Grant and Aiden (No 5)

[2017] FamCA 1156

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO 5) [2017] FamCA 1156

FAMILY LAW – PRACTICE AND POCEDURE – ADJOURNMENT – Application to join mother and sons to proceedings

Evidence Act 1995 (Cth)_
Family Law Act 1975 (Cth)

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 16 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 16 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Trapski Family Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

1. The mother’s oral application to:

   (a)join her mother and sons as parties to proceedings;

   (b)for an adjournment and listing of the matter for a further procedural hearing; and

   (c)the parties to attend dispute resolution;

   (as set out in the interim orders of her Amended Response filed 15 May 2017) be dismissed.

2. By not later than 4.00 pm on Thursday 18 May 2017 the mother file and serve upon the Independent Children’s Lawyer and the solicitors for the father an affidavit setting out the following:

   (a)the symptoms said to have been experienced by the mother this day;

   (b)when such symptoms manifested;

   (c)who the mother contacted in relation to the symptoms she experienced;

   (d)who contacted the ambulance and what report was made to the ambulance service (method and content);

   (e)where the mother was taken/delivered this day by the ambulance and the time of her admission;

   (f)whether the mother was admitted to emergency or a hospital ward;

   (g)the time the mother was discharged from hospital and/or emergency;

   (h)what treatment and/or medication (dosage) the mother received with respect to her complaint this day; and

   (i)attach a report dated and in typed form, identifying the medical institution and health practitioners involved in the mother’s care this day and setting out the diagnosis, prognosis and assessment of the mother’s health (including her emotional, mental and physical health) and an assessment of the mother’s capacity to participate in these proceedings (setting out reasons for their assessment) and it is requested that the author of the report be on notice and available for cross examination by all parties as to the contents of that report on the date fixed for the further hearing of the matter.

3. The matter be adjourned for further hearing before Justice Macmillan at 10.00 am on 24 May 2017 and the mother attend Court personally or be represented on the adjourned hearing date.

4. In the event the mother fails to comply with the requirements of  paragraphs 2 and 3 of these orders the father be at liberty to seek to proceed on an undefended basis.

5. The mother provide a copy of paragraph 2 hereof to the author of the report referred to therein at the time she requests the report (or prior) copying in the Independent Children’s Lawyer and the father (via email).

6. Leave is granted to the Independent Children’s Lawyer to issue subpoenas to produce documents and/or to give evidence on short notice and that any documents be produced no later than 12.30 pm on 23 May 2017 and may be produced at first instance by facsimile to the Melbourne Registry, facsimile number … by no later than 4.00 pm on 22 May 2017.

IT IS FURTHER ORDERED THAT

1. My reasons delivered this day be transcribed and a copy placed on the Court file and made available to the parties.

2. The father cause a sealed copy of the orders made this day to be served upon the mother by email addressed to….

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden (No 5) 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 5094 of 2008

MR GRANT

Applicant

And

MS AIDEN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 12 October 2016 I made orders setting this matter down for a final hearing on 20 March 2017. I also made orders with respect to the preparation of the matter for trial.

2. The matter commenced on 20 March 2017, albeit for reasons I have already referred to in rulings I have made during the hearing and in my reasons for judgement delivered on 10 May 2017 the father did not formally open his case until 26 April 2017. On 4 May 2017 the mother made an oral application that I recuse myself from the further hearing. Although I reserved my decision I did make enquiries of the parties as to suitable dates for the further hearing of the matter, having regard in particular to the availability of the mother’s witnesses and the family consultant, in the event that I did not accede to the mother’s application.

3. On 10 May 2017 I dismissed the mother’s application for disqualification and formally adjourned the matter for a further three days of hearing commencing this day, dates that the parties having previously agreed upon.

4. At the commencement of the hearing before me this day, which is Day 7 of the hearing the mother said that she had filed a further amended Reply. Although I note that on 12 October 2016 I made orders that the parties not be permitted to file any further documents without leave it appears that the mother was able to file that amended response notwithstanding that she had not sought or been granted leave to do so.

