Wembley and Wooten
[2018] FamCA 334
•17 May 2018
FAMILY COURT OF AUSTRALIA
| WEMBLEY & WOOTEN | [2018] FamCA 334 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for a case guardian – where the application was brought by the husband’s solicitor as an officer of the Court - where the medical evidence indicated the husband was not a “person with a disability” as defined by the Family Law Rules 2004 (Cth) – where the Court can take into account other factors – where the Court considered the evidence of the husband’s solicitor and counsel in determining his capacity – where findings made that the husband is not a person under a disability |
| Legal Profession Uniform Law Application Act 2014 (Vic) Family Law Rules 2004 (Cth) |
| Forster & Forster [2012] FamCAFC 47 Pistorino v Connell [2012] VSC 438 Slaveski v Victoria [2009] VSC 423 |
| APPLICANT: | Mr Rowan Skinner |
| RESPONDENT: | Mr Wooten |
| FILE NUMBER: | MLC | 8662 | of | 2017 |
| DATE DELIVERED: | 17 May 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 4 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hall |
| SOLICITOR FOR THE APPLICANT: | Rowan Skinner And Associates Lawyers |
| THE RESPONDENT: | In Person |
Orders
The applicant’s Application in a Case filed 9 March 2018 seeking the appointment of a case guardian for the husband pursuant to Part 6.3 of the Family Law Rules 2004 (Cth) is hereby dismissed.
All extant applications be otherwise adjourned to the Judicial Duty List at 10.00 am on 3 July 2018.
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 Wembley & Wooten 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 MELBOURNE |
FILE NUMBER: MLC 8662 of 2017
| Mr Rowan Skinner |
Applicant
And
| Mr Wooten |
Respondent
REASONS FOR JUDGMENT
The husband in this case is a party to final parenting and property proceedings. On 9 March 2018 his solicitor, Mr Rowan Skinner (“the husband’s solicitor”) filed an Application in a Case seeking the appointment of a case guardian for the husband pursuant to Part 6.3 of the Family Law Rules 2004 (Cth) (“the Rules”).
That Application in a Case first came before me for hearing in the Judicial Duty List on 14 March 2018. On that date, I made orders for the husband to attend upon Professor B for the purposes of assessing his capacity to participate in the substantive proceedings. The matter was otherwise adjourned for hearing before me on 18 April 2018 to enable Professor B to complete his assessment. On 18 April 2018, I made orders for the husband’s solicitor to serve the affidavits he had filed upon the husband and to give the husband the opportunity to consider his position and to obtain other legal advice if he wished to do so. The matter was otherwise adjourned for further hearing on 4 May 2018. The husband did not seek other legal advice but had read the affidavits filed by his instructing solicitor and the written submission prepared on his behalf by counsel. The husband opposed the appointment of a case guardian. Although the husband had the opportunity to file his own affidavit responding to the evidence of his solicitor, he did not do so. Nor did he challenge his solicitor’s evidence during the hearing before me, choosing instead to rely upon the report of Professor B.
The husband’s solicitor relied upon his three affidavits filed 9 March 2018, 6 April 2018 and 3 May 2018. Those affidavits contained privileged evidence and on that basis, I made orders that they be placed in a sealed envelope and marked not to be opened save and except pursuant to an order of a judge. It follows that having read those affidavits which refer, amongst other things, to instructions given by the husband to his solicitor and offers of settlement and having determined the question of whether a case guardian should be appointed, it would not be appropriate for me to have the future conduct of the matter and I will so recuse myself from any further proceedings.
Legal Principles
Rule 6.08 (1) of the Family Law Rules 2004 (Cth) (“the Rules”) provide that a person with a disability “may start, continue, respond to, or seek to intervene in, a case only by a case guardian.”
A “person with a disability” is defined in the dictionary to the Rules as a person who because of physical or mental disability:
a)Does not understand the nature and possible consequences of the case; or
b)Is not capable of adequately conducting, or giving adequate instructions for the conduct of, the case.
