Somerville and Somerville (No.2)
[2014] FCCA 2439
•31 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOMERVILLE & SOMERVILLE (No.2) | [2014] FCCA 2439 |
| Catchwords: FAMILY LAW – Litigation Guardian pursuant to r.11.08 FCCR – whether evidence justifies – meaning of r.11.08(1) – personality disorder. |
| Legislation: Federal Circuit Court Rules 2001 (Cth),r.11.08 |
| L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 |
| Applicant: | MR SOMERVILLE |
| Respondent: | MS SOMERVILLE |
| File Number: | WOC 1043 of 2012 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 11 March 2014 |
| Date of Last Submission: | 11 March 2014 |
| Delivered at: | Wollongong |
| Delivered on: | 31 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Miller |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| Counsel for the Respondent: | Ms Gillies |
| Solicitors for the Respondent: | Rossi Simicic Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr McPherson |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
| Counsel for the Intervenor: | Mr Anderson |
| Solicitors for the Intervenor: | Crown Solicitors Office |
ORDERS
There is no evidence before the Court that the Mother in these proceedings requires a litigation guardian pursuant to Rule of 11.08 of the Federal Circuit Rules.
IT IS NOTED that publication of this judgment under the pseudonym Somerville & Somerville (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1043 of 2012
| MR SOMERVILLE |
Applicant
And
| MS SOMERVILLE |
Respondent
REASONS FOR JUDGMENT
Introduction
On 11 March 2014 the Court made Orders in the following terms:
A declaration that there is no evidence before the Court that the Respondent Mother is a person who needs a litigation guardian pursuant to rule 11.08 of the Federal Circuit Court Rules 2001.
As there were many other pressing issues relating to this case, the Court indicated that it would provide written reasons for its order at a later date.
These reasons for Judgment explain why the Court made the Order.
Background
The parents were involved in complex parenting and property proceedings before the Court. Matters of background are adequately set out in the Court’s reasons for judgment delivered on 21 March 2014 and published as [2014] FCCA 695. The detailed chronology at Schedule One to those reasons sets out a comprehensive history of the case.
The legal representatives for the Respondent Mother raised before the Court issues about their client’s capacity to conduct the litigation, and her possible need for a litigation guardian. At this point the Court took upon itself the responsibility for determining whether a litigation guardian should be appointed for the Mother. Rule 11.11 of the Federal Circuit Court Rules 2001 (FCCR) makes it clear that the Court may act of its own motion in this regard. The determination of the issue was obviously critical to the future conduct of the case.
The issue that is raised in this case is the meaning of the words used in rule 11.08(1) FCCR.
The Applicable Law
FCCR 11.08(1) states:
Person who needs a litigation guardian
(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2) Unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
The rule has been the subject of detailed consideration by the Full Court of the Federal Court of Australia in L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114. A number of helpful passages from the judgment will be reproduced below:
THE APPOINTMENT OF LITIGATION GUARDIANS
[23] The law relating to the appointment of a litigation guardian for a person who lacks the requisite capacity to conduct litigation or the capacity to give instructions to a person conducting litigation on their behalf, has a long history. Its origins can be traced back to the prerogative power of the Crown to protect those in need of protection on account of mental incapacity.
[24] The law developed in the context of property disputes. In 1891, Kekewich J observed that it was ‘undoubted’ that the Chancery Division of the High Court had jurisdiction ‘to protect the estates of those who, though not found lunatic, are yet incompetent, by reason of a weakness of intellect, to take proceedings themselves — that is to say, to instruct their solicitors to take proceedings on their behalf’: Howell v Lewis (1891) 61 LJ Ch 89 at 89.
[25] There are valuable statements about the court’s power to appoint litigation guardians in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511. In substance, the purpose is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court. Kennedy LJ said (at [31]):
In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained.
Chadwick LJ (at [65]) said:
The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend.
[26] There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: Masterman-Lister at [17] (Kennedy LJ); Murphy v Doman (2003) 58 NSWLR 51 at [36] (Handley JA). When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister at [17] (Kennedy LJ); Dalle-Molle v Manos (2004) 88 SASR 193 at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.
[27] The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):
even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists.
Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30; AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy v Doman at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J).
WHETHER THE FEDERAL MAGISTRATE’S APPROACH WAS ERRONEOUS
[28] If a litigant appears to be lacking capacity such as to require the appointment of a litigation guardian, Div 11.2 of the Rules provides a mechanism by which that issue may be dealt with. Under r 11.11, the Federal Magistrate, either on the application of a party or on the Federal Magistrate’s own motion, may consider whether the party needs a litigation guardian. If he or she does not, the case proceeds. If a litigation guardian is required, the Court may appoint one pursuant to r 11.11. The rule does not, however, contemplate the course adopted by the Federal Magistrate.
