Parties Dispute Application for Litigation Guardian

Lestari & Hidayat (No 3) [2022] FedCFamC1F 445 (17 June 2022)

The plaintiff filed an application to appoint a litigation guardian.  The applicant does not have capacity to attend the final hearing, give evidence or to instruct legal representative.  The Court, in making its orders, relied upon the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Facts:

The proceedings are property proceedings between Ms. Hidayat and Mr. Lestari. Also included is Ms. Hidayat’s mother as the second respondent. She claims an interest in the property, which is said by Mr. Lestari to be the property of the parties available for division by this Court.

The solicitor for Ms. Hidayat deposes that having been the solicitor on record for a number of years, Ms. Hidayat has presented as mentally stable and well able to conduct the proceedings, save for periods when she had been hospitalised seeking treatment. It seemed to the solicitor that Ms. Hidayat was anxious, stressed, and extremely scared about attending court. 

It became apparent to the solicitor on 3 May 2022 that there were potential difficulties with Ms. Hidayat’s mental health and an appointment was made to see her psychiatrist. Dr. B is a consulting psychiatrist who has been treating Ms. Hidayat for some time.   He opined that the main thing that would help Ms. Hidayat to stay relatively healthy is for her not to attend Court in person and not to be cross-examined which is very stressful for her. He also stated that the significant stress that Ms. Hidayat is under is likely to significantly impact her mental health and memory and that Ms. Hidayat does not have the capacity to attend Court for three days.

He further added, in his opinion, that Ms. Hidayat did not have the capacity to give evidence as a witness at the hearing because the stress would impair her judgment and communication but that she was currently able to represent her own interests. On examination, she was found to have clear deficits in short-term memory and concentration and only a partial understanding of the trial.   

Issue:

Whether or not Ms. Hidayat is a person who needs a litigation guardian. 

Applicable law:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.12 - identifies a person who needs a litigation guardian in relation to a proceeding as a person who “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”. 

Analysis:

Dr. E, a consultant psychiatrist, reported that Ms. Hidayat was “likely to be on the severe spectrum of a psychotic illness such as Schizoaffective illness with a parallel Panic Disorder”. This led him to conclude that the combination of her illness and treatments impair her ability to remember, reflect and reason and to do so in a rational way.

Dr. E does not believe she can appear at the various hearings, including the final hearing. The opinion of Dr. E meets the criteria of r 3.12 of the Rules. Accordingly, Ms. Hidayat is a person who needs a litigation guardian.

Ms.D has sworn an affidavit asserting that they are a friend of Ms. Hidayat, who she knows as being part of the same Country C community and attends the same church. She says that she is available and capable of attending the final hearing on behalf of Ms. Hidayat from 5 July 2022 to 7 July 2022. 

The only sensible way to read her affidavit is that she is consenting to act. It is quite clear from the reports of Dr. B and Dr. E that is most unlikely that Ms. Hidayat will attend the hearing let alone conduct the proceedings herself and she will certainly not be giving evidence, so the question of a McKenize friend is completely otiose.

Ms. Hidayat and her mother are represented by the same lawyers and that is something that Ms. D will need to consider as a matter of urgency to ensure that there is no conflict of interest.

Conclusion:

Ms. D is appointed as Litigation Guardian for Ms. Hidayat in these proceedings. The costs of the Application in a Proceeding filed on 23 May 2022 are reserved to the final hearing.