Jackson and Deepe

[2009] FamCA 614

FAMILY COURT OF AUSTRALIA

JACKSON & DEEPE [2009] FamCA 614

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment in lieu of making consent orders – Consent orders premised on family report which failed to consider material facts – Adjourned until further reports can be prepared – Consideration to declaring this matter Magellan.

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder of two matters with a common party – The Father involved in children’s dispute in the Federal Magistrates Court – Inquiries to be made of the Federal Magistrates Court – Adjournment until transfer settled.

APPLICANT: Mr Jackson

RESPONDENT: Ms Deepe

FILE NUMBER: BRC   5926 of 2007

DATE DELIVERED: 16 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 16 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Byrne of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: A P Hodgson & Associates

COUNSEL FOR THE RESPONDENT: Mr Baston of Counsel appeared for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: K L King & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Linklater-Steele of Counsel appeared for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned to a date to be fixed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC5926  of  2007

MR JACKSON

Applicant

And

MS DEEPE

Respondent

REASONS FOR JUDGMENT

1. I am only too conscious of the fact that this matter has been in the legal system for over two years.  The father’s application was filed on 14 May 2007.  I am only too conscious of the fact that whilst litigation is pending, it is difficult for a litigant to lead a normal life. 

2. I see a case where there is high conflict on the facts, one party saying black and the other party saying white.  I am only too conscious of the fact in this matter there have been orders in place from the Court for the father to see his sons and those orders have not been complied with.  I understand reasons are advanced for that but the view that I normally take is you either change the orders so that there are no orders for the father to see his children or the orders start being complied with.  It is as simple as that.

3. I am conscious of the fact that this morning consent orders were signed by the parties but not by the Independent Children's Lawyer.  You may recall that when this matter first came into the list, Mr P was the family consultant who had seen the children.  He gave his assessment.  I delivered a homily to you about the desirability of settling the fact that that is the best possible outcome for yourselves and particularly for your sons.  So when consent orders surfaced it would normally be an occasion for congratulations and commendation and telling you what great parents you are. 

4. I have not seen the consent orders but because of the concerns that I had had from reading all of the material and all of the reports together yesterday afternoon, I took what is an exceptional course and that is I arranged to see the barristers in an ante-room adjoining the Court here.  I indicated to the lawyers at that time that I would be prepared to repeat anything said at that meeting in open Court.  In other words, it was not some sort of unofficial gathering, a star chamber type Court or things that went on in there were in club or confidential. 

5. The Independent Children’s Lawyer took notes and there was a discussion on the witnesses but there were discussions primarily initiated by me on my concerns that, prima facie, I had two specialist reports – reports from two specialist psychiatrists – Dr D and Dr R and there is not a mention in there about the matters raised in paragraph 18 of Mr C’s report which I thought was like – to use the common expression these days like ignoring the elephant in the room, it was just such an important factor in a matter such as this.

6. There were other issues canvassed where I expressed concerns about the fact that there was no evidence from the mother’s current treating psychiatrist.  It now transpires there is subpoenaed material.  The matter was stood down for a couple of hours as you are aware until 2 o’clock today and inquiries were to be made from Dr D whether he had read Mr C’s report and seemingly the view that I took is it would be highly unlikely that he had otherwise there would have been some questioning, there would have been some mention of it in the report.  It appears that he concedes that he was not cognizant of that fact.

7. It now emerges over the extended adjournment that the father is engaged in parallel litigation in this Registry in the Federal Magistrates Court.  In the matter of that case there are daughters aged 11 and 13, I believe, who are the subject of that litigation that is first returnable, I believe, sometime next week.  I am being asked to adjourn this matter and to transfer the other matter and to, perhaps, join it with this matter. 

8. It would be presumptuous – it would be like a pre-emptive strike for me to suddenly make orders when I have not heard from the lawyers in the other matter.  I am not appraised of the facts etc., but certainly I would have thought that it would be helpful for one Judge to hear both matters.  It would be too complicated for them to be heard together so I am not enamoured of that proposal.  They could be heard back to back with witnesses from one case going in to give evidence in the other case or it could be heard by the same Judge in a reasonable timeframe but in different weeks.

9. I indicated my misgivings to the legal practitioners in signing off on the consent orders today in circumstances where the consent orders are premised on reports by experts which, in themselves, have been completed on a basis where the expert was not fully appraised of relevant background material. 

10. The options were:

    (a)sign the consent orders or;

    (b)force the case on and accept no case is ever fully prepared. 

11. I believe that I would have a reputation for very reluctantly ever granting adjournments. 

12. One matter that grieves me greatly is I have been informed the mother in these proceedings is not legally aided.  It is a circumstance that I certainly bear in mind but none of the lawyers, at the present time, are asking me to sign off on the consent orders.  You only need one person to pull the pin and I am sure the Independent Children’s Lawyer has indicated, in effect, she would not be prepared to sign the consent orders for the very valid reason that I have canvassed, namely being premised on reports that have not covered important aspects.  It would not be beneficial for the case to proceed.  I have got the time set aside.  It would entrench the conflict at a far higher level so, reluctantly, I will accede to the adjournment. 

