Travers-Murison v Ringrose-Voase
[2024] ACTSC 387
•6 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Travers-Murison v Ringrose-Voase |
Citation: | [2024] ACTSC 387 |
Hearing Date: | 21 June 2024 |
Date of Last Submission: | 3 December 2024 |
Decision Date: | 6 December 2024 |
Before: | Taylor J |
Decision: | (1) The trusts established by the 2014 orders be dissolved. |
Catchwords: | TRUSTS – protective trust – where a person experiencing a mental health condition at the time of the establishment of a protective trust no longer suffers from that condition – whether to dissolve trust – jurisdiction of the Court – inherent or statutory jurisdiction – parens patriae jurisdiction – jurisdiction under Trustee Act 1925 (ACT), s 45(8) – where original orders provided for dissolution of the trust – whether the plaintiff has legal and/or financial capacity – consideration of medical evidence and documentary evidence – appropriate to dissolve trusts |
Legislation Cited: | Public Trustee and Guardian Act 1985 (ACT) s 25 Trustee Act 1925 (ACT) s 45 Mental Health Act 1958 (NSW) s 18 Guardianship and Management of Property Act 1991 (ACT) ss 4, 6A, 7, 8 |
Cases Cited: | Jones (an infant) v Moylan (1997) 18 WAR 492; Aust Torts Reports 81-464 Zanki v Morris (Unreported, Supreme Court of Western Australia, Full Court, 31 July 1997) Veal (by his next friend Watson) v Hehir [2018] ACTSC 330 In the matter of an adoption of QS (No 2) [2021] ACTSC 107 Williams v Hoang [2019] ACTSC 144 Singh v Calvary Hospital (No 2) [2009] ACTSC 57; 3 ACTLR 247 Scott v Scott [2012] NSWSC 1541 L N v Public Trustee for the ACT [2014] ACTSC 190 PY v RJS [1982] 2 NSWLR 700 Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 Naso v Cottrell [2001] WADC 7 Masterman-Lister v Brutton & Co [2003] 3 All ER 162 Richard v AXA Trustees [2000] VSC 341 |
Parties: | James Travers-Murison ( Applicant) Anthony Ringrose-Voase ( Respondent) |
Representation: | Counsel B Harders (21 June 2024), Self-represented, M Swivel ( Applicant) |
| Solicitors Legal Aid ACT (21 June 2024), Self-represented, Barefoot Law ( Applicant) | |
File Number: | SC 175 of 2013 |
TAYLOR J:
Introduction
1․Mr Travers-Murison, the applicant, seeks to dissolve a series of trusts established by orders of this Court in 2014 (the 2014 orders) on a final basis. The applicant contends that the circumstances that existed at the time of the 2014 orders which included the appointment of a trustee to manage the applicant’s financial and legal affairs, no longer exist. The applicant submitted that he now has capacity to manage his own affairs and sought orders giving effect to that capacity by the dissolution of the protective trusts.
2․The trust is currently comprised of a property in Nymboida purchased in the name of the applicant with a combination of the trust funds and a gift from the applicant’s mother, with the remainder funded via a mortgage in the applicant’s name. The property is registered in the applicant’s name.
3․The first and second respondents did not file submissions on the application and indicated that they neither opposed nor supported the application.
4․For reasons that will follow, the orders sought by the applicant should be made.
Background
5․On 2 May 2014 Murrell CJ made orders establishing a series of protective trusts for the applicant. These trusts were established to hold on trust monies bequeathed to him as a result of probate proceedings. The orders allowed for the purchase of a property in the applicant’s name, provided that dealings with that property were placed in the hands of an independent trustee.
6․The orders were made in the context of the applicant experiencing mental health issues found to render him, at the time, incapable of managing his legal and financial affairs.