Both the husband’s solicitor and counsel briefed in this matter are subject to the provisions of the Legal Profession Uniform Law Application Act 2014 (Vic). Counsel referred me to the decision of Goddard Elliot (a Firm) v Fritsch [2012] VSC 87 (“Goddard Elliot (a Firm) v Fritsch”) in which Bell J at paragraph 568 referred to a legal practitioner’s duty to the Court to raise the mental capacity of his or her client if they are not satisfied that their client has the requisite mental capacity to provide instructions. Bell J stated that
…the primary responsibility of a lawyer is to be satisfied the client has the mental capacity to instruct. Doubts about this issue in the mind of the lawyer can also have important consequences for the conduct of legal proceedings. If the issue cannot be resolved to the reasonable satisfaction of the lawyer, as occurred in the present case, the lawyer must raise the issue with the court. It is the court which has the final responsibility to determine the issue.
It is on that basis that the husband’s solicitor filed his Application in a Case and I am satisfied that in all of the circumstances, irrespective of the outcome of that application, he had an obligation to do so.
In L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 the Full Court of the Federal Court observed at paragraph 26 as follows:
...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 (citations removed). When it is alleged that a person is incompetent, the onus of proof is on those so asserting.
In Forster & Forster [2012] FamCAFC 47 the Full Court of this Court observed at paragraph 126 that the “...presumption cannot, nor should it be, easily displaced.”
It is well settled that the determination as to whether a litigant has the mental capacity to engage in litigation in a court rests with that court.
Background
Counsel for the husband’s solicitor referred me to and relied on the husband’s history and in particular his medical history as set out in the affidavit of Dr C filed on behalf of the wife on 13 March 2018. The husband did not take issue with this evidence.
The husband is 53 years of age. He was employed full time as health professional for 30 years. In 2001 the husband established a company. He still runs this company which he states has assets of $15 million and liabilities of $9 million. He owns 70 per cent of the shares and his wife’s brother in law owns the other 30 per cent.
In 2016 he was diagnosed as having Chronic Post Traumatic Stress Disorder (“PTSD”), Major Depressive Disorder-Recurrent and Alcohol Use Disorder. When first assessed he described a history of prominent longstanding intermittent depressive symptoms, low moods associated with despondency (not suicidal), disturbed sleep, social avoidance and symptoms of anhedonia and amotivation.
Although the husband denied during assessment having any medical complications associated with his alcohol consumption, Professor B observed he has been fined for drink driving and has lost his licence. The husband is currently on medication to address his alcohol use disorder and reported to Professor B that in recent times, he has reduced his alcohol consumption to 30 drinks per week. The husband also reported to Professor B that he smokes 50 cigarettes a day.
Although during the hearing before me the husband was dressed in a work uniform, he is and has been for some time in receipt of Work Cover payments.
Medical Evidence
On 28 August 2017 the husband’s solicitor wrote to the husband’s treating psychiatrist Dr B requesting his opinion as to whether or not the husband understood the nature and possible consequences of court proceedings and whether he was capable of adequately conducting and giving adequate instructions for the conduct of the proceedings. On 7 September 2017 the husband’s solicitor provided Dr B with the relevant definition of “a person with a disability”. On 17 September 2017, having reviewed the husband, Dr B concluded that the husband “...does not presently present with prominent cognitive impairment.”
Professor B, who assessed the husband on 26 March 2018 pursuant to the order made 14 March 2018 concluded as follows:
…[Mr Wooten] did not present with any psychiatric or cognitive disorder that impairs his ability to make decisions regarding his legal or financial affairs…He is able to discuss, in detail, the reasons for his decisions and the possible implications of the decisions regarding his financial affairs [Mr Wooten] is not following legal advice because he believes that he has a more sophisticated understanding of his affairs than his legal counsel. He believes that his legal counsel has “let slip” something to [Ms Wembley’s] legal counsel that has led to the assessment of his capacity. He does not believe that this was a deliberate slip but that this has now resulted in doubt about his capacity.