13. I will make a designation after consultation that the matter be a Magellan matter but that it be managed in my list and I would also make inquiries about – just as a matter of courtesy to the Judges of another Court I would not order the transfer of the matter from the Federal Magistrates Court.  I do not know what that position is there.  Has somebody read all the file, have they made inquiries etc., but I assume that there would be no difficulty in my transferring the matter but I will have inquiries made.  If there is any difficulty with any of those aspects, I may need to call this matter back on.  The legal representatives will be advised to that effect but otherwise you can assume the adjournment is rock solid.  I can grant that and we will see how the matter progresses from there as to a further report from Dr D, further assessments etc.

14. The probability is – the high probability is – that the other matter will be transferred into my list.  The high probability is that it will be declared Magellan.  I am assuming that I will be able to keep control of the matter notwithstanding that it is in the Magellan list.  The orders are suspended, I gather, at the present time.

    RECORDED  :  NOT TRANSCRIBED

15. Forgive me if I am saying things to you that I have said the day this was first before me and I think it was first before me late last year.  I do not have a transcript of what took place at that time but certainly the remarks I am making now, repeating to you, will be in a similar vein.  Litigation has been described as brain surgery with an axe.  It is not very subtle. 

16. If I can streamline a system, if I can make it easier I would but it is very, very difficult to do it.  I need not go into all the reasons for that but everything has to be by the book.  Every piece of evidence checked, cross-examined, got any further questions, are you sure there are not more questions.  Then we look at all the evidence in relation to that issue and then I am still groping around in the dark as to who to believe. 

17. It is a situation where, in the 21st century, there are many, many other ways of mediations and counselling and other approaches to be taken that are just so more efficient.  They are less stressful and they are better goal oriented as an outcome and your lawyers can fill you in on these but there is – basically it is either the party mediating or having – call it a conference, call it what you like but you go through the issues and say, well look that may have happened but can we put that to one side.  We can guarantee that this will happen.  We can work out these problems.  There is all sorts of ways, negotiating techniques that can simply avoid the problem.

18. What I am saying to you is, I do not think it is in the interests of these children for the litigation to continue.  I mean I am very distressed by the reports particularly from Dr W, what the children are saying to the various specialists and the whole contents of those reports, I do not have to go into them, but the boys are greatly troubled and it is my assessment, based on experience of a significant number of years, is it the conflict of the litigation of itself is a source of great stress. 

19. So much of our communication is other than speech, it is body language, things of that nature.  It is temperament.  You can tell whether somebody is happy or unhappy, whether they are stressed or relaxed and if the children are in a environment where the mother is constantly stressed from the litigation, saying things, overhearing things of that nature, it is just not a good environment for the children and that comes out in a whole variety of ways.  If you cannot agree, the law says I have to make the decision.  I am telling you I will make the decision but I do it most reluctantly. 

20. They are your children, you should be the ones with the responsibility of sorting that out.  I have probably said it on the last occasion.  I will give you a decision, a well meaning decision, an impartial decision but it will not be a solution.  I cannot do that.  You can do that by a whole range of counselling and therapeutic means but basically, the litigation pathway would not, in my view, improve the lot of the boys and that is a primary matter that I have to take into account is what is the best outcome for the children. C seems particularly stressed out and with knowledge of the litigation process.

21. You separated in November 2004 and I am conscious of that.  I am conscious of the problems that have surfaced over the years, the fact that it has been here for two years.  I have read Dr D’s report.  He makes a diagnosis about the father.  He says he has a personality disorder.  On my understanding of the evidence, personality disorders are not amenable to treatment. 

22. If you have a psychosis such as schizophrenia or paranoia, you can take medication and you can be treated.  With personality disorders they are exceptionally difficult to treat.  People can alter their behaviour to ameliorate symptoms but there is no quick fix.  We have adverted to the problems which we – using code – referred to as paragraph 18 of Mr C’s report.  They are matters that I am not sure the evidence as to what extent they have been addressed, to what extent they are significant to the present environment but it is a matter that I am confident Dr D should have been appraised of and would want to take into consideration. 

23. There are complicating factors all over the place.  Basically my philosophy is try and keep it simple. 

24. I will do my very best, depending on the timetable, to try and get this matter completed by the end of the year but it is going to be a difficult task so bear in mind what I have been saying all along.  The answer really is your responsibility and it is in your hands.  If you are going to delegate it to me, it will be in accordance with the directions that I give for bringing this matter on.  As I say I will give my decision according to the evidence that is before the Court.

    RECORDED  : NOT TRANSCRIBED

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  16 June 2009