Davidovic and Davidovic

[2020] FamCA 94

FAMILY COURT OF AUSTRALIA

DAVIDOVIC & DAVIDOVIC [2020] FamCA 94

FAMILY LAW – PRACTICE AND PROCEDURE – CHILDREN – Where the father has filed an Application in a Case seeking interim orders for supervised time with the children – Where the Independent Children’s Lawyer seeks orders be made in accordance with their Minute of Order seeking an updated family report addressing the considerations in s 60CC of the Family Law Act 1975 and the mental health of the parties – Whether the updated family report is required prior to the hearing of the interim Application – Where there has been allegations of family violence – Orders made in accordance with the proposed Minute of Order of the Independent Children’s Lawyer – Orders made for the interim Application to be set down for hearing subsequent to the release of the updated family report.

Family Law Act 1975 (Cth) s 60CC.
Mental Health (Forensic Provisions) Act 1990 (NSW) s 32.

APPLICANT: Ms Davidovic

RESPONDENT: Mr Davidovic

INDEPENDENT CHILDREN’S LAWYER: Reid Family Lawyers

FILE NUMBER: SYC 216 of 2016

DATE DELIVERED: 13 February 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 13 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Antonenas of Antonenas Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Pierce

SOLICITOR FOR THE RESPONDENT: Glenn R Walters & Co

INDEPENDENT CHILDREN’S LAWYER Ms Reid of Reid Family Lawyers

Orders

(1)Save in respect to proposed order 8, Orders are made in accordance with the Minute of Orders proposed by the Independent Children’s Lawyer, marked ‘Exhibit A,’ attached hereunder.

(2)The listing before Senior Registrar Campbell on 11 May 2020 is vacated.

(3)Subject to the single expert report of Dr C being available, the Application in a Case filed by the father on 7 January 2020 is listed for hearing before Deputy Chief Justice McClelland at 9.30am on 11 August 2020.

(4)The father is granted liberty to apply for an earlier listing upon receipt of the report of Dr C provided at least 48 hours’ notice is provided to the Court and the other parties.

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 Davidovic & Davidovic 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 SYDNEY

FILE NUMBER: SYC 216 of 2016

Ms Davidovic

Applicant

And

Mr Davidovic

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1.This matter came before the Court today for a case management hearing in accordance with Orders that were made on 10 December 2019. Since those orders were made, Mr Davidovic (“the father”) has filed an Application in a Case in respect to parenting matters.

2.By way of summary, the Application in a Case, filed by the father, seeks interim orders for the father to have supervised time with X born in 2014 and the second child of the marriage who was born subsequent to the parties’ separation (collectively referred to “the children”). The father proposes that any time with the children is to be supervised by B Services pending the Court hearing the substantive proceedings.

3.The Independent Children’s Lawyer contends that, prior to the Court hearing the interim Application, it is necessary for the Court to be appraised of a number of issues by way of an updated single expert report. Accordingly she seeks orders to that effect as set out in a Minute of Order (marked “Exhibit A’ in the proceedings).

4.The assistance sought from the single expert is in respect to matters set out in s60CC of the Family Law Act1975 (Cth) (“the Act”), as well as, in respect to an assessment of the mental health of the parties. This is because mental health is a live issue in this matter. Both parties assert that there are mental health issues relevant to each parties’ parenting capacity.

5.Significantly, at paragraph 5 of the father’s Affidavit filed 7 January 2020, he states that, on 20 June 2016, he was unsuccessful in applying for criminal charges against him to be dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

6.Further, both parties, make allegations that each party has engaged in family violence against the other.

7.The mother also asserts that the Court will be required to consider, the circumstances where she contends the father improperly retained X in his care for a period of three (3) days in circumstances where he should have been returned to the care of the mother.

8.The mother and the Independent Children’s Lawyer claim that the father has failed to properly engage in the proceedings. The father, on the other hand, contends he has at all times been ready, willing and able to do so, save to the extent that he was not appraised of developments in the proceedings because of the Court having incorrect contact details.

