Grable and McCornish

[2011] FamCA 111

FAMILY COURT OF AUSTRALIA

GRABLE & MCCORNISH [2011] FamCA 111

FAMILY LAW – CHILDREN – living with – spending time with

Family Law Act 1975 (Cth)

APPLICANT: Mark Grable

RESPONDENT: Ms McCornish

INDEPENDENT CHILDREN’S LAWYER: Mr Emerson

FILE NUMBER: BRC 9363 of 2007

DATE DELIVERED: 11 February 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 2, 3 & 4 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A. Frizelle of counsel

SOLICITOR FOR THE APPLICANT: Schultz Toomey O’Brien, Solicitors, of Buddina

COUNSEL FOR THE RESPONDENT: Mr J.F. Curran of counsel

SOLICITOR FOR THE RESPONDENT: M A Kent & Associates, Solicitors, of Ipswich

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms P. Kirkman-Scroope
of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Emerson Family Law

of Brisbane

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The mother have sole parental responsibility for the child A born … July 2004.

AND IT IS ORDERED:

1. Counsel and instructing solicitor for the Applicant Father are granted leave to withdraw from the proceedings.

2. Pursuant to the provisions of s 65L Ms C:

   (a)is requested to be available to the mother for assistance in the implementation of the Orders of 4 February 2011 if necessary;

   (b)provide to the child counselling and preventative and protective education for her personal safety;

3. The Independent Children’s Lawyer be granted leave to inspect all subpoenaed documents and the Independent Children’s Lawyer leave to copy.

4. All subpoenaes are enlarged until further order.

5. The Independent Children’s Lawyer is authorised to forward to Dr M and to the Department of Community Services a copy of any documents which the Independent Children’s Lawyer thinks may be relevant with particular emphasis on the father’s health.

6. IT IS REQUESTED that Ms C interview the child approximately six weeks from today with a view to ascertaining how the child is settling down and to provide a short report.

7. All parties attend upon Dr M should she require them to do so.

8. The matter be adjourned to 10.00am on 4 May 2011.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9363 of 2007

Mr Grable

Applicant

And

Ms McCornish

Respondent

REASONS FOR JUDGMENT

1. This matter was virtually finished last Friday, save for one witness who was from Y Contact Centre.  But at that stage it appears that the father became ill.  He was admitted to hospital and reappeared at a later stage during that date.  At that time Ms Frizelle, of counsel, who had appeared for three days on behalf of the father, indicated to the Court that she was affeared she was unable to get adequate and/or proper instructions from her client and in the circumstances she would prefer the matter be adjourned.

2. Exhibit 4 was put before me, which had only just recently been tendered – I don't have the exact time, but it was in the morning, and having had a brief look at it, it concerned me exceptionally as to the general health of the father.  It had been suggested by the Independent Children's Lawyer that in some other material upon which she cross-examined there were some bizarre allegations made allegedly by the husband.  To me, on the face of the document it appears as though there could have been some confusion and that the person referred to as making the bizarre comments and carrying on in a bizarre manner may not have been the father.

3. As a result thereof, I did not allow such matter to be put before me, because I thought it was too risky.  However, things have progressed since then.  The father has not appeared today.  There is some information, which has not been confirmed, given to the Independent Children's Lawyer that the father may once again be in hospital, but as I said, he has not appeared.  Ms Frizelle has been unable to get any instructions from her client since last week.  She is put in the invidious position of having to indicate to the Court that she can no longer act for the father because of a conflict of interest, and she quite properly sought the advice of senior counsel – in fact I think he is the leader of the Family Court bar, is he not – Mr Michel Kent SC – who gave her certain advice.

4. As a result thereof, I have granted her leave to withdraw, as I have also done in relation to her solicitor.  Obviously the matter cannot proceed today since the procedural fairness requires that the father, who has had possession of the child up until last Friday, is not here.  Naturally, of course, I have removed the child from his possession and have given it into the possession of the mother, with whom the child has resided since late Friday afternoon, I would have thought, or early Friday evening.

5. Curran of counsel appears on behalf of the applicant and seeks additional interim orders. 

RECORDED   :   NOT TRANSCRIBED

1. Inter alia I had ordered that the child, A, born in July 2004 reside with the mother, and that certain orders be made in relation to the protection of the child from one other child, O, born in January 2001.  There was to be no contact with the father, and order 7 was an order that the father was restrained from approaching the mother or the residence of the mother.

ORDER DELIVERED

1. Since the father has had an order since 2009, I think it was, for parental responsibility of the child, I consider that it absolutely essential – he being, as it appears, unwell: 

ORDER DELIVERED.

1. Ms C was a person who has given two reports in this matter.  She perhaps had some reservations about the father, which unfortunately was not supported by Dr M, an eminent psychiatrist in Queensland, who may or may not have been given adequate material, particularly in relation to exhibit 4, which I think I've already said has caused me a great deal of concern.  However, she was of the view that whilst he may be somewhat different, there was nothing mentally wrong with him;  he suffers from no psychiatric illness.  I note that in one of the reports in the F Health Service district that a doctor who may or may not have been a psychiatrist expressed grave concern about the husband's general conduct and demeanour.

2. In those circumstances I think it would be essential :

ORDER DELIVERED 

1. I don't think there's anything else.  I order accordingly.

ORDERS DELIVERED

1. I would request that Ms C to interview B approximately six weeks from today with a view to ascertaining how the child is settling down. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 11 February 2011.

Associate: 

Date:  24 February 2011