DREHER & COLOMBERA

[2020] FamCA 1020

FAMILY COURT OF AUSTRALIA

DREHER & COLOMBERA [2020] FamCA 1020

FAMILY LAW – PARENTING – where parties negotiated for too long and ran out of time to conduct the hearing in one sitting – where parenting proceedings adjourned.

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Family Law Act 1975 (Cth)

APPLICANT: Ms Dreher

RESPONDENT: Mr Colombera

INDEPENDENT CHILDREN’S LAWYER: Ms Walters

FILE NUMBER: MLC 1959 of 2016

DATE DELIVERED: 5 November 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duckett

SOLICITOR FOR THE APPLICANT: Ms Justice Legal

COUNSEL FOR THE RESPONDENT: Ms Johnson

SOLICITOR FOR THE RESPONDENT: Nicholas James Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: White Cleland Lawyers

Orders

1. That the further hearing dates of this trial be vacated and all extant applications be adjourned to 15 July 2021 at 10.00 am for final hearing before me estimated to take seven days (“the final hearing”).

2. The father file and serve any evidence by his treating psychologist Dr B by not later than 12 April 2021 and confirm that his psychologist is available for cross-examination.

3. The mother file an serve any evidence from her treating psychologist or other appropriately qualified person as to the impact on her parenting capacity of time being ordered between the father and the child X born … 2011. Such evidence to be filed and served by 12 April 2021.

4. To the extent that the parties need permission to do so, they may each cause an unlimited number of subpoenas to produce documents to issue provided that all such subpoenas ae returnable before, and inspection and copying of documents is completed by 1 April 2021.

5. I reserve liberty to apply urgently in relation to compliance by Dr B with any subpoena to produce documents or any objection to produce documents.

6. Each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her case, such documents to be filed to be as follows:-

   (a)       The applicant mother by not later than 3 May 2021;

   (b)       The respondent father by not later than 24 May 2021;

   (c)       The Independent Children’s Lawyer by not later than 31 May 2021; and

   (d)       The applicant in reply by 14 June 2021.

7. The mother and father are permitted to rely on their affidavits of evidence in chief filed respectively 2 October 2020 and 16 October 2020 and the affidavits of:

   (a)       Dr C filed 16 July 2019 and 12 October 2020) and 16 October 2020;

   (b)       Ms D filed 1 October 2020; and

   (c)       Ms F filed 7 October 2020.

8. I relieve the parties from compliance with Rule 15.08(2)(b) of the Family Law Rules so that all annexures identified in an affidavit are to be attached to the affidavit and accepted for filing. If the portal will not accept the annexures for filing, the party filing same ensure that each annexure page is numbered and email the bundle of annexures to my Associate – email [email protected] .

9. Not less than 14 days prior to the commencement of the final hearing, the parties determine whether there are any rulings required as to the admissibility of evidence by or on behalf of each other party to the proceedings and any objections in respect of which a ruling as to admissibility is sought be referred to in the parties’ outline of case.

10. Any party obtaining a ruling which strikes out part of another party’s affidavit, must file and serve a copy of the affidavit(s) from which the inadmissible has been redacted.

11. Pursuant to section 11F of the Family Law Act 1975 the Family Consultant, Ms G, provide a brief addendum report on X’s views in relation to time to be spent or communication being ordered between the father and the child.

12. The Family Consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

13. The parties file and serve up to date case outlines as follows:

    (a)       The applicant mother by not later than 5 July 2021;

    (b)       The respondent father by not later than 7 July 2021; and

    (c)       The Independent Children’s Lawyer by not later than 12 July 2021 to include an agreed chronology and a minute of orders which in her preliminary view ought to be made at the final hearing.

14. The mother and the father participate, by themselves and their legal advisers, in any further Family Dispute Resolution Service conference with Victoria Legal Aid in the week of 28 June 2020 AND IT IS DIRECTED that the Independent Children’s Lawyer notify my Associate – email [email protected] – of the date of the said conference.

15. The parties continue to use the electronic court book already set up for this matter for the continuation of the final hearing.

16. Until further order, the mother be restrained from eliciting evidence of the child’s views on time and communication proposed by the father from her treating psychologist, Dr C and/or Dr H of J City.

17. The parents do all acts and things to ensure that the family maintains an application with L Contact Service for supervised time in spite of there being no current order for time to be spent between the father and X.

