Milson and Myron
[2019] FamCA 69
•11 February 2019
FAMILY COURT OF AUSTRALIA
| MILSON & MYRON | [2019] FamCA 69 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Application dismissed. |
| APPLICANT: | Ms Milson |
| RESPONDENT: | Mr Myron |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Geysen |
| FILE NUMBER: | BRC | 3628 | of | 2018 |
| DATE DELIVERED: | 11 February 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 11 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A.B. George |
| SOLICITOR FOR THE APPLICANT: | KLM Solicitors |
| FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Mr Watt (appeared to seek leave to withdraw only) |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms K. Oakley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | CNG Law |
Orders
The Application in a Case filed by Mr Myron on 8 February 2019 seeking an adjournment of the trial listed from 11 to 15 February 2019 and the informal request for adjournment contained in an email communication to the Court dated 10 February 2019 be dismissed.
NOTATION
A.It is noted that Mr Myron was advised by email immediately following judgment delivery that his application for adjournment was dismissed and that the trial would be proceeding as listed.
B.It is further noted that Mr Watt, solicitor, appeared in person on behalf of T Pty Ltd to withdraw as lawyers for the respondent father.
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 Milson & Myron 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 BRISBANE |
FILE NUMBER: BRC 3628 of 2018
| Ms Milson |
Applicant
And
| Mr Myron |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On 4 October 2018 this matter was listed for trial to commence before me today, 11 February 2019, for five days with an additional two days set aside if the matter could not be finished.
On 8 February 2019, Mr Myron, the respondent in these parenting proceedings, filed an application for an adjournment of the trial for three months or until such time as the Court considers appropriate. His application is returnable today, the first day of trial.
It was brought to my attention earlier this morning that an email had been received from Mr Myron by the case coordinator in the following terms:
Please bring the below to the immediate attention of the Court. I advise that I am medically unfit to attend court from 11 February to 16 February 2019. I attach below medical certificate.
There is a second email sent two minutes after that one in very similar terms and there are then two documents which purport to be medical certificates. One from a Dr U dated 10 February 2019 on letterhead from the V Medical Centre, which says:
This is to certify that, on 10 February 2019, I have examined [Mr Myron] after he presented to the Emergency Department of the [W Hospital] last night and have found the patient to be suffering with a medical condition and he will be unfit to attend court from 10 February 2019 to 16 February 2019 inclusive.
Also attached to that email is another document on the letterhead of W Hospital. It appears to be the Emergency Department of that hospital, which says:
This is to certify that [Mr Myron] is unable to attend work 9 February 2019 until 11 February 2019 inclusive due to a medical condition.
And inserted in handwriting on the right-hand side, “Patient also unable to attend court”. This document is purportedly signed by an intern, Dr AA.
Mr Myron’s communication was received into evidence and has been marked as exhibit 1 in these proceedings, with the consent of both the mother and the independent children’s lawyer.
In response to the father’s email to the Court, which I have already referred to, the father was notified by the case coordinator at my direction this morning at 8.15am as follows:
Dear [Mr Myron]
I write to advise that any application for adjournment will be heard by the presiding judge at 10 am this morning. An appearance will be required by yourself or a legal practitioner. If the application for an adjournment is not successful the trial will proceed as listed.
In addition, attempts were made to contact the father by telephone and while no contact was made with him, a message was left on his voicemail to the effect as set out in that email.
I am conscious of the comments made by the Full Court in Buljubasic & Buljubasic,[1] among other things, that:
29. … I think it is appropriate to observe that in this modern day there seems to be a tendency for people to believe that it is an appropriate way to communicate with courts, or this court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial judge. Ordinarily speaking, that is not a proper way for any litigant to seek to communicate with the court. Whilst it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.
30. Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the court in person to seek that indulgence or to send a legal representative on his or her behalf to make a proper application to the court for that relief. It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made. [2]
[1] (1999) FLC 92-865.
[2] Ibid, [29] – [30].
