AON Risk Services Australia Ltd v Australian National University

1. The trial was vacated in circumstances where the father's legal representatives were not able to ascertain instructions from the father and where they held concerns about his capacity.
2. The fathers' legal representatives will endeavour to gain a report from a treating expert as to the father's capacity, including a prognosis as to the possibility of the father regaining capacity if he is deemed to presently have insufficient capacity to provide legal instructions.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chappelle & Griffith has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are short oral reasons for decision in respect of an oral application to vacate a hearing date on day one in proceedings listed before me in a parenting matter for five days, commencing this morning.
2. The short background is that these are parenting proceedings pursuant to Pt VII of the Family Law Act 1975 (Cth) ("the Act"), in respect to the child, X (born 2016).
3. The applicant mother is Ms Chappelle (born 1983).
4. The first respondent father is Mr Griffith (born 1970).
5. There are also two second respondents who are the maternal grandmother, Mrs B Chappelle , (born 1962) and the maternal grandfather, Mr C Chappelle (born 1956).
6. The child currently resides in the home of the maternal grandparents, where the mother also lives, pursuant to Orders dated 30 November 2023, and spends time with the mother and father pursuant to those Orders.
7. I note there are significant risk issues raised in the material in relation to both the mother and the father.
8. An Independent Children's Lawyer ("ICL") has been appointed and has appeared.
9. The Department of Communities and Justice ("DCJ") were invited to intervene but have not done so.
10. Soon after the commencement of the listing today, counsel for the father made an oral application to adjourn the proceedings and to vacate the hearing on the basis that he formed the view, as a very experienced legal practitioner, and a view supported by his instructor, that they were not able to obtain adequate instructions from their client and had real questions as to his present competency.
11. Counsel for the ICL advised that he and the ICL had formed a similar view of the father's presentation and capacity today.
12. The question of vacation of a hearing involves the interests of justice as relating to the parties and also consideration of the resources of the court pursuant to the overarching principles and the principles set out in cases such as AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
13. This is a busy court and vacating a proceeding, which means it will need to come back, will take up court resources which will necessarily be taken away from other members of the public.
14. In those circumstances, the court is extremely reluctant to vacate proceedings on the first day of a five day hearing.
15. However, whilst quite properly, counsel for the father did not wish to go into the details of the basis of the concerns, I note that there is, in the material that has been filed before me, which I have read in anticipation of it being relied upon, material which means that this is not necessarily a matter of very great surprise, though it is very unfortunate that it has occurred at this time.
16. In the Family Report prepared in these proceedings by Court Child Expert ("CCE") Ms D and dated 7 June 2024, she noted at [30] that she had difficulty obtaining information from the father and whilst it was not within her expertise to indicate whether this was because he was being evasive or not, she did indicate that it could reflect his history that his "his current medication adversely affects brain functioning due to what he called 'brain fog'."
17. Now, to understand that, it is necessary to understand that in about 2018, the father was diagnosed with a cancer. The father reported the history of his diagnosis to the CCE and this was recounted in the Family Report at [68]:
    1. Mr [Griffith] stated that he was diagnosed with PTSD, anxiety, and depression. He reported that his counsellor identified PTSD in relation to trauma from his childhood, trauma from his relationship with Ms [Chappelle] and from his cancer diagnosis. Mr [Griffith] stated that he takes medication to manage his anxiety and depression. During discussions about Mr [Griffith's] cancer diagnosis, he stated that he has [...] cancer and is currently deemed to be in remission. Mr [Griffith] reported that the cancer is contained by medication and that he has medicinal injections every three months. He stated that the medication affects his hormones by supressing the production of [...]. Mr [Griffith] reported, "it took a long time to get a handle on the medication, deal with the loss / change in hormones and experiencing different moods". He likened his experience to menopause, with hot flushes and mood swings. Mr [Griffith] stated that his condition is monitored, he has blood tests every two months, and that the medication is becoming less affective over time. During explorative questions about his prognosis of his [...] cancer, Mr [Griffith] explained that on a scale of one to ten of aggressiveness, "mine was nine", originally the cancer was also in his lymph glands and that now the cancer is contained in his [...]. Although Mr [Griffith] appeared hopeful of his longevity, he acknowledged that his long-term prognosis was not good. When asked how his moods affect [X], Mr [Griffith] stated, "I'd do my best, so it didn't affect [X]". He outlined that if he had a low mood and could not take [X] to the park, that he and [X] would "do puzzles and draw". Mr [Griffith] reported that [X] "understood that I was sick, he'd know what was happening, he could see my face go red, having a hot flush and get me drink of water, turn the fan on and get a wet cloth". He stated that [X] "would give me every day the energy to get up" and "gives me the will to live".
18. This is a tragic circumstance.
19. One does not need to go far into the authorities around capacity, including, for example, testamentary capacity, to find that the expert medical evidence consistently states that people who are ill, and in particular people who are very ill, or who are taking strong medication, may suffer from an impairment of their cognitive capacity, in particular, their capacity to give instructions about significant legal matters.
20. It is then a question in each case as to what the person's capacity is, noting that cognitive capacity is domain specific and may vary significantly day to day or even across the course of a single day.
21. Nevertheless, where the father is suffering from a long standing progressive serious medical condition for which he is taking substantial medications, there is a good factual medical basis before me to believe that his cognitive capacity may, at the moment at least, unfortunately, be significantly impaired by his medical condition and medication to the point where he is not able to give proper legal instructions.
22. This is not to say that I doubt for a moment the statements from the legal representatives today, but rather to explain the context before me in which those statements are made.
23. I note that, quite fairly, counsel for the mother and the maternal grandparents made no criticism of the application to vacate and did not formally oppose it, acknowledging it is a matter for the court.
24. I have also considered, noting the importance of the proper use of public resources, whether it might be possible to take some of the evidence perhaps, so that part of the week is used.
25. In particular, I am concerned that the maternal grandparents are privately funded, and an adjournment will weigh heavily on them and their resources which they apply to the child.
26. However, counsel on behalf of the ICL and the ICL, having considered the same matters, did not think it could be done, nor did the father's legal representatives, and again the mother and maternal grandparents, quite properly, did not press that course.
27. Unfortunate as it is, I do not think there is any way we can use the time to take part of the evidence where the father is unable to give proper instructions.
28. I note that the Act requires me to consider, and I have considered the child's best interests, but even accepting it would be in his best interests for the matter to be dealt with now if possible, I do not think, unfortunately, we can fairly proceed.
29. In these unfortunate circumstances, I think I have no choice, in the interests of justice, but to accede to the father's application.
30. In those circumstances, I vacate the hearing of this matter commencing this week.
31. I will make the order sought by the maternal grandparents reserving all parties' costs, although in the present circumstances it is not clear to me that it will have great utility.
32. In relation to the application by the father's legal representatives, I will make the orders sought that they can give a copy of the orders and settled reasons from today to any treating, or qualified, medical practitioner etcetera who may be asked to provide an opinion as to the father's cognitive capacity to provide instructions in this matter or prognosis etcetera.
33. I will consider the question of a litigation guardian, or how we can proceed, once we have more information.
34. Those are my reasons.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.