5. Although that was the case I permitted the mother to make an oral application in the terms of the orders she sought in her amended response. The orders the mother seeks are as follows:

   ·that her mother and her sons be joined as parties to the proceedings; and

   ·that the matter be adjourned to a further procedural hearing to:

   i)     afford the mother procedural fairness on the basis of what she asserts is new evidence; and

   ii)  to enable the parties to attend family dispute resolution.

6. In my view it is important to reiterate that these proceedings are proceedings which must be conducted in accordance with the principles in Division 12 A of the Family Law Act 1975(Cth) (“the Act”).

7. Those principles include of particular relevance for the purposes of the mother’s application that:

   a)the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;

   b)the court is to actively direct, control and manage the conduct of the proceedings; and

   c)the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

8. In essence the mother is seeking an adjournment of this matter whether that is because she says she needs to adduce further evidence, to  allow the parties she is seeking be joined to the proceedings to obtain legal advice and prepare their cases or to allow the parties to participate in family dispute resolution.

9. I will turn first to the mother’s application with respect to the parties attending family dispute resolution. Firstly the mother complains that the father did not attach the required certificate to his Amended Initiating Application and in those circumstances the parties should be required to attend family dispute resolution. I have already dealt with this issue in relation to the mother’s application that the father’s Amended Initiating Application be struck out and she be permitted to proceed with her application on an undefended basis and I am satisfied that the father attached the required certificate when he commenced the proceedings and was not required to obtain a further certificate for the purposes of filing his Amended Initiating Application. 

10. The mother also submits that she is entitled to seek family dispute resolution at any time. Whilst there is nothing to stop the mother proposing that the parties attend family dispute resolution during the proceedings the issue I must determine is not whether the mother is entitled to seek family dispute resolution or whether the Court should make the request or require the parties to do so,  but rather, on Day 7 of the final hearing, whether the case should be adjourned for that purpose.

11. The parties in this case have been engaged in litigation over many years. The proceedings have been vigorously contested at all times and as submitted, in my view correctly, by counsel for the Independent Children’s Lawyer, there seems little prospect of the parties in this case compromising their respective positions. In any event even if I do not accede to the mother’s oral application it will be some months until judgment is likely to be delivered and there is nothing to stop the parties engaging in family dispute resolution prior to judgment being delivered if they chose to do so.

12. The mother’s application that she be permitted to join her mother and sons as parties to these proceedings and that what she submits is the need to adduce further evidence is based upon what she says she has now learned about the child’s emotional wellbeing from the notes produced pursuant to subpoena by the child’s therapist Dr T. These documents were released for inspection by the parties on 27 April 2017 at a time when the father was still in the witness box and the subject of cross examination by the mother.

13. I will deal firstly with the mother’s submissions with respect to her being afforded procedural fairness for the purposes of both adducing evidence and presenting her case and for the purposes of cross examination of the remaining witnesses based upon what she now says she has learned upon reading the notes produced by Dr T.

14. As submitted by both counsel for the father and the Independent Children’s Lawyer the mother has known of the child’s involvement with Dr T since at the latest 19 September 2016. The mother annexed to her Affidavit sworn 11 January 2017 a copy of a letter she received from Dr T which refers to her having contacted Dr T’s office by telephone on that dated advising Dr T that she did not wish Dr T to continue seeing the child and as a result of which, although the letter refers to the mother not providing any reason,  her sessions with the child ceased. On 6 October 2016 the mother consented to an order reinstating the child’s therapy with Dr T which required both the father and the mother to provide Dr T with a written authority to undertake further counselling, albeit that the provision of that authority was not to be a precondition of that counselling taking place.

15. It is the evidence of both the father and the his new partner that the child has been attending upon Dr T on a regular basis albeit those appointments are now, on Dr T’s recommendations occurring less frequently. This evidence was not the subject of any challenge.

16. The mother has not only insisted throughout the proceedings before me that Dr T is her witness and on that basis has objected to either counsel for the father or the Independent Children’s Lawyer speaking to Dr T she also objected to the family consultant speaking to Dr T. To overcome any possible problem that might arise as a result of the family consultant not having had an opportunity to speak to the child’s therapist it was agreed that the family consultant would be present during Dr T’s evidence.