The Full Court made it clear that one nevertheless, needs to look at particular circumstances of the case and that a decision of whether or not to grant an adjournment application is very much a discretionary matter and the trial judge must, of course, exercise his or her discretion judicially. The Full Court noted that:
…it is a discretion which is a very wide one, although, if the effect of the adjournment is likely to shut one person out from further contesting the litigation then that is a significant matter to be taken into account in the exercise of the discretion.[3]
[3] (1999) FLC 92-865, [33].
Sensibly, in my view, both the mother and the independent children’s lawyer submit that I should deal with the husband’s application seeking an adjournment as contained in his Application in a Case filed 8 February 2019 and to also have regard to the email and medical certificates which I have received into evidence. Both the mother and the independent children’s lawyer submit that the application for adjournment should be dismissed.
As the father did not appear today his name was called three times. A lawyer appeared from T Pty Ltd, a Mr Watt, who sought leave to withdraw. Mr Watt’s firm had filed a notice of ceasing to act last Friday and given that late filing, Mr Watt quite properly appeared before the Court today to seek leave to withdraw and leave was granted.
Mr Watt informed the Court that he and Mr Myron had been directors of the firm T Pty Ltd until sometime last year when Mr Myron was declared a bankrupt but that Mr Myron continues to this day to be an employee of the firm.
Mr Watt informed the Court that whilst he was content for his firm to be on the record as acting for Mr Myron, it was only ever on the basis that counsel was prepared to represent the father at the trial. Mr Watt informed the Court that Mr Myron himself has been largely responsible for the preparation of his own case though from time to time, using the letterhead of T Pty Ltd.
background
The substantive proceedings concern four children, aged 15, 14, 10 and 7 respectively. When this matter was before me in June 2018 in relation to a range of matters, including parenting issues, I made the observation that this was a family spiralling into crisis. Ms Milson and Mr Myron were married for 15 years before separating in 2015 and since that time it would be no overstatement to say that the children have endured considerable upheaval.
In 2018 an incident occurred between the eldest child, B, and the second eldest child, Z. It was of a sexual nature and resulted in B going through the criminal justice system. Not long after that, the father and B were charged with criminal offences relating to the removal of one of the younger children from the mother’s care.
As a result of those two events, B was unable to live with the mother or the father for a period of time and his residential arrangements were somewhat fluid for a number of months. He has been a very troubled boy and has been hospitalised in relation to concerns for his mental health. He has experimented with drugs. He absconded on one occasion to New South Wales in the company of a young girl and was retrieved by police. He is currently not attending mainstream school but he has returned to live with his mother and siblings. He is under the care of medical professionals.
Z has also had mental health issues resulting in several admissions to hospital. She has had a change of school last year.
The two younger children, X and Y, have fared better throughout most of 2018, although there is some evidence before me of X, in particular, now demonstrating some concerning behaviours such as nightmares.
The father is yet to be dealt with over criminal charges that have now become trespass charges. He contends in his affidavit material that the hearing will be dealt with summarily on 12 February 2019, which is tomorrow. He does not provide any evidence as to why the matter was set down on 12 February or what steps, if any, were taken to have that matter adjourned given that these proceedings have been listed since 4 October 2018.
The father is also contesting a domestic violence application for which there is a current temporary protection order. I should also note that, whilst the father’s trustee in bankruptcy was included as a party in the proceedings last year, that seems largely in relation to property proceedings that have now been resolved and the trustee in bankruptcy has taken no steps to be involved in these proceedings, which is perhaps unsurprising.
material considered in relation to the adjournment application
The father’s affidavits in relation to the adjournment application were filed on 8 February 2019. The father’s amended response, whilst headed an Application in a Case filed 16 January 2019 nevertheless sets out final orders that he seeks, including equal shared parental responsibility in relation to all four children, specific orders that the children X and Y spend time with him, and orders that affect the other two children, B and Z. There are two affidavits that seem to have been sent to the Court on 7 February 2019, both of which I have had regard to.
