Little and Ashbury

[2016] FamCA 176

FAMILY COURT OF AUSTRALIA

LITTLE & ASHBURY [2016] FamCA 176

FAMILY LAW – Interim parenting orders – social science assessments – party may voluntarily submit to psychiatric assessment.

APPLICANT: Mr Little

RESPONDENT: Ms Ashbury

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Theoharopoulou

FILE NUMBER: MLC 10562 of 2015

DATE DELIVERED: 15 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Bennett J

HEARING DATE: 15 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sheen

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Pearson

SOLICITOR FOR THE RESPONDENT:

Orders

In the matter of Little & Ashbury, I make the following orders:

1. These proceedings be adjourned to the Senior Registrar for determination of interim parenting issues concerning the child, B, born … 2011, such adjournment to be to 26 May 2016 at 10 am.

2. Subject to paragraph 3 of this, the parents do all acts and things necessary, by making application for funding and attending by themselves, to enable a psychiatric assessment to be undertaken of each of them by Dr C, consultant psychiatrist, or such other psychiatrist as the independent children’s lawyer proposes to the parties and they agree upon.

3. I reserve liberty to the father to make application on the adjourned date to vacate paragraph 2, insofar as it requires him to undertake a psychiatric assessment of himself, in the event that he is charged with criminal proceedings in relation to the mother’s older child, E, or as he may be advised.

4. My reasons for decision be transcribed; and when transcribed, a copy be placed on the court file, and a copy be sent to the parties and to any funding body or other expert retained in these proceedings.

5. The independent children’s lawyer be at liberty to seek an administrative adjournment of this matter by consent, particularly in circumstances where the issue of criminal charges against the father have not been resolved by the adjourn date.

6. In furtherance of paragraph 2 of this Order, it is requested that Victoria Legal Aid give favourable consideration to funding the mother's contribution to the reasonable costs of the psychiatric assessment.

7. The independent children’s lawyer be and is hereby entitled to retain photocopies of documents made today.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Little & Ashbury 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: MLC 10562 of 2015

Mr Little

Applicant

And

Ms Ashbury

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me from the Senior Registrar’s list.  It is the first return date of parenting proceedings in this court concerning B, who is five years old.  B is the only child of the parents.  The mother has an older child, E, born in 2007, whose father is Mr F.  The father seeks no parenting orders in relation to E.  In particular, he does not seek to spend time with E or communicate with her.

2. There is on the court file a Department of Health and Human Services response, pursuant to s 67Z of the Family Law Act 1975.  The cover sheet bears the dates 12 November 2015 and 31 December 2015.  It does appear, however, that both dates are incorrect, as it is a response to an order by Senior Registrar FitzGibbon on 5 February 2016.  I request that the independent children’s lawyer obtain clarification from the Department of Health and Human Services the correct date of the response.  In due course, I request that the Department of Health and Human Services issue a response which bears a correct date.  For this purpose, I recommend that the independent children’s lawyer approach the collocated worker, Ms G, who might be able to assist.

3. I can see that various subpoenas were issued returnable today for the production of documents.  The parties and their practitioners have had an opportunity to inspect some of those records.  The independent children’s lawyer is the only party who has been entitled to photocopy any part of the Department of Health and Human Services file, and that remains the case.

4. As discussed in the s 67Z response from the Department of Health and Human Services, the applicant father is under consideration by Victoria Police for charges in relation to the sexual abuse and inappropriate sexual conduct by him against E. The counsel for the independent children’s lawyer informs the court that inquiries made by her during the course of the day reveal that the matter was last assessed by Victoria Police on 19 February 2016 and has been sent for review or approval.

5. It is thought by the parties that if the matter can return to the Senior Registrar’s list on 26 May 2016 that would allow sufficient time for the matter to be appropriately reviewed by Victoria Police and there to be some certainty around whether or not the applicant father will be charged with any offences relating to E.

6. I have provided the return date sought before the Senior Registrar.  However, the parties can ill afford to incur legal costs which are not productive in moving the matter forward.  I will also reserve liberty to apply for an administrative adjournment if by 26 May there is insufficient information to put any certainty around the situation with Victoria Police.

7. The next matter is the psychiatric assessment of the parties. It is obvious from the s 67Z response that a psychiatric assessment should be made of both parties, notwithstanding that it is just the mother in respect of whom notifications have been made which touch on mental health issues. In my view, it is imperative that a psychiatric assessment be made of both parents by the same clinician. The independent children’s lawyer has investigated the availability of Dr C and found that he is available in late April.

8. I am concerned that in the event that the matter is to proceed on 26 May 2016, the parents not be in a position where there would be too long a delay between that day and a psychiatric assessment of both parents.  I do so because the inherent conservatism around making parenting orders in circumstances where there are grave allegations against one of the parents, is to await the outcome of a psychiatric assessment.

9. In the circumstances, the psychiatric assessment should be arranged by the independent children’s lawyer for a date after 26 May 2016, being a date which if cancelled in late May would not incur a cancellation fee with the clinician.  That will have the effect of reserving for the parents an early appointment when the matter goes before the Senior Registrar.

10. I have asked counsel for the father whether he has instructions as to whether his client would participate in a psychiatric assessment in the event that he is charged with criminal offences.  Mr Sheen has responded that he has no instructions in that regard.  I have purposefully not pressed the point; that is a matter for the father to consider as and when it arises.

11. I have structured the orders such as to give the father liberty to apply to vacate the order for a psychiatric assessment of himself in the event that he is charged, or is otherwise advised to do so.  That does not mean that a parenting proceeding will necessarily be determined in his favour in the absence of a psychiatric assessment, but it reflects my position that no party should be required to undergo a psychiatric assessment if they object to doing so.  What it then does to their prospects of success is a matter entirely for them and for which they are responsible.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 15 March 2016.

Legal Associate:

Date:  22 March 2016