Berrington and Farndale (No. 2)

[2014] FamCA 546

FAMILY COURT OF AUSTRALIA

BERRINGTON & FARNDALE (NO. 2) [2014] FamCA 546

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – trail dates vacated – where insufficient medical evidence available to determine mother’s ability to participate in proceedings – best interests of the child – maintain a meaningful relationship with both parents – orders made for the child to live with the father during the period of adjournment.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Farndale

RESPONDENT: Mr Berrington

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: SYC 7554 of 2008

DATE DELIVERED: 22 July 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Cocks

SOLICITOR FOR THE RESPONDENT: White Berman

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs Read

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission Of South Australia

Orders

1. Order are made in terms of the minutes this day signed by the Honourable Justice Dawe.

2. The matter is listed for trial on the basis that the five [5] day trial take place on a date to be advised after the 1 September 2014 as soon as a Judicial Officer is available.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berrington & Farndale (No. 2) 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: SYC 7554 of 2008

Ms Farndale

Applicant

And

Mr Berrington

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me now the oral applications in relation to the proceedings concerning the best interest of the child b, (“the child”).  The child is a child of the parties and has been living most of her life in the care of the mother.  The child was born in 2007 and is nearly seven years old.

2. Orders have been made over a considerable period of time, attempting to list the matter for final orders to be determined.  Directions have been made.  It is clear that the mother has, in the past, frequently not complied with those orders.  She is unrepresented and now alleges that the trial should be adjourned because of her medical condition. 

3. Notwithstanding, the very specific orders which the Court made yesterday requiring the mother to provide a detailed and full medical report giving particulars of her incapacity to participate in the trial, she filed an affidavit this morning to which is annexed the document which is headed “Medical Certificate”.  It says:

   This is to certify that I examined [the mother] on 21 July 2014.  In my opinion he/she is suffering from a medical condition and was/will be unfit to attend Court proceedings from 21 July 2014 to 21 August 2014 inclusive. 

   The alternative is:

   Or this is to certify that [the mother] is/was required to care for a relative.  He/She will be/was unable to attend work from blank to blank inclusive.  Yours sincerely,

   It is then signed by Dr A. 

4. At the request of the counsel for the father, Dr A gave evidence by telephone link and was cross-examined at length by both the counsel for the father and counsel for the Independent Children’s Lawyer. 

5. When the doctor was asked about the basis for his conclusion that the mother was unfit to attend Court for that period, he gave evidence which indicated he considered, on the information which had been provided to him by the mother, that she was suffering from an anxiety disorder which could involve her in panic attacks.  In relation to the question of his history of the mother, he indicated he had only seen the mother on two occasions.  On the previous occasion he had recommended she take medication to assist her in controlling the condition but she had refused to do so. 

6. When questioned about the mother’s capacity to provide care for the child, the doctor said that he considered that she was completely and utterly capable of caring for the child, but when asked about the basis upon which he made that conclusion, he said it was based upon the information he had been given by the mother and by a “support person” whose name he could not remember who he telephoned at the suggestion of the mother. 

7. The information which the doctor was provided by the mother did not contain fairly significant information concerning the history of the litigation relating to custody of the child and her failure to comply with previous Court orders.  The information the doctor received seemed to have embroiled in the information concerning the custody case, information concerning a former partner who had been “involved in a shooting”.  I accept the submissions that that would appear to relate to Mr C, the fiancé of the mother who has been, or is still, facing significant charges.

8. The information provided to the doctor which forms the basis of his conclusion, both as to the mother’s capacity and as to her medical condition, is therefore seriously at risk of being unreliable as it appears that it is significantly different from some of the information that the mother has previously provided to this Court concerning her calling ambulances and not being taken to hospital and later taking herself to hospital. 

9. The two things that need to be considered is that justice is done and the parties are given proper opportunity to present their case before the Court.  At the same time, steps must be taken which ensure that the child’s best interests are protected. 

10. The factors with which I am primarily concerned are the need to maintain a meaningful relationship with both of the parents and the need to protect the child from harm.  The difficulty the Court has at the moment is that the only medical evidence in relation to the mother’s alleged incapacity to participate in the trial is the medical evidence based upon that unreliable background.  However, if the medical condition which the mother asserts that she has remains, then the Court would have serious concerns for her ability to continue to provide appropriate care for the child.  This significant issue, the mother’s capacity to provide care for the child, is coupled with the need to protect the child from harm, whether it is physical, mental or psychological harm.

11. One way of overcoming the difficulties in relation to both of these matters is for the Court to adjourn the trial and give the mother an opportunity to take the prescribed medication and then be further assessed for her medical condition before the trial and at the same time place the child in the care of the father. 

12. The evidence before the Court from Ms D, the Family Consultant, indicates that the father and the child have a strong and good relationship and that that relationship is such as to provide the child with appropriate protection from any harm. 

13. The Court has to consider the fact that the child is currently attending school and there would be significant changes in her circumstances but that has to be balanced off against the mother’s allegations that she is suffering this severe anxiety condition which can result in panic attacks which involve her passing out.  Taking that into account and taking into account the need for the mother to  take the medication and treatment necessary for her to participate appropriately in these proceedings, I am satisfied that, notwithstanding that it is regrettable that this matter has to be further adjourned again, that it is necessary to give the mother an opportunity to participate appropriately in the proceedings.

14. I cannot adjourn the matter back before myself in the appropriate time but will take steps to ascertain if there is another judicial officer who can attend in the Adelaide registry to list the matter for conclusion, hopefully before the end of this year.  I have considered the circumstances of the adjournment of the trial and in particular the circumstances of the mother’s medical condition, concerns about her wellbeing and her ability to care for the child appropriately.  I have also taken into account all of the matters contained in the Family Law Act 1975 (Cth). It is in the child’s best interests that during the period of the adjournment and pending the trial, that the child remain in the care of the father.

15. I propose to stand the matter down briefly whilst consideration be given to the child having some telephone time contact with the mother and for the backup orders that the Independent Children’s Lawyer was seeking in relation to a further assessment by Ms D and further assessment by Dr E when he is available. 

16. The matter is to resume at 2.15 pm today when I will consider the draft proposed orders that the Independent Children’s Lawyer is suggesting be made in those terms and what the parties may be able to put concerning the time the mother should spend with the child and the contact the mother should have with the child pending the listing of the trial.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 July 2014.

Associate: 

Date:  23 July 2014