Imani and Etola (No 2)

[2017] FamCA 1154

FAMILY COURT OF AUSTRALIA

IMANI & ETOLA (NO. 2) [2017] FamCA 1154

FAMILY LAW – PRACTICE AND PROCEDURE – Father’s oral application for an adjournment of final hearing – evidence as to father’s medical condition – father’s complaint that reunification therapy has not taken place – principles for conducting child related proceedings – adjournment not consistent with best interests of children

APPLICANT: Ms Imani

RESPONDENT: Mr Etola

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 4188 of 2015

DATE DELIVERED: 21 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms B.L. Lane

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Dr T. Etola in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDRREN’S LAWYER: Ms P Treyvaud

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

In the matter of Imani and Etola, I order as follows:

1. The father have leave to make an oral application seeking an adjournment of the final hearing.

2. The husband’s oral application seeking an adjournment of the final hearing be and is hereby dismissed.

3. That my reasons in relation to the adjournment be transcribed and when transcribed, a copy made available to the parties.

4. Any person, including the independent children’s lawyer, who calls or arranges for the attendance at court of a single expert witness or an expert witness do all acts and things necessary to ensure that that witness brings with them a complete set of their notes and any correspondence which they have received in this matter or have caused to be sent on their behalf. 

5. The father be at liberty to inspect the notes of Dr P under the direct supervision of my court officer and in court.  The father be permitted at that time to make notes, but not to photograph or record the documents in any other way and for the avoidance of doubt, the documents do not leave the Court room. 

6. Before the father leaves the Court building this day, he file and serve a minute of the order he seeks be made in these proceedings, such service to be effected either personally on the practitioners for the parties or electronically, but before the father leaves the building. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4188 of 2015

Ms Imani

Applicant

And

Mr Etola

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. The father seeks an adjournment on the first day of the final hearing of contested parenting proceedings concerning B and C.  B is 11 years old, and C is five years old.  The proceedings have been before the Court for some time, having been commenced on 13 May 2015 when the mother filed an application seeking that previous limited unsupervised time spent between the father and the children be supervised. 

2. There have been two final hearings ordered but vacated.  This is the third date allocated for a final hearing.

3. A family report was prepared by Ms F, family consultant, and released on 30 October 2015.  In broad terms, it recommended that the mother have sole parental responsibility and the father not have ongoing face-to-face time with the children. 

4. On 13 April 2016, the matter was listed before me as the first day of a final hearing which is a listing procedure rather than actually the first day of a final trial.  A final hearing of this matter was set down for 25 October 2016 before me.  I acceded to an application by the father, as best I recollect, to order a further family report, and in due course a report was prepared by Ms H, psychologist and family consultant in the permanent employ of the Court.  Ms H recommended a cautious approach but one which involved there being some family therapy and at least a further investigation of whether the children would benefit from ongoing time with the father. 

5. On 14 September 2016, some six weeks before the upcoming final hearing, the matter was listed before me.  I vacated the final hearing on the application of the father.  This was contrary to the mother’s position. She wished to proceed with the final hearing. However, I considered that the recommendation for family therapy prior to a trial had merit and such therapy should be attempted. 

6. The matter was then adjourned for final hearing on 13 April 2017 before an interstate judge.  The final hearing did not proceed.  The adjournment allowed Dr D, therapist, to work further with the family. 

7. Eventually the matter was listed for final hearing before me to commence today.

8. Mr Etola represents himself.  His father has accompanied him to Court.  I gather that is for emotional support.  His father is not going to be a witness in his case. 

9. The father says that he has the resources to pay lawyers but he is disappointed in his previous lawyers.  I think his complaint was that he lost faith in his legal representatives because they had not seen through some sort of ruse or deception to obtain Dr D as an expert in this case under the guise of Dr D conducting some intensive family reunification therapy which did not eventuate.  At this juncture, I pointed out to the father and that the therapy ordered on 14 September 2016 was not “reunification” therapy.  There had been no finding by a court at that point that it would be in the best interests of the children to be reunified with the father.  The issue of the extent to which a meaningful relationship between the girls (or either of them) and the father is yet to be decided. 