7․Relevantly, the orders made by Murrell CJ included orders at 1(d), (e) and (f) which provided:
(d) Provided further that, in the event that at some point in the future, the Plaintiff’s mental health conditions becomes such that it is no longer necessary and appropriate for the said trusts to remain in place, and that the Trustee is reasonably satisfied, upon the basis of a written Medical Report by a registered Special Medical Practitioner and received and duly considered by the trustee, that the Plaintiff’s mental health condition is such that the said trusts are no longer necessary and appropriate, the trustee may deliver to the Plaintiff absolutely the Plaintiffs Certificate of Title (or like document) to such said real Property as Registered Proprietor thereof (or all such of the proceeds referred to in paragraph 9a) of these Orders, as the case may be);
(e) the Trustee is hereby granted liberty to apply to this Honourable Court herein, for directions upon any matter or question arising in regard to the said Trust, or any proposed dealing with respect to any such real property as is referred to in these Orders;
(f) in the event the Trustee becoming unable to continue to act as Trustee as under these orders, or the Trustee predeceasing the Plaintiff, then the Trustee, the Plaintiff or the legal personal representative of the Trustee (as the case may be) shall have liberty to apply to the Court for the appointment of a replacement trustee for the purposes set out in these Orders.
8․On 29 November 2023 the applicant sought orders that the appointed trustee, Mr Patrick Lennon, be removed and discharged as trustee. In his place the applicant sought the temporary appointment of the ACT Public Trustee and Guardian, to remain in effect until further order of the Court. The applicant filed an amended application in proceeding on 19 December 2023, seeking that Mr Patrick Lennon be removed and discharged as trustee and replaced by Dr Dorothy Travers, or in the alternative Mr Michael Mcnamara, or in the alternative the ACT Public Trustee and Guardian.
9․On 21 December 2023 being satisfied that Mr Lennon had failed to properly discharge his duties as trustee of the trust and being satisfied that he was no longer a fit and proper person to hold the position of trustee, I made orders removing Mr Patrick Lennon as trustee with immediate effect. Dr Dorothy Travers was appointed on a temporary basis as trustee to remain in effect until further order of the Court.
10․The applicant did not at that time, press order 4 of the application, being that the trusts be dissolved following receipt of further evidence by the Court of Mr Travers-Murison’s capacity. It was noted that this part of the application may be pressed by the applicant at a later date.
11․On 21 June 2024, the plaintiff moved on the amended application in proceeding in relation to order 4 and sought that the trusts be dissolved.
12․On 16 July 2024 an adjournment of the proceedings was granted after the accused’s counsel, Ms Harders sought further time for the applicant to file and serve additional evidence and make further submissions in support of the application for the dissolution of the trusts. On 29 July 2024 Ms Harders requested a further adjournment for the applicant to obtain more material in support of the application, this time to early November 2024.
13․On 19 September 2023 Ms Harders was granted leave to withdraw after the applicant indicated he wished to represent himself before advising the Court that he had retained different legal representation. On 22 November 2024 the applicant’s new solicitors filed and served an affidavit containing further material upon which the applicant wished to rely in support of this application. No further appearance before me was sought.
Jurisdiction
14․The Court has both inherent jurisdiction in equity and statutory jurisdiction in relation to protective trusts, a form of implied trust designed to protect the interests of an individual in managing their legal and financial affairs where concerns in relation to the capacity of the individual are raised.
15․The applicant submitted that the Court’s inherent jurisdiction in imposing such a trust is historically derived from the parens patriae jurisdiction. In Jones (an infant) v Moylan (1997) 18 WAR 492; Aust Torts Reports 81-464, Wallwork J at 6, referring to Zanki v Morris (Unreported, Supreme Court of Western Australia, Full Court, 31 July 1997) described parens patriae as:
[A]n ancient protective jurisdiction to establish a regime for the conservation of funds for the benefit of an injured person under a legal disability and that the ultimate source of the power and duty to protect the interests of a disabled person lies in the role of the Crown as parens patriae.
