Lilley & Hayfield (No 2)

[2012] FamCA 787

FAMILY COURT OF AUSTRALIA

LILLEY & HAYFIELD (NO. 2) [2012] FamCA 787

FAMILY LAW – CHILDREN – Matter allocated to judicial docket but not ready to proceed – husband an inpatient in a psychiatric hospital – application by husband for children’s and financial orders – application struck out with a right of reinstatement within 12 months

Family Law Act 1975 (Cth)

APPLICANT: Mr Lilley

RESPONDENT: Ms Hayfield

INDEPENDENT CHILDREN’S LAWYER: Mr Finn

FILE NUMBER: PAC 5710 of 2007

DATE DELIVERED: 2 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 2 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Mr G. Dickson

SOLICITOR FOR THE RESPONDENT: Coote Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms M Glaister
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	McKean Park

Orders

IT IS ORDERED THAT:

1.Until further order, the wife have sole parental responsibility for the child of the marriage J born … January 2006.

2.Until further order, the operations of paragraphs 2(b), 3, 4 and 6 of the Order made on 17 February 2012 be and are hereby suspended.

3.All current applications be struck out of the list with a right of reinstatement with no loss of priority within 12 months.

4.Liberty is granted to the parties and the independent children’s lawyer to approach Registrars Riddiford or Sikiotis to reinstate the applications and, if I am reasonably available, to have the matter listed before me for directions.

5.IT IS DIRECTED that a Registrar of this Registry of the Court send a sealed copy of this Order and my reasons for decision delivered this day and delivered on 12 July 2012 to the person in charge of the hospital at which the husband is currently an inpatient under cover of a letter which draws that persons attention to the provisions of Rule 7.09(2) of the Family Law Rules and advises that the documents are sent in order that they may be brought to the attention of the husband.

6.In the event that there is no application by any party for reinstatement of any part of the proceedings within 12 months:-

a)     All applications be and are hereby dismissed; and

b)     The order made by me on 12 July 2012 requesting the appointment of an independent children’s lawyer be and is hereby discharged.

7.IT IS DIRECTED that my reasons for decision this day be transcribed and when settled copies be made available to the parties.

8.The costs of the independent children’s lawyer and the wife of and incidental to this day be reserved.

9.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: PAC5710 of 2007

Mr Lilley

Applicant

And

Ms Hayfield

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me as the first hearing day, it having been allocated to my docket in June of this year. 

2. Mr Dickson of counsel appears on behalf of the respondent wife, whose solicitors are now Coote Family Lawyers.  There is no appearance by or on behalf of the husband.  That is pretty much as expected, given that he has been a voluntary patient in a psychiatric hospital for the last 11 weeks. 

3. Mr Finn has been appointed as independent children's lawyer pursuant to orders made by me on 12 July 2012.  And today, Ms Glaister of counsel appears on Mr Finn’s behalf. 

4. The history of the matter, insofar as it is necessary for me to rely upon it today, is set out in my reasons delivered on 12 July 2012 in case neutral citation number [2012] FamCA 669 and I incorporate those reasons into these reasons.

5. I am informed from the bar table that the independent children's lawyer and the wife have been in contact with the husband’s mother, Ms M Lilley.  It is apparent from correspondence received by my chambers from the wife that, as far as the wife is concerned, the paternal grandmother, Ms M Lilley has been a point of contact for her with the husband, even preceding his current hospitalisation.  There has been no application by anyone to link Ms M Lilley into this hearing today electronically or otherwise. 

6. I am advised by both the independent children's lawyer and the wife, through their respective counsel, that the paternal grandmother is somewhat upset by the proceedings and has a tendency to downplay the husband’s incapacity or illness.  I don’t know if that is the case but that is what they say.  However, as there is no apparent authority for the paternal grandmother to act on behalf of the husband, involving her in the proceedings at this point seems rather futile. 

7. I am further informed from the bar table that the paternal grandmother visited Melbourne in the last fortnight or so and saw the child in her own right. 

8. Today, the independent children's lawyer and the wife agree on what interim orders could be made to manage the case on an ongoing basis.  Those orders are as follows.

   1.That all previous time spent orders between the child of the marriage namely [J] born […] January 2006 (“the child”) and the father be discharged.

   2.Until further order the wife have sole parental responsibility for the child.

   3.That the husband do all acts and things necessary  to attend upon Dr [E] on 21 November 2012 at 10.00 am for the purposes of the preparation of a report providing an assessment as to his psychiatric state and that Dr [E] be requested to address:-

   a)the Husband’s relevant history (including relevant medical history);

   b)The Husband’s psychiatric, psychological and emotional health and functioning;

   c)Any relevant diagnosis or description of his personality, presentation and functioning;

   d)If appropriate, suggested treatment and/or management and the likely prognosis; and

   e)Any incidents of the Husband’s functioning that may be relevant to his capacity to parent and meet the needs oaf the child.

   4.That the cost of the report be borne by the husband.

