Empi and Sondheim

[2008] FamCA 1268

FAMILY COURT OF AUSTRALIA

EMPI & SONDHEIM [2008] FamCA 1268

FAMILY LAW – CHILDREN – Provision of expert report

APPLICANT: Mr Empi

RESPONDENT: Ms Sondheim

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: SYC 1373 of 2007

DATE DELIVERED: 1 September 2008

PLACE DELIVERED: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 1 September 2008

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Ms Shea

Orders

This matter was settled after the judgment was delivered and so no orders were made.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1373  of 2007

MR EMPI 

Applicant

And

MS SONDHEIM 

Respondent

And

INDEPENDENT CHILDREN’S LAWYER 

REASONS FOR JUDGMENT

1. In these proceedings on 24 June 2008 I made an order for the appointment of a psychiatrist to provide a report on what parenting, including residential and contact orders, would best advance the welfare of the parties’ child, born in May 2004, as well as on the relevant psychiatric conditions of the mother and father.

2. There was already in train, if I recall, an attempt to determine whether or not Mr Empi, who I shall continue to call the father, was the child’s father.  Since I made those orders it has been determined, and all the parties agree, that Mr Empi, the father, is not, in fact, the natural father of the child. 

3. The parties now come before me largely because the orders for the appointment of a psychiatrist have not been complied with.  There are a number of reasons for this.  The first is that it was uncertain whether the father wished to proceed with the litigation.  In addition, he now resents and opposes paying for half the cost of the psychiatrist.  He nevertheless says that he does not know whether he wishes to withdraw these proceedings or not because he wishes to await expert advice, namely, from the psychiatrist, about what to do in future and will act on that advice.  He has not seen the child for some weeks or months because until now his contact was through a contact centre. On the contact centre discovering that he is not the natural father, they withdrew their involvement in the case without his consent. 

4. The mother says that she has no issues with the natural father, that ultimately she will seek with him expert advice about how to handle his introduction to the child, and that currently she is simply living with the child and her present de facto husband and that she simply asks that, in the event that a psychiatrist be appointed, that the father in these proceedings be required to contribute, as I have already ordered, half the costs.  She says that the father has not even paid child support.  The father says he has, as it has been seized from him by the child support authorities, but it has not been paid to the mother because of the uncertainty about the issue of the paternity of the child and, therefore, the father's obligation to pay it.

5. The mother has a full-time job.  She is a public servant.  She claims to be afraid of the father, as does the real father of the child, who either is a policeman or who works at a police station as an assistant.  I do not accept her claims that they are both so afraid of the father in the circumstances that this creates additional problems in relation to contact, but I am not in any event sure that I should do anything about reinstituting contact.  The child is only 4 and a half.  I do not know what the best course for him is. I am in the same position as the father, Mr Empi is. I think that it is appropriate that there be expert advice before orders are made. I think that no orders should be made in relation to future contact until such advice is obtained.

6. In all of the circumstances as prima facie it seems to have been a deception by the mother who has caused these proceedings and caused the father to believe he is the father, I do not see why the mother should not pay all of the costs of the expert occasioned essentially by that deception, in the interim, and in the event that the proceedings continue, reserve the ultimate question of the payment of those costs to the Judge who determines it. 

7. I think, in the circumstances, it is appropriate and in the child's best interests that I revoke any orders that I made for the parties to share the cost of the expert. I shall make an order in accordance with what I have just said; that is, that the mother should bear the initial burden of those costs.  In the event that the father does not withdraw his application after the report of the expert is obtained, I shall reserve the ultimate determination of who should bear those costs to the final hearing. 

8. What I should do in view of what I have already said is discharge order 5. and order 2. of the orders I made on 24 June 2008.  I shall do that.  The reason I discharge order 5, which relates to the costs of the psychiatrist, is that that order, in effect, is that the parties each meet the costs, because moneys are held in a trust fund on behalf of both parties from the proceeds of sale of the home in which they previously lived together. In their place I shall make orders that the costs of the expert to be appointed is to be paid from the fund held on trust by the solicitors who have handled the conveyancing from the proceeds which remain from the sale of the home previously owned by the parties, but that money is to be initially regarded as being from the mother's share of that fund and that shall be the case unless the father does not withdraw his current application.

9. In the event that he does not withdraw his current applications it will be for the Judge who finally determines the parenting issues between the parties to determine who should pay the costs of the expert that I shall appoint.  I shall appoint an expert even though I have discharged the order for the appointment of a psychiatrist.

10. At this stage, in view of the circumstances, the involvement of a psychiatrist does not seem to be necessary.  One of the reasons why a psychiatrist rather than a psychologist was engaged was because the relevant psychiatric conditions of the mother and father were important. 

11. In the event that the father decides on advice to withdraw his applications those relevant conditions will cease to have any importance and the money expended on a psychiatrist will largely be wasted because a psychologist, in my view, can as easily as a psychiatrist, counsel and advise on what the father and mother should do about the father's continuing involvement with the child. 

12. He has already informed me that if he is advised that he need not continue to be involved, he shall cease involvement, and if he is advised to tail off involvement with the child he will do that too. 

13. In the circumstances, I think that I should order the parties to have counselling from a family consultant employed in this Court for the purpose of deciding what to do about the father's continuing role in the child’s life. 

14. In the event that the counsellor advises the father to continue with a role for any purpose other than to tail off that role, I shall order that the counsellor provide the Court with a report pursuant to s.60(2)(g) of the Act. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              24 February 2010