10. Mr Etola presented at court today without his court documents or documents filed by any other person in the proceedings.  On any objective standard, an ill-equipped way to start a case. The father has brought his notebook computer to Court.  He says there are some documents on the notebook computer.  He did not bring any writing materials with him or pens.  He has been given two pens and a writing pad by my court officer and told that he can retain those. 

11. The father seeks leave to make an oral application that this hearing be adjourned.

12. When the matter was before me on 14 April 2016, I discussed with Mr Etola the implications of not being represented.  And I did so at page 18 of the transcript.  The reason I ordered a transcript on that day was not to capture these comments but because Mr Etola had failed or neglected to attend Court at the appointed time and I had proceeded with the matter in his absence.  I wanted to give him a record of what had transpired in his absence but the whole hearing was transcribed.  The comments about the responsibilities of a self-represented litigant and being adequately prepared are set out at page 18 where I say:

    HER HONOUR:   Okay.  Lots of people act – listen to this carefully.  Lots of people act for themselves in the Family Court.  Lots of people do it very well.  Some people do it better than lawyers would do it for them.  But you have to do it;  right?  You have to take responsibility for your case whilst you are unrepresented.  That is nobody’s problem but your own.  You are presumed to know the law.  You are presumed to prepare.  You are presumed to be here on time.  If you are not here on time you will miss out on part of the hearing, right, which you may ultimately think is a disadvantage to you.  When your new solicitors come on board they will not be given indulgences for being your new solicitors because it has been a matter entirely in your control about when and when you do not have solicitors;  right? 

    So any solicitor who starts to act for you should not think that, just because they come late to the proceedings, there will be some indulgence afforded to you or to them because they haven’t had time to prepare.  You’ve got the timetable.  You know the timetable.  You knew it when you didn’t come to court this morning on time;  right?  You knew that it was before the court.  It’s open to you and presumably was open to you to have practitioners here today and you’ve not done it.  So you find out about the law, find out about the procedure, make sure that you comply with all of the orders for filings of documents and don’t expect that you will be given any adjournments.  That goes likewise for the mother, but she has got practitioners and Ms Lane will already have told her that.

13. Whilst not elegantly expressed, I am satisfied that as early as 14 April 2016 the father and was on notice that adjournments are not automatically granted and that he has to be ready to run his case in the event that he fails to secure an adjournment.

14. It would cause unnecessary delay to require the father to prepare a written application so I will permit him to make the application orally.  None are prejudiced.

15. Any adjournment is opposed by the mother and the independent children’s lawyer.  The mother’s application is for final orders that the father has no involvement with the children.  The father has foreshadowed that his substantive application, to which I am yet to come, involves having the children put into foster care rather than remaining in the care of the mother or being placed in his care. 

16. There are several reasons advanced by the father as to why the hearing should not proceed this week.

17. First of all, the father says “I have been ill”.  He has sent to the parties to the proceedings a letter dated 10 August 2017 by Dr N, the father’s treating psychiatrist.  It is addressed “to whom it may concern”, which leads me to conclude that the doctor may not have known in particular what the certificate or opinion was designed to address.  For instance, was the writer informed that the proceedings may be very seriously delayed if they need to be re-fixed?  Whereas there is mention that the father’s condition “could improve”, I do not have any evidence of the likelihood of improvement.  It is not sworn evidence.  I will have regard to it in line with the relaxation of evidential requirements under the less adversarial trial process. 

18. What the doctor does says, in the letter written eleven days ago, is as follows:

    This is to certify that I’m the treating psychologist for [Mr Etola] who I reviewed today.  He continues to be in a complicated Family Court struggle as he attempts to gain access to his daughters which continues to cause him much anxiety, insomnia, etcetera.

