Jibbins and Platter and Anor

[2009] FamCA 1054

FAMILY COURT OF AUSTRALIA

JIBBINS & PLATTER AND ANOR [2009] FamCA 1054

FAMILY LAW – Parenting – Non-compliance with previous directions

Family Law Act 1975 (Cth)

APPLICANT: Ms Jibbins

1^st RESPONDENT: Mr Platter

2^nd RESPONDENT: Ms Fitzsimon

INDEPENDENT CHILDREN’S LAWYER: Ms Sheehy

FILE NUMBER: BRC 7371 of 2007

DATE DELIVERED: 12 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 12 October 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Selby of Selby Legal

THE RESPONDENTS: Both appearing in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Sheehy of Rhonda Sheehy & Associates

Orders

1. The matter be adjourned to the callover of matters ready for final hearing before Justice Murphy at 9.00am on 18 December 2009 in the Brisbane Registry of the Family Court of Australia.

2. The matter be listed for a Compliance Check before Registrar Green at 11.00am on 1 December 2009, and that save as is otherwise earlier ordered by Registrar Green, that such hearing be conducted by telephone without the necessity for the parties to personally appear.

IT IS FURTHER ORDERED THAT

1. The father shall file and serve on all parties and the Independent Children's Lawyer the affidavit of evidence-in-chief upon which he intends to rely by 4.00pm on 27 November 2009.

2. The father shall file and serve on all parties and the Independent Children's Lawyer the affidavits of each witness upon which he intends to rely by 4.00pm on 27 November 2009.

3. In the event that the father fails to file and serve any or all such affidavits by 4.00pm on 27 November 2009, his right to participate in the trial of this action shall be restricted to cross-examination of witnesses only.

4. The mother shall file and serve on all parties and the Independent Children's Lawyer the affidavit of evidence-in-chief upon which she intends to rely by 4.00pm on 27 November 2009.

5. The mother shall file and serve on all parties and the Independent Children's Lawyer the affidavits of each witness upon which she intends to rely by 4.00pm on 27 November 2009.

6. In the event that the mother fails to file and serve any or all such affidavits by 4.00pm on 27 November 2009, her right to participate in the trial of this action shall be restricted to cross-examination of witnesses only.

7. Leave is granted to the Solicitors for the Applicant Maternal Grandmother to issue subpoenae to:

   a.Education Queensland, in respect of records held by that organisation with respect to the records held in respect of the children at the Y State School;

   b.Queensland Ambulance Service in respect of an incident alleged to have occurred on 5 October 2008 involving the Maternal Grandmother and the Father;

   c.Ms S, psychologist to produce all such documents held by her in respect of any treatment, consultations or the like, conducted by her with respect to either or both of the children, the subject of these proceedings;

   d.Ms S, psychologist to give evidence at the final hearing of this matter on a date to be advised;

8. Unless otherwise ordered, leave is granted to each of the parties and legal representatives to INSPECT and the INDEPENDENT CHILDREN'S LAWYER ALONE to COPY documents produced pursuant to subpoenae, save in respect of any document of which an objection is taken by the recipients of any subpoena to either the production of documents or the inspection of them, or claim for privilege attaches and/or in respect of which confidentiality is claimed, in which case an application is to be brought before Justice Murphy to inspect such documents.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7371 of 2007

MS JIBBINS

Applicant Maternal Grandmother

And

MR PLATTER

1^st Respondent Father

And

MS FITZSIMON

2^nd Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. At the callover of this matter this morning there had been noncompliance on the part of the father with directions made by me on 14 July 2009 and also noncompliance by the mother with directions made on that day.

2. The father, Mr Platter, indicates that his legal representative of choice is overseas until 24 October, that he intends to consult him and he intends to seek that legal practitioner's assistance in the preparation of the material for this trial. 

3. I propose to permit the father to do so because consistent with the principles applicable to the hearing of parenting applications in this court set out in Division 12A of the Act, I consider it more likely that the trial will proceed in an expeditious way if I permit that to occur.