16․In Veal (by his next friend Watson) v Hehir [2018] ACTSC 330 at [22]-[23] McWilliam AsJ (as her Honour then was) described the parens patriae jurisdiction as:
The parens patriae jurisdiction is ancient, wide-ranging and far-reaching. It extends as far as necessary for the protection of children and those persons who from their legal disability cannot look after themselves and are in need of protection: Secretary, Department of Health and Community Services v JWB and SMB [Marion’s Case] (1992) 175 CLR 218 at 258–9 per Mason CJ, Dawson, Toohey and Gaudron JJ, 278–80 per Brennan J.
From the words emphasised above in r 282, it may be seen that the rule reflects the Court’s power to protect the interests of a person under a legal disability, by maintaining full control over any settlement compromising their claim: Dietz v Lennig Chemicals Ltd [1969] 1 AC 170 at 189 per Lord Pearson.
17․In In the matter of an adoption of QS (No 2) [2021] ACTSC 107 at [86], McWilliam J observed:
86. The Court has parens patriae jurisdiction, which is a supervisory power concerning the care of those who are unable to care for themselves, such as minors and disabled persons: see Marion’s Case (1992) 175 CLR 218 at 258-259. It is recognised as protective in nature, to be exercised for the benefit or welfare of the vulnerable and extends as far as necessary for their protection. In Re Application of Local Health District; Patient Fay [2016] NSWSC 624, Sackar J said at [22]-[23]:
The jurisdiction’s focus is essentially protective in nature. In exercising the jurisdiction the Court’s concern is predominantly the welfare of the person involved: Re Frances and Benny [2005] NSWSC 1207 at [17] per Young CJ in Eq.
The jurisdiction is not encumbered with technicalities. No jurisdictional limits have been described and, subject to the requisite nexus to the child or incapable person, it is seemingly unlimited. The situations in which the jurisdictions can be invoked are myriad.
18․In Williams v Hoang [2019] ACTSC 144 at [5] McWilliam AsJ held that the statutory power under s 25 of the Public Trustee and Guardian Act 1985 (ACT) “coexists with the parens patriae jurisdiction of the court, and is to be exercised in accordance with the principles applicable to that jurisdiction: Singh v Calvary Hospital (No 2) [2009] ACTSC 57; 3 ACTLR 247 (Singh) at [11]. Her Honour further held at [6] that “the paramount consideration when exercising such jurisdiction is what is in the interests of the plaintiff who is under a disability”: Singh at [14]. Her Honour noted at [3] that “section 25 of the Act concerns the payment of monies on behalf of a person under disability”.
19․The applicant noted that whilst the inherent jurisdiction has generally been invoked for the purposes of protecting minors and those with a mental illness or impairment, it has also been directed in aid of adults under a disability falling short of a mental illness as apparently was the case in relation to the applicant in 2014.
20․In Scott v Scott [2012] NSWSC 1541 (Scott), the adult in need of protection was an elderly women suffering an advanced form of dementia or Alzheimer's Disease. When considering jurisdictional issues, the Court observed at [39]-[40]:
The Court's protective jurisdiction, historically derived from the parens patriae jurisdiction of the Crown, is generally directed towards protection of minors and the mentally ill. It has, however, been invoked in aid of orders affecting adults under a disability falling short of mental illness or otherwise in need of protection.
The Court's statutory jurisdiction is sufficient to enable the current proceedings to be determined without resort to an exercise of its "inherent jurisdiction", derived (by operation of Imperial legislation and, more recently, s 22 of the Supreme Court Act 1970 (NSW)) from the concept of the sovereign as parens patriae (ie, in modern terms, "the parent, or founder, of the nation"). The Court's jurisdiction under s 23 of the Supreme Court Act (to administer justice) has also been recognised as a source of protective jurisdiction. The existence of such jurisdiction informs the operation of the applicable legislation.
Citations omitted.
21․These authorities demonstrate the co-existence of the statutory and inherent jurisdictions in respect of the protective functions of the Court; it is tolerably clear that the existence and principles of the parens patriae jurisdiction informs the application of such statutory regimes directed to the protection of those deemed in need of protection.