18. There be leave to the father to make oral application for interim orders to obtain reports from X’s school and for the ability to send cards and letters to X to be vetted by the mother.

19. The mother provide to the Independent Children’s Lawyer any school reports, a card/photograph of X each three months and the Independent Children’s Lawyer redact any identifying information about X’s location and send the redacted versions to the father.

20. The mother provide to the Independent Children’s Lawyer any medical reports and the Independent Children’s Lawyer redact any identifying information about X’s location or the doctor’s locations and send the redacted versions to the father.

21. I dismiss the application for cards and letters to be directed to the child.

22. IT IS REQUESTED that the Independent Children’s Lawyer explain the adjournment of these proceedings to X and that the father wanted to proceed as soon as possible with the application and wants very much to see her but knows that he will not be doing so until or unless the court makes a decision to that effect.

23. For the avoidance of doubt, nothing in this Order entitles the father to attend any school or medical practitioner concerning X.

24. In the event that this matter resolves prior to the hearing date, the solicitors for the parties and the Independent Children’s Lawyer notify my Associate promptly.

AND IT IS NOTED BY THE COURT THAT:

A.Any solicitor / practitioner who prepares an affidavit from which portions are ruled inadmissible and are struck out may be precluded from charging for that part of the affidavit which is struck out in addition to being liable for costs incurred on any strike out application (or a proportionate part thereof). Practitioners must be ready to deal with issues arising from material being struck out of evidence including issues of conflict between the interests of the solicitor and the interests of the client.

B.If a legal practitioner is precluded from charging costs for preparation of material which is struck out, he/she will be required to particularise for his/her client the amount of money by which the client’s legal costs will be reduced as a consequence of the material being held to be inadmissible.

C. That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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 Dreher & Colombera 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 MELBOURNE

FILE NUMBER: MLC 1959 of 2016

MS DREHER

Applicant

And

MR COLOMBERA

Respondent

And

INDEPENDENT CHILDREN'S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me for the final hearing of the mother’s application that final orders made in 2017 be discharged and the father’s application to spend time with the parties’ daughter, X, who is nine years old, be dismissed.

2. The father has not had face-to-face time or communication with X since approximately October 2017. 

3. The final orders obtained in 2017 were obtained against a background of the mother being resistant to the expansion or extension of overnight time between the child and the father, although the final orders ultimately provided for X to spend time with her father. 

4. The child and the father had some five to six months of time in accordance with the final orders when the mother ceased complying with the final orders.  She did so in response to statements made by the child to her, and at that stage to the child’s doctor, which were indicative of the child having been subject to inappropriate sexual behaviour by the father, or what would commonly be called sexual abuse.

5. The matter was subsequently investigated by the Department of Health and Human Services, who, I think it is fair to summarise, found that the allegations were substantiated.  There was, however, a fairly pronounced lack of clarity or transparency to those investigations, and the father appears to have been left in limbo about the outcome of the investigations, and possibly deprived of an ability to participate more strongly in the investigation of the allegations.

6. The matter was investigated by Victoria Police.  There were one or two VARE tapes taken of X.  No disclosures were made by her on tape as I recall, and ultimately the police have declined to charge the father with any offences arising out of the allegations.  The matter was not brought back to Court by the father promptly upon the mother failing to comply with the final orders, and it has languished so that there is now a significant interruption in the face-to-face relationship between him and the parties’ daughter.

7. X is nine years old.  She has been assessed as being on the spectrum and has been diagnosed with autism. 

8. The matter was listed for six days, being from 4 to 6 November and 11 to 13 November.  It is a long hearing time, given the number of issues that we had to canvas.  Yesterday, the parties sought to negotiate a resolution of the matter and I permitted them to continue to do so for the entirety of the day on the basis that they said those negotiations were proving productive.  I was assured, however, that if the matter was not resolved the matter would be in a position to commence at 10 am this morning.  That was not the case. 

9. At 10.30 am when the matter was called on, counsel for the father said that the father had been uncontactable and she considered that her instructions were either at an end or she did not have any instructions with which to proceed.  She could not say why the father had failed to contact her.  Ms Johnson is now instructed that the father joined the hearing from 10 am to 10.30 am but found no one else there so he left.  What is not explained is why the father did not respond to the very many calls that Ms Johnson says she placed and those who instruct her placed to have the father prior asking him to contact them immediately.

