Bakal and Kapicic (No 3)

[2014] FamCA 784

FAMILY COURT OF AUSTRALIA

BAKAL & KAPICIC (NO. 3) [2014] FamCA 784

FAMILY LAW – CHILDREN – Interim Orders – where father previously withheld child – father’s time with child subsequently suspended and then reinstated – where father seeks orders that the child live with him due to concerns in relation to the mother’s alleged hoarding – mother seeks orders that the child live with he – where parties appear unrepresented – parties have filed voluminous material which provided little assistance to the Court – best interests of the child – awaiting preparation of updated Family Assessment Report – orders made continuing earlier parenting orders.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Bakal

RESPONDENT: Mr Kapicic

INTERVENOR

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: ADC 4291 of 2011

DATE DELIVERED: 6 August 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 6 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commissioner of SA

COUNSEL FOR THE MINISTER: Ms Aglieco

SOLICITOR FOR THE MINISTER: Crown Solicitors Office

Orders

1. The orders of 27 May 2013 be reinstated and shall have application and operation as and from 7 August 2014.

2. That the parties be restrained and an injunction is granted, restraining each of them from causing the child, B, born … 2005, to be taken to any medical practitioner, health professional, psychologist or dental surgeon, save and except for Dr O of the U Clinic and any specialist intervention that may be the subject of referral.

3. That the mother do all things necessary and provide all authorities as may be required to enable the father to obtain appropriate information from Dr O in respect of the medical issues relating to the child, PROVIDING such requests by the father be reasonable in terms of the frequency of any such request.

4. That the parties and the child do attend upon Dr C for the purpose of the preparation of a Family Report to be commenced as soon as is possible but to be completed and released by 31 October 2014 with the costs of the said interviews and report to be borne equally by the parties.

5. That the outstanding interim proceedings and a consideration of the oral application made by the Minister to be released from the proceedings is adjourned for further consideration to 9.15 am on 6 November 2014.

6. That the parties shall be at liberty to file one further affidavit in support of the outstanding interim proceedings providing that the affidavits shall be limited to no more than 10 pages, inclusive of annexures.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bakal & Kapicic 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 ADELAIDE

FILE NUMBER: ADC 4291 of 2011

Ms Bakal

Applicant

And

Mr Kapicic

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me following orders made by Dawe J on 22 July 2014.  I do not propose to go to the history of the matter, but I have regard to the reasons delivered by her Honour on 11 July 2014 and 22 July 2014.  I have also had regard to my earlier delivered reasons in relation to applications that were before the Court at that time. 

2. Matters have unfortunately spiralled out of control, predominantly as a result of the father retaining the child contrary to the orders made by consent of the parties on 27 May 2013, which order provided that the parties have equal shared parental responsibility for the child and that the child live with the father, for the purposes of these proceedings, each alternate Thursday from the conclusion of school until the commencement of school the following Monday or the following Tuesday if a public holiday. 

3. There were orders made in respect of school holiday periods.  That order was effectively interfered with by the father’s actions.  Those are matters, however, which are the subject of comment by her Honour.  It was considered of significant severity in terms of the potential for adverse effect that the father’s actions had in respect of the child that her Honour determined that, upon the return of the child, the order of 27 May 2013 should be suspended in the child’s best interests pending hearing today. 

4. There has been a significant quantity of affidavit material that has now been filed.  Some of it has been helpful.  Some of it, frankly, has been of little assistance and has descended to what might be considered self-serving positions adopted by each of the parties.  It’s important to record that, other than the parties appearing self-represented, Mr Kent in his guise as the Independent Children’s Lawyer appears, as does Ms Aglieco, as a representative of the Minister. 

5. Shortly prior to the commencement of the proceedings, a document that emanates from Families SA dated 5 August 2014 was provided to the Court. It made certain recommendations.  Mr Kent urged the Court that I give that report little regard, in the sense that if it is to be taken as a basis for the application of the Minister to no longer take part in the proceedings, then it was inadequate.  If, however, it was to assist the Court in determining the ongoing parenting orders, it was potentially wrong in respect of a number of fundamental premises.  With respect to Mr Kent, I agree with his submission.  The report is unhelpful. 

6. There are matters in this case which were of sufficient concern to Dawe J that she made the order requiring the intervention of the Minister.  It may be that the future role, as a result of today’s hearing, is more limited, but there are matters that frankly were of concern to her Honour when the order was made and remain of concern, and I do not consider that at this stage those matters have been ameliorated to the point where I consider the Minister should be relieved of his obligation pursuant to her Honour’s order in respect of intervention.  That doesn’t mean that position will not change.  It just has not changed for the purposes of today’s hearing and the document that has been presented on behalf of the Minister provides no assistance in that regard. 