22․The Court’s statutory jurisdiction in relation to protective trusts derives from the Trustee Act 1925 (ACT) (the Trustee Act), in which s 45 provides:
45 Protective trusts
(1)Income may be directed to be held ‘on protective trusts’ for the benefit of any person (the principal beneficiary) for the period of his or her life or for any less period, and where there is such a direction the income shall during the period (the trust period), and without prejudice to any prior interest, be held upon trust as provided in this section.
(2)During the trust period, or until the trust of the income fails or determines during the subsistence of the trust period, the income shall be held upon trust for the principal beneficiary.
(3)The income of the trust fails or determines during the trust period if the principal beneficiary does something or an event happens that, if the income were payable to the principal beneficiary absolutely, the principal beneficiary would lose the right to receive the income or any part of it.
(4)The income of the trust fails or determines whether the principal beneficiary does the thing, or the event happens, before or after the termination of any prior interest.
(5)The trust of the income does not fail or determine because of an advance under any statutory or express power.
(6)If the trust of the income fails or determines during the trust period, income during the rest of the trust period is to be held on trust for application—
(a)for the maintenance, support, or otherwise for the benefit of all or any 1 or more exclusively of the other or others of the principal beneficiary and his or her domestic partner (if any) and his or her children or more remote issue (if any) as the trustee in his or her absolute discretion thinks fit; or
(b)if there is no domestic partner or issue of the principal beneficiary in existence, then for the maintenance, support, or otherwise for the benefit of all or any 1 or more exclusively of the other or others of the principal beneficiary and the persons who would, if he or she were actually dead, be entitled to the trust property or the income of it or of the annuity fund (if any) or arrears of the annuity, as the case may be, as the trustee in his or her absolute discretion thinks fit.
Note For the meaning of domestic partner, see Legislation Act, s 169.
(7)This section extends to an annuity or other periodical income payment directed to be held on protective trusts.
(8)Any trust implied by this section may be set aside in any case where an express trust to the same effect might be set aside.
(9)This section applies to a trust except so far as the contrary intention appears in the trust instrument.
Emphasis added.
23․It is plain that s 45(8) of the Trustee Act provides the power to set aside, or ‘dissolve’ a trust implied by this section in any case where an express trust to the same effect might be set aside. The applicant submitted this power supplements the Court’s inherent jurisdiction. In this instance the applicant submitted that the terms of the 2014 order extracted above at [7] give jurisdiction to this Court to make an order dissolving the trusts. In the alternative, the applicant submits that s 45(8) is the statutory power under which I may dissolve the trust.
24․In L N v Public Trustee for the ACT [2014] ACTSC 190 (L N), Mossop J considered the question of jurisdiction to make orders for the dissolution of a trust where it was argued that the relevant person was no longer under a disability. After carefully considering numerous authorities at [6] to [32] his Honour did not definitively determine the issue, concluding at [33] that his Honour was:
[S]atisfied that I have jurisdiction to make orders to the effect of those sought, either by virtue of the rule in Saunders v Vautier, or the parens patriae jurisdiction of the Court supplemented, if necessary, by the powers in s 71 of the Trustee Act.
25․Notably, in L N Mossop J observed that the original orders of the Court creating the trust in that matter were not made “until further order” of the Court, depriving the Court of ongoing jurisdiction arising from the original orders. This differs from the present case, where the terms of the orders made by Murrell CJ envisioned circumstances into the future when the protective trusts may no longer be necessary, or the trustee appointed could no longer discharge their duties.
26․I am satisfied that I have jurisdiction to make the orders sought by the applicant, arising from the ongoing jurisdiction of the Court by virtue of the terms of the 2014 orders. Those terms create a supervisory role for the Court over the trusts created by the 2014 orders. If I am wrong about that, I am nonetheless satisfied that I have jurisdiction to make the orders sought by virtue of the parens patriae jurisdiction, supplemented if necessary, by the powers contained in the Trustee Act.
