Bachman and Daffron - [2009] FMCAfam 1447

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BACHMAN & DAFFRON

[2009] FMCAfam 1447

FAMILY LAW – Application to adjourn proceedings – mother previously unrepresented – father represented previously – father has complied with trial directions – mother has not – whether there should be fresh family report – unfair if mother represented at final hearing and father not.

Applicant:

MR BACHMAN

Respondent:

MS DAFFRON

File Number:

ADC 4775 of 2008

Judgment of:

Brown FM

Hearing date:

14 December 2009

Date of Last Submission:

14 December 2009

Delivered at:

Adelaide

Delivered on:

14 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr M.A. Boehm

Solicitors for the Applicant:

Vicki Lehmann & Associates

Counsel for the Respondent:

Mr G.A. Britton

Solicitors for the Respondent:

B C O'Leary & Associates

Counsel for the Independent Children’s Lawyer:

Ms A Du Barry

Solicitors for the Independent Children’s Lawyer:

J Richard Croft

ORDERS

The matter is fixed for further final hearing before on 22 & 23 April 2010 at 10:00am NOTING 2 days allowed.

The father file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 11 March 2010.
The mother file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 25 March 2010.
The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person as recommended by the independent children’s lawyer and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.

The children spend time with the mother on 25 December 2009 between 10:00am and 5:00pm.
The orders made on 24 September 2009 continue.
Further consideration of the matter is adjourned to 10 February 2010 at 9:30am in relation to the subpoena to SAPOL in respect of

Mr Bachman.
The parties have liberty to apply on seven (7) days notice if issues arise incidental to these orders particularly in respect of the funding of this assessment.

IT IS NOTED that publication of this judgment under the pseudonym Bachman & Daffron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 4775 of 2008

