Darcy and Cameroon (No 5)

[2010] FamCA 383

FAMILY COURT OF AUSTRALIA

DARCY & CAMEROON (NO. 5) [2010] FamCA 383

FAMILY LAW – PRACTICE AND PROCEDURE – case management – listing for trial – whether the trial should be delayed to allow for the input of a psychologist

Family Law Act 1975 (Cth)

APPLICANT: Ms Darcy

RESPONDENT: Mr Cameroon

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 928 of 2007

DATE DELIVERED: 23 April 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Charman

SOLICITOR FOR THE RESPONDENT: Ian Charman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. That by 4:00pm on 30 April 2010 the mother file and serve her responding documents to the Amended Application Alleging Contravention filed by the father on 15 March 2010.

2. That further consideration of this matter be adjourned to 9:00am on 10 May 2010 before Strickland J.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 928 of 2007

MS DARCY

Applicant

And

MR CAMEROON

Respondent

EX TEMPORE REASONS

1. The first issue before me today in this matter is whether it should be listed for trial in a special sitting that has been arranged for the first two weeks of May 2010.  In terms of documentation, the matter is ready to proceed.  Perhaps I will be a bit more definitive than that.  In terms of the affidavit material on which each party is intending to rely for the purposes of a trial, that is now complete.  I made an order on 16 April 2010 giving leave for the mother to file an affidavit of a witness out of time.  Thus the matter is ready from that point of view.

2. However, the primary issue in terms of whether the case should be listed or not is whether the trial should be delayed to allow for the input of a psychologist by the name of Mr F.  This issue was raised on 2 March 2010 by Dr A who is the Family Consultant in this case.  On that day Dr A provided an oral report.  She gave evidence, sworn evidence, in relation to the result of an interview that she had had earlier that day with the child, the subject of these proceedings.

3. At that time the child was, in Dr A’s view, distressed and the issue to be determined was whether the child should immediately return to her father or a change of living arrangements take place, such that the child would in the interim live with her mother.  That was the context of Dr A’s oral report.  What Dr A recommended at that time was that the child have counselling and she, Dr A, recommended a counsellor.  Separate to that Dr A recommended that each of the parties see Mr F, and reading from my ex tempore reasons delivered on that day, for the purposes of an assessment and to impress upon the parties the advantages of and allowing them to understand and appreciate child focussed parenting.  That recommendation found favour with both counsel and the Independent Children’s Lawyer. 

4. Now, the matter then came back before me on 10 March 2010.  One reason for the adjournment to that day, apart from to look again at the child’s living arrangements, was for inquiries to be made about the availability of the counsellor to see the child and also the availability of Mr F to see the parties and for Dr A to make some further inquiries and speak to the Principal from the child’s school and also to speak to Families SA about various issues in this case.

5. On that day Dr A provided a further oral report.  She indicated that she had spoken to Mr F, and that he was willing and able to do an assessment for the mother and the father but not until 1 June 2010.  There would be interviews with the mother and father separately, of course, on that day and then there would be a report provided to the court. 

6. Now, it was still everyone’s view, and by that I mean counsel appearing for the parties and the Independent Children’s Lawyer, that this recommendation of Dr A which she confirmed on 10 March 2010, namely, that Mr F undertake this exercise with the parties, should still occur.  However, I raised on that day that there was a very real prospect of this matter being listed for trial in a special sittings which was being arranged for May, and I put to Dr A, and reading from the transcript:

   “That would mean that if we do have it listed in May, then that would mean we don’t have the benefit of [Mr F’s] input.  Would you say that - I mean, I am sure no one wants to have this matter delayed but do you say it is important enough to get the input of [Mr F] to delay the hearing of the matter?”

   Dr A’s answer was:

   “I would, your Honour.”

