1893 dated 7 November 2018, which is summarised in the Outline of Argument document (Exhibit “A”).
I note that rule 6.08 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:
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 language of that rule is mandatory. That is, once it is determined that a person has a relevant disability, which impacts upon their ability to conduct the proceedings, the case may continue only by way of a case guardian being appointed in respect of that person.
The Rules define a “person with a disability”, as follows:
person with a disability, in relation to a case, means 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.
In this matter, the husband is represented in his criminal proceedings by Mr II. In Mr II’s Affidavit filed on 1 August 2018, to which I have referred, he states that, given his concern for the husband’s mental health, he commissioned a review of him by Dr KK, Psychiatrist. Dr KK’s report forms Annexure “E” to Mr II’s Affidavit and states:
I would regard him as manifesting a delusional disorder, persecutory type, with bizarre content. A differential diagnosis would include a schizoaffective disorder (given his rapid speech) and paranoid schizophrenia (given the presence of probably mild looseness of associations and thus mild thought disorder).
Dr KK further states:
I have concern about his capacity to understand what is going on in court in a general sense – your client presented as an individual who was significantly preoccupied with his delusional belief system and conspiracy theories. I found interviewing him difficult, partly because of his rapid speech and also because of his significant preoccupation with his delusional belief system and his perception that the charges relate to a conspiracy against him. …there is probability that your client would perceive the court hearing more as an extension of the general conspiracy that he has about authorities…
Similarly, his significant delusional preoccupation raises concern about his capacity to give necessary instructions to counsel through the course of a trial.
That report of Dr KK is dated 6 December 2017 and was referred to in the findings of Rothman J, to which I have referred. At paragraphs 17 to 19 of that decision, Rothman J states:
17. [Professor LL] came to the view that the accused is:
"[S]uffering from complex systematised paranoid and grandiose delusions. Assuming the allegations of his assault on another inmate were unprovoked, it appears he likely is acting on such delusional beliefs. He was emotionally labile and at times extremely agitated and hostile. He was preoccupied with the beliefs that his wife and son had been raped at this time and in my view, this would likely impair his concentration and attention during his trial.
I am of the opinion that [the accused] could not at this time decide on what defence he should make.
…
[The accused] was unable to give a coherent account of himself during the time of the alleged offence.
…
I am of the opinion that [the accused] would have difficulty instructing his legal counsel at this time. He is acutely unwell with a major psychiatric illness and is psychiatrically unmedicated at this time.
I am of the opinion that [Mr Sirola] cannot give evidence at this time, if required to do so because of his underlying psychotic mental state."
18. [Dr KK] concluded, as earlier stated, that the accused was unfit to be tried. [Dr KK] accepted that the accused manifested a "capacity to understand what it is he is charged with", but, even though he could understand the terms guilty and not guilty and the consequences of findings to that effect, "his significant delusional preoccupation raises concern about his capacity to give necessary instructions to counsel through the course of the trial".
19. As to the accused's psychiatric illness, [Dr KK] expressed the opinion that the accused manifested:
"[A] delusional disorder in that he presents with a complex systematised constellation of delusions of a persecutory nature, involving government authorities, including law enforcement authorities, who have been conspiring against him, fabricated and buried evidence in relation to the Port Arthur massacre, and who have conspired to have various family members sexually assaulted. His symptoms have been present for a fairly long time but there are no significant perceptual disturbances.
…
I would regard him as manifesting a delusional disorder, persecutory type, with bizarre content. A differential diagnosis would include a schizoaffective disorder (given his rapid speech) and paranoid schizophrenia (given the presence of probable mild looseness of associations and thus mild thought disorder).”
I note that Mr JJ correctly summarises Rothman J’s conclusion that it would be perverse for the Court to come to a conclusion different from that of both Dr KK and Professor LL, who is referred to in paragraph 17 of that decision.
Accordingly, Rothman J concludes at paragraph 21 that:
… On the evidence before the Court, it is clear that the [husband] is unfit to be tried, at least at the moment and will remain so for the next 12 months.
It has been submitted by Mr JJ that the evidence of the psychiatrists and those findings of Rothman J support the submission that the husband, due to his mental health, is not capable of giving adequate instructions in relation to the conduct of these proceedings. I accept that there is a concern that the husband does not understand the possible consequences of this case.
I further agree with the observation of Mr JJ that the husband’s conduct of these proceedings to date has done little to convince the Court that he is capable of adequately conducting, or giving adequate instruction for the conduct of, this case. In that respect, I note the husband’s lack of disclosure and the difficulty that his legal representatives have experienced in attempting to obtain instructions from him. I also note his erratic behaviour during the course of the hearing and proceedings generally. As noted, there is no challenge to that contention by Mr JJ, and it is one that I agree with and accept.
Having found that the husband falls within the parameters of “a person with a disability”, it is now necessary to determine who should be appointed as his case guardian. In that regard, rule 6.09 provides:
A person may be a case guardian if the person:
(a) is an adult;
(b) has no interest in the case that is adverse to the interest of the person needing the case guardian;
(c) can fairly and competently conduct the case for the person needing the case guardian; and
(d) has consented to act as the case guardian.
In terms of who should be appointed as the husband’s case guardian, it is contended that Mr D, the husband’s stepfather, should be appointed. In his Affidavit filed on 11 December 2018, Mr D has consented to being appointed. In that Affidavit, Mr D outlines his involvement in these and the Supreme Court proceedings.
On the basis of the evidence, I accept that Mr D does not have an interest that is adverse to the interests of the husband. Indeed, during the course of the proceedings, I have noted that Mr D attended Court on a number of occasions in support of the husband. I am further satisfied that Mr D can fairly and competently conduct the case on behalf of the husband. He holds office as one of the husband’s joint attorneys, has shown both interest and understanding in these proceedings and has at all times received legal advice from a solicitor in any dealings between the parties.
I accept that while the husband’s mother, Ms D, would also be an appropriate case guardian, her current ill health has resulted in an agreement between herself and Mr D that he should take on that role.
Accordingly, I am satisfied that Mr D is an appropriate person to be appointed as the husband’s case guardian in these proceedings. In those circumstances, I make orders in accordance with the Application in a Case filed by the interveners on 10 December 2018.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 13 December 2018.

Associate:

Date: 15 February 2019