MR BACHMAN

Applicant

And

MS DAFFRON

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally in the course of a procedural hearing regarding whether the case should be further adjourned and whether a fresh family report writer should be engaged.
The reasons have relevance, so far as Mr Bachman is concerned, to the continuation of his grant of legal aid. The proceedings were ultimately adjourned, due to no fault of Mr Bachman. He wishes to present the written reasons to the Legal Services Commission.
It will be necessary for me to re-fix the matter for final hearing before myself on 22 and 23 April 2010. They are the first two clear days that I have. I will not list any other matters on those days.
I am troubled by the issue of whether there should be another family assessment or family report in this matter. Dr S is very experienced. She has been a social worker for more than 20 years and has written numerous family reports, for this court and the Family Court. She wrote a lengthy report in this matter and she expressed a strong view as to what was the appropriate outcome.
Clearly Dr S was not at all impressed with how Ms Daffron presented to her at interview and her interactions with the two children concerned – [X] born [in] 1996 and [Y] born [in] 1999.
The contents of Dr S's report, when coupled with the mother's failure to file any material in the case up until 24 September, persuaded me to proceed with the hearing on 24 September 2009, notwithstanding
Ms Daffron was unrepresented and had filed no material, despite being given numerous opportunities to do so. Mr Bachman was ready to proceed and was anxious to do so.
I was concerned at that stage, that the agreement the parties had reached on 19 February was not a workable outcome. This agreement saw [X] living with the father and [Y] living with the mother. For obvious reasons, it is not a good thing for siblings to be divided.
Accordingly, I thought I was duty bound to embark upon some examination of the evidence and finalise arrangements for both children. Regrettably, the hearing I began with good intentions has miscarried somewhat.
As I indicated, at the earlier stage, I thought it absurd and unfair to treat Mr Bachman’s application as undefended because Ms Daffron had not filed a response or any documents.
Ms Daffron was at court in September and was clearly interested in the proceedings. However, I was concerned that, if the case was adjourned, Ms Daffron would not necessarily be ready on the next occasion.
At the same time, I thought it was fundamentally unfair to
Mr Bachman to adjourn the case, when he had done everything expected of him by the court. Of fundamental importance, I thought the case had some aspects of urgency about it, so far as the children were concerned and, accordingly, I decided to roll up my sleeves and get on with it.
One of the central issues in this case is whether it is appropriate or inappropriate for the mother's partner to be involved with these children. Certainly when Mr Bachman gave his evidence he gave evidence that the children had made disclosures to him about being improperly dealt with by the mother’s partner, Mr G.
These were not matters specifically spelt out in his affidavit matter. They were a bombshell. As a result of these disclosures I have ordered that the children be independently represented.
Dr S had some concerns about Mr G which she expressed in her report. Dr S's concerns were based on what had been told to her by one of the children. These concerns related to domestic violence and drinking.
I am very concerned that this case has become more about how the parties each perceive that the other has had his or her reputation besmirched or the reputation of others who are associated with them besmirched rather than about the best interests of these two children.
Mr Croft's representative today, Ms Du Barry, thinks that it may be useful to have another professional person look at the family dynamics in this case. For obvious reasons the mother is anxious that that occur because it is clearly the case that Dr S formed a very adverse impression of Ms Daffron, which was based on how Ms Daffron questioned the children during the observed interaction. Dr S's impression was that Ms Daffron was under the influence of marijuana during the interview with her and her (Ms Daffron’s) insistence that she would leave the interview with the children.
These issues also concerned me and were factors that led me the conclusion that I should deal with the matter in September, notwithstanding Ms Daffron wanted them adjourned and was going to be unrepresented at the hearing.
The hearing in September could not be completed. One of the central reasons for that was that Mr Bachman gave oral evidence, during the hearing, that the children had disclosed to him that they had been sexually abused. For obvious reasons, these matters needed to be properly investigated.
Accordingly I ordered the independent representation of the children; invited the Department for Families and Communities to intervene in the proceedings; and directed the Department to provide the court with documents relating to any notifications of child abuse received by it.
I have also changed the interim arrangements for the care of [X] and [Y], ordering that both children should live with their father. The mother was injuncted from bringing them into contact with Mr G.
Ms Daffron has now obtained legal representation. This is the background to her application to adjourn the proceedings; adduce further evidence; and seek another family report from someone other than Dr S.
As Mr Boehm points out, if the court meekly allowed other psychological assessments every time one of the parties felt aggrieved by an expert's recommendations there would always be a plethora of family assessments and this would lead to a situation where children were interviewed more often than was necessary and experts were battling one another in court and that would not be a good thing. But, in my view, this is not a typical case.
As I said to Mr Britton, I am troubled that my well-meaning efforts to manage this case and bring it to finality have had completely the opposite result and now there has been an addition of parties. The children are independently represented and there has been an escalation and addition of issues.
With some reluctance I have come to the conclusion that it is probably a case which is out of the ordinary such that it justifies some other professional person to look at this family and I am fortified in that view by the fact that Ms Du Barry, Mr Croft's representative, supports it.
As I said to Mr Boehm it would be ironic and perhaps grossly unfair to Mr Bachman if, at the end of the day, when Ms Daffron has not fully engaged with the process, when at least on a prima facie basis she was not particularly amenable to the family assessment process if, notwithstanding that, she is the person who is represented when things come to the important point for the parties and he is not.
I think that would be unfair and I will have these brief reasons for judgment transcribed so that Mr Bachman can take them to the Legal Services Commission so that perhaps consideration can be given to the authorities perhaps giving him more latitude than would otherwise be given to others.
I appreciate of course that Legal Aid funding is scarce but this is a case which now has a plethora of issues in it. Both parties say the other is a poor and neglectful parent. Both say the other is being emotionally abusive to these two children. I had considered referring the matter to the Magellan list in the Family Court but I suspect that the matter will not come on any faster there than it would here.
I also suspect such an approach may not engage the Department of Families and Communities any more than they have been engaged thus far given the invitations I have delivered to them, to which they have not responded. For better or worse I think I am seized with the matter and I need to bring it through to conclusion.
For these reasons, I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 14 December 2009