[29] Rule 11.08 prescribes the circumstances in which a person ‘needs’ a litigation guardian. The circumstances, expressed as alternatives, are that ‘the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding’. Rule 11.09(1) is then quite specific in its requirement that a person who needs a litigation guardian ‘may … continue … as a party to a proceeding only by his or her litigation guardian’.
[32] For the future, some general comments about the operation of Div 11.2 may be of assistance. In proceedings in which the need for a litigation guardian is a potential issue and the party whose capacity is in question is represented by a legal practitioner, the discharge of that practitioner’s duties to their client and to the Court should ordinarily mean that a litigation guardian will be appointed if, within the meaning of r 11.08(1) the client in fact ‘needs’ one. If the concern arises on the part of a represented party in an opposing interest, that party may be expected to raise the issue before the Court. In either case, it may be expected that, as a practical matter, medical evidence bearing upon the issue of ‘need’ will be placed before the Court.
[33] Where, as here, the applicant is unrepresented and the respondent does not wish to raise any point about competence but the court nevertheless has serious doubts about the applicant’s capacity, the court should consider of its own motion the factual issue of ‘need’. In such a case the court should, of course, raise the issue squarely and should give the applicant and any other affected party a proper opportunity to be heard and to place relevant material before the court. Whether, in the absence of medical evidence as to capacity, the court could be satisfied of the ‘need’ such that it should act on its own motion under r 11.11(1) to appoint a litigation guardian will of course depend upon the circumstances of a particular case.
[34] Without making any comment about the merits of the present proceeding, we would observe that the fact that a litigant has put forward a case that reveals no reasonable cause of action may say nothing at all about the litigant’s capacity to present such a case. The presumption that an adult person is capable of managing their own affairs is hardly likely to be displaced merely because a case has been commenced that has no prospect of success. In such circumstances, if no serious question about capacity arises, the application of the commonplace and objective criteria for determining whether an action should be summarily dismissed will ordinarily provide the appropriate means for disposing of it.
[35] Difficulties may arise when a respondent submits that it would be appropriate for the court to dismiss a proceeding summarily on the ground that it is vexatious or an abuse of process or for some other reason, and an issue of capacity emerges at the same time. Then, a judge or magistrate would need to consider whether the question of capacity would be more appropriately resolved before considering summary dismissal. In some situations, the utter hopelessness of an action may make it a proper case for summary dismissal, without there being any need to consider the litigant’s capacity to conduct it. The appropriate course for a judge or magistrate to take will of course inevitably depend on the circumstances of the case, bearing in mind that the threshold for the summary dismissal of a proceeding is a high one.
The Evidence
There was ample expert medical evidence before the Court.
Dr. K is the Court appointed single joint expert in this case. He is a Consultant Psychiatrist and Child, Adolescent and Family Psychiatrist. He has provided 3 reports to the Court to date, but the relevant one is dated 4 March 2014. Dr. K discusses the issue before the Court at [113] – [123] under the heading “The Mother’s views about future parenting arrangements, and her fitness to plead”. Not all of this passage is, strictly speaking, relevant to the issue before the Court, but it provides further context.
The mother’s views about future parenting arrangements, and her fitness to plead
[113] I asked the mother what parenting arrangements she felt would be best for the children.
[114] The mother felt that the children should be with her, and she would continue to (as she had done in the past) give them the choice whether they wanted to see the father or not. She would continue to encourage the children to love the father as a child of God.
[115] When I challenged the mother on the incongruity of her concern about abuse and her recommendations to and choice given to the children, the mother said, “well, he should do an anger management course, and [deal with] alcohol, and accept that our marriage is over”. She then diverted again onto talking about the father’s resistance to their divorce.
[116] The mother said to me as she had to Dr R that if the children were to live with the father, she would walk away and not have organised contact. She said, “if the court puts the children with him, he should have full parental rights… and the court will have to answer to a lot of people, and no-one can blame me for my children… my children can’t blame me… its you [myself, Dr K] and DoCS… you guys made that call”.
[117] The mother put to Dr R that this was about not being able to see the father or be beholden to the father. She did not put this reason directly to me, and appeared more to be choosing to absolve herself of responsibility [having had the children taken from her] and to walk away.