I have also had regard to the following material:
a)Paragraph 41 of the father’s affidavit filed 16 January 2019
b)Paragraph 54 of his affidavit filed 24 October 2018;
c)Family Report dated 30 January 2019 (exhibit 3);
d)Family report filed 22 August 2018;
e)Paragraphs 3 to 7 of the mother’s affidavit filed 31 January 2019;
f)The mother’s case outline filed 6 February 2019;
g)The five Magellan Reports, variously dated 16 May, 24 July, 21 August, 26 November 2018 and 22 January 2019 (all of which have become exhibit 4);
h)The independent children’s lawyer’s case summary filed 6 February 2019;
i)Two annexures to the father’s affidavit, JNN2 and JNN3, filed 12 December 2018;
j)Affidavit by Dr BB filed on behalf of the father on 25 January 2019; and
k)Affidavit by Dr CC filed on behalf of the father 25 January 2019.
Reasons relied upon by the father for the adjournment of the trial
The father’s affidavits in support of the adjournment relate to a number of matters.
Firstly, that his preparation for trial has been prejudiced by the inability to resolve an issue between himself and the mother relating to documents produced to the Court pursuant to a subpoena from one of the children’s schools in which the mother’s address was disclosed. Such documents were produced to the Court in December last year and on 10 December 2018 the parties were given leave to inspect and copy those documents. The father was represented by solicitors at that time, T Pty Ltd, and the Court records indicate that the father’s lawyers inspected these documents on both 11 December 2018 and 30 January 2019. The mother’s representatives did not view the material until 5 February 2019 and it was at that point that the mother requested that the documents in question be redacted so as to remove any reference to her address.
The father readily agreed to return documents to the Court for that redaction to occur but the mother then withdrew her request and indicated that she was content to proceed with the trial on the basis that the father had access to un-redacted copies of those records.
The father was not prepared to proceed on that basis because there is a pending protection order hearing and an existing temporary protection order naming the mother as the protected person and the father as the respondent which prohibits him from ascertaining the mother’s address.
I have been informed by counsel for the independent children’s lawyer that the documents in question comprise about 20 pages. Even if it is the case that the father has not viewed those documents personally, I do not see that as a matter which should cause the adjournment of this trial because he could be provided with redacted copies of those approximately 20 pages at any time while the trial is ongoing and he could have viewed those as early as this morning had he been in attendance.
The second issue the father raised as a reason for the adjournment is the mother’s alleged failure to disclose information about Z’s alleged sexualised conduct in November 2018.
Thirdly, he raises that his counsel withdrew late last week and she apparently was appearing for him on a pro bono basis. He further alleges that his solicitors withdrew late last week, and I have already dealt with that matter. Next, the father makes an assertion again in one of his affidavits that he had been assessed as not being able to act for himself and I will come to that in further detail. He further alleges that the trespass charges were being heard on 12 February 2019, that there is a contested domestic violence hearing that has not yet been set down, and some passing reference to a pending application for the appointment of an expert.
When Mr Watt appeared to seek leave to withdraw from the proceedings he informed the Court that he had spoken to Mr Myron at about 9.30am at which time the father told him that he was in his car on the way to hospital. I note that the father has appeared on his own behalf at a number of hearings before this Court and that, apart from the father having not filed a case outline, it appears that the matter is ready for trial in that the trial directions made on 4 October 2018 (and variously amended) have been complied with.
The issues identified as requiring determination at this trial are set out in the 4 October 2018 Order and are as follows:
1.With whom the children live;
2.Whether the children spend time with the father and, if so, supervised or not; and
3.Parental responsibility.
I have already referred to the father’s orders sought. The mother seeks an order that the children live with her, that she have sole parental responsibility and that the father spend no time with the children.
Applicable legal principles
Before turning to consider the particular circumstances in more detail, I note the Full Court decision of Mertens & Mertens[4] when the Court’s decision was delivered ex tempore by Kent J, and I quote:
3.The Court obviously has a wide discretion to grant adjournments but it is not a discretion which is unfettered. The Court should take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by way of orders for costs and indeed, since decisions of the High Court, for example in Aon Risk Services v Australian National University [2009] 239 CLR 175, the effect also upon the Court and other litigants before the Court of the adjournment.