9.I am satisfied that the issues raised by the parties are of such significance including, as I have noted, issues relating to mental health, that it would be unsafe for the Court to consider making parenting orders without the Court having the benefit of professional advice through a single expert. Accordingly, I am satisfied that it is necessary for the Court to have the benefit of a report of Dr C as proposed by the Independent Children’s Lawyer, and, therefore, I make orders accordingly. The father had no issue that Dr C is an appropriate single expert to be appointed.

10.The father submitted, however, that the costs of the single expert should be shared. In that respect he notes that the Court is without information regarding the mother’s current financial circumstances. I accept that is the case.

11.As against that lack of information, however, the children have been in the mother’s primary care since their birth. For several years, since the parties’ separation, the mother has been solely responsible for providing for the children’s physical needs in circumstances where she has received limited financial support from the father.

12.I note that in paragraph 61 of the father’s Affidavit, he states that he has provided to the mother approximately $500 as a child support payment through the mother’s solicitors. This represents a fraction of the cost that would have been incurred by the mother in discharging her responsibilities to care for the children.

13.In terms of assessing the father’s capacity to pay for the single expert, I have had regard to the financial statement filed 7 January 2020.  

14.Paragraphs 40 to 44 of that financial statement outline that the father has property valued at a total of $72,130, less the value of a car of $9,000 and household contents of $5,000, as well as a tractor valued at $4,000. Accordingly, the resulting situation is that the father has approximately $54,000 in accessible funds in the form of a sum of $20,000 payable to him by his brother, as well as money in a trust account amounting to $20,000, and $14,130 in cash.

15.In those circumstances, and in circumstances where the mother has and continues to be responsible for providing for the children’s physical needs, I am satisfied that it is appropriate that the cost of the single expert be met by the father.

16.Finally, I respectfully accept and agree with the submissions advanced by the Independent Children’s Lawyer that, which are recorded on transcript, the Application in a Case filed by the husband on 7 January 2020 should not proceed to hearing until the Court and the Parties have the benefit of the report of Dr C.

17.Accordingly, I make orders as set out at the beginning of these reasons.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 13 February 2020.

Associate:

Date:  20 February 2020

‘Exhibit A’

1) That pursuant to Rule 15.45 of the Family Law Rules 2004, Dr C be appointed to prepare a single expert report (“the Report”) as to the best interests of the children, the subject of these proceedings, X born in 2014 and the second child of the marriage born in 2016, together (“the children”).

2)   In preparation of the Report, Dr C shall have regard to the following terms of reference:

a)Any risks and / or benefits to the children of being (re)introduced to the father;

b)Any risks to the children arising from exposure to family violence or the mental health of either of the parties;

c)   The parenting capacity of the parents; and in particular

i)   Whether either parent’s parenting capacity is affected by a mental health condition;

ii)     Their respective capacities to meet the children’s physical, intellectual and emotional needs;

iii)   The impact on the mother’s parenting capacity, in the event Orders are made for the children to spend time with or communicate with the father;

iv)   The father’s capacity to consistently engage in and commit to the parenting proceedings and any orders made in the proceedings.

d)   The attitudes to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents;

e)The impact on the children of being involved in any assessment for the purposes of these proceedings;

f)   The likely impact on the children of being (re)introduced to the father and any impact on them of any future failure by him to pursue a relationship with them;

g)   Any other observations made by Dr C or issues which Dr C considers relevant for the Court.

3)   That the parties do all things to attend appointments scheduled by Dr C for the purposes of the Report on 20 and 21 July 2020 or as otherwise nominated by Dr C;

4)   That the costs of preparing the report be met by the Father.  For the purposes of this Order, the father shall, within 7 days of the date of these Orders, deposit into Reid Family Lawyers’ trust account $16,600, being Dr C’s estimated fees.

5)   In the event the father fails to meet his obligation pursuant to Order 4 above, the independent children’s lawyer shall cancel any appointments with Dr C, with the father to meet the costs of any cancellation fees incurred by the parties.

6)   That the Independent Children’s Lawyer shall have leave to issue as many subpoenas as she deems necessary;

7)   That the Independent Children’s Lawyer have leave to photocopy subpoenaed material for the purposes of provision to Dr C to assist in the preparation of the Report with the costs of photocopying to be waived.

8)    

9)   Leave for the Independent Children’s Lawyer to relist this matter on 7 days’ notice.