Grant-Steel and Heath

[2008] FamCA 875

FAMILY COURT OF AUSTRALIA

GRANT-STEEL & HEATH [2008] FamCA 875

FAMILY LAW – PROCEDURAL – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Grant-Steel

RESPONDENT: Ms Heath

INDEPENDENT CHILDREN’S LAWYER: Graeme D. Hemsley

FILE NUMBER: DNF 541 of 2000

DATE DELIVERED: 18 August 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 18 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms V West

SOLICITOR FOR THE RESPONDENT: W Gladys & Lewis

INDEPENDENT CHILDREN’S COUNSEL: Mr G Hemsley

INDEPENDENT CHILDREN’S SOLICITOR: Graeme Hemsley Barrister and Solicitor

Orders

1. That the Independent Children’s Lawyer have leave to file a further affidavit annexing relevant documents obtained from the child’s school such affidavit to be filed and served within 21 days of the date hereof.

2. That the father forthwith attend upon Dr B psychiatrist for the purpose of obtaining a report from that psychiatrist as to the father’s current mental state with that report to be filed and served by 17 October 2008.

3. That the father meet the costs of Dr B in providing the report as referred to in paragraph 2 hereof.

4. That the Independent Children’s Lawyer have leave to provide any material that he determines to the psychiatrist for the purpose of such material being considered by the psychiatrist in preparing his report.

5. That within 14 days of the date hereof the mother file and serve an amended response.

6. That this matter resume as a part-heard trial at 10:00am on Monday 27 October 2008 with a time estimate of 3 days.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNF 541 of 2000

MR GRANT-STEEL

Applicant

And

MS HEATH

Respondent

EX TEMPORE REASONS

1. This is a continuation hearing of this part-heard trial which commenced on 13 May 2008.  The trial is proceeding.  I made orders on 13 May 2008, some of which have been complied with, some of which haven't.

2. The mother has complied with the orders that I made insofar as she has filed her affidavits of evidence-in-chief and issued the subpoena to the Minister of Education to produce documents.  Those documents have been received, and orders made about inspecting and copying. 

3. Thus the mother is ready to proceed with this trial, save and except in relation to one issue that I have raised today.  That is, that the mother, given what she has deposed to in her affidavit of evidence-in-chief, needs now to file an amended response, and I am told that that can be done within 14 days.  I will make an order about that in a moment.

4. Mr Grant-Steel, the father, has filed an affidavit purportedly in compliance with my order of 13 May.  However I have indicated to him that I consider the affidavit completely inadequate in terms of being an affidavit setting out the evidence on which the father wishes to rely for the purpose of seeking the order that he wants.  His own comment is that he wants the opportunity to respond to the affidavit filed by Mr Z, the mother's witness.  I have indicated to him that he can do that orally when evidence is taken in this trial.  Beyond that, the father says that he is prepared to rest on the affidavit that he has filed.  There is other material of course that will be before me, namely, certain reports that are the subject of an order of the Judicial Registrar, the report of Dr M, and there will be some further documentation put before me by the Independent Children’s Lawyer from the school.

5. The father has had ample time to file an affidavit of evidence‑in-chief, which supports his case.  He has chosen not to do that.  He has also chosen not to seek leave to file a further affidavit. Thus the trial will proceed on the affidavit material that is currently before me, with the only extra material being  a report from a psychiatrist - and I will come to that in a moment - and, as I say, some further documents from the school via a further affidavit of the Independent Children's Lawyer.

6. The other order that has not been complied with by the father is my order that he file and serve a report from a psychiatrist nominated by him as to his current mental state.  When asked why he had not done that, the father said that he had approached two or three psychologists rather than psychiatrists and they apparently could not help him.  He attempted to put to me that a psychologist was the expert that was referred to in my order.  That is clearly not the case, and I am not impressed with the father’s response to my order, not only from that point of view but from the point of view that this case will now be delayed further than it should be. 

7. I specifically adjourned the case until today to give the father ample time to file a report from a psychiatrist.  He has not done so, and I am not satisfied with his excuse.  As a result I was tempted to now list this matter in a short compass to finalise it.  However, Mr Hemsley, the Independent Children's Lawyer, has convinced me that the father should be given another opportunity to file a report from a psychiatrist. 

8. I accept that the father's mental health is a prime issue in this case and needs to be assessed to enable me to make a fully informed decision as to the future of the child the subject of these proceedings.  However, I am not prepared to simply repeat my order of 13 May 2008. 

9. The father had the opportunity to choose a psychiatrist.  He will not have that opportunity any more.  Mr Hemsley has nominated Dr B as the psychiatrist to do the report, on the basis that he is able to do a report fairly quickly, namely, within two months.  The father has agreed to see a psychiatrist, as he did on 13 May 2008, and thus I propose to make a further order about that.

10. On 13 May I also made an order that the Independent Children's Lawyer have leave to provide to the psychiatrist any material that he determines is appropriate.  I will make a further order about that.  I am told that a letter was prepared by Mr Hemsley which can now go to Dr B and satisfy that requirement.

11. Even though there will now be a further delay whilst a psychiatric report is obtained, I am prepared to list this matter now for a conclusion hearing, and although we do not have all of the evidence in at the moment and specifically that psychiatric report.

12. I have raised, as well, the issue of what reports and historical information should be before the court for the purposes of the conclusion hearing.  As I said, there was an order made by the Judicial Registrar allowing certain reports annexed to an affidavit of the father's to be before the court and that is still the case.  Dr M is the expert being called by the Independent Children's Lawyer.  His report will obviously be before me and he will be called for cross‑examination. 

13. Mr Hemsley has sought leave to file a further affidavit annexing documents obtained from the school.  There is no objection to that and no requirement for the author or authors of those documents to be called for cross-examination.  The mother's counsel has also requested that the report of Ms Y be before the court, and the father and Mr Hemsley have no objection to that, and they do not require Ms Y for cross‑examination.

14. I also note that it is agreed that the documents annexed to the affidavit of Mr Hemsley filed on 17 July 2007 can be before me as evidence, without the need to call the authors of those reports for the purposes of cross‑examination.

15. My practice now is to make orders in chambers in relation to objections to evidence in affidavits, the filing of lists of documents to be tendered, and the filing of summaries of argument.  The issue in terms of objection to affidavits is a limited one though because this is proceeding under Division 12A and some of the rules of evidence do not apply, but there is still the ability to object to material in affidavits on, for example, the ground of relevance.  Thus I will leave that open.  That is a matter for the legal representatives and the father to work out. 

I certify that the preceding 15 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 18 August 2008.

Associate