…
From a psychiatric point of view, there is no clear evidence for a condition that impairs [Mr Wooten’s] decision-making abilities. It is possible that [Mr Wooten’s] beliefs about the interactions between yourself and [Ms Wembley’s] lawyers are based on a delusional or paranoid belief system but I have little clear evidence to support this. [Mr Wooten’s] explanations appear superficially plausible and he does not express and [sic] paranoid beliefs. As discussed below, it is likely that key information regarding the interactions between yourself and [Mr Wooten] are not available to me.
From a cognitive perspective, [Mr Wooten] functions well within normal limits for his age and background on a bedside screening tool (NUCOG). On more demanding tests he is possibly performing below what one would expect but still within the normal range. [Mr Wooten’s] long and ongoing history of alcohol use may have contributed to a degree of dysexecutive function which leads to some cognitive rigidity and impaired planning but is not of a degree which would render him incompetent to make decisions. [Mr Wooten’s] descriptions of his financial affairs appeared, on the surface, to be detailed and sophisticated. I cannot comment on the accuracy of the number nor on the legal/accounting complexities to which has [sic] referred (eg CGT implications).
….
I believe that [Mr Wooten] is able to “understand the nature and possible consequences of the case”. [Mr Wooten] provides a detailed and plausible account of the case and the possible outcomes of the case. He appears to have a sophisticated knowledge of his financial affairs and the possible consequences of potential settlement offers.
On my assessment [Mr Wooten] appears to be able to “adequately conduct and give adequate instructions for the conduct of the case”. My conclusion however is limited by the absence of key information. As discussed by phone on March 29th, the main source of concerns regarding [Mr Wooten’s] capacity stems from your own observations and interactions with [Mr Wooten]. Your letter of referral identifies your concerns regarding his capacity- I have been acting for [Mr Wooten] since about July 2016. It is the writer’s view that [Mr Wooten] is a person with a disability under the Family Law Rules.”
Unfortunately due to the privileged nature of such information, you are unable to disclose the nature of these concerns to me. I cannot therefore comment on whether your observations and concerns would lead to a conclusion on my part that [Mr Wooten] is a person with a disability.
Acknowledging that this is a significant limitation of this assessment I would conclude that [Mr Wooten] does not meet the criteria under the Family Law Rules as a person with a disability.
Discussion
As previously referred to, the husband’s solicitor, having brought the application, bears the onus of establishing that the husband is a person with a legal disability. The husband’s solicitor, having raised with the Court his concerns as to his client’s capacity to conduct these proceedings, it is for the Court to inquire and determine whether the husband is “a person with a legal disability” as defined by the Rules.
As Bell J observed in Goddard Elliot (a Firm) v Fritsch at paragraph 552 the appointment of a case guardian is intended to serve two purposes–“the protection of the person with the disability and of the processes of the court as these apply to the parties generally”. Save and except in that general sense, the wife has no interest in these proceedings and is not affected by the outcome of this application. It was on that basis that I acceded to counsel for the husband’s solicitor’s application that the matter proceed in the absence of the wife and her legal representatives.
The husband, on the other hand, clearly has an interest in the outcome of this application. It was on that basis that I made orders for the service of the affidavits filed by his solicitor upon him and gave him the opportunity to be heard. I am satisfied that he understood the nature of the application and the consequences of it if the Court makes the orders his solicitor seeks.
Given the medical evidence and in particular the evidence of Professor B, whether the Court is satisfied that the husband in this case is a “person with a disability” ultimately turns on the evidence of his solicitor, the observations of counsel (who now appears on behalf of the applicant and who appeared on the husband’s behalf at the Conciliation Conference) and the Court’s own observations of the husband. The evidence of both the husband’s solicitor and the observations of his counsel are of matters that are protected by legal professional privilege. I accept that the husband’s solicitor’s reliance upon this privileged evidence was not intended to be a waiver of his client’s legal professional privilege that attached to that evidence. It was on this basis that I acceded to the applicant’s application and made the orders placing the affidavits sworn by the husband’s solicitor in a sealed envelope marked not to be opened except by order of a judge.