10. There are three bases upon which the mother and the Independent Children’s Lawyer now seek that the matter be adjourned, and I have indicated to the parties that, if adjourned, it will be until approximately July next year. 

11. On behalf of the Independent Children’s Lawyer, it is estimated that this matter will not be able to be concluded in the remaining four and a half days left.  I must say that that seems to me to be accurate.  I do not accept the submission of counsel for the father that the matter can be determined within four and half days.  That would mean that the matter would have to be part heard.  It is undesirable to leave a matter part heard by design for a number of reasons not the least of which is that the party whose evidence is yet to commence has extra time to tailor his or her case around what evidence has gone before or issues which have emerged.

12. The other matters that require consideration is the extra evidence which the parties propose to put on. I anticipate that such evidence will require some cross examination to be re-done. 

13. The next matter pertains to information about the father’s psychological and mental health treatment.  In the father’s affidavit of evidence-in-chief at paragraph 171, the father deposes:

    I have been suffering from depression, melancholia, anxiety and grief as a result of losing time with my daughter. 

14. He refers to a psychological report by his treating psychologist, Dr B, dated 13 May 2019, and an affidavit by his GP, Dr K, dated 3 August 2018.  They appear as annexures C7 and C8 to his affidavit.  Turning to his psychologist’s one page of narrative dated 13 May 2019, which I would hesitate to call a report, it is apparent that the psychologist was, in 2019, continuing to treat and anticipating that he would continue to treat the father.  The final paragraph reads:

    The examiner is able to remain involved in the provision of ongoing psychological support and treatment and may be contacted via … if further information is required.

15. I am informed that a subpoena to produce documents has been served on Dr B, and it was checked yesterday that the documents are awaiting production.  Ms Jenkinson, counsel for the Independent Children’s Lawyer, informs me that had the documents not been made available, and they still have not been, she anticipated seeking a warrant for the apprehension of Dr B so that he could be brought before the Court to give evidence.  That application was not made, but it indicates the significance that the Independent Children’s Lawyer accords to the father’s psychological functioning and a proper report of his treating psychologist. 

16. The events of this morning, and in particular Ms Johnson’s explanation of the circumstances in which she and those who instruct her found themselves without instructions from the father, gives me cause for some concern about the father’s level of functioning, but I do not, as a matter of substance, make any findings about that now.  I would just indicate that there is probably a perception of greater need for evidence in this respect, given the events of this morning, than there was this time yesterday.

17. Counsel for the father has confirmed that Dr B continues to be the treating psychologist for the father.  No argument has been raised as to why a more current report would not be available from Dr B, the last one being from May 2019.  There is also no further or up-to-date material from the father’s general treating practitioner in relation to her report dated 3 August 2018, although I note it is from the general practitioner’s report that the father’s description of his mental health state, which appears in paragraph 171 of his evidence-in-chief, is apparently taken, that is:

    Suffering from major depression and melancholia [anxiety and grief] as a result of being deprived from seeing his daughter.

18. In my view, it is desirable for the father to file an affidavit by his psychologist if he proposes to rely on his involvement with a psychologist as being a relative matter in this case.  In the event that he does not, the inference would be, given the context in which Ms Johnson has characterised Dr B’s involvement, that any evidence by Dr B would not assist the father’s case. 

19. The next matter which the mother advances as a reason for the adjournment is that she now wishes to obtain evidence from a psychologist, specifically as to the impact upon her of orders being made for face-to-face time or ongoing communication and time between X and the father.  This is in the context of the mother having, she alleges, a genuine, albeit not necessarily reasonable belief that the child has been sexually abused.  When I say “not reasonable belief”, I am really saying that this Court may ultimately be unable to find whether or not sexual abuse took place.  But the mother advances a case whereby she believes that the abuse occurred. This evidence could have been obtained at any earlier time.  Indeed, as best I recollect, it was raised by me at the last mention of this matter, some weeks or a few months ago.  The mother is no more advanced now than she was then in sourcing a psychologist or psychiatrist to see her pursuant to a mental health plan.  She still has not identified a treating clinician.  I am not inclined to reward the mother for her inaction;  however, given that there is to be an adjournment, it is a matter that I think should be attended to.

