Burnett and Charmers

[2018] FamCA 1099

FAMILY COURT OF AUSTRALIA

BURNETT & CHARMERS [2018] FamCA 1099

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of trial – Where the family report writer expressed concerns about the lack of psychiatric evidence of the parties – Where the family report writer could not assist the Court without a psychiatric assessment of the parties – Where a psychiatric assessment is likely to inform questions of risk – Where delay of the trial is outweighed by the benefit of a psychiatric assessment in determining the children’s best interests.

Family Law Act 1975 (Cth)

APPLICANT: Mr Burnett

RESPONDENT: Ms Charmers

INDEPENDENT CHILDREN’S LAWYER: Ms Falcomer

FILE NUMBER: TVC 728 of 2017

DATE DELIVERED: 10 December 2018

PLACE DELIVERED: Townsville (by video-link to Cairns)

PLACE HEARD: Townsville (by video-link to Cairns)

JUDGMENT OF: Tree J

HEARING DATE: 10 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms R. Lyons

SOLICITOR FOR THE APPLICANT: Purcell Taylor Lawyers

COUNSEL FOR THE RESPONDENT: Ms K. Buckley

SOLICITOR FOR THE RESPONDENT: Lee Turnbull & Co

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr R. Pack

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Spina Kyle Waldon

Orders

1. The further hearing of the trial is adjourned to 9:30am on 17 June 2019 in Townsville with an estimated hearing time of 4 days.

2. The matter is to be listed for a Trial Management Hearing at 2:15pm on 21 May 2019 by Global Meet teleconference.

NOTATION:

A.To enter the Global Meet teleconference, please dial:

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Then, when prompted, dial the passcode:

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Please dial in five minutes prior to the hearing and wait quietly until the Court Officer calls on your matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 728 of 2017

Mr Burnett

Applicant

And

Ms Charmers

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before me is an application to adjourn the further hearing of the trial of these parenting proceedings, which were listed to commence this morning, with an estimated hearing time of five days.  As it transpired, by virtue of a number of witnesses no longer being intended to be called by the parties, the length of time of the trial was likely to be something more in the order of three, or perhaps even two days.

2. However, when the trial commenced before me, unexpectedly I was told that the family report writer had reached a position where she was of the view that psychiatric evidence was necessary in order for her to properly assist the Court.  She gave evidence to that effect, and was cross-examined upon it.

3. That, in due course led to the application for an adjournment by, somewhat counterintuitively, the mother.  I say counterintuitively because it is the mother who seeks international relocation to Country B, and any delay in the resolution of that claim will likely be prejudicial to her more than any other party, at least beyond the general prejudice of delay.

4. The concerns which the report writer, Ms C, has, arise from additional material that she has only recently reviewed, which raises questions in relation to the father’s, and to a lesser extent the mother’s, psychiatric health.

5. Particularly Ms C identified that the father has now disclosed in his material, but not during the course of family report interviews, that he was the victim of protracted childhood sexual abuse by a teacher, from the age of 10 onwards, which was accompanied by him being plied with alcohol and illicit drugs as a form of grooming of him for that abuse.  (I interpolate that the father has, at least according to the mother, continued to experience problems with the use of illicit drugs in his adult life, and, according to the mother, during the course of the relationship).

6. A second matter of concern to Ms C was some evidence that she only recently became aware of, which was intended to be led from the paternal grandmother.  In her affidavit filed 16 November 2018, at paragraphs 70 and 77, the paternal grandmother dealt with her concern about the father, and any lack of relationship with the children.  At paragraph 70 she used the word “anchor” as the effect of the children upon the father’s life.  She further said in that paragraph that:

   The children motivate the father to be active and involved in the children’s life.

7. In paragraph 77, she repeated the word “anchor”, and described the children as having a “stabilising influence” upon the father.  She went on to say:

   If the children did not live in Townsville, I am concerned that [Mr Burnett] [being the father] would not cope at all well with the loss of seeing the children regularly.  I am concerned that [Mr Burnett] may become withdrawn, and cease communicating with the children altogether.  In those circumstances, [Mr Burnett] would not be able to maintain a long-distance relationship with the children in [Country B].

8. Although in the course of her cross-examination of the family report writer, Ms D, counsel for the father, suggested that the paternal grandmother’s use of the word “anchor” was not intended to have any psychological meaning to it, and was merely more in the nature of the children providing him with a motivation and interest in life, that remains to be seen, and particularly as to whether or not that is ultimately what the grandmother’s evidence is once she is cross-examined.  Certainly paragraphs 70 and 77 of the paternal grandmother’s affidavit did cause some concern in Ms C, and particularly she identified them as being part of the reason why she thought the father needed to be psychiatrically assessed as a precondition to her being able to advance any recommendations in relation to the appropriate orders for the children in this case.