[118] At the end of the family interview with mother and the children, the mother said to the children, “Now, has anyone explained to you what’s happening?”. [Z] replied, “[Ms A] said it was just a little holiday”. The mother said, “well, mummy and dad are divorced… which is good… because of the way that dad is towards mum… and… Dr K and [Ms A] think that you all need to live with [Mr Somerville], because mummy’s a bad mum… [an ironic laugh]… [to the children] am I? Am I a bad mum? [they all reply ‘No’]… well, because I’m a bad mum [sarcastic], you will be staying at [Mr Somerville]’s house until your 18”.
[119] I asked the mother about this announcement when I saw her alone, immediately after the family interview. The mother explained her actions in terms of her own need to be seen favourably by the children. She said, “Well, that’s their reality… I don’t want them to think that I don’t want them… [Mr Somerville] is good at stuff like that… to my children… making them think that”.
[120] I asked the mother how the children might feel, hearing this from the mother. She said, “I told them about the divorce. They’ll be thinking, ‘mummy’s safe… he can’t hurt mummy’”, then later, “they’ll have this thing, ‘she’s free… mum has a divorce’… they’ll have a smile on their face”.
[121] Further information regarding the mother’s stated intent to have no contact with the children if the children are to live with the father can be gleaned from the mother’s text to the father on 31st January 2014, contained in the father’s recent affidavit, if this is in fact a truthful record. In these texts, the mother says “I won”, and defines that victory in terms of her getting a divorce, and being able to “reconnect, remarry, have pregnancy without abuse… sucked in… you got your mum and forced full responsibility for 4 kids… I will always have the children’s luv, respect and admiration, and eventually we will be reunited”, then later “relinquish parental rights if we had 2 share parenting… I will never allow u 2 undermine, manipulate, abuse me…”
[122] In my view, the mother is capable of understanding the nature and possible consequences of the court proceedings.
[123] It is unclear to me whether the mother is capable of giving adequate instruction for the conduct of the proceeding, as I do not fully understand what this would entail, but I will make the following comments;:
123.1 From a psychiatric perspective, the mother is capable of articulating her preferred outcome in terms of parenting orders.
123.2 I understand the mother’s preferred outcome to be that the children live with her and spend time with the father in accordance with their wishes and then only if supervised and only if the court has deemed this safe.
123.3 I understand the mother’s position to be that if the children are to live with the father, then she will “walk away” and not seek orders to have any regular time with them in her care. In my view, this is a rational decision from the stance of the mother’s world view, as:
123.3.1The mother is a very needy and immature person who is motivated and acts in response to her own needs, not the needs of others. Whilst she has been energetically engaged with parenting (with much love and positive intent) over the years, her commitment has primarily been to her own self-image as parent and reputation as parent, not to the children. She has been sustained by the idealizing attention elicited by her from the children. This is true to some extent of all parents, but to a much larger extent for this mother. Being tied down as the lesser partner in shared care arrangement will not meet the mother’s need, as she will not receive enough attention or admiration as parent (from the children or broader society) to sustain her, and will be “tied down” by the arrangement and will not be able to “start again” with a new man, new life, and new idealized hope. She would not be able to tolerate the chronic shame of being identified in an ongoing way as lesser than the father. So, she needs to “break free”. Her priority when she saw the children with me was to make sure that they knew that it was not her choice to cut off from them, it was forced upon her. She did not stop to consider the children’s experience of having this news landed on them at that time. Thus, as she expressed in her text, the mother can depart knowing that she “will always have the children’s luv, respect and admiration”, and that eventually she will reunite with them in adulthood. The children’s needs for maternal care and connection in the interim are not on the mother’s radar.
123.3.2 Limited contact with children is a very difficult thing for any parent to come to terms with, particularly if they have been (as the mother has been) an absorbed and energetic primary carer prior to this change. To sustain such limited contact, a parent must come to terms with great loss, suppress bitterness and ambition, and focus on the needs of the children and making the most of the time with them. Even a parent who achieves this acceptance, will experience grief frequently, as they connect with the child and each time also connect with their minor role in the child’s life. I think it likely that the mother has accurately appraised that she does not have the personality strength to sustain this role. The transcript of the mother’s time with the children in December 2013, then my observation of the brief visit in my office would suggest to me that she currently is not able to fulfil that role, and is a destructive rather than a constructive influence, and I do not expect this to change.