RECORDED:  NOT TRANSCRIBED

1. I make that order in the face of the objection from the opposition, from Ms Johnson, that the evidence from the mother’s psychologist, if directed to the impact on the mother’s parenting capacity of time being ordered between the child and the father, is a matter to which the psychologist is going to be immediately drawn rather than the matter of “spontaneous inquiry”.  With respect, I think counsel for the father misunderstands the purpose of the evidence. Counsel for the father will be entitled to cross-examine the psychologist to test her evidence.  The impact of making orders contrary to the genuine belief of the primary carer of a child is not a novel matter.  It should have been taken into account in the orderly and competent running of this case. There is no surprise.  I will be permitting the mother to put on any evidence. Likewise, if the mother fails or neglects to put on the evidence, I will assume that there is no evidence that would assist her case. 

2. The next reason for the adjournment sought by the mother is to obtain evidence of X’s views in relation to time with her father.  This is a matter that the Independent Children’s Lawyer canvased with the Family Consultant yesterday and has made an assessment that the Family Consultant is well able to give evidence about that, pursuant to her assessment which has been completed.  Yesterday and in the context of whether or not the Family Consultant did think that she had sufficient material to address the matter in her evidence, the Independent Children’s Lawyer, through counsel, voiced her concerns about the child’s current therapist, Dr C, being responsible for putting that evidence before the Court. 

3. Today, counsel for the mother says that the evidence would be proposed to be obtained from Dr C and another practitioner, Dr H of J City.  The Independent Children’s Lawyer and the father have reservations about that evidence being adduced, not because it may not be relevant but because it could only be adduced by the child becoming aware that the practitioners were asking her questions about her father and that that of itself may not, pending the outcome of these proceedings, be considered to be in the best interests of the child.  In that respect, I note that the two reports that have been filed by the wife as emanating from Dr C have the same final paragraph, which is:

   I am otherwise unaware of X’s current thoughts and feelings about her father, as we have not discussed this in psychology sessions since mid-2018.

   The psychologist’s letter is addressed “to whom it may concern” and dated 6 October 2020.  It seems to me that the psychologist did not feel the need to discuss X’s views with her prior to October 2020 when she swore her affidavit.  Accordingly, Dr C should not do so now. It may not be in the child’s best interests to introduce the topic.  I will therefore restrain the wife from seeking that any further evidence in that respect be adduced from the psychologist or the other practitioner called Dr H. 

1. I am cognisant of the fact that an adjournment of these proceedings will mean another delay in determination of this long running case.  Yesterday, I had a date available in March, 2021.  That is now gone, and the next available date I have is July, 2021. However, I will not be able to accord the child’s interests the paramountcy required if I engage in a split hearing, which may not be able to be concluded until July 2021 in any event. Adjourning this matter now may not in fact be delaying the ultimate determination of the matter, because I am not sure where the second stanza of the trial could be placed if we do not finish within the four and a half days.  In hindsight, the parties negotiated for too long and ran out of time to run the case.

2. For these reasons, I will be acceding to the application for an adjournment, vacating the balance of the hearing scheduled for this week and next, and setting the matter down for hearing before me to commence on 15 July, estimated for seven days.  So it will be listed from 15 to 23 July.

   RECORDED:  NOT TRANSCRIBED

3. Augmenting the reasons and going back to them, I have raised for consideration by the parties a brief addendum report by Ms G, Family Consultant, in relation to X’s views closer to the date for final hearing, which is now going to be in July 2021, but necessarily after the evidence has been filed on the mental health aspects of the mother and the father as provided by this order.

4. The only opposition to an addendum report comes from the father’s practitioner on the basis that she does not think it will assist her case.  That is not a persuasive argument.  Australia is a signatory to the United Nation Convention on the Rights of the Child[1].  Pursuant to that, we have an obligation to inform children of the progress of proceedings, and to seek their views in relation to the subject matter of the proceedings.  The Family Law Act1975 also makes clear in the additional considerations that the Court must consider a child’s views.  Children’s views do not equate to children’s wishes.  The taking of those views into account is not determinative in any process, but it would be remiss of me in this case, I think, if I did not have up-to-date evidence at the time of determination upon which to act in relation to X’s views. 

   [1] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

5. So I will make the order. I will make it pursuant to section 11F of the Family Law Act1975, reflecting the fact that it is going to be an addendum report rather than a full family report, and I would not at that point expect that the parties would be seen.  It would merely be to capture the child’s views.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 November 2020

Associate: 

Date:  2 December 2020