17. The mother submitted in summary:

    a.      that despite having equal shared parental responsibility the father had not provided her with the information contained in the notes produced by Dr T in relation to the child’s emotional wellbeing to which she was entitled;

    b.      that as a result of the information in Dr T’s notes she needed to adduce evidence in relation to the child’s emotional wellbeing and would need time to do so; and

    c.      that procedural fairness required that she be given time to prepare her case based upon that new information.

18. The mother submitted that had she known what was in Dr T’s notes she would have addressed those matters in her trial affidavit. The mother did not identify any particular matters in Dr T’s notes other than in general terms and did not seem to distinguish between her evidence and Dr T’s evidence. It is Dr T who has been treating the child and can give evidence in relation to the child’s emotional wellbeing based upon that treatment. Whilst the mother can cross examine Dr T she cannot give evidence about these matters as they are not within her direct knowledge. The mother despite being pressed did not otherwise identify the other evidence she said she needed to adduce.

19. Albeit that neither counsel for the father or the Independent Children’s Lawyer required Dr T for cross examination Dr T is the mother’s witness and she will have the opportunity not only to adduce evidence from her, as was indicated to the mother, but to also cross examine Dr T if necessary and subject to the individual questions being appropriate and relevant. The issues in the case remain the same and in so far as there are details in Dr T’s evidence that pertain to the emotional wellbeing of the child that evidence will not only be before the Court but the mother will have had the opportunity to challenge that evidence if she chooses to do so. In so far as any other evidence the mother might seek to adduce not only did she not identify that evidence but it is difficult to see what further evidence would either be available or necessary in these circumstances. I am not satisfied that in all of the circumstances the mother has sufficiently identified the disadvantage she asserts there would be to her case if the matter were not be adjourned.

20. Not only has the mother known about Dr T’s involvement since September 2016 it is her own evidence that her only communication with Dr T has been in relation to her being a witness in the case rather than in relation to the child’s welfare. The mother on her own evidence has travelled to Melbourne on at least one occasion in late 2016 and again for the purposes of the appointments with the family consultant in February 2017 . There is no evidence of the mother having attempted to discuss the child’s welfare nor does the mother assert other than in a general sense that Dr T has refused to communicate with her. Even if that is the case these are matters the mother can put to Dr T.

21. Even if the mother had not previously had access to the information in Dr T’s notes those notes have been available to her since 27 April 2017 ample time at the very least for her  to identify any additional evidence she might want to adduce which she has not done and to prepare for the further hearing of the matter.

22. In so far as the mother submits that based upon what she now knows she might amend the orders she seeks it is always open to the mother to do so at the conclusion of the case subject to her providing notice to the other parties.

23. Although the mother submitted that is because of the information contained in Dr T’s notes that she wants to join her mother and her sons as parties to the proceedings she does not identify any connection between the content of the notes and the need for her mother and sons to become parties to the proceedings. Although the mother submits that her mother and her sons need orders for contact because of what she now knows about the child’s emotional wellbeing the mother’s case has always been that the child is at risk in the father’s care and she has referred on numerous occasions to the child suffering from anxiety and depression. These proceedings have been on foot since December 2015 and there have also been contravention proceedings which involve some of the same issues. There has been more than enough time for the mother’s mother and her sons to seek to intervene in the proceedings had they wished to do so. Even now it is not the mother’s mother or her sons who are seeking to intervene nor do I know what orders if any they might seek if they were joined as parties to the proceedings

24. The mother also referred in some detail to what she said was the Independent Children’s Lawyer’s interference in the investigation of the complaint made by one of her sons. These assertions are not supported by any evidence. In so far as the mother’s case is that her sons should be parties to the proceedings in order to air their complaints about the way in which the matter has been conducted this is not the appropriate forum and in any event in circumstances where they are part of the mother’s case will have the opportunity to give evidence in so far as that evidence is relevant to the matters I must determine.  

25. As previously referred to there are two teams on this metaphoric playing field and I must afford procedural fairness to both parties. The matter is now in its 7th day and until the mother sought to adjourn the matter anticipated to take a further two days. The mother’s application will inevitably add to both the time and expense it will take to complete the matter.