   5.That Dr [E] be at liberty to inspect any subpoenaed medical records of the Husband and/or the Independent Children’s Lawyer be permitted to photocopy the medical records of the Husband to be submitted only to Dr [E] for the purposes of the preparation of his assessment and report.

   6.That the report of Dr [E] be filed and served on or before 30 November 2012.

   7.That within 21 days the Husband provide to the Independent Children’s Lawyer a list of Counsellors, Psychologist, Psychiatrists, General Medical Practitioners, Hospitals and Rehabilitation Facilities that he has attended since 2003.

   8.In the event that this order is not complied with by the Husband, the Independent Children’s Lawyer be granted liberty to notify the Associate to the Honourable Justice Bennett.

   9.That the parties do all acts and sign all necessary documents to engage the Bethany Contact Centre and comply with all directions by the Director or the delegate for the time being of [T] Contact Centre to facilitate such engagement.

   10.That the parties have liberty to apply on short notice.

   11.All applications for financial relief be struck out with a right of reinstatement for a period of 3 months from this date.

   12.Certify for Counsel.

   13.A sealed copy of these orders be served upon the husband by post at [Property C], New South Wales.

9. In my view, the orders sought by the wife and the independent children's lawyer are sensible orders, but more appropriate to the situation where the husband has indicated that he is prepared and able to participate in the proceedings rather than as holding orders that I would make today.  That said, there are a few matters that clearly need to be addressed so that extant orders in this Court reflect the reality of the situation.  In my view, that is the allocation of parental responsibility on an interim basis and current arrangements for the child to see his father.

10. There is currently no order for equal shared parental responsibility.  Therefore, according to the legislation, each of the child’s parents have parental responsibility (Sec. 61(C).  I raised with Mr Dickson there also does not appear to be any evidence that the husband is causing the wife any difficulty by asserting his parental responsibility, either to her or to third parties.  Mr Dickson reminds me that there were proceedings last year which constituted a fairly belated attempt by the husband to reverse the enrolment of the child in school at Town B.  I am satisfied that it is appropriate that, for the time being at least, the wife have sole parental responsibility for the child.  I make it clear that that is only an interim order.

11. Next, the current arrangements for the child to see his father are provided for in the order made on 17 February 2012.  Pursuant to paragraph 2, sub-paragraph (b), the child can see his father every third weekend and the balance of the orders relate to matters incidental to that.  The child last saw his father on a date in late April 2012.  The order also provides that the wife make application to the Magistrates’ Court to vary an intervention order to remove any inconsistency between that order and the provisions of the Order made on 17 February 2012.  Mr Dickson advises me that the wife has attended to that and that the husband consented to the process.

12. It is appropriate, in my view, to suspend the operation of paragraphs 2(b), 3, 4 and 6 of the order made on 17 February 2012.  This reflects the reality of the situation. 

13. The operation of the orders that I make today means that, for the time being, the wife has sole parental responsibility for the child and the husband has no enforceable entitlement to see the child.  These are interim orders only and, as I said, are intended to reflect what is currently happening.

14. The wife seeks that the husband’s application for financial relief, which is capable, I suppose, of being construed as an application for alteration of property of interests, be struck out with a right of reinstatement for a period of three months from this date.  I am inclined to make that 12 months from this date.  If it is not reinstated within that time, it will stand dismissed and the husband will face the requirement of obtaining leave from the Court to institute any such proceedings in the future because the time in which he can bring proceedings as of right will have expired. (sec 44(3))  However, with the order that I will make, he has 12 months from today to apply to reinstate the application without having to obtain leave.

15. I do not want the orders that I make to constitute a hurdle or an obstruction for the husband in approaching the Court.  I merely want to regularise the matter and stop it being listed in court or allocated a final hearing when it is clearly not ready to proceed. 

16. I will extend to the parties liberty to approach Registrars Riddiford or Sikiotis to reinstate the applications and I am content that they can be listed before me if either of the parties require.  It is not compulsory that it return to me; it is merely an opportunity that should ensure that there is no loss of priority accorded to the matter once it is ready to proceed.

17. If, or when, the husband does seek to reinstate the parenting proceedings, he should take note of the orders which today the wife and the independent children's lawyer thought ought to be made.  Even though those orders aren’t made today, the import of them is sensible and they set out matters to which the husband should turn his mind when he wants to prosecute proceedings in this Court in relation to the child. 

RECORDED  :  NOT TRANSCRIBED

ORDERS DELIVERED

1. In relation to the consequences of no one seeking to reinstate the proceedings within 12 months, Mr Dickson has clarified that his client’s application is that in the event that the husband does not specifically seek to reinstate the financial aspect of the proceedings within 12 months, they would stand dismissed.  I understood that to be the case.  However, I am not prepared to make an order in those terms today. 

2. It does not appear to me that the husband has a particularly good grasp of the proceedings in this Court.  He acts with himself and that is quite irrespective of any disability that he is currently under by virtue of his psychiatric health.  Somebody should address the financial proceedings if and when any part of the proceedings are reinstated or sought to be reinstated.  That concludes the reasons.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 2 August 2012.

Associate: 

Date:  5 September 2012