McLaggen and Price
[2009] FMCAfam 535
•5 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCLAGGEN & PRICE | [2009] FMCAfam 535 |
| FAMILY LAW – Children – contact – mental health issues. FAMILY LAW – Practice and Procedure – stay proceedings. |
| Family Law Act 1975, s.91B |
| Applicant: | MR MCLAGGEN |
| Respondent: | MS PRICE |
| File Number: | MLC 5473 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 5 March 2009 |
| Date of Last Submission: | 5 March 2009 |
| Delivered at: | Ballarat |
| Delivered on: | 5 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr Jackson |
| Solicitors for the Independent Children’s Lawyer: | Sarah Lia |
ORDERS
The proceedings be stayed until either or both parties comply with order 4 of the orders dated 11 December 2008.
Liberty be reserved to the Independent Children’s Lawyer and the Department of Human Services to mention this matter before me, by arrangement with my Associate on 03 8600 4409 ([email protected]).
IT IS REQUESTED THAT:
Pursuant to section 91B of the Family Law Act1975, the Department of Human Services Victoria intervene in these proceedings.
Upon request, the Court do provide to the said Department copies of all documentation relevant to the proceedings before the Court to enable the said Department to consider the request to intervene in the proceedings.
IT IS NOTED that publication of this judgment under the pseudonym McLaggen & Price is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 5473 of 2008
| MR MCLAGGEN |
Applicant
And
| MS PRICE |
Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application concerning a child [X] who lives in the care of the mother and sees the father on the weekends, for one overnight visit, two weekends out of three.
The parties are both unrepresented and have both attended court today, although the mother left the court before the matter came back on this afternoon. During the course of today, Mr Jackson, as counsel for the Independent Children's Lawyer, attempted to negotiate with the parties but was unable to reach any agreement.
The report of the family report writer identifies:
In my assessment both parties raised concerns to me about their mental health and functioning, and results of psychometric testing also indicated some psychological difficulties for each. [The applicant’s] presentation and admissions seem to expose a self‑absorbed nature, a distinct lack of insight into his own vulnerabilities and a strong degree of egocentricity. Although [the applicant] implied that many of his problems in recent times arose from his difficulties with the relationship with [the respondent], an objective examination of his history suggested that he has had longstanding psychological problems and substance abuse.
The report goes on to make observations about the respondent, which are also disconcerting.
The parties were ordered by me to undertake an independent psychiatric assessment on 28 December. At that time the father, at least, was legally aided and the orders provided for the parties to seek funding from Legal Aid. Arrangements were made by the father's previous solicitor for a report to be obtained and an appointment booked. The father decided that he would breach the court orders and refused to attend the psychiatric examination. The father then changed his mind, by which time the interview date had been cancelled and was not able to be reinstated on such short notice. He has since lost his legal aid finding and says that he has difficulty funding the costs of such a report.
The mother has simply not attended for a psychiatric examination at all. The independent children's lawyer has attempted to obtain funding from Legal Aid for the independent children's lawyer to fund the psychiatric assessments but has been unable to do so.
It does not seem to me that the case is in a position where I can properly determine it without at least a psychiatric report from the party who wishes to progress the matter. In this case at present that is the father.
I have set out above the issues raised by the family report writer. It is a case where, at least in the past, had the father complied with the orders and requests made of him, a report would have been obtained. He did not do so and his circumstances now make it financially difficult to obtain that report. Legal Aid is not prepared to fund such a report.
There is no real point in progressing the matter to trial in circumstances where I cannot have the proper evidence before me to deal with the matter, particularly given that in a case such as this, where the children live with the mother, significant orders may be needed to force the mother's participation in the proceedings. That would not be appropriate at least until the father had put his own house in order.
In addition, I note that today the father has attended, presenting with a fairly flat aspect, saying that he is suffering severely from fatigue, so badly that he was unable to even stand for the purpose of making submissions from the bar table. However, he says he has not attended a medical practitioner for treatment of this malady that affects him at present. The extent of such fatigue seems to me to be well outside the normal range of ups and downs and minor illnesses that people might experience and certainly calls for some degree of medical evidence about the father's current condition. That may well be addressed by the psychiatric assessment. It might also require some assessment by a specialist physician or at the very least a general practitioner.
In the circumstances I am not persuaded that there is anything more that can be done to properly deal with this case until such time as at least one of the parties has been able to provide some medical evidence from a psychiatrist as to their level of functioning.
The current interim orders are largely in accord with what Ms Neoh noted in her report. The behaviour of the parties leads me to conclude that there are risks to the children with each of them and I am not able to conclude what orders, even on an interim basis, would be better than the existing orders that are in place.
In these circumstances I am persuaded that the appropriate course is to make an order under s.91B inviting the Department of Human Services to become involved and to stay the further proceedings until either or both of the parents comply with order 4 of my Orders of 11 December 2008, and to provide liberty to apply to the Independent Children's Lawyer and the Department of Human Services so that if either of these parties believes that the proceeding should continue in the interests of the children, in the absence of compliance with those orders, an opportunity is in place for that to occur.
They will be the orders of the court in the matter. I order that the matter be removed from the pending cases list in the meantime.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 30 April 2009
0
0
1