7. I then raised whether it was possible to have the assessment by Mr F done any earlier.

8. Dr A said she had not been able to speak to Mr F about that but she would do that.  Perhaps pausing there, on a subsequent occasion, I think it was 25 March 2010, Dr A informed the Court that there was only the prospect of bringing the interviews forward by about a week.  Of course, as is obvious, that would still not assist in terms of having Mr F’s input prior to the proposed listing of the trial which was, as I say, to be May 2010.

9. I should mention that in relation to the child having counselling that was also addressed again and I was informed that the person that Dr A recommended was not available and there was mention of some alternative counsellors and it was left that the Independent Children’s Lawyer would make some inquiries of those alternative counsellors. 

10. The case was adjourned to 25 March 2010 to further consider all issues in the case, including, obviously, the issue of listing for trial, readiness for trial and the final word in relation to Mr F’s availability and also clarifying the availability of a counsellor to see the child.

11. I should mention also that the issue of the cost of Mr F’s assessment was raised and I was told - whether it was 2 or 10 March 2010, it does not much matter, that an application would be made to Legal Services Commission to fund that assessment.  It has been confirmed today that the Legal Services Commission will fund that assessment regardless of whether the parties, or more particularly the mother, is prepared to sign the necessary documents that Legal Services Commission would require to put that in place.  In other words, regardless of that, whether she signs those documents or not, I am told today Legal Services Commission will still fund Mr F’s assessment.

12. Thus the matter came before me again on 25 March 2010 in relation to all issues but particularly the issue that I have to determine today, namely the listing of the trial.  At that time there was more detail about that, namely, in terms of when the listings would take place and that this matter could be listed as a primary matter in that list.  Thus what I did on that day was I addressed the question of preparation for trial and the compliance with my orders for the filing of affidavits.  The mother had not complied and the father still had one affidavit to be filed and I made orders about that being done.

13. The issue of Mr F’s fees was also raised at that hearing.  It had not been clarified at that point and thus there was still a question mark about whether the trial should take place in May or whether it should be delayed or whether there was any point in delaying it, depending upon Mr F’s fees being able to be met by the Legal Services Commission. 

14. I also note that one of the outstanding applications that has been before me on each of those hearing dates that I have referred to, has been an Amended Application alleging Contravention filed by the father.  That was filed on 10 March 2010.  There was an earlier application, but he amended it.  At all times the father’s position has been that he pursues that application and one consequence of that has been looking at whether that application could be heard before the May sittings, if this matter was, in fact, listed then.

15. Just, perhaps, to follow that through, on the last occasion this matter was before me I informed counsel that there was no possibility of that matter being listed prior to May and so a decision had to be made by the father as to whether he pursued that application. At this stage he still does. In any event, on 25 March 2010, as I have observed, there were still question marks about Mr F’s involvement, which impacted upon whether the matter could be heard in May 2010. 

16. The case was further adjourned to 16 April 2010 and it came before me on that day, which was last Friday, and I raised again the issue of the listing of this matter for trial.

17. In terms of the affidavit material, the mother had filed her affidavits and although one affidavit needed leave and I granted that leave on that day, as I have indicated, and the father’s affidavits were in, his counsel indicating that he was not relying on an affidavit which he had hoped to obtain from Scotland.  Thus the matter was ready from the point of view of affidavit material and witnesses to be called.  However I raised again this issue of whether the trial should be delayed to allow for the input of Mr F.  I was told on 16 April 2010 that Legal Services Commission would meet his fees.  There was some documentation that the mother needed to file, but on the assumption that she signed those documents cost was not an issue.

18. This highlighted the question of whether Mr F’s input was so important that the case should be delayed.  Frankly, I indicated that I was not necessarily satisfied about that, because I was not sufficiently informed as to the process that Mr F was going to undertake and what we could expect from that exercise, and counsel was in a similar position.  Thus the matter was further adjourned to today to enable inquiries to be made about that and particularly of Dr A who, of course, has made this recommendation.  I was also alerted by Mr Charman that he anticipated having difficulties with counsel if the matter was listed in May and Mr Boehm, likewise, foreshadowed a difficulty with that.

