Arndale and Kingley

[2012] FamCA 332

FAMILY COURT OF AUSTRALIA

ARNDALE & KINGLEY [2012] FamCA 332

FAMILY LAW - CHILDREN - Family Report - Where a Family Report ordered to be undertaken - Where the Applicant Mother has provided evidence she is unfit to attend Court on medical grounds

APPLICANT: Ms Arndale

RESPONDENT: Mr Kingley

INDEPENDENT CHILDREN’S LAWYER: Ms Buckland

FILE NUMBER: BRC 1363 of 2008

DATE DELIVERED: 8 April 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 8 April 2012

REPRESENTATION

SOLICITOR FOR THE RESPONDENT: Smith & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. The parties attend interviews at a time and place directed by the Family Consultant appointed by the Director of Child Dispute Services of the Family Court of Australia.

2. The Mother, Ms Arndale, cause the subject child, C, to attend the interviews mentioned in Order 1.

3. The Mother have liberty to apply in respect of these Orders.

4. All parties have liberty to apply in the event that the interviews, as directed by the Family Consultant appointed by the Director, Child Dispute Services, do not occur or any party or the subject child fails to attend those interviews.

5. The Mother be granted leave to file and serve any further material upon which she seeks to rely on or before 4.00 pm on 31 May 2012.

6. The substantive proceedings are otherwise adjourned to the Registry for the making of further directions upon the receipt of the Family Report ordered on 8 February 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Arndale & Kingley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1363 of 2008

Ms Arndale

Applicant

And

Mr Kingley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has a lengthy and complicated history. The substantive proceedings concern the child, C, born in November 2006. Briefly stated, the parties met in 2003, commenced cohabitation in 2005, and finally separated in or about August 2006. As noted, C, the only child of the relationship, was born in November 2006.

2. There are issues raised in the substantive proceedings by the Mother concerning what she alleges to be the Father’s alcohol dependence and alleged abusive behaviour. For the Father’s part, he is concerned that the Mother is alienating C against him and is unnecessarily delaying the hearing of the substantive proceedings, and the interim applications that he raises.

3. Currently, there are limitations on the time the Father spends with C. In particular, that limitation being time spent historically either at contact centres or alternatively being supervised by the Mother.

4. In the substantive proceedings, the Father seeks to alter, both on an interim and a final basis, the quality of his time with C, and in particular to remove the requirement for supervision. For the Mother’s part, it seems that the only parenting Order she supports is for the time to be supervised.

5. Today was to be an interim hearing of the interim issues, one of which was the attendance of the parties and C upon a Family Consultant for the purpose of preparation of a Family Report. The filed material of the Mother, and I refer to her affidavit filed 4 May 2012, in which she sets out a deal about the substantive proceedings and the basis for her opposition to unsupervised time, but relevantly for today’s purposes, sets out the current position with respect to her medical condition. Attached to that affidavit is a medical certificate from the DD Medical Centre under the hand of a Dr EE, which records that the Mother is currently undergoing chemotherapy for a brain tumour. She most recently commenced a five day period of chemotherapy for that condition on 3 May 2012, which of course means that today is the last day of that course of treatment.

6. Whilst there are no details in terms of the further treatment of the Mother set out in that medical certificate, she refers, in her affidavit, to the need to undergo further such treatments into the future. In particular, the Mother refers in her affidavit to undergoing further rounds of chemotherapy, the last of which is to occur on 30 June 2012 and 1 July 2012. It was on the basis of her medical condition and an asserted need to file further material in answer to the Father’s interim applications that the Mother seeks an adjournment of today’s proceedings and is the reason why she is not in attendance to be heard today.

7. On 8 February 2011, the Principal Registrar made certain Orders, including an Order for a Family Report to be prepared by a Family Consultant, with arrangements to be made by the Director of the Child Dispute Services section of the Court, Mr HH for that to occur.

8. It seems that the Mother appealed those Orders, but the appeal proceedings are now at an end, and the appeal was dismissed. Ms Buckland, agent for the Independent Children’s Lawyer, suggests that the Order of 8 February 2011 can simply now be given effect to as there is no appeal against its terms that is extant.

9. In the circumstances, I propose to order in terms as suggested by the Independent Children’s Lawyer, that is, that the parties, and in the case of the Mother, that she arrange for C to attend upon the Family Consultant, who seems to be Ms BB appointed for that purpose, on a date or dates as determined by Ms BB and in accordance with the Order made on 8 February 2011.

10. It seems to me that, balanced against the Mother’s right to be heard are the rights of C for this matter to be moved along and the Order that I propose to make does not deal with any substantive issue that the Mother wishes to address and will enable the Court to be armed with a current Family Report at the time when the interim proceedings again come before the Court. I will include in the Order I make provision for liberty to apply so that the Mother may seek to be heard in relation to the Order that I have made.

11. I observe that if the Mother is medically incapacitated in terms of her participation in the proceedings, it is open to the Mother to seek to appoint a litigation guardian to represent her interests in the proceedings if that be thought warranted.

12. I therefore make the Orders as set out at the commencement of these reasons.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 May 2012.

Associate: 

Date:  9 May 2012