Gade and Jabbar (No.3)

[2016] FCCA 2487

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.3) [2016] FCCA 2487

Catchwords:
FAMILY LAW – Procedural – dispute about whether the Independent Children’s Lawyer should be permitted to send certain documents to the expert psychiatrist tasked to prepare a report in a parenting matter.

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 12 September 2016

Date of Last Submission: 12 September 2016

Delivered at: Newcastle

Delivered on: 12 September 2016

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

Solicitor Advocate for the Independent Children’s Lawyer: Ms Presker

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. Leave is granted to the Independent Children’s Lawyer to have photocopy access to the material produced under subpoena and all documents filed in the proceedings to date for the purpose of providing the same to Dr K.

2. Further consideration of the parenting orders contained in the wife’s application in a case filed on 5 July 2016, the wife’s parenting application as contained in paragraphs 4-6 and 7-8 of her response filed on 8 September 2016, and the application in a case filed on 7 July 2016 are adjourned to 9.30am on 7 November 2016.

3. Within 21 days of today’s date the father shall file and serve a response to the application for financial orders contained in the mother’s application in a case filed on 5 July 2016 together with an affidavit in support and an updated financial statement NOTING THAT MR GADE should ensure that given part of the mother’s application is an application for spousal maintenance that he completes Part “N”.

4. Further consideration of the mother’s application for financial orders contained in her application in a case filed on 5 July 2016 is adjourned to 7 November 2016.

5. The mother’s applications for contempt filed on 22 July 2016 and 29 August 2016 are adjourned to 9.30am on 7 November 2016 for further consideration.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MR GADE

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The Independent Children’s Lawyer has filed an application in a case seeking orders that she be permitted to photocopy certain documents and provide them to Dr K who has been asked to prepare a report in respect of the parenting dispute between the father and the mother.

3. The order appointing Dr K is contained in Annexure B to orders made on 9 December 2015. Order 2 sets out the matters which Dr K is asked to consider and there is an order about how the report is to be paid for and an order that the Independent Children’s Lawyer have photocopy access to material produced under subpoena and to all documents filed in the proceedings to date for the purpose of providing them to Dr K.

4. Since that order was made a large amount of material has been filed by the parties including an affidavit filed by the father to which is exhibited a USB containing two short video clips. I referred to one of those video clips in the interim decision I handed down on 26 July 2016.  

5. The Independent Children’s Lawyer wishes to provide the additional material filed after the order was made on 9 December 2015 and any additional subpoena material produced after 9 December 2015 to Dr K. 

6. The father has no objection to this material being provided but the mother objects to some material being provided to Dr K. 

7. Some of the material the mother objects to being provided is in fact already covered by the order made by consent on 9 December 2015.  

8. Information by the father about the text message the mother allegedly sent and the information she gave about it in the affidavits she filed up to that date are covered by order 6 of the orders made on 9 December 2015. Nevertheless the mother has asked me to revisit the issue of whether the husband’s version of events about that text message should be provided to Dr K.

9. The mother also objects to a s.11F Child Inclusive Child Dispute memorandum being provided to Dr K. That document was prepared in August 2015 so the Independent Children’s Lawyer has the right to provide that document to the expert pursuant to Order 6 of the orders contained in annexure B.  The mother however has asked me to revisit that issue as well. 

10. Finally the mother objects to the father’s affidavit to which are two short video clips are exhibited being provided to Dr K. 

11. The mother alleges that the information the father has put forward about the content of the text message is incorrect and that there has been some sort of fabrication or misrepresentation in relation to that text message.  

12. The mother objects to the 11F memorandum going to Dr K because Dr T said something in the memorandum about the mother asking a medical person to alter a discharge summary. The mother strongly objects to this and says that it is completely wrong. 

13. The mother objects to one of the video clips being provided to Dr K because she says that the husband fabricated it. She says that she has evidence that at the time when the video was allegedly produced X was elsewhere.