In circumstances where the evidence upon which the solicitor for the husband relies and the observations of counsel are of matters which are protected by privilege, I am restricted by that privilege from setting out their concerns in detail. However, in summary, the matters upon which they rely include the following matters:
a)The husband is frequently affected by alcohol and his alcohol consumption impacted upon his capacity to give cogent instructions;
b)The husband’s heavy chain smoking which affects his ability to provide adequate instructions;
c)The husband’s reluctance to attend his solicitor’s office and preference for giving instructions by telephone;
d)The husband’s belief that his legal representative and those of the wife are conspiring against him;
e)The husband’s refusal to give instructions, inability to accept and on occasions to recall the legal advice he is given and his behaviour towards his solicitor including shouting at him and talking over him;
f)His focus on proving that he is right and his legal representatives are wrong;
g)His focus on proving that he is right and the wife is wrong and his desire to punish the wife for what he considers are illegal acts;
h)The husband’s behaviour at the Conciliation Conference when he refused to remain in the conference room with counsel; and
i)The husband’s insistence upon there being a final hearing.
Counsel for the applicant, whilst acknowledging Professor B’s assessment of the husband as having cognitive capacity and not being a person under a legal disability, referred me to the decision of Bell J in Goddard Elliot (a Firm) v Fritsch where he said at paragraphs 554-555 as follows:
[554] To examine whether a person has mental capacity for specific legal purposes is not to examine whether they should be subjected to involuntary medical treatment under mental health legislation or have an administrator or guardian appointed to manage their property and personal affairs under guardianship and administration legislation. A person can lack the mental capacity to participate in legal proceedings yet be capable of performing the usual activities of daily life. It is therefore not a requirement for the appointment of a litigation guardian or someone else with representative responsibility for the person that the person is proved to be of general unsound mind or a “lunatic’. The responsibility of the lawyer to be reasonably satisfied of the client’s capacity to instruct is to be understood on the same basis.
[555] The standard of capacity which is required for a person to participate in legal proceedings is the same standard of capacity which is required for a person to enter into legal transactions. That required standard of capacity was stipulated by Dixon CJ, Kitto and Taylor JJ in Gibbons v Wright in these terms:
The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation.
As you can see, the standard is based on the subjective understanding of the person. The understanding which is required is contextual and relates to the nature of what the person is doing. The question is not whether the person can do the legal act intentionally, as by putting their signature to a deed; it is whether they can understand the nature of the legal consequences which will be brought about. On the facts, these principles are important in the present case.
In Pistorino v Connell [2012] VSC 438 (“Pistorino”), Dixon J referred to a number of earlier decisions in which the question of legal capacity was considered. In Slaveski v Victoria [2009] VSC 423 Kyriou J said at paragraph 26 as follows:
The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding, and lack it for another. Where a person is a party to a proceeding and is legally represented, he or she will be incapable of managing his or her affairs in relation to the proceeding if he or she does not have the mental capacity to understand the nature of the acts or transactions in respect of which he or she needs to give instructions to the lawyer.
Dixon J in Pistorino also referred to the decision of Owners of Strata Plan No 3007 v Cross [2006] FCA 900 where Edmonds J at paragraph 61 identified a number of factors relevant to determining whether one of the parties in that case who was able to be legally represented was a person “under a disability”. Those factors were as follows:
a)Whether the person had the ability to understand that he or she required advice in respect of the relevant legal proceeding;
b)Whether the person had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, whether he or she could arrange such an appointment of his own accord;
c)Whether the person had the ability to instruct the advisor with sufficient clarity to enable him or her to understand the situation and to advise the person appropriately; and
d)Whether the person had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received.
These factors are relevant to the determination I must make in this case.