Legal and Financial Capacity
Test
27․While not specifically addressing the test, the applicant drew the Court’s attention to PY v RJS [1982] 2 NSWLR 700 (PY) where Powell J at [6]-[7] observed:
6. It is my view that a person is incapable of managing himself or herself if it appears that there is a real risk of:
(a) his or her inflicting upon himself or herself serious injury;
(b) his or her sustaining serious injury by reason of his or her being unable adequately to protect himself or herself against such risk; or
(c) serious deterioration in his or her general health or well-being by reason of his or her being unable to take reasonably adequate steps to prevent such deterioration occurring;
7. It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:
(a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and
(b) that, by reason of that lack of competence there is shown to be a real risk that either:
i.he or she may be disadvantaged in the conduct of such affairs; or
ii.that such moneys or property which he or she may possess may be dissipated or lost (see Re an Alleged Incapable Person); it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner: see In the Matter of Case (1915) 214 NY 199, at p 203, per Cardozo J.
28․As Mossop J noted in L N, PY was a decision made in the context of s 18 of the Mental Health Act 1958 (NSW). As his Honour observed, the test of capacity or disability can vary depending on the area of law in which the issue is being determined: Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [163]-[176].
29․In L N Mossop J did not definitively determine the basis upon which Court created trusts for a person under a disability are to be terminated, and observed at [30]-[31] that in some instances the precise jurisdiction being exercised may be “significant” because:
30. […] the requirement of the rule as articulated in Saunders v Vautier is that the previously disabled person be able to give a good discharge to the trustee. This involves the person being of full age and legal capacity or a person who can validly contract and bind himself by legal obligation uncontrolled by any other person: Naso [No1] at [20]; or generally competent to understand the nature and effect of the application to vest the trust property in him or her: Newton [No 2] at [1]; see also Gibbons v Wright (1954) 91 CLR 423 at 438; Guthrie at [174].
31. However, in the exercise of the parens patriae jurisdiction broader considerations might exist in relation to the capacity of the person to manage the funds if made available to them. The scope of that jurisdiction is described in Naso [No 2] at [53]-[59] and the breadth of the considerations emphasised in the authorities cited in that case at [56]-[59]. In this Court the jurisdiction is discussed in Thompson and Singh v Calvary Hospital [No 2] (2009) 3 ACTLR 247 at [11]-[31].
30․Unlike in L N I am satisfied that the Court has ongoing jurisdiction in relation to the protective trusts created in 2014. As will become clear I am satisfied, based on the evidence filed in support of the application, that the applicant is no longer a person who “cannot look after himself”: see Naso v Cottrell [2001] WADC 7 at [60]. Further I am satisfied, if necessary, that the applicant being of full age and legal capacity, is generally capable of understanding the nature and effect of the dissolution of the trust.
31․The current trustee, Dr Travers, has been involved in the trusts since their inception. She is the applicant’s mother. Since her appointment as trustee in December 2023 Dr Travers has been actively engaged in her duties as trustee and has reviewed and considered the report of Ms Morris. Dr Travers expressed her consent to the dissolution of the trust indicating she had formed that view after carefully considering her position as Trustee.
32․The applicant submitted that the material on this application demonstrated that he is now capable of managing his own legal and financial affairs to the extent that the protective trust is no longer necessary and should be dissolved
33․The applicant, citing authorities Masterman-Lister v Brutton & Co [2003] 3 All ER 162, Banks v Goodfellow (1870) LR 5 QB 549, Scott, Richard v AXA Trustees [2000] VSC 341, emphasised the need for a person’s right to manage their affairs independently to be preserved and unless there is a real risk that a person will act in a manner adverse to their own interests, their capacity to manage their own affairs should not be inhibited.