123.4 It is unclear to me why the mother has not submitted updated affidavit material. When she spoke to me, she put forward various pieces of information in support of her stance that the father has been abusive to the children. My impression is that the mother is capable of utilising legal advice to document and articulate sensible and logical experiences, observations or arguments that have a basis in fact. Because the mother is dramatic and impressionistic in her speech, and (I feel) will exaggerate or fabricate information in order to maintain the intensity of her narrative, my impression is that it would then be quite difficult for the mother to translate that narrative into the style of document that is expected by the court.
123.5 I am aware that the mother has shown evidence of low personal organisation and functioning for some time now, for example having the water cut off and half-done renovations, and missing Dr R’s initial appointment. I suspect that this low functioning is due to high levels of anxiety and fluctuating distress, and to distraction by rumination and instability of thinking, and to avoidance. If personal organisation and functioning is the issue, I would recommend that the mother consult Dr L about this, and that she give consent for those concerned about her function to speak directly to him also, as she has presented well to him.
Ultimately he concludes that the Mother is capable of understanding the nature and possible consequence of the Court proceedings.
Dr. K was cross-examined by Ms Gillies, Counsel for the Mother. He explained that the Mother demonstrated with him a sufficient understanding of aspects of the litigation that he could confidently conclude she understood “the nature and possible consequences of the proceedings”. For example, she manifested an understanding of the proposals advanced, the role of the Court, the consequences of orders made and the impact on the children. He further explained that because he did not himself fully understand what to “give adequate instructions” meant, he was unable to comment. Ms Gillies suggested that this concept included, for example, telling her lawyers what to put in affidavits, telling her lawyers what parts of expert reports she agrees to or not, being able to recall events and discussing disputed issues.
Dr K was of the view that she was able to do all of this. Whilst the Mother would probably do this in an expansive and amplifying style, and might be hard to ‘pin down’ at times, she was clearly cognitively capable. Thus the fact that, in his opinion, she suffered a personality disorder, did not per se affect her capacity to give adequate instructions.
In response to a question from Mr McPherson, counsel for the Independent Children’s Lawyer, Dr K opined that the Mother was not unlike many other litigants who do no favours for themselves in terms of what they do and say.
Dr R also gave evidence. His Report dated 18 February 2014 was annexed to his Affidavit of 27 February 2014. He was engaged on behalf of the Mother to provide a psychiatric and parenting assessment of her. Under the heading of “The Mental Health of Ms Somerville”, at lines 620 – 661 of this report, he states as follows:
The mental health of Ms Somerville
Ms Somerville has had episodes of psychiatric illness it would seem. She has taken an overdose of rat poison and suicide attempts. Those would appear to be adjustment disorder in the context of stressful events. She has frequent adjustment disorders when under stress she often runs away or will threaten self-harm. She doesn’t appear to have good capacity to cope with stress.The major psychiatric disturbance is her personality style. Her descriptions of being sexually assaulted by her uncle did not match what the average person would regard as rape or sexual assault. Her la belle indifference appeared to indicated that she wasn’t really emotionally connected to statements and the gravity of what she was saying most of the time. Her relationships were not stable. She has had a lot of insecurity and identity difficulties such as needing to have plastic surgery on her breasts when she was a teenager and fear of rejection by her first boyfriend. Her emotional regulation appears to be a significant difficulty. She has poor sense of self and identity with there being recurrent episodes of self-harm. Underlying these issues I believe is a critical feeling and difficulty carrying a fear of being abandoned. She is so frightened of being abandoned and rejected that she recurrently tries to escape this problem. The fact that she kept returning to her husband even though she kept running away indicates that she had a very ambivalent attachment to her husband. The concern is that she also has a very ambivalent attachment to her children and that they may experience a lot of rejection from her which will be very damaging to them. She has very poor coping skills with stress. I believe that she does have a personality disorder which is characterised by erratic behaviour and difficulty coping with life events. She has a mixture of borderline and histrionic features. She appears a little dramatic and very sensitive and prone to exaggeration.
The prognosis is extremely difficult for personality disorder. Whilst personality disorder is by definition life-long it can improve over time with maturity and also treatment can make some difference. However there needs to be concerted effort and determined approach to personal growth and making major changes.
The treatment for personality disorder is a combination of life experience, therapy, medication and challenges. Essentially in order to grow personally she needs to place herself in situations where she challenges herself in a constructive way to allow personal growth and improve her coping skills. Her defence mechanisms appear to be very much ones of projection and displacement. She rejects onto others and blames others for her life difficulties and her ability not to cope. She blames her husband.