…
5.Added to that which I have already observed, s 97(3) of the Family Law Act1975 (Cth) (“the Act”) imposes an obligation upon the Court to endeavour to ensure that proceedings are not protracted and the Family Law Rules 2004 (Cth) (“the Rules”) express objectives for cases to be resolved in a just and timely manner at a cost to the parties and to the Court which is reasonable in the circumstances of the case. I refer to, for example, rule 1.04 of the Rules. Notably the Rules also impose responsibilities upon parties to proceedings. For example, rule 1.08 imposes an obligation upon parties to ensure their readiness for court events, and to give notice as soon as possible of an intention to apply for an adjournment….
[4] [2016] FamCAFC 136.
I also refer to the Full Court’s observations in Kovacs & Graham (No 2)[5]:
[5] [2017] FamCAFC 249.
85.In Taylor v Taylor (1979) 143 CLR 1 at 15-16, Mason J said that it is “prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case”.
86.However, if a party chooses not to attend proceedings of which they were aware, then they have not been denied the opportunity to be heard, as Kirby J explained in Allesch v Maunz (2000) 203 CLR 172:
38.… Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant) it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40.Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties, especially children, may be affected. Additionally, as this court has itself accepted, the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
87.It is clear that a trial judge has a discretion as to whether or not to proceed in the absence of a party (McMahon and McMahon (1976) FLC 90-128 at 75,606; Buljubasic v Buljubasic (1999) FLC 92-865 at [24] and following; Barbey & Tuttle (2013) FLC 93-534 at [90] and Talbot & Talbot (2015) FLC 93-660 at [16]–[22]).
In addition to s 97 of the Family Law Act 1975 (Cth) (“the Act”), I note that under Division 12A of the Act, which applies to child-related proceedings, the Court is required to give effect to the principles set out in s69ZN and, in particular:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Discussion
The independent children’s lawyer has submitted, as already noted, that the preparation of the father’s case is not prejudiced by reason of the matter raised relating to the redaction issue and I agree.
In relation to the father’s withdrawal of counsel, it is submitted that that is not a wholly unusual event and that the circumstances relating to that are not relevant to this determination. What is of note, however, is that the father in his material says that he has contacted about 40 alternative counsel to seek their agreement to acting for him on a pro bono basis and that all of them have declined. It occurs to me, therefore, that an adjournment is not going to assist the father in finding counsel who is prepared to act for him pro bono.
In relation to the criminal proceedings, it is submitted that the trespass matter is not a criminal matter the nature of which would have a significant impact, if any impact, on the outcome of the parenting matter. I tend to agree with that submission.
In relation to the medical certificates, I accept the submission that they fall well short of what would be required for me to be persuaded that the father suffers from a medical condition of such significance that requires an adjournment. One might have thought, given that the father is a legal practitioner, that he would be acutely aware of the need for evidence of a persuasive kind rather than simply a statement that the father suffers from a “medical condition” and is not fit to attend court.
I note the evidence contained in the annexures to the husband’s affidavit filed 12 December 2018 from his treating psychologist and treating psychiatrist. The first is a letter from Dr BB dated 30 November 2018 addressed ‘To Whom it May Concern’ and she refers to the father having attended upon her that day. I note in particular Dr BB’s opinion that there were:
…no obvious indications of a major mental disorder, however he has longstanding symptoms of generalised anxiety and obsessive behaviours. I am aware that he’s experiencing very considerable stress dealing with the ongoing family and legal issues. The adversarial nature of the Court matters coupled with his diminished financial resources has led to a deterioration in his psychological wellbeing.
…
Results on the depression-anxiety stress scales indicate that he is currently quite distressed, with scores in the extremely severe range for anxiety, physiological arousal and agitation, moderate for stress, racing thoughts and worrying, and mild depression, feeling sad, helpless and hopeless. His anxiety is above the 99th percentile for Australian men. These symptoms would not impact upon his capacity to parent his children but do impact on his cognitive ability to manage his legal affairs. This is problematic, and he is attempting to self-represent, but currently lacks the capacity to manage this process. It would be in his best interests and those of achieving fair representation if he could receive some assistance in managing the Court matters.