9. A third matter that Ms C was concerned about were some intemperate communications which the father and mother have recently engaged in, more from the father’s perspective than the mother’s, it would seem, including some intemperate comments about the Independent Children’s Lawyer and Ms C herself.  Ultimately however, Ms C thought that this simply spoke to a lack of insight on the part of the father, rather than anything more sinister.

10. Those were the matters which, in substance, caused her to wish to have the benefit of a psychiatric assessment of both parties before formulating her recommendations.

11. As expanded upon by counsel for the mother, Ms Buckley, that lack of evidence also has, it is said, led to the mother now being in a position where she does not feel, absent psychiatric assessment of the father, and to a lesser extent herself, that she can confidently formulate proposals as to the time arrangements which the father should have with the children, whether in Country B or Australia.

12. Again, of course, it remains to be seen, whether any psychiatric assessment informs those questions, however, the point made by the mother is a simple one:  absent the additional layer of information which a psychiatric assessment may elicit, she does not feel confident to be able to press any firm proposal in relation to time.

13. The father and the independent children’s lawyer oppose the application for an adjournment, and point particularly to a number of matters, being:

    (a)the lack of certainty that Legal Aid funding will be forthcoming for a psychiatric assessment;

    (b)the lack of resources on the part of the parties to privately fund any such assessment; and

    (c)the inevitable delay in the resolution of these proceedings, including, it would seem, at some cost to the father, who is said to be privately funding the litigation.

14. Those are all important matters. However, at the end of the day, the Court needs to be mindful that its role is to make final parenting orders which are in the best interests of the children, and particularly, by reference to the primary considerations in section 60CC of the Family Law Act, address:

    (a)the benefit to the children of having a meaningful relationship with both parents, which is not in dispute in this case, it would seem, at least on the present material;  but

    (b)the need to protect the children from the risk of harm from exposure to family violence or the like.

15. As to that, it is common ground between the parties that the children have been exposed to arguments and conduct that would satisfy the definition of family violence during the course of the relationship, and to a lesser extent afterwards.  Necessarily, the parties’ psychiatric health will be important factors in any risk assessment in relation to each of the parents, and particularly any risk which they pose to the emotional health of the children.

16. However, as I said to Ms D during the course of argument, somewhat ironically, if it be the case that the paternal grandmother’s perception of the father’s likely response to the children relocating to Country B is correct, namely that he may suffer some relapse of his diagnosed depression, or become withdrawn and cease communicating with the children, that would, it seems to me on the present state of the material, likely be a factor which told against the mother relocating.

17. Therefore, as I say, somewhat ironically, although the mother would be prejudiced by the grant of any adjournment, by not having the question of her relocation to Country B disposed of in a timely way, and the father is likely, it seems to me at least on the present state of the material, to be assisted in his case by the material of a psychiatric assessment, counterintuitively, the parties in fact adopted positions in relation to the adjournment contrary, to their primary interests.

18. Ultimately, the question which I need to determine in assessing the application for an adjournment is where the interests of justice lie.  To my mind, they tell in favour of acceding to the adjournment.  Particularly I am mindful that Ms C, a psychologist and social worker by training, has expressed the view that a psychiatric assessment is necessary and if she were to offer recommendations without the benefit of such an assessment, she would be failing the Court and not providing appropriate assistance to it. Additionally, such material is likely to directly inform questions of risk which the parents pose to the children, which are of course central in the assessment of, at least, the time-with arrangements which may be made under any orders which I were to pronounce after the conclusion of the trial.

19. I am mindful that, of course, acceding to the application for an adjournment will inevitably delay the resolution of the proceedings by six months, and perhaps more.  However, I note that these proceedings only commenced in July 2017, were transferred to this Court on 3 October of that year, and were listed for trial as recently as 18 June of this year.  Therefore, whilst all delay is to be decried, this is not a matter where delay has been a feature of the proceedings to date.  I do give delay weight, but it is not determinative, and cannot be determinative, where ultimately the Court is likely to be assisted in determining where the best interests of these children lie by a psychiatric assessment.

20. Therefore I propose to, albeit reluctantly, adjourn the further hearing of the trial to a date to be fixed, and will hear the parties as to what procedural orders should be made to accommodate its earliest listing in 2019.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 December 2018.

Associate:

Date:  10 December 2018