Gantley and Gantley

[2013] FamCA 1069

FAMILY COURT OF AUSTRALIA

GANTLEY & GANTLEY [2013] FamCA 1069

FAMILY LAW – PRACTICE AND PROCEDURE – preparation of family report

APPLICANT: Ms Gantley

RESPONDENT: Mr Gantley

FILE NUMBER: MLC 4013 of 2011

DATE DELIVERED: 16 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 16 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS DIRECTED THAT:

1.If it is not already the case, henceforth Registrar Sikiotis be assigned as the Docket Registrar for this matter and her assigned Case Coordinator also be noted in the records of the Court as the Case Coordinator for this matter.

IT IS ORDERED THAT:

2.This matter be listed for mention in court before me on 26 July 2013 at 9.00 am for the purpose of checking on the readiness of the matter for trial AND IT IS NOTED that the parents and the independent children’s lawyer are to have considered carefully the contents of the report ordered pursuant to paragraph 9 herein.

3.Each party file and serve an undertaking as to disclosure by 1 June 2013.

4.Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Riddiford or Sikiotis for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpeoana(s).

5.Each party has leave to contact Registrar Sikiotis to arrange to have this matter listed for mention before himself or before me, on notice to all other parties, to seek any further directions as any party considers are necessary to ensure that the matter is ready for trial or to narrow the issues in dispute.

6.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children B born … 2000, C born … 2003, D born … 2006 and E born … 2009 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the children by the next return date and in the meantime to become familiar with the matter.

7.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

8.Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

9.Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared.  For that purpose the parties and children B born … 2000, C born … 2003, D born … 2006 and E born … 2009 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be released by not later than 12 July 2013 AND IT IS NOTED THAT an earlier report/child and parent issues assessment has been prepared by Mr F.

10.The family report deal with the following matters:-

a)      any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s60CC of the Family Law Act;

c)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

d)      the impact on the future mental health of the children (and each of them) of the mother’s conduct and attitudes and the father’s conduct and attitudes including, but not limited to, the likely ability of each child to establish and maintain functional relationships and attachments through adolescence and into adulthood and to function as parents themselves;

e)      an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children); and

f)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible.

11.For the avoidance of doubt Mr G may, and is hereby authorised by the parents to, discuss the therapy and the family with the family consultant.

12.For the purpose of the family report in this matter 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.Until further order, notwithstanding any other order to the contrary, the parties and any independent children’s lawyer by at liberty to provide any mediator or expert with a copy of all relevant expert reports in this matter including, but not limited to, family reports and parent and children’s issues assessments.

14.The reasons for decision this day be transcribed and when settled copies be made available to the parties.

AND IT IS NOTED BY THE COURT 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gantley & Gantley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4013 of 2011

Ms Gantley

Applicant

And

Mr Gantley

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me as a mention preliminary to a first day hearing.  These are parenting proceedings concerning B, C, D and E about whether or not the children spend time with Mr Gantley, and if so, what time. 

2. The parties have had the benefit of a parenting issues assessment by Mr F, family consultant.  It is dated 5 August 2011.  It tells a troubling story of extremely high conflict in which it is, in Mr F’s view, in  summary, that the parents, but to a larger part, the mother, has been unable to put her needs above those of the children. 

3. The needs of the children have been identified as including a need to be protected from the conflict between the parents.  I note at pages 6 and 7 of the parenting issues assessment, Mr F opines that:

   All of the children presented as positive individuals who are generally well-adjusted.  They are each actively involved in very constructive activities and appear to share emotionally and psychologically healthy views about themselves and their general life experiences.  They have, nevertheless, been deeply affected.  Both the upheaval to their emotional and rational world caused by their parents’ separation. All of the children have emotionally struggled to understand why the separation had to occur.  The children’s distress about the parental separation has been exacerbated by the inappropriate level of information provided to them by their mother.  Although children clearly need to have some understanding of the issues associated with a parental separation, they do not need to be given the level of information that appears to have been provided in this case.  When this occurs, children tend to become embroiled in the dispute and will begin to assume an inappropriate level of responsibility for the emotional and psychological well-being of one or both their parents.  And particularly, when they perceive that a parent has been significantly distressed by the experience.  This is an emotional burden which they should not have to bear and which significantly compromises their immediate and longer term emotional and psychological well-being.

4. Today I have heard briefly from each party as to historical matters and what has happened since Mr F’s assessment in 2011.  The parties, as envisaged by orders of the court, went to see Ms G, counsellor.  That occurred some 12 to 18 months ago.  It is being conceded by each of the parties today that Ms G is a therapist but that the family’s involvement with her is not confidential or such that a family consultant such as Mr F may not contact Ms G.  In fact, it has been clearly canvassed with the parties and they agreed that it would be appropriate for a family consultant to have contact with Ms G to find out the progress of her counselling of the family, being the parents and the children. 

5. The father says he has seen Ms G some six or seven times and was expecting a further appointment on 2 May.  The father is also seeing Mr H, psychologist, although not for some time.  It’s just that he may resume visits with Mr H.  That is for life coaching or something along those lines.  In November 2012, the father married Ms I, his partner has referred to by Mr F in the assessment.  She has no children of her own. 

6. Since last November 2012 the father hasn’t seen the children.  He advised me that he considered that the children were suffering more by seeing him than they would be likely to suffer by not seeing him.  A very sad state of affairs given the views expressed by Mr F in the assessment.

7. The mother has seen Ms G on numerous occasions, as have the children.  The mother saw a counsellor herself in Suburb J shortly after separation but that was for a period of approximately four months.  The mother is engaged in studies to be a teacher’s aide and has certain commitments associated with that.  Otherwise, she says that she is in receipt of assistance from her parents and the father’s parents and all of the grand-parents are on hand to assist with the care of the children.  Not so the father who has not seen the children since last November.

8. D goes into hospital on 6 May 2013 to have a lump removed from her arm.  The mother was unable to commit to an appointment to see Ms G on 2 May.  She first said that D’s operation on the 6 May was relevant to that but then said that she had teacher’s aide training commitments on 2 May that she could not forego.  I questioned whether or not the teacher’s aide training commitments are weightier than an opportunity to see Ms G.  I stood the matter down whilst the mother made contact with Ms G.  When the matter resumed the mother had been successful in securing an alternative appointment with Ms G for 2 pm on 8 May 2013.  That is when the mother will take the children to Ms G’s rooms and they will remain.  The mother will collect them approximately one and a half hours later which will be the end of the session.  It is contemplated that the father will be in attendance at that time.

9. It is apparent that the parents, whilst both being able to access Ms G, had not discussed the appointment as between themselves.  It concerns me that that’s the case.  There is certainly a lack of communication and cooperation between the parents on these matters and my preliminary view is that this does not assist the children and nor is it in their best interests. 

10. In terms of the appointment of an independent children’s lawyer, neither party has any objection to that occurring.  As I perceive the situation, and as last reported by Mr F, the mother’s attitude towards the father’s partner Ms I is potentially damaging to the children’s relationship with their father, which Mr F has assessed as being at risk of erosion.  I am concerned that the way in which the father may present his case so as to be accommodating of the children’s strong views will not render all of the relevant evidence that requires to make a decision which is in the best interests of the children. 

11. In summary, neither parent, both of whom are self-represented, are likely to present a case which will best serve the interests of the children as opposed to best serve their own interests.  This is not uncommon in this Court and that is why independent children’s lawyers are available to families such as this.  I ask that Victoria Legal Aid consider my request for the appointment of an independent children’s lawyer as soon as practicable.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 16 April 2013.

Associate: 

Date:  20 January 2013