Lambard and Lambard & Ors - [2020] FamCA 789

FAMILY COURT OF AUSTRALIA

LAMBARD & LAMBARD AND ORS

[2020] FamCA 789

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the father seeks an adjournment of the final hearing to allow for the preparation of a single expert report in respect of the mother’s mental health – Where the paternal grandmother supports that Application – Where the father and the paternal grandmother contend the mother’s mental health is a live issue in the proceedings – Where the mother and the maternal grandmother oppose the Application – Where current interim Orders allow for the mother to spend time with the child while in the care of the maternal grandmother – Consideration of balancing fairness to the parties against efficiency of litigation process – Consideration of the main purpose of the Family Law Rules 2004 (Cth) – Whether the adjournment is appropriate – Orders made in accordance with the Application – Consideration of the question of cost of an additional expert report – Order made for the father to initially meet the cost of the single expert report.

Family Law Act 1975 (Cth) s 69ZQ
Family Law Rules 2004 (Cth) r 1.04

Ducatti & Tritton [2018] FamCA 979

APPLICANT:

Mr Lambard

FIRST RESPONDENT:

Ms Lambard

SECOND RESPONDENT:

Ms Dabell

THIRD RESPONDENT:

Ms M Lambard

FILE NUMBER:

SYC

2664

2020

DATE DELIVERED:

25 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

25 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie SC

SOLICITOR FOR THE APPLICANT:

Linden Legal

COUNSEL FOR THE 1ST RESPONDENT:

Ms Lioumis

SOLICITOR FOR THE 1ST RESPONDENT:

McAuley Hawach Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Mr Kenny

SOLICITOR FOR THE 2ND RESPONDENT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE 3RD RESPONDENT:

Mr Harper

SOLICITOR FOR THE 3RD RESPONDENT:

Mitchell Lawyers

Orders

The final hearing of this matter listed for five (5) days commencing on 31 August 2020 is adjourned for final hearing over seven (7) days commencing at 10.00am on 14 December 2020.
Within 14 days of the date of these Orders, the parties are to confer regarding the appointment of a single expert psychiatrist to provide a report concerning the mother’s mental health with the consultation to be in respect to:
(a)       the identity of the single expert; and
(b)       the letter of instruction; and
(c)       Documentation to be provided to the single expert.
The costs of the single expert will initially be met by the father but that issue of payment will be finally determined at the hearing of the matter.

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 Lambard & Lambard 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 SYDNEY