14. The problem is that Dr K has been asked to prepare a report in a very complex parenting matter. One of the things he is asked to consider (and it is only one of the things;  he has been asked to consider other things so what the mother said during submissions about the terms of the instructions to Dr K is not entirely correct because there is more to it than just an inquiry into the mental health of the parties) but one of the things Dr K has been asked to consider is whether either of the parents has a personality disorder or other psychological or psychiatric condition and if so the extent to which their parenting capacity is affected by that and whether the condition is capable of medical management. 

15. Dr K has also been asked to consider the effect on the children of any family violence to which they may have been exposed and their views and he has been asked to give his views about the children’s future parenting arrangements.

16. The mother has very strong views about whether the father has fabricated the text message and whether he has fabricated the video and she has very strong views about whether Dr T made an error about what had happened in relation to the production of a discharge summary but in my view there is nothing to be gained for the children in refusing to allow the Independent Children’s Lawyer to forward the 11F memorandum or the video or the husband’s version of the text message to Dr K. 

17. At the same time as Dr K gets those things he will get information from the mother about her version of events in relation to each of those things. He will get that information both from reading the affidavits she has filed and from talking to her and it is important that he is able to consider the mother’s allegations that the father has fabricated certain things. 

18. There is absolutely nothing to be gained by withholding any information or any allegations or cross-allegations from Dr K.  If those things are withheld, I will get a report which is considerably less than useful and I have to try and get the best report I can to assist me to make a decision about the children.

19. I do not accept that it is inappropriate for information to go to Dr K simply because there is a dispute about whether it is valid or has been fabricated.  Each party will be able to talk to Dr K and put their version of events about that.  Dr K may well not be able to form an opinion about it but it will undermine this whole process if information is withheld from him. 

20. The Independent Children’s Lawyer intends to issue a subpoena to investigate the issue raised by the mother about the video and the mother will be able to fulsomely inform Dr K about her version of events about various things and I intend to make orders in this matter in relation to the documents to be provided to Dr K as sought by the Independent Children’s Lawyer.

21. I also have before me two applications filed by the mother seeking interim orders that X and Y live with her and spend supervised time with the father. One was filed on 7 July 2016 and it only relates to that issue. The other is contained in an application filed on 5 July 2016. The mother seeks a number of orders in that application but two of them are in relation to where the children should live and the time they should spend with their father. 

22. I have already heard two contested interim applications about this same issue. I heard one of them on 31 August 2015 and I delivered a decision. I heard another one on 24 June 2016 and I handed down a decision on 26 July 2016 in relation to that application. 

23. When the interim hearing was conducted on 24 June 2016, the father had already been charged with assaulting the mother and he had pleaded guilty. Since then he has been sentenced but the fact that the assaults had occurred and that he had been charged and had pleaded guilty was known to me when I handed down my decision on 26 July 2016 and I referred to that in my reasons for decision.

24. I also referred to the numerous other matters which are relevant in this very complex case and I am not persuaded that the fact that the father has now been sentenced in relation to those charges is likely to make a material difference at this stage.

25. I do not know what is going to happen with this matter in the longer term, I have repeatedly made that clear, but in my view it is not appropriate for me to hear another interim application in relation to where these children live and the time they spend with each of their parents until after I get Dr K’s report and I am not going to fix a date for the hearing of those two separate applications in a case today. 

26. I intend to list the applications for mention on a date in about six to eight weeks time which I will find in a moment so that I can consider after I get Dr K’s report when I should give those two applications a hearing date. 

27. The mother is concerned that it might be a year before the issue is dealt with.  I do not agree that this is likely to occur. Experts do not usually take three or four months to provide a report and I have already indicated to the mother that I am willing to have a look at the live with, spend time with issue once Dr K’s report is released.

28. The mother also has two contempt applications on foot and she presses me to hear those before the date for the interviews with Dr K but it is simply not possible for me to find time to hear those applications before 10 October 2016 given the other matters competing for court time. Those applications will be adjourned for mention on the same date as the applications for interim parenting orders.

29. Finally I will order that the father file a response to the mother’s applications for maintenance and adjourn that application to the same date.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     6 October 2016