    He said that in the last two months he had an episode in which he had a severe headache and hypertension leading to collapse and he now takes anti-hyperintensive medication Olmetec. 

    He also said that in recent weeks he has had distressing pain and rectal blood loss and that he is fearful of a relapse of his lymphocytic colitis.

    I advised him that, from a psychiatric perspective, it would help if he could delay the proposed family Court matter which is due to take place later this month for two to three months so that his emotional and physical state could improve. 

    He continues to take antidepressant EfeXoR 150 milligrams mame, and today I suggested that he take either temazepam 10 milligrams or nitrazepam 5 milligrams at night on some nights so that he gets more sleep. 

    I recommend, if it is possible, that the approaching Family Court matter be delayed for two to three months because of his health.

    Yours sincerely

19. The above extracted letter does not indicate to the Court, and nor does anything that Mr Etola has said, why he is unable to participate in court proceedings.  It does appear, to the extent that his psychiatrist writes that “from a psychiatric perspective it would help if he could delay the proposed Family Court matter” that things might be better or easier for the father, but not to the extent that the father cannot adequately conduct his case today and for the next week in his current state.  I am not satisfied by this evidence that the father is physically or mentally unable to conduct his case.

20. The second reason that the father gave for needing an adjournment is that he had suffered a recent bereavement of his grandmother who died from influenza.  This appears not to be a matter about which he told his psychiatrist because Dr N has not mentioned it in his letter much less how it impacts on the father’s ability to participate.  I am still not satisfied that the father is unable to conduct his case.

21. The next reason which the father gave was that he has had a relapse of his colitis condition.  I asked him what that entailed, anticipating that he might say that he needed to have regular breaks in the proceedings.  He said that he has increased his medication and did not indicate regular breaks would be necessary.  He also said that he had had a severe headache which was referred to by the psychiatrist in the third paragraph of the letter.  The father said that the headache occurred on the Queen’s Birthday weekend, that is, approximately two and a half months ago.  He then had his blood pressure checked and found it to be “200 over 120”, for which he is now taking blood pressure medication, which also seems supported by the letter from the psychiatrist.  That information does not justify the hearing being adjourned as the father seems to be managing both conditions.

22. The fifth reason which Mr Etola gave was that he had been under stress from finding out that he had been misled by the mother’s solicitors and by Dr D.  Broadly speaking, the father addressed me about his dissatisfaction with the evidence of Dr D and the fact that no reunification therapy has taken place.  The father said that the reunification therapy which he thinks would be suitable is that which would be recommended by Dr O. Dr O is not a witness but the father has read her work.  The father says that the appropriate treatment of the children is a four-day intensive reunification program where the children are sent to camps and have therapy, and that this therapy has a success rate of approximately 95 per cent.  These are matters which he has already raised with Dr D in the course of Dr D’s therapeutic treatment of the family.  They are matters which can be the subject of cross-examination by the father and probably by the independent children’s lawyer and possibly even on behalf of the mother of experts in the case including Dr D.

23. Mr Etola pointed to the fact that in his view none of the professional witness in this case, including single expert witnesses, refer to the self-harm, hair pulling, parentification and adultification of the girls and that the absence of evidence is “at odds with the experts of the world”.  He maintains that the children have not received appropriate treatment from any professional and on that basis, he will ultimately be seeking that they be put into foster care. 

24. The Court commences parenting proceedings when one party files an application instituting proceedings and another party responds and in this case, there is the additional step of the children’s interests being represented by an independent children’s lawyer.  It is erroneous to conclude, as I suspect that the father may have concluded, that the bounds within which the Court may then go on to make a decision are set by the application and the response of the parties.  I will look at this parenting matter in its entirety and am at liberty to make orders at large.  Merely because this matter is listed for final hearing, it is open to me to hear all of the evidence and still to conclude that this is not a case which should be finalised at this point.  However, there is a world of difference between peremptorily deciding that this is a case which should not commence because expert evidence is inadequate or some examination has not taken place and hearing all the available evidence and then coming to a reasoned conclusion based on that evidence that the family should submit to some other process and the Court receive further evidence before rendering a final decision.