FILE NUMBER: SYC 2664 of 2020

Mr Lambard

Applicant

And

Ms Lambard and Ms Dabell and Ms M Lambard

Respondents

EX TEMPORE REASONS FOR JUDGMENT

This decision concerns an Application by Mr Lambard (“the father”) for an adjournment of the final hearing of the matter for the purpose of a single expert being appointed to prepare a report concerning the mental health of Ms Lambard (“the mother”). The father, supported by the Third Respondent, Ms M Lambard (“the paternal grandmother”), contends that a report in respect to the mother’s past and ongoing mental health will assist the Court to make its determination, at the final hearing, as to what orders are in the best interests of the child.
The mother and the Second Respondent, Ms Dabell (“the maternal grandmother”), oppose the father’s Application for an adjournment.
In my view, in the circumstances of this case, which are complex, it is appropriate to grant the adjournment. In so doing, I have considered the following relevant principles as summarised in the matter of Ducatti and & Tritton [2018] FamCA 979 at [14]-[18], as follows:
14. The relevant law in respect to adjournments generally has been set out in a number of cases. In Gadde v Gadde [2015] FamCA 617 at [18] to [22], I endeavoured to summarise relevant principles as follows:
18. In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Kirby J discussed why an adjournment application requires a balancing exercise to be undertaken. That exercise involves consideration of the resources of the Court, its rules and its management and also the need to consider justice for both parties: Anton & Malitsa (No. 2) [2009] FamCA 242.
19. Litigants, whether represented or unrepresented, should be aware that the time of a court is a public resource which must be managed effectively in the interests of not only the immediate litigants but also in the interests of other litigants waiting for their matters to be listed for hearing: Sali v SPC Ltd (1993) 116 ALR 625.
20. In that context, courts place “considerable emphasis on the importance of dealing with cases expeditiously”: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, as referred to by the Full Court in Nabers & Nabers [2011] FamCAFC 145 at [51].
21. However, it is a fundamental principle of justice that a person appearing before a court of law is given the opportunity of presenting material and making submissions relevant to issues being considered by the court before a decision is made by that court: Allesch v Maunz (2000) 203 CLR 172 at 184 – 85; Jones v National Coal Board [1957] 2 QB 55 at 67, Noelle & Fournier [2009] FamCA 328; Nabers & Nabers [2011] FamCAFC 145.
22. In that context, “proper consideration needs to be given to the particular disadvantages suffered by a self-represented litigant”. That is not to say, however, that a self-represented litigant is entitled to any “privilege” over and above that of a represented litigant: Gallo v Dawson (1990) 93 ALR 479 per McHugh J.
15. Also of relevance is a useful summary provided in the decision of Edelman J in Hart v Deputy Commissioner of Taxation [2016] FCA 250 (“Hart’s case”). In that case, his Honour referred to the decision of Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42], where the Court said:
In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the [Federal Court of Australia] Act, to which we have referred earlier in these reasons in summary form.
16. Section 37M of the Federal Court of Australia Act 1976 (Cth) deals with case management principles, including the objective of matters being resolved “according to law” and “as quickly, inexpensively and efficiently as possible”. Similar principles are reflected in Rule 1.04 of the Family Law Rules, which provides that;
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case
17. Each of the advocates at the bar table today, appropriately, recognised that purpose is relevant to my consideration of the wife’s adjournment application. This includes the impact on other litigants.
18. In Hart’scase, Edelman J summarised the four considerations for a determination of an adjournment application emerging from the majority decision of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, as follows:
a) The explanation for the adjournment sought;
b) The detriment to the other party;
c) The detriment to the other litigants in the Court; and
d) The parties’ choices to date in the litigation as to the claims to be made, and how they were to be framed.
In essence determination as to whether an adjournment should be granted involves balancing, on the one hand, the issue of fairness to the parties as against the efficiency of the litigation process, including not only for the parties in these proceedings but also for other litigants.
In considering where the balance falls, r 1.04 of the Family Law Rules 2004 (Cth) (“the Rules”) is significant. It provides that the main purpose of the Rules is to ensure that each matter is resolved in a just and timely manner and at a cost to the parties and the Court that is reasonable in the circumstances of the case. The balance is in ensuring justice on the one hand and timeliness on the other. Although, of course, delay may in itself be a source of injustice.
In referring to r 1.04 of the Rules, I note that, necessarily, the adjournment is going to result in additional costs being incurred by the parties, including in respect of an additional expert report, and also costs thrown away in preparation for the adjourned hearing. It will also result in some further delay of the matter being heard. However, in balancing those negative aspects or, rather, the negative impact that an adjournment will have on fulfilling that main purpose, I must also have regard to the requirement of ensuring a fair and just process for the parties.
Further, as these are parenting proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”), the Court is charged with the responsibility of making a proper inquiry of those matters that it considers relevant to the making of parenting orders. In that respect, I note that, through s 69ZQ of the Act, Parliament has specified that a judge hearing parenting proceedings has a responsibility to decide “which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily”.
It is clear that the mother’s mental health is an issue that requires full investigation in these proceedings. I note the evidence from the mother’s treating psychologist and treating psychiatrist, is, by way of summary, that the mother’s mental health issues arose in the form of extreme anxiety during the course of pregnancy and in a post-natal context. Both the mother’s psychologist and also her psychiatrist express the view that the mother’s mental health issues are now, effectively, in remission.
In the proceedings, the father and the paternal grandmother wish to present evidence to the Court that the mother’s mental health issues are more longstanding and that she may have a genetic predisposition to mental health issues.
A related issue is the potential risk of the mother encountering mental health challenges in the future. In that respect at paragraph 131 of the Family Report dated 1 August 2020, Dr G notes, a conversation she had with the mother’s treating psychiatrist, Dr BB, that:
Dr BB would not be drawn on the report writer’s questions regarding future risk because of her possible lack of objectivity and therapeutic rapport that she established with Ms Lambard. Dr BB said that if further assessment is required, she suggests an external/independent perinatal psychiatrist do this.
Counsel for the mother and maternal grandmother contend that even if future risk is an issue, on the applications before the Court, the child will be spending time with the mother in the context of the maternal grandmother also being present at the same time. They contended that, in those circumstances, the child will not be at risk even if the mother were to suffer a mental health episode in the future.
In acknowledging that argument I note, however, that the Court will be making orders that will be in place for a significant period of time. It may well be that the Court will consider a graduated process where such presence, for instance, of the maternal grandmother may not be required. Alternatively, the Court may come to the view that the risk of the mother suffering further mental health episode in the future is such that the amount of time that the mother and Second Respondent seek with the child would be inappropriate.
In summary, there are live issues in these proceedings in respect of the mother’s mental health, including questions of whether it presents an issue that the Court needs to consider, whether it presents a risk to the child and/or whether it does impact upon the mother’s parenting capacity. In circumstances where Dr BB was not prepared to comment on that issue of future risk, I determine that it is appropriate, in these proceedings, to have a report from a psychiatrist, as opposed to a psychologist, who can give an opinion regarding the mother’s mental health prognosis and, in particular, the likely course of her mental health going forward. All parties agree that there is no necessity for the single expert to be a perinatal psychiatrist.
The second issue concerns determining who should be responsible for paying for the report from the single expert psychiatrist.
In respect to costs, I note that r 15.47 the Rules states that the parties are equally liable to pay the expert witnesses reasonable fees. However, the Court has been put on notice by counsel for the mother that her client simply cannot afford to pay for her share of the report. Having an argument about this issue would result in two outcomes: the matter coming back to Court and the report potentially not being obtained in as timely a manner.
The second consideration I have had regard to is the fact that it is the father’s Application for the adjournment and the appointment of the single expert.
A further consideration is capacity to pay and in that context it is a relevant consideration that the father has until more recently, been employed in a relatively responsible position.
Having regard to all of those matters, I will make an order that the father initially meet the cost of the report but that such cost of the report remain a live issue to be determined at the final hearing.
I note the parties have agreed to confer in respect to arrangements for the appointment of a single expert psychiatrist and, in the event that the parties are unable to agree in respect to that issue I have indicated that the Court would entertain a party exercising liberty to apply for further directions and orders.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 25 August 2020.

Associate:

Date: 22 September 2020