34․The applicant noted that although ss 4, 6A, 7, 8 of the Guardianship and Management of Property Act 1991 (ACT) are not strictly applicable to this application, they are illustrative of the kinds of considerations to be undertaken in the applicant’s particular circumstances. Section 6A provides:
A person must not be taken to have a physical, mental, psychological or intellectual condition relevant to section 7 (Appointment and powers of guardians), section 8 (Appointment and powers of managers) or section 32A (Definitions—pt 2A), definition of protected person only because the person—
(a)is eccentric; or
(b)does or does not express a particular political or religious opinion; or
(c)is of a particular sexual orientation or expresses a particular sexual preference; or
(d)engages or has engaged in illegal or immoral conduct; or
(e)takes or has taken drugs, including alcohol (but any effects of a drug may be taken into account).
Evidence
35․The affidavit of Ms Harders affirmed on 28 November 2023 annexed several documents in support of the application.
36․Firstly, a report of psychiatrist Dr Cairns dated 20 August 2016 concluded that the applicant:
[H]as capacity to manage his finances and own a property. He has an awareness of the financial and legal consequence involved in the purchase and running of the property, including the risks and benefits. By his own account and supported by various documents and testimonials, [he] has shown the ability to manage his day to day finances.
37․Secondly, a report from consultant psychiatrist Dr Doris dated 13 December 2019, which included a determination that the applicant’s “mental capacity to make decisions about property and financial affairs is not currently adversely affected by mental disorder…[he was] able to give me a good account of [his] current circumstances, [his] wishes for the future and the pros and cons of different courses of action”.
38․Thirdly, a report dated 2 May 2018 from general practitioner, Dr Bell which stated that the applicant is “competent to manage his own finances and own his home”.
39․Additionally the applicant relied on two reports of psychologist Ms Leesa Morris dated 3 February 2024 and 20 June 2024. With the provision of some additional information to Ms Morris, the second report clarified some references in the first report. The reports unequivocally declared the applicant capable of managing his own legal and financial affairs. The reports are comprehensive and the matters canvassed within led Ms Morris to determine, not only that the applicant has demonstrated himself capable of managing his own affairs, but that he has improved his financial position without supervision over the last decade.
40․Ms Morris, after reviewing the applicant’s mental health history as well as a general account of his family, relationship, education and employment history, concluded the following:
Mr Travers-Murison presented as an intense man who has been labouring under the consequences of psychiatric diagnoses almost three decades old. Regardless of his emotional and psychological functioning, Mr Travers-Murison has demonstrated for the last decade that he is fully able to manage and improve his financial affairs without supervision. In that period, Mr Travers-Murison has managed gifts and grants of more than $200,000, repaid the majority of a mortgage and improved the value of his property by more than half.
He demonstrates no cognitive incapacity with regard to legal or financial issues. Mr Travers-Murison demonstrates some past susceptibility to the negative influence of others, however in the absence of his substance use, this is less likely, His social skill challenges do continue to provide some vulnerability however, Mr Travers-Murison’s training, maturity and stability suggest he would be less likely to take large risks now. He may not make choices that other’s may, but given his beliefs, [he] is unlikely to make decisions that disadvantage or harm himself or others.
41․Ms Morris considered that it was more than likely that a diagnosis of Autism Spectrum Disorder or an attentional condition was present, observing that it was concerning that there had not been any consideration of neurodiversity in the attempts made to diagnose the applicant in the past. She noted symptoms such as missing social cues, misunderstanding relationships and appropriateness of humour, fixated interests, rigid beliefs and aversion to physical touch.
42․Instead, Ms Morris observed that the applicant has been diagnosed varyingly with schizoaffective disorder, substance-induced psychotic disorder, depressive disorder and a schizotypal personality disorder. While Ms Morris considered that it is likely the applicant did experience an episode of substance-induced psychosis in 1995 and that he likely has a persistent depressive disorder, she did not consider that he demonstrated any clear personality disorder. The applicant, she noted, does not fit the criteria for schizotypal personality disorder, although he does have some schizotypal personality traits and some extreme personality traits.
