Dworak & Watts
[2023] FedCFamC1F 124
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dworak & Watts [2023] FedCFamC1F 124
File number(s): SYC 6424 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 3 March 2023 Catchwords: FAMILY LAW – PARENTING – Adjournment – Where the Independent Children’s Lawyer informed the Court that the mother has been hospitalised – Where the family report writer’s recommendations were qualified by the mother’s mental health at the time of writing the report – Final hearing adjourned – Parties to obtain updated report – Costs reserved. Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 3 March 2023 Place: Sydney (via videolink) Solicitor for the Applicant: Mr Northam, Northam Lawyers Counsel for the Respondent: Ms McMahon Solicitor for the Respondent: Emanuel Refenes, Solicitor Solicitor for the Independent Children's Lawyer: Mr Amos, Legal Aid NSW ORDERS
SYC 6424 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DWORAK
Applicant
AND: MR WATTS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
3 MARCH 2023
THE COURT ORDERS THAT:
1.The future listing dates of the final hearing commencing 13 March 2023 for five (5) days and the case management hearing before Justice Campton on 13 March 2023 are vacated.
2.The matter is adjourned for final hearing before Deputy Chief Justice McClelland at 10am on 24 July 2023, with an estimated hearing time of five (5) days, with an additional date of 21 August 2023 being reserved if necessary for the evidence of Dr B and submissions.
3.The trial directions made on 16 August 2022 remain in place.
4.Pursuant to Order 1 made on 3 November 2022, the Independent Children’s Lawyer (“ICL”) continues to have liberty to issue such subpoenas as they deem necessary or as is reasonably requested by the parties, noting that if there is a dispute as to whether a request is reasonable, a formal application is required by the party requesting the subpoena.
5.The ICL has liberty to provide any court documents filed by the parties, together with documents produced pursuant to subpoena and the letter from Dr D dated 2 March 2023 (marked Exhibit “A”) to Dr B, with a view to requesting an updated report from Dr B that includes her updated assessment of her recommendations, having regard to paragraphs 78 and 88 of her report dated 1 April 2022 and, additionally:
(a)her opinion as to any emotional and/or psychological impact upon the child of orders being made for there to be a change in the child’s primary place of residence from the mother to the father; and
(b)her opinion as to what steps may be appropriate to mitigate against any such emotional and/or psychological distress if that were to occur.
6.The ICL is to communicate with the maternal grandmother to advise her of the minute of order sought by the father in today’s proceedings to enable her to give consideration as to whether she wishes to make an application to intervene in the proceedings.
7.The parties are to share equally in the costs of obtaining the updated report from Dr B.
THE COURT NOTES THAT:
A.The ICL has power pursuant to orders already issued to request that the parties attend for hair follicle and/or urinalysis drug testing.
B.The father has indicated that he is giving consideration to making an application for interim parenting orders, however the Court encourages the parties to engage in discussions with a view to attempting to agree on interim arrangements prior to the substantive hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dworak & Watts has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTMCCLELLAND DCJ:
In this matter, by email dated 28 February 2023, the Independent Children’s Lawyer (the “ICL”) advised the Court that the mother is currently in C Hospital and has not provided instructions to her lawyers with a view to making preparations for the hearing of this matter, which had been listed for five days commencing 13 March 2023. In today’s proceedings, the solicitor for the mother has tendered a letter from Dr D dated 2 March 2023 (marked Exhibit “A”) indicating that the mother was admitted to C Hospital in early 2023, that her admission was and continues to be on a voluntary basis, the nature of her diagnosis, the therapy being provided and the anticipated date of discharge, being early 2023.
In those circumstances, including the diagnosis that the mother is suffering from a mental health issue, it is my view that the mother will be unable to properly prepare for the hearing and, on that basis, proceeding with the hearing would be inconsistent with the obligation of procedural fairness that applies in this Court.
Additionally, the report received by Dr B in this matter, dated 1 April 2022, makes certain recommendations regarding parenting arrangements for the parties’ child X, who is now 11 years old. Those recommendations, however, were based on Dr B’s assessment as to the state of the mother’s mental health as at the time of preparation of her report. That is confirmed in paragraphs 78 and, particularly, paragraph 88 of the report where Dr B specifically qualifies her recommendations as being based upon the absence of a change in circumstances regarding the mother’s mental health.
Having regard to those signification qualifications in Dr B’s recommendations, it is my view that, in order to fulfil the statutory responsibility that this Court has to determine all relevant circumstances that should properly be considered in order to determine what orders are in the best interests of X, the proceedings should be adjourned to enable the updated evidence regarding the mother’s current situation to be placed before Dr B, with a view to obtaining an updated report.
For those reasons, I am of the view that the proceedings should be adjourned. This is in circumstances where I am able to accommodate a five day hearing in July 2023. While this adjournment is understandably of concern to the father, who has not seen X for approximately one and a half years, it is nonetheless not as troubling as the adjournment would otherwise be if those future dates could not be confirmed at the present time.
The father has understandably made an application for costs thrown away as a result of the adjournment. My preliminary view is that there is substance to that application in circumstances where it was the ICL who notified the Court of the mother’s current admission to C Hospital rather than the mother herself or the solicitors for the mother.
Having said that, there may well be relevant circumstances that relate to the triggers for the mother suffering a mental health issue, including the mother’s contention that she suffers from a post traumatic stress condition, that relate to the mother’s failure to do so. Before finally determining that issue, I would like to have the benefit of any relevant medical reports concerning the mother’s condition and the extent to which that may or may not have impacted upon the mother’s ability to give proper instructions and, with respect, afford appropriate courtesy to not only the other parties but also the Court.
In those circumstances and, particularly, in circumstances where I will be the judge considering that evidence at final hearing, I propose to reserve the question of costs to be determined by me at the hearing both generally and specifically in respect to the adjournment that I have granted in today’s proceedings.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 13 March 2023
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