Barrister Guy Waterman discusses the case of Wembley & Wooten  FamCA 334, which considered whether a person was under a disability, as opposed to simply being a difficult litigant, in the context of an application for the appointment of a case guardian.
Keywords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for appointment of a case guardian – Considering whether a person is under a disability as opposed to simply being a difficult litigant.
In this case, the solicitor for the Husband filed an Application in a Case seeking an appointment of a case guardian for the Husband.
An order was made for the Husband to be assessed by a psychiatrist for the purpose of assessing his capacity to participate in the substantive proceedings relating to final parenting and property orders.
The Husband opposed the appointment of a case guardian.
The Husband’s solicitor relied on three affidavits which the Judge read and noted amongst other things that the affidavits related to instructions given by the Husband to his solicitors and offers of settlement. His Honour concluded it was not appropriate to have the future conduct of the matter and recused himself from any further proceedings.
A “person with a disability” is defined in the dictionary to the Rules as a person who because of physical or mental disability:
Does not understand the nature and possible consequences of the case; or
Is not capable of adequately conducting, or giving adequate instructions for the conduct of, the case.
The Court made reference to Goddard Elliot (a Firm) in which Bell J 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.” (para 6)
The Court was satisfied that the solicitor had an obligation to bring the Application in a Case irrespective of the outcome of the Application. (para 7)
Reference was made to L v Human Rights and Equal Opportunity Commission  FCAFC 114 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.” (para 8)
In Forster & Forster  FamCAFC 47 the Full Court of this Court observed at paragraph 126 that the “…presumption cannot, nor should it be, easily displaced.” (para 9)
The Husband did not take issue with his medical history as set out in an affidavit filed by his solicitor.
The medical history included the Husband being diagnosed as having Chronic Post Traumatic Stress Disorder (“PTSD”), Major Depressive Disorder-Recurrent and Alcohol Use Disorder.
The Husband’s solicitor wrote to the Husband’s treating psychiatrist requesting an opinion as to whether or not the Husband understood the nature and possible consequence of Court proceedings and whether he was capable of adequately conducting and giving instructions for the conduct of the proceedings (para 16).
In response the Husband’s psychiatrist concluded that the Husband “…does not presently present with prominent cognitive impairment” (prara 16).
The psychiatrist said 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” (para 17).
Notwithstanding the psychiatrist noting the possibility that the Husband’s beliefs about interactions between his lawyers and the Wife’s lawyers were possibly based on a delusional paranoid belief he said that he had little evidence to support that finding.
The psychiatrist went on to find that from a cognitive perspective his ongoing history of alcohol abuse was not to a degree which rendered him incompetent to make decisions with the psychiatrist noting that the Husband’s description of his financial affairs appeared on the surface to be detailed and sophisticated and appeared to have a sophisticated knowledge of his financial affairs and was able to understand the nature and the possible consequences of the case.
The psychiatrist was unable to comment on the solicitor’s observations and concerns regarding the Husband’s capacity due to the privileged nature of such information.
Whilst acknowledging that this was a significant limitation of his assessment, the psychiatrist concluded that the Husband did not meet the criteria under the Family Law Rules as a person with a disability.
The Court set out in summary the matters upon which the Husband’s legal representatives relied noting that this was restricted by privilege in setting out those concerns in detail:-
(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. (para 25)
The Court observed that
“…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.” (para 30)
The Court in considering the psychiatric report noted the Husband’s ability to provide a detailed account of his financial and legal affairs and discuss in detail the reasons for his decisions and possible implications of those decisions regarding his financial affairs to be a very significant to the determination of the matter.
In dismissing the Application for the appointment of a case guardian his Honour observed that:
“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.” (para 31)
The Court noted that it was somewhat unusual that the Husband had indicated to the Court that he proposed to continue instructing the Applicant’s solicitor in the event that the Court did not accede to the Application.
Notwithstanding that the presumption had not been rebutted, you would expect that the Husband’s solicitors might indeed be weary in continuing to act on his behalf.
The Court highlighted the onus of proof required to deprive the party of a right to conduct and participate in litigation.
Guy Waterman was admitted as a Solicitor and practised extensively in the area of De Facto and Family Law and as a Mediator prior to being called to the Bar in 1993. Guy has continued to practice in the Family Law/De Facto areas as a Barrister and Mediator and during this time and has presented at seminars dealing with Family Law & Practice – Disclosure, compliance with Orders and making the most of financial experts in financial matters in conjunction with Joe Box, forensic accountant and Greg Jorgenson, registered valuer at BAQ, and Cost – Orders, Offer and Risks, How to Deal with a Client Raising That The Solicitor For The Other Party Has A Conflict Of Interest And Should Be Restrained From Acting, and Family Law Legislative Reform and Case Update. Contact Guy at [email protected]