25. In this case, I am not prepared to accede to the father’s application for an adjournment because he is not content with the quality or the results of professional interventions in relation to him and his daughters to date. 

26. I will hear the evidence and then make a decision about whether there has to be any further therapy.  I may order further or other therapy. If I decide no further therapy is in the best interests of the girls, I will go on to finalise the case with orders which may not be orders which, at the moment, either party seeks.  Pursuant to principles of natural justice, I will give the parties some notice if I consider that I should to make orders which neither of them seek.  They will then be able to address that possible outcome.

27. These proceedings have already been prolonged. I must, and do, take into account that the children are entitled to a timely determination.  Parenting proceedings are stressful for both parents but the stress experienced by the mother, emotionally and financially, has a real potential to impact on the children.  I take into account the impact that the conduct of the proceedings has on the children as well as the other principles set out in s69ZN of the Act.  I am not convinced that it is appropriate to grant the adjournment sought by the father.

28. For the avoidance of doubt, I am not sufficiently impressed by the medical evidence which the father has sought to adduce that he is unable to conduct himself in these proceedings.  He saw his psychiatrist last Thursday week ago.  As of Friday, he was writing to various experts, some of whom were expert witnesses in this case, requesting the production of notes.  The father has not acted as though he is incapacitated.

29. It has come to my attention that the father asserts that he has been deprived an opportunity of looking at Dr P’s notes.  Dr P is a counsellor who saw B in 2015, before B went into the care of Dr L.  I gather that an order was made that Dr P’s notes could be inspected by legal practitioners.  That appears to have happened on 24 July 2017.  The father had lawyers acting for him until early August 2017.  It does appear that his practitioners looked at Dr P’s notes.  The father asserts that his solicitors were not able to understand the notes, because they weren’t medically trained.  I will hear from the other parties to the proceedings, but it does seem to me that it would be reasonable for the father to be able to read Dr P’s notes in Court and without taking any copies of photographic representations of them.  This matter doesn’t touch directly on the application for an adjournment and is a matter which I will decide separately. 

30. It would be remiss of me not to make mention of the very many witnesses that must be gathered together in proceedings such as these for the case to come on for final hearing and the necessary preparations for the hearing, which has been set down for long period of time to commence today and to run for the week.  I anticipate hearing from Ms F and Ms H, both of whom are family consultants and have prepared reports in relation to the family, including the children, as well as from Dr D, who prepared the report in relation to his recent therapy.  B is under the care of a psychiatrist, Dr L.  Ms Q, speech therapist has seen C.  Ms E, psychologist, has assessed both B and C in relation to autism. 

31. Both parties are themselves under the care of psychiatrists or psychotherapists.  The father is on antidepressant medication, as is the mother.  I dare say that these proceedings will not be easy for either of them.  I acknowledge and have some compassion for the lack of control that each parent must feel today in putting the interests of their children in the hands of the Court.  I don’t expect them to feel comfortable and I understand that the father might feel somewhat distressed.  He has demonstrated some appreciation that the evidence in the case is not supportive of the outcome he seeks.  However, I am not convinced that the father is too ill to run the proceedings or that the proceedings are not adequately prepared and ready to run. 

1. I am not convinced that an adjournment will enable either party to better prepare their respective cases or furnish further evidence to the Court that will better able the Court to determine parenting arrangements for the children.  If, after hearing the evidence and argument, I find that there should be more therapy before a final decision is made, I will be able to order that occur.  In the meantime I am satisfied that it is in the best interests of the girls that we should proceed with the case.

2. The father’s application for an adjournment be, and is, hereby dismissed. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 August 2017.

Associate: 

Date:  10 April 2018