19. Now, we come to today and what I have before me today is what is described as a brief addendum summary, dated 21 April 2010, from Dr A.  As I said at the start of today, I am assuming that that is Dr A’s updated report prepared pursuant to my order made on 25 March 2010.  I adverted earlier to a concern I had about Dr A referring to a request made on 20 April 2010 to produce this report.  I do not need to say anything further about that, but this report is a summary of the evidence that Dr A gave on 2 March and 10 March 2010.  I note that she has put an incorrect date, she has put 7 April 2010, that clearly it was 10 March 2010.  There is no issue about that necessarily.  She refers to the involvement of Mr F and the fact that appointments have been arranged for 1 June 2010.  She provides a summary and evaluation, which I must say I am concerned about, and I know I am digressing from the issue I need to determine today, but I will mention it now. 

20. Dr A, in her summary and evaluation refers to her understanding that there are still Facebook entries as at 21 April, describing – I am reading from paragraph 11 of the report – the mother’s views of the legal processes and her allegations that the father continues to abuse the child with the assistance of the Court, in particular the Independent Children’s Lawyer, Mr Croft.  Dr A then goes on and suggests that this indicates a disregard by the mother for the Court’s requests – again quoting from the report – for her not to proceed with discussing and promulgating these matters on the worldwide web, and then in paragraph 13 Dr A says:

    “It is this writer’s professional opinion that until Mr [F] has completed his reports regarding these parents.”

    and that is important for what I have to decide today,

    “…or until the court has determined through the trial process how [the child’s] best interests might be served, that [the child] should live with her father and not spend time with her mother.”

21. Now, what concerns me about that is that the information that Dr A puts in this report is not the information that I have. In other words, on 16 April 2010 I was told by counsel for the father that the mother had complied with the orders that I made in relation to her Facebook page. Mr Charman, though, alerted me and everyone to another site on the internet, which contained information of a similar nature, and which would also be in breach of s 121 of the Family Law Act, but as was discussed on that day there was no evidence to indicate who had placed that information on that website or who had control of it.  Thus I am at a loss to understand where Dr A has obtained the information that she relays in paragraph 11 and 12. 

22. The obvious concern I have, and I assume counsel as well would have, is how reliable then is Dr A’s report and particularly her opinion?  Now, that cannot be resolved today because Dr A is not here, but I raise it as a concern that needs to be address with Dr A, because if she has some other information, we obviously need to know where that information is from, but if she has misunderstood the position, then she might need to think again about what she said in her report.  In these circumstances I do not propose to put any weight on this report today until those issues are clarified. 

23. Interestingly, in paragraph 13 that I have read out, Dr A seems to allow for a trial to take place without the involvement preceding it of Mr F.  Nevertheless I proceed on the basis, and indeed it is been confirmed today by Mr Boehm for the Independent Children’s Lawyer, that as he understands it, Dr A’s recommendation still stands, and indeed it is supported by the Independent Children’s Lawyer. 

24. I have been helped today by Mr Boehm, who has provided some further input that he has received from Dr A as to what it is that Mr F will do.  I can say that upon hearing that, I did express concerns at the time and I repeat those concerns as to the exercise that Mr F apparently undertakes.  I understand that what is proposed is one interview with each of the parties, Mr F reading the previous reports, Mr F then providing a report to this Court, providing his assessment of the parenting capacity of the parties and any other relevant observation that Mr F, as an experienced psychologist can make having read the previous reports and interviewed the parties.  But my concern about the extent of that is that he is not going to interview the child and I am perplexed as to how any psychologist would really be able to produce the range of outcomes which Dr A is anticipating simply by having read previous reports and having one interview with each of the parties. 

25. However, what I am faced with is a strong recommendation from the Family Consultant, who has been involved in this case for a considerable period of time, that the trial be delayed to allow for the input of Mr F.  I also have a position where the Independent Children’s Lawyer, who represents the child, makes a submission in support of that recommendation, namely that the trial should not take place in May and the trial should be delayed until the input of Mr F has been achieved.  Obviously the fact that the family consultant and the independent children’s lawyer are making that same recommendation, and as Mr Boehm has put it to me forcefully, weighs significantly on my decision today. 

