Appointment of a Case Guardian

What happens when one party lacks capacity to provide instructions in proceedings in the Family Court arena? For example, dementia sets in or a brain injury arising from an accident? Or conduct is just plain bizarre and antagonistic?

In the case of Wembley v Wooten in 2018 an application for the appointment of a case guardian was made by the husband’s solicitor. Note that it was made by the solicitor as an officer of the court and not on instructions from the client. The husband opposed the application.

The medical evidence requested by the judge however did not support the application as the doctor determined that the husband was not hampered by a disability that was recognised under Part 6.3 of the Family Law Rules. Disability was considered on the basis that, because of an impairment, the husband could not understand the consequences of the court proceedings and be capable of providing instructions to conduct the case.

The solicitor as an officer of the court must take appropriate steps to ensure that instructions can be provided by the client. Ultimately the court however has the final responsibility to determine the issue of capacity based on the medical reports as well as other factors relevant to the individual. In the end, the judge is mindful that in fact the person does not have to be found of unsound mind or a “lunatic”.

The question is therefore, does the person understand the legal consequences of the case and his actions.

In this case the facts were that the husband worked in his own company and was a director of the company making the all important decisions for the company. There was an essential issue: that he had an alcohol problem although he had reduced his weekly intake to 30 drinks. He had been fined for drink driving.

The medico assessing the husband could not find that there was mental/cognitive impairment as the husband knew and understood the issues and was able to advise him as to the reasons underlying the application by the solicitor to the court.

The judge was confronted by factors that he was obliged to take into account in conjunction with the medical evidence, namely:

The husband is frequently affected by alcohol which has impacted on his ability to give cogent instructions
The husband’s heavy chain smoking which has affected his ability to give cogent instructions
His reluctance to attend at the office of his solicitor and preference to conduct all matters by telephone
His view that his wife’s and his own legal team were conspiring against him
His conduct toward his solicitor of shouting at him and talking over him
His refusal to give instructions and on occasions his inability to recall the instructions he had given to his lawyer
His focus on seeking to assert he was right and his legal team was incorrect
His focus on the fact that his wife was wrong and he was right
His desire to punish his wife for what he considered to be illegal acts
His conduct at the conciliation conference and the fact that he walked out of the conference
The husband’s insistence there be a final hearing

In short, the judge determined that the husband was a difficult client but he did not labour under a disability. The application was therefore refused.

Each case will travel on its own factual circumstances and must be viewed against the backdrop of the individuals and their personal issues.