Another relevant passage is at 502 – 518 under the heading “Mental State Examination”:
Mental State Examination
Ms Somerville had missed the previous interview. She quite openly said that she had just slept in. This appeared to show great naivety as if missing a critical medical appointment for her family court hearing was a minor event. She seemed immature in her emotional responses. Ms Somerville presented as a pleasant tall Asian woman who was neatly dressed in a long skirt. She was affable and friendly. There seemed to be a hint of being overfamiliar at times. Her talk was normal in form and sequence. There was no abnormality of perception. Her affect was happy generally. She seemed strangely unmoved by the loss of there children. There was at times a sense of la belle indifference when talking about how she had lost the care of her children. However towards the end of the interview she did become distressed when talking about the future. There was no cognitive disturbance. There was a hint of la belle difference when talking about how she had twenty suicide attempts as if this didn’t appear to be of great moment or significance. She was quite childlike in her manner. She was often laughing and was quite jovial.
Dr. R produced a supplementary report by way of a letter dated 21 February 2014. The context is that he had been asked to clarify his Report of 18 February 2014 on the issue of whether the Mother needed a litigation guardian. The final paragraph of his letter is the relevant one:
My Position is that her reasoning is impaired due to her significant personality disorder and that she does not have the capacity to understand consequences of these proceedings. Her perceptions and reasoning appear to be greatly such as her distorted emotional response, her ambit claims of rape, continued undermining of the children and her propensity to run away and threaten suicide. Therefore I believe that her functioning is diminished and I do not believe that she has the capacity to comprehend the consequences of these proceedings and therefore requires the assistance of a case guardian.
One can understand why the Mother’s lawyers would be concerned about her capacity to give instructions, and her understanding of the litigation, once this supplementary report became available to them.
Dr. R was not required for cross-examination.
The Mother relied on a further report by her treating psychologist,
Dr L, dated 10 March 2014. It relevantly states:
Thank you for providing a copy of Dr R’s report and also his opinion regarding Ms Somerville’s capacity.
While both Dr R’s report and Dr K’s report elucidated some information regarding Ms Somerville that I was not previously aware of, namely some personality difficulties, I am of the opinion, from my own assessment of Ms Somerville, that she retains the capacity to understand the nature and possible consequences of Family Law proceedings and also the capacity to give adequate instructions.
Ms Somerville displays no cognitive deficit and there is no evidence of major mental illness such as psychosis, mania or severe depression. She seems to be aware of the nature of proceedings and of her own wishes in relation to these and what she hopes to achieve.
Discussion
In submission all Counsel acknowledged that Dr. R’s supplementary report of 21 February 2014 was quite inconsistent with the thrust of both Dr. K’s and Dr. Lal’s assessment of the Mother’s capacity. Dr. R’s conclusion about the Mother’s capacity is based on less information than either Dr. K or Dr. Lal had, a matter he himself acknowledges. In any event it is difficult to see how his conclusions in the supplementary report of 21 February 2014 are supported by his Report of 18 February 2014. The Court prefers the evidence of Dr. K and Dr. Lal.
All Counsel agreed that there was no evidence before the Court to justify the appointment of a litigation guardian pursuant to rule 11.08. Counsel for the Father, Mr Millar, seemed somewhat critical of the Mother, or perhaps more specifically those representing her, for causing this matter to be brought to the Court’s attention. The Court disagrees in this regard. The issue of the Mother’s capacity was quite appropriately raised by the Mother’s legal representatives and after this the Court took the matter forward.
Mr Anderson, Director General of the Department of Family and Community Services made an interesting, and important, observation that even though personality issues pervade in the Mother, this did not necessarily mean r.11.08 was invoked. Indeed that is the case.
Whilst it is unwise to generalise, what this case demonstrates is that just because a person suffers from a personality disorder it does not necessarily mean that they meet the alternative criteria set out in r.11.01(1). Every case is different. Indeed there may be some cases where the evidence demonstrates that a person suffering a personality disorder does lack the understanding or capacity referred to in r.11.01(1). What seems important from Dr. K’s and Dr. Lal’s evidence is that the Mother’s cognitive functioning was intact and, that she was quite capable of articulating her views, and the absence of psychosis, mania or severe depression.
The Mother in this case was legally represented, and therefore the issue of whether she was “capable of adequately conducting” the proceedings does not arise. One wonders, however, whether the evidence would have led to a different conclusion even if she were self-represented.
An interesting but moot question is whether the same result would apply under Federal Court Rule 9.61, which depends on the definition of “person under a legal incapacity”, which is stated to be “a mentally disabled person”. One suspects that it would again depend on the evidence.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 31 October 2014
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