Bulmer and Bell

[2014] FamCA 1055

FAMILY COURT OF AUSTRALIA

BULMER & BELL [2014] FamCA 1055

FAMILY LAW – PRACTICE AND PROCEDURE – mother’s application to discharge previous orders made – orders made make mother liable for costs of her psychiatric assessment – the psychiatric report is critical evidence that is required for final hearing – application dismissed.

APPLICANT: Mr Bulmer

RESPONDENT: Ms Bell

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: PAC 5716 of 2012

DATE DELIVERED: 2 October 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 2 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fermanis

SOLICITOR FOR THE APPLICANT: Claremont Legal

COUNSEL FOR THE RESPONDENT: Ms Friedlander

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Snelling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bell

Orders

1. The mother’s Application to discharge orders 10 and 11 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bulmer & Bell 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 PARRAMATTA

FILE NUMBER: PAC 5716 of 2012

Mr Bulmer

Applicant

And

Ms Bell

Respondent

REASONS FOR JUDGMENT

1. This is an application to discharge two earlier orders that I made to the effect that the mother is to pay for a psychiatric report which, for the reasons given, is a critical piece of evidence in relation to the application before the Court that relates to the best interests of the child, L.  The concern rose directly out of the evidence that the mother gave yesterday and, in particular, her clearly stated and emphatic views that she will not accept any finding that the Court may make if it were to be that there were not an unacceptable risk of harm to the child if she were to spend time with her father.

2. As I have indicated, in my view, it is clear that the mother wishes to maintain control over the issue of whether or not the child has a relationship with her father and to date she has unilaterally acted contrary to Court orders on at least two occasions and has managed, in effect, to have total control over that matter.  She is now seeking through the bringing of a further application in relation to a lack of funding, again, in my view, to control the proceedings.  I made it clear that it was an order that I required.  When I asked the mother’s legal representative if she wished to address me about that order, she declined, and that included not addressing the Court at that stage on the issue of her capacity to pay.

3. After the order was made, though I have to concede that, at an earlier time, the proceedings were interrupted and the issue of payment was raised, an affidavit was filed which sets out some of the mother’s financial circumstances.  Critically, it does not set out that she is privately funding this litigation and how she pays for that litigation and there are some other matters within this affidavit that indicate discretionary spending, albeit spending that is directed at the child, such as school fees and activities such as dancing and swimming.

4. The mother is not, in my view, in the precarious position that she paints.  She says she has no other way of raising the money.  She has been able to raise the money to fund her private litigation.  The Independent Children’s Lawyer did make some inquiries, even though they are not required to do so, about whether the funding would come from elsewhere.  It has been suggested to me that if I do not vacate that order, that the mother will not pay for it and the report will not be available.

5. As I have indicated, the mother does not have control over these proceedings.  It is a report that I need and if she chooses not to pay for the report and not to proceed with the psychiatric assessment, then the consequences that may flow in these particular circumstances have been made clear to her yesterday and that includes involving the Department of Family and Community Services, if I form the view that there is a very real risk of emotional harm to the child in these circumstances. 

6. Accordingly, the application to discharge my earlier two orders is dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 October 2014.

Legal Associate: 

Date: 27 November 2014