43․The affidavit filed on 22 November 2024 annexed several documents in support of the application. The documents included:
(a)The applicant’s academic record from Monash University in relation to the applicant’s Bachelor of Laws, issued in 1987;
(b)The applicant’s certificate of admission to the Victorian Supreme Court in 1989;
(c)Past employment references in relation to the applicant, namely from ‘Weigall & Crowther’, ‘Maule James’, ‘Ernst & Young’, ‘KPMG’ in London, and Monash University;
(d)A Diploma of Freelance Travel Writing and Photography dated 1998;
(e)A journal article written by the applicant, entitled “Aboriginal health – the Government’s responsibility?” dated 22 May 2000;
(f)A change of name certificate from 2003;
(g)The applicant’s academic record from the Australian Catholic University in relation to the applicant’s Graduate Diploma in Secondary Education issued in 2004;
(h)Proof of work from Biloela High School (Queensland) in 2005 and Gochang High School (South Korea) in 2009;
(i)A ‘Yoga Teacher Certificate’ from 2015; and
(j)A screenshot of a book written by the applicant entitled “Fred in Siam’s Jungle; A Young Teak Wallah’s Journal 1922-25”.
44․The applicant’s affidavit canvassed his tertiary qualifications and work experience over many years. He has previously worked in a number of corporate jobs and completed a law degree and articles in the 1980s. He has also worked in journalism and obtained an education degree, working in a number of schools. He is currently establishing a yoga retreat. The applicant acknowledged that between 1994 and 1996 he experienced mental health issues connected to his use of marijuana. The applicant deposed that he has not consumed alcohol or illicit substances, including marijuana, since 1997.
45․The applicant did not embrace the opinion expressed by Ms Morris that he “more than likely” has autism spectrum disorder, pointing out that previous psychiatrists and clinicians who have treated him over several years have done so without coming to that conclusion. The applicant asserted in his affidavit:
I also would like to note in relation to all the Western medical evidence, that since I quit professional jobs and rejected Western materialism for yoga, I appear to be presented as a social misfit who has difficulties socialising, acts inappropriately with social cues, has schizoaffective traits etc. This labelling largely appear to me to be the result of my rejection of Western society and choosing an alternative lifestyle.
46․The applicant also clarified that while he was placed under 48 hour observation in 1995 arising from concerns in relation to his mental health, he had never been involuntarily detained or diagnosed with a psychotic illness. This is an assertion supported by the evidence which included hospital notes and records from an admission of the applicant in 1995, to Cairns Base Hospital. Ms Morris noted in her second report that this admission saw the applicant released not exhibiting any signs of psychosis with a diagnosis of “personality disorder”. She further recorded her view that “despite multiple psychiatric assessments over the last three decades, [the applicant] has defied consistent diagnosis of any condition”.
47․Ms Morris ultimately concluded:
It appears that he indeed experienced a brief psychotic episode in 1995, due to lack of food and substance use, and he likely has some persistent depressive disorder. [The applicant] demonstrates some extremes in personality traits but no clear personality disorder or ongoing psychotic illness. Concerningly there does not appear to have been any consideration of neurodiversity. Through the documentation and interview, it was observed that [the applicant] has difficulty communicating his needs or intent with others, misses social cues, does not comprehend two-way conversation, misunderstands relationships and the appropriateness of humour, has fixated interests and rigid beliefs around education and spirituality, and notes an aversion to physical touching without purpose. It is not possible to make a definitive diagnosis of Autism Spectrum Disorder without collateral information from/about [the applicant’s] early development, however it is more than like the case.
48․The applicant set out in his affidavit that he considered Ms Morris to have focused on the “negative” aspects of him, rather that the positive aspects. The applicant referred to his long term engagement with psychiatrist Dr Michael Jonas during the period when he was aged 18-22 years and noted Dr Jonas did not form the view that he had Autism Spectrum Disorder. The applicant also carefully explained that his rejection of “Western materialism” in favour of a focus on yoga and spirituality, has seen him characterised as a ”social misfit”; his views and values making “fitting into and succeeding in an Australian lifestyle” challenging. The applicant highlighted conversely that when he is in India, he is respected for the views he holds and the values he practices.
