Laufer and Everill

[2007] FamCA 467

FAMILY COURT OF AUSTRALIA

LAUFER & EVERILL [2007] FamCA 467

FAMILY LAW – CHILDREN - ORDERS - Application by the Independent Children’s Lawyer for psychiatric assessment of parents granted – Unopposed by the mother – Ex parte the father

Family Law Act 1975

APPLICANT INDEPENDENT CHILDREN’S LAWYER: McCarthy Hoey

FIRST RESPONDENT: Ms Everill

SECOND RESPONDENT: Mr Laufer

FILE NUMBER: DGF 1737 of 1997

DATE DELIVERED: 3 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shand

SOLICITOR FOR THE APPLICANT: McCarthy Hoey

COUNSEL FOR THE 1^ST RESPONDENT: No Appearance

SOLICITOR FOR THE 1^ST RESPONDENT: John Snodgrass & Associates

COUNSEL FOR THE 2^ND RESPONDENT: Ex Parte

SOLICITOR FOR THE 2^ND RESPONDENT: Powell Bayliss Lawyers

Orders

1. That applicant independent children’s lawyer have leave to proceed with the application in a case filed 17 April 2007 ex parte the father.

2. That the father and the mother each do all acts and things necessary and abide the reasonable requests of the independent children’s lawyer to attend upon a psychiatrist nominated in writing by the independent children’s lawyer for the purpose of the psychiatrist making an assessment of the psychiatric and psychological condition of the father and the psychiatric and psychological condition of the mother and the effect if any of any illness or disorder upon their respective capacities to parent the children with which these proceedings are concerned being the N born in September 1991 and T born in July 1993.

3. That 5pm on 17 May 2007 the mother and the father each advise the independent children’s lawyer in writing of the name and address of any psychiatrist or psychologist or like professional person that has provided treatment to him or her in the previous 12 months and it is anticipated that the independent children’s lawyer will seek an authority from each of the parties to discuss the condition of the party treated with the psychiatrist, psychologist or like professional.

4. That each party do all acts and things necessary to obtain funding for the cost of the assessment of him or her.

5. That I suspend the operation of paragraph 2.1 of the directions made on 26 March 2007 with the effect that the family report ordered to be released by 28 May 2007 will not now be allocated pending further direction or order of the Court.

6. That notwithstanding that the matter will not be in a position to be allocated a hearing date by the date of the pre trial conference being 4 July 2007 at 11am I direct that the conference proceed in some form as it is the case that the psychiatric assessment of the parties is likely to be available by that date and a family report can then be allocated.

7. That the father have leave to make application to vary or set aside these orders or as he may be advised providing that such application is filed before 10 May 2007 it may be made returnable in the Judicial Duty List before me in the week commencing 14 May 2007 notwithstanding any listing ratio to the contrary.

8. IT IS REQUESTED that the independent children’s lawyer contact the proper officer of each school attended by the children and ascertain the progress of the particular child at the school and the child’s rate of attendance since January 2006.

9. That I reserve liberty to the independent children’s lawyer to contact my Associate …, ( … in the event of any difficulties in the implementation or compliance of this order or in the event that it is thought that the pre trial conference on 4 July 2007 is unlikely to be productive because the psychiatric evidence will not at that stage be available.

10. I DIRECT that my reasons for judgment given this day be transcribed as soon as possible and when transcribed the original be placed on the court file and a copy sent to each of the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 1737 of 1997

INDEPENDENT CHILDREN’S LAWYER

Applicant

And

MS EVERILL

First Respondent

And

MR LAUFER

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the judicial duty list.  It is the return date of an application by the independent children's lawyer for the mother and the father to undergo psychiatric assessment in the context of this matter having been to a trial notice listing on 26 March 2007 and a family report having been ordered to be released on 28 May 2007 and the matter proceeding to a pre-trial conference on 4 July 2007.

2. Mr Shand appears on behalf of the independent children's lawyer. 

3. There is no appearance by or on behalf of the mother.  However, there is an affidavit of service deposing to service of the documents on the mother at S on 20 April 2007.  I am satisfied of service on the mother. 

4. There is no evidence of service of the documents on the father.  Given the nature of the relief sought and the fact that I have extended liberty to the father to set aside the orders, I have permitted the independent children's lawyer to proceed ex parte the father. 

5. The proceedings concern three children: 

   a)N, who is 15 years old;

   b)T, who is 13 years old; and

   c)E, who is nearly 11 years of age. 

6. The mother resides at S.  The father resides in R.  Both parties have their financial affairs conducted by State Trustees. 

7. I am advised that consequent upon the intervention of the Department of Human Services some time ago the three boys were taken from the care of the mother and placed in the care of the father.  Mr Shand, from the bar table, also advises me that the independent children's lawyer has some information to suggest that since February 2006 the child T, who is 13 years old, has been living with the mother notwithstanding that that current orders of this court provide that the younger son live with the father.

8. The directions made at the trial notice listing on 26 March 2007 provided for the applicant, who is the father, to provide an amended application for final orders by 23 April 2007.  No such document has been filed.  That may of course be because he does not seek to amend the relief that he has previously sought. 

9. At the trial notice listing directions were made that required respondent mother required to file and serve any amended response by 7 May 2007.  That hasn't occurred, but neither has the date for compliance. 

10. I have not familiarised myself with all of the material on the court file.  However, I have obtained the impression that the parents may not be preparing in earnest.  It follows that this matter may not be ready for trial as and when expected. 

11. The independent children's lawyer seeks a psychiatric assessment of the mother and the father.  He deposes that the mother has previously agreed to this course.  The father did not agree. 

12. Having heard the submissions made on behalf of the independent children’s lawyer, I am satisfied that it is appropriate for there to be a psychiatric assessment of each party and for those assessments to be completed prior to the allocation of the family report.  This will have the effect of delaying final hearing by one or two months.  However, where the best interests of children are the paramount consideration, thoroughness is to be preferred over timetabling.  

13. The independent children's lawyer (“the ICL”) has not bedded down the arrangements for funding of the psychiatric assessments.  As indicated, each parent has their financial affairs conducted by State Trustees.  State Trustees has no money to fund the psychiatric assessment of the mother.  The mother was previously not in receipt of assistance from Victoria Legal Aid.  The ICL accepts that the mother is without funds to pay for a psychiatric assessment privately.  I note, however, that on 30 April 2007 John D. Snodgrass, solicitor, filed a notice of address for service on behalf of the mother.  The independent children's lawyer surmises this is because there is a grant of aid in favour of Mr Snodgrass.  If that is the case, then that grant may be able to be accessed to pay for the mother’s psychiatric assessment. 

14. I have not vacated the pre-trial conference on 4 July 2007 at 11 o'clock.  Clearly the matter will not be ready to proceed at that time.  However, for reasons which I have indicated, I think the matter is in need of some review and this is a date of which the parties or their practitioners have previously been made aware. 

15. I would encourage the independent children's lawyer by 4 July 2007 to have made thorough inquiries of the schools at which the three boys attend to ascertain their progress at school and also their record of attendance at school. 

16. Otherwise, the independent children's lawyer should confirm that the psychiatric evidence will be available to the parties prior to 4 July 2007.  If it is not, then that would be a valid reason to vacate the pre-trial conference.  As Dr K, who is available in late June.  I would anticipate that if Dr K sees the parties in late June 2007, his report will be available within a matter of days after that. 

17. In the event that there are any difficulties with listings, the independent children's lawyer is invited to contact my Associate who will get the file and see if she can deal with any inquiries and direct it to the appropriate part of the court for re-listing.  

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  23 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LAUFER & EVERILL