26. Not only must I afford the parties procedural fairness but even more importantly I must have regard to the welfare of this young child. Both the father and his new partner gave evidence that although they do not discuss these proceedings in detail with the child she is not only aware of the proceedings generally but also aware of this hearing. I accept counsel for the Independent Children’s Lawyer’s submission that it is in the child’s best interests and in accordance with the principles governing parenting proceedings that these proceedings be concluded.

27. It is somewhat ironic that in circumstances where the child is living with the father and the mother’s case is that she is at risk in the father’s care that it is the mother who proposes an adjournment inevitably delaying any prospect of the child being returned to her care.

28. I am satisfied that the prejudice to the child of prolonging these proceedings and to the father and for that matter the public purse which is meeting the cost of the Independent Children’s Lawyer outweighs any prejudice to the mother of not granting her adjournment.

29. Finally the mother also relied in support of her application for an adjournment on the fact that she has received a bill for $3,000 from Dr T and that she will need time to make that payment. The mother did not provide me with any details of how she proposed to pay Dr T nor was I left with  any confidence that she would or could make that payment. I requested that counsel for the Independent Children’s Lawyer make enquiries of Dr T with respect to the payment of her account, despite the mother’s objections of my making that request, and what would be required in order for her to give evidence. Counsel for the Independent Children’s Lawyer has been advised by Dr T that the invoice sent to the mother relates to previous dates of hearing when she was expecting to give evidence and would cover the cost of a day of her giving evidence which was previously anticipated to take place tomorrow. She also advised that the practice in which she operates does have the capacity to make arrangements for an instalment plan. That is not done directly with Dr T but that on the invoice there is a number that the mother can contact to make those arrangements. It is also the case that Dr T has been subpoenaed to give evidence and produce documents and is subject to that subpoena and required to attend Court when required. The process would therefore follow that having done so, she would be entitled to seek an order for her costs

30. Since this matter was stood down to enable me to prepare reasons I am advised that somewhere around about midday today the mother left the Court, the indication being from the Brisbane Registry Manager that she was taken away in an ambulance at that time.

1. Unfortunately this frustrates the process of the hearing and is likely to preclude the matter proceeding tomorrow or even the balance of this week. I am mindful of the costs the father is incurring and the costs of the Independent Children’s Lawyer. I am going to require the mother to file an affidavit setting out in detail what has occurred, details which will enable the Independent Children’s Lawyer or the father to subpoena the medical records if they it consider appropriate to do so. Importantly it is the father’s case that in the event that the mother does not appear when the matter is relisted that there be liberty reserved for him to apply to proceed with this matter on an undefended basis. If the Court were to determine that the mother is simply attempting to deliberately delay the matter in circumstances where she formed the view that the matter was not likely to be adjourned, clearly the Court needs to know. If the mother is genuinely unwell, then needless to say arrangements will have to be made in relation to how the matter proceeds from this point in time.

2. It was submitted by the father that the mother left a previous hearing and sought medical assistance, the suggestion being that this may be a pattern. I am not in a position to make any findings in relation to that, these are matters that may well be the subject of cross examination. My concern is that nothing really changes the fact that I am satisfied it is in this child’s best interest to have this matter brought to a conclusion and I propose to case manage the matter to enable that to occur. I propose to dismiss the mother’s oral application for an adjournment made this day and I propose to make orders requiring her to file and serve an affidavit setting out in some detail her symptoms, when they first occurred, who she contacted, details of the ambulance that attended, details of where they took her, whether she was admitted to hospital, whether she was admitted to the ward, when she was discharged, any treatment she received and any medication she was prescribed. I am also going to require her to file a medical report as to her diagnosis, prognosis and specifically in relation to her capacity to participate in these proceedings.

3. Counsel for the Independent Children’s Lawyer has requested that the report be a typed document identifying the name of the medical practitioner preparing that report and I am satisfied it is appropriate that it be in this form. Clearly if there are issues in relation to the mother’s health, physical or mental, it may be that the author of that report will need to be contacted to clarify the evidence in that report.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 May 2017.

Associate: 

Date:  16 May 2017