49․Ultimately, a determination of whether the applicant has Autism Spectrum Disorder is not a finding that I need make to decide the outcome of the application. Whatever the precise circumstances were in 2014, I am satisfied that as at the time of determining this application, the applicant does not present as suffering from schizoaffective disorder or substance induced psychotic disorder. A diagnosis of autism spectrum disorder alone would not be sufficient to determine a person incapable of looking after their own affairs.
50․Taking into account that the applicant likely has “some” persistent depressive disorder, the evidence nonetheless established his capabilities are now such that he should no longer be considered unable to look after himself.
51․That the applicant has, what may be viewed as eccentricities, or that he has chosen what might be considered an ‘alternative’ lifestyle characterised by a focus on yoga and spirituality, does not render him incapable of managing his own affairs. Indeed he has demonstrated for some years now that he has capacity to manage his affairs separate from the trust with a substantial degree of success.
52․That the applicant has in the past used marijuana, which he conceded was causally connected to his mental health challenges, does not undermine his current capacity. The material established that he has not used drugs for several decades nor has he experienced any mental health issues or challenges for several years. The opinion expressed by Ms Morris suggesting that the applicant’s capacity has likely been misinterpreted in the past, based on his experience of isolated episodes of mental ill-health, is not undermined by the applicant’s challenge to her suggestion that he has autism spectrum disorder.
53․The applicant is now 59 years old. He has had a variety of occupations and has successfully obtained qualifications, including degrees in law and education. While Ms Morris was of the view that the applicant appeared to have faced difficulty maintaining employment stemming from his difficulty in interpersonal relationships, another explanation can be found in the applicant’s affidavit. That is, he has chosen to exit ‘traditional’ employment and is focused on his desire to operate a yoga-based enterprise. The applicant currently owns a property where he has established a yoga retreat. The business appears to be self-sustaining, however the applicant intends on selling the property as his physical health has seen the enterprise become difficult to maintain.
54․On its own, the report from Ms Morris provided a substantial basis to consider the applicant capable of managing his own legal and financial affairs. Ms Morris expressed a concern as to the focus of the report which provided the foundation for the 2014 orders, suggesting the author may have been misguided in terms of the assessment he gave of the applicant’s capacity, observing “in choosing not to provide the evidence upon which his diagnosis was formulated, it is not clear as to why Dr Knox has cited Schizotypal Personality Disorder in his 2013 reports”.
55․Ms Morris also recorded that a 2009 report from psychiatrist Dr Fahmi noted ongoing depressive symptoms with no indication of psychosis. In any event, Ms Morris observed that the 2014 orders nonetheless saw the applicant retain financial freedom to the extent that he was able to buy property of his choice and maintain a mortgage. The applicant has done so without incident and entirely successfully. In the period since the 2014 orders were made the applicant has not experienced any financial difficulty or mismanaged any funds available to him; on the contrary he appears to have managed his affairs outside of the trust with a significant degree of success. This is a compelling consideration in terms of the applicant’s capacity.
56․The entirety of the material on the application established that for a significant period the applicant has been considered capable of managing his own legal and financial affairs and indeed has consistently demonstrated his capacity in that regard. There is no material suggestive of any mental or psychological impairment operating upon the applicant that undermines what the material otherwise demonstrated.
57․I am satisfied that the applicant no longer presents as a person who cannot look after their own financial and legal affairs. In those circumstances it is appropriate to grant the application and make orders dissolving the trusts created by the 2014 orders.
58․The parties did not seek any orders in relation to costs.
Orders
59․For those reasons, I make the following orders:
(1)The trusts established by the 2014 orders be dissolved.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: A Turner Date: 6 December 2024 |
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