4. The mother offers no real explanation for her failure to comply.  However, she represents herself.  The material earlier filed in these proceedings indicates that she has in the past suffered from some difficulties and I propose to grant her the same indulgence that I have granted the father.  However, it is important to record that this matter has been troubling the courts since 2002.  The children the subject of the proceedings are 8 and 9. 

5. This court is bound by statute to employ a number of principles in and about the hearing of applications involving children.  They are set forth in s.69ZN of the Act and I have each of those principles in mind when making the orders to which I have just referred and the orders which will follow. 

6. In particular the court is statutorily obliged to consider the needs of the children concerned and the impact that the conduct of the proceedings may have on the children in determining the conduct of the proceedings.  With that in mind, the court is instructed, mandatorily, to actively direct, control and manage the conduct of the proceedings.  In particular the Act demands that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

7. The general thrust of the statutory provisions, not only in that section but in Division 12A of the Act in general, underscore those matters and predominate the needs of the children, not only in the orders ultimately made, but in the conduct of the proceedings that result in those orders.

8. The matters just referred to provide a significant background to an application made orally by the solicitor for the maternal grandmother before me this morning.  The application is to permit a report to be obtained by a social worker said to be independent of the parties but who has already seen the maternal grandmother.

9. It is submitted that the reports of Ms J, who is a single expert social worker who has prepared four reports during the course of these lengthy proceedings, both in this court and previously in the Federal Magistrates Court, is biased as against the maternal grandmother and that Ms J has made a number of factual errors which significantly impact on her ultimate opinions.

10. Ms D, who is a family consultant attached to this court, saw the parents and the children for the purpose of preparing a parents and children's issues assessment report within the context of the Child Responsive Program by which parenting matters in this court are dealt.  Ms D is also, it is said on behalf of the maternal grandmother, biased against her by reason of the comments that she made and that she has, too, made factual errors which are said to taint the ultimate opinions expressed by her.

11. The parties have also seen Dr C, who is a single expert consultant psychiatrist and he has prepared a report. 

12. I am not persuaded that the matters referred to by Ms Selby on behalf of the maternal grandmother are sufficient to justify the children being exposed to yet another expert in this long‑running saga of conflict.

13. Ms Selby submits, in addition, however, that the interviews and report by the social worker proposed might, if ultimately expressing opinions consistent with those of Ms J and Ms D, be perhaps significant in bringing these proceedings to a conclusion.

14. It seems to me that this submission has more force, primarily because of the principles enunciated in s.69ZN to which I have earlier referred and the provisions of Division 12A of the Act more generally.

15. Accordingly, the application, in my view, needs to be determined by balancing that potential as against the fact that the children have now seen an independent social worker on four separate occasions and have seen a family consultant attached to this court on another occasion.  The saga, as I say, is longstanding and needs to be brought to an end as soon as possible. The very length of that conflict gives rise to some pessimism about the hoped-for outcome from the additional report.

16. On balance, I am not persuaded that, notwithstanding the potential, and I should emphasise it remains but a potential, for the further report to bring about some resolution of the proceedings, that I should order it in the circumstances earlier described pertaining to this matter. 

17. I accordingly refuse the application on the part of the maternal grandmother for the preparation of a further report. 

18. I will, however, as earlier indicated, make orders granting to the father and to the mother an indulgence with respect to the filing and service of material and I will make orders giving effect to that. 

19. However, the very same principles to which I have just made reference, and the very long history of this matter in respect of two yet young children, clearly indicate the need to bring proceedings to an end in their best interests as soon as possible. This persuades me that I should not grant further indulgences beyond those to which I have just referred.

20. I, accordingly, propose to make an order that each of the mother and father be restricted to participating in the trial by way of cross‑examining witnesses only in the event that they fail to comply with the orders I propose to make for the filing and service of material consistent with the indulgence granted to each of them.

21. I will, given the history of this matter, give leave to each of the parties and legal representatives to inspect all documents produced pursuant to the subpoena foreshadowed in these orders or earlier subpoena, save what objection is taken to that course by the recipient of any subpoena.

22. I will give leave to the independent children's lawyer to copy such documents as she considers appropriate but no leave is granted to any other party to copy documents without the matter being further referred to me.

23. I order accordingly.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date: 5 November 2009