26. In terms of the parties, the mother, who now represents herself, has indicated quite clearly that she does not want the trial delayed for the involvement of Mr F.  She has the same concerns that I have as to what Mr F can usefully achieve in the matter and how that can be used by this court ultimately.  She says it is in the best interests of this child that her future be sorted out as quickly as possible.  I agree entirely with all those sentiments, but whether they outweigh the perceived need for Mr F’s involvement, I will come to in a moment. With the father, Mr Charman, who appears for him today, has indicated that he is equivocal about it. There are advantages and disadvantages, so to not put too fine a point on it, Mr Charman is sitting on the fence in relation to that issue.

27. Two other issues have been raised, though, by both Mr Charman and Mr Boehm in relation to the listing of this matter in May.  One is a problem with counsel.  I am told by Mr Charman that he has made inquiries and there is no counsel who regularly practises in this jurisdiction who would be available to appear as counsel on behalf of the father for a five-day trial commencing on 3 May 2010.  Mr Boehm has indicated on his instructions, his instructing solicitor, who is of course the Independent Children’s Lawyer, has the same problem.  Mr Boehm is unavailable in that week and so Mr Croft has had to look elsewhere and, as I say, I am told by Mr Boehm that on his instructions there is no one, of those who regularly appear in this Court, available to appear as counsel for the Independent Children’s Lawyer.

28. Now that is a significant issue that I have to take into account, given the history of this matter, given the involvement of, particularly, Mr Boehm as counsel, is an important issue.  Of course, it does not affect the mother because she is now, again, representing herself as recently as only this week, and I am assuming she will be appearing for herself at the trial. 

29. The other issue is that the child has commenced counselling.  It is confidential counselling, and obviously there will be no report, but I have been reminded that what Dr A had in mind was once that counselling had run its course, she would then re-interview the child for the purposes of updating a report to this Court.  Also, depending on the timing, she would be able to factor into that updated report the input from Dr F, which I have referred to already. 

30. Thus they are the issues which militate against this matter being listed in May.

31. The pressure to list it is, as I have referred to and as the mother has referred to, that all things being equal it would be in the child’s best interest to have a trial of this matter and finalise the future living arrangements as soon as that possibly can happen.  However, that said, the trial needs to be a worthwhile exercise.  The trial needs to be an event where all relevant information is available to the trial Judge so that a fully informed decision can be made as opposed to having a trial, for the sake of having a trial, without all the relevant information and then the matter not being able to be resolved finally and there being further litigation.

32. Although I am not entirely satisfied as to the need to delay the trial for the purposes of the involvement of Mr F and particularly because of the concerns I have expressed about what is expected from Mr F, taking into account the strong recommendation of the Family Consultant and the Independent Children’s Lawyer and that it can be anticipated that Mr F will be able to provide some useful information and a useful assessment as to the parenting capacities of the parties, and the need to have an updated report from Dr A following upon the counselling of the child and receipt of the report of Mr F, and as a relevant and important issue but certainly not, by any stretch of the imagination, the determining issue, there is the unavailability of counsel, I will not be listing this matter in May. 

33. I indicated previously that I could not say when the matter might be listed alternatively but clearly it has to wait now, or should wait now, for the outcome of the counselling and the further updated report of Dr A.  That also has a side benefit in that Dr A will be able to better explain her position as currently appears in this summary, which I have referred to and which I have expressed some concerns about.  This Court will do everything it can to provide the earliest possible alternative listing for this case but being realistic about it, the earliest would seem to be July or August.

1. I mention that because if everything else is in place, there will be no prospect, I can safely say, of the case being delayed because of, for example, counsel unavailability.  Thus whatever arrangements can be put in place for the future about that, they should be put in place now. 

I certify that the preceding 34 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 23 April 2010.

Associate