Counsel for the applicant also placed significant emphasis on Dixon J’s observation in Pistorino at paragraph 26 where he stated that while “Mrs Pistorino is competent to give general and broad instructions, she is relevantly incapable by reason of physical and mental infirmity of managing her affairs in relation to the proceedings” and his finding that she was a person under a disability based upon evidence other than medical evidence. In that case, unlike this case, Mrs Pistorino had refused to be medically examined for the purposes of assessing her capacity. Counsel submitted to the Court that Dixon J’s findings supported his submission that the Court could find in this case, based upon the evidence of the husband’s solicitor, that the husband is a person under a disability, notwithstanding the medical evidence to the contrary as to his cognitive capacity. However, in my view there is a distinction between having no medical evidence and a case such as this one in which there is not only medical evidence but that evidence supports a finding that the husband is not under a legal disability as defined by the Rules.
The husband did not challenge his solicitor’s evidence, including the most recent of his affidavits to which he annexed an email sent to him by the husband on 28 April 2018 which counsel submitted highlighted his solicitor’s concerns about the husband’s capacity to conduct the litigation in this Court. I accept that evidence.
However, although that evidence does raise some concerns about the husband’s behaviour, in my view there are a number of factors which distinguish this case from that of Pistorino. Dixon J found in that case that Mrs Pistorino was unable to understand the nature and consequences of the proceedings in which she was engaged. Nor did she understand the financial risks she faced in relation to a taxation liability and the costs of the proceedings. He further found at paragraph 26 that Mrs Pistorino did not
…properly comprehend her position as an income beneficiary for life of her late husband’s estate, of which her children are, effectively, residual beneficiaries. I am satisfied that she does not properly understand the structure of businesses and investments of the estate or of the parties, particularly trusts. Mrs Pistorino’s incapacity is exacerbated by the complexity of the issues in these proceedings, especially the incidence of tax and debt…
There was also in that case a finding that undue influence was being exerted on Mrs Pistorino by her son and daughter who were parties to the litigation.
I am satisfied that the circumstances of this case are different. Although the husband in this case may be a difficult litigant, not following advice and giving what are considered to be somewhat perverse instructions which are motivated, as is submitted in this case, by a desire to prove that he is right and his legal representatives are wrong, that is different in my view to a person with a disability as defined by the Rules. I am mindful that Professor B himself acknowledged the limitations of his assessment of the husband based upon him not having had access to the privileged information that is before the Court and upon which the applicant now relies. However, based upon his observations of the husband, it was his expert opinion that he was not a person with a disability. His report, particularly with respect to what he says about the husband’ ability to provide a detailed account of his financial and legal affairs and his ability to discuss in detail the reasons for his decisions and the possible implications of the decisions regarding his financial affairs, is in my view significant to the determination I must make.
The husband in this case is not the first nor will he be the last litigant who thinks he is smarter than those advising him. Nor will the husband be the first or last litigant to make foolish decisions. That in my view does not make him a person with a disability.
I note that, although it is somewhat unusual, the husband has indicated to the Court that he proposes to continue instructing the applicant in this case in the event that the Court does not accede to the application. That is of course if his solicitor is prepared to continue acting on his behalf. Whilst the fact that a case guardian might make the conduct of the litigation easier, I am mindful that the decision to deprive the husband of the right to conduct and participate in this litigation should not be taken lightly.
In all of the circumstances, I am not satisfied on the balance of probabilities that the husband is a person under a disability, as opposed to simply being a difficult litigant. I am satisfied that he understands the nature of the proceedings and even if he were to choose to ignore that advice, understands the consequences of the litigation, including the cost consequences which are likely to follow if he persists in pursuing a course which is found to be without merit. The fact that a litigant, such as the husband in this case, may not follow advice is unfortunately not an uncommon aspect of many cases in this Court and is the very reason the Court has the power to manage the proceedings before it and if circumstances justify it doing so, make orders for costs. I am also satisfied that the husband is capable of giving adequate instructions when and if he chooses to do so.
The wife has an application for partial property settlement on foot and it was agreed that whatever the outcome of this application the matter would need to be relisted in the Judicial Duty List for that application to be heard and determined.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 17 May 2018.
Associate:
Date: 17 May 2018
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