7. A significant issue running through the proceedings has obviously been the allegations by the father of the state of the mother’s home and her propensity towards hoarding.  Those matters are not new.  They are in various affidavits and they also find themselves as a direct statement, but without any admission, in the orders of 27 May 2013.  Obviously, I have not made any determination about that nor, indeed, what effect, if true, it would have on the parenting dispute.  All would agree that it would be undesirable if it was a present feature of the mother’s home. 

8. The mother’s position is that it is not and, perhaps more importantly, the mother indicates that she is prepared and ready to have any inspection in  regards to the state of her home as would be required.  That, of course, is a matter for the mother.  These things are all matters that can be dealt with proactively by the parties.  But equally, it may also be in the interests of this child for the Minister to give consideration to at least removing that issue from the contentions of the Court. 

9. There was an inordinate period of time that the child did not see the mother, and that was regrettable, and hopefully that has now to some extent been ameliorated by her Honour’s order.  But equally, there is nothing in the papers that at this stage would suggest that that position should continue in the sense that the child not spend time with the father.  The father, of course, contends that the child should primarily be in his care and that the child remaining in the mother’s care presents an unacceptable risk to the child.  The mother’s position is exactly contrary to that. 

10. I am not able to get to the bottom of that today, and it seems to me that in all the circumstances it is appropriate to revert to the orders of 27 May 2013 in the absence of anything that would persuade me to the contrary.  That does not mean that I will dismiss the interim applications because I think also it is appropriate that there be a further and updated report from Dr C given that her report is now more than a year old.  The mother continues to object to her involvement.

11. It seems to me appropriate that there be a report prepared at the earliest opportunity. The advantage of such a report, other than it simply updating the position for the purposes of the interim proceedings, will also provide some guidance and assistance as to the matters that the Court will need to have proper regard to in terms of making a final determination which, obviously, this matter urgently requires.  But that cannot happen, and I will not list this matter for a trial until and unless I have the advantage of further input from the family consultant. 

12. A third matter is that the mother seeks the advantage of seeking legal advice and, as is patently obvious in most cases, the Court must be very careful not to put in place any barrier which would stop the parties seeking appropriate legal assistance.  It is always better that parties have representation.  That is not because their views as self-represented litigants are less important but it is likely that the case is going to be presented in a more efficient and efficacious way.  But in any event, it is likely that the adjournment will be necessary to facilitate the preparation of  a report and there will be no impediment to the mother, and indeed, the father, obtaining legal advice if that is what they want to do and legal representation if, ultimately, that comes to pass.

13. There is a matter that does, however, give concern and it arises in the documents and that is the inability of the parties to be able to reach any concluded position in respect of the child’s ongoing medical, psychological or dental health.  These parties clearly have great mistrust for each other and it is demonstrable, to that extent, they have each been blinded to the real issue and that is the need for stability for this child in what might be described as a maelstrom of conflict created by each of them.

14. Regrettably, it seems to me that the court has to intervene in respect of matters that it should not intervene in.  That is, it should not be necessary for a court to tell parents how to properly care for a child in terms of that child’s health and other needs.  But in this case the parties seem devoid of that ability and so there has to be some rigour brought to the arrangement.  It may be that these things will need to be reconsidered and, obviously, once the Court has the benefit of the report then that will happen. 

15. So by way of a summary then, I propose to reinstate the orders of 27 May 2012 and to make orders in respect of matters relating to the ongoing arrangements for medical, dental and psychological health of the child.  I will adjourn the interim proceedings to a date sufficiently in the future when the Court will have the advantage of a further report from Dr C.  I also intend to restrict the affidavit material that each of the parties is able to file for the next hearing so that the parties are able to focus on what is the real issue rather than what might be considered as the internecine dispute between them.

16. Obviously, in respect of all of these matters, I have appropriate regard to the provisions of the Family Law Act 1975 (Cth) and my remarks make it clear that I am particularly attuned to matters relating to the meaningful relationship that this child should have with his parents and the interconnection that must also be brought to account in relation to the need to protect the child. I have regard to the additional matters in section 60CC and I am guided, as I am in all interim matters, by the “legislative pathway “ as set out in the decision of the Full Court of this Court in Goode & Goode (2006) FLC 93-286.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 6 August 2014.

Associate: 

Date:  19 September 2014