This seems to relate to what I infer is an application that the father made late last year for Legal Aid funding and I am fortified in that view because the next annexure, dated 3 December 2018, from his treating psychiatrist, Dr CC, is in fact addressed to Legal Aid Queensland. Dr CC said at that time:
I assessed [Mr Myron] on 3/12/2018 and on the basis of this assessment I believe he currently suffers from Generalised Anxiety Disorder. This is on a background of his previous diagnosis of an Anxiety disorder with obsessional traits.
His current acutely elevated anxiety symptoms are specifically related to his current legal matters.
I therefore concur with the recent findings of forensic psychologist [Dr BB] who on 31/11/2018 assessed [Mr Myron] as having very high levels of anxiety.
I believe that [Mr Myron’s] anxiety disorder means he does not have capacity [to] represent himself in any of his current legal matters.
I note that, despite those opinions, the father has filed a number of affidavits and applications since then and has appeared on his own behalf before the registrar on 29 January 2019, and indeed represented himself on 7 December 2018 before me.
In the affidavit filed by the father in support of the parenting proceedings from Dr BB on 25 January 2019, there is no reference in her affidavit to having assessed the father on 30 November 2018.
Dr BB’s affidavit says, among other things:
I concluded that his parenting capacity was not of concern and he was fit to parent his children. In my opinion, children typically benefit from an ongoing relationship with both parents. In my opinion, there would be a low risk of emotional and physical harm if he was reunited with his children.
In Dr CC’s affidavit, also filed 25 January 2019, she sets out that she has assessed the father on 3 and 11 December 2018 and 14 January 2019. She confirms that she had diagnosed the father with generalised anxiety disorder with obsessional traits. Dr CC stresses that she has not conducted a full parenting assessment, she has not been privy to any police documents regarding any alleged offences, nor to Ms Milson’s affidavits as to her version of events. She also says that she does not have full knowledge of any claims made against the father and has only been provided with the father’s account of the Family Court matters in question. She says:
9.During my assessments of [Mr Myron], there is nothing I have seen which would indicate he poses any risk to his children’s physical or emotional wellbeing. However, as stated above, I have not completed a full parenting capacity assessment for [Mr Myron].
10.If [Mr Myron] were able to resume contact with his children, then his symptoms of anxiety and distress would likely reduce.
11.During his assessments [Mr Myron] has demonstrated a strong motivation to address his mental health issues and has been fully compliant with all medication and psychological therapies recommended by me.
12.During [Mr Myron’s] assessment on 14 January 2019, [Mr Myron] reported a significantly improved mental state. He reported his anxious cognition, sleep and obsessional worry had all improved significantly.
13.At [Mr Myron’s] assessment on 14 January 2019, [Mr Myron] also reported that he had not required any psychotropic medications for more than two weeks.
I am of course unaware whether the so-called “medical condition” of which the father is said to now suffer relates to any anxiety or mental health issues but it would seem that his mental health was vastly improved as at 14 January 2019 when he last saw his psychiatrist.
I am satisfied that the father has been afforded an opportunity to appear in these proceedings, of which he has been well aware since 4 October 2018. The father has filed material in his case, bar a case outline.
While the father acted promptly upon being made aware of his counsel’s withdrawal to apply for an adjournment that is of course only one matter that I have to take into account. As already noted, the father has made approaches to many other counsel to represent him on a pro bono basis and all declined. There is no evidence to suggest that an adjournment is going to improve the father’s prospects of being represented if his adjournment application is acceded to and I note that the father may already have applied for Legal Aid assistance.
It was submitted on behalf of the mother that the father has, on a number of occasions, made what might be considered a veiled threat that if orders are not made in accordance with his wishes there will be further proceedings. It is of course the father’s right to appeal any decision made by the Court but the prospect of appeal cannot itself warrant the adjournment.
As already noted, I do not regard the redaction of documents issued to be a basis for an adjournment. That matter can readily be addressed.
As noted, the father raised in an imprecise way something to do with the mother’s alleged failure to disclose information about Z’s alleged sexualised conduct in 2018. It is not clear to me how such a matter would warrant the adjournment of this trial, or indeed the relevance of it generally. But of course, with nothing more than a bare assertion, I am not persuaded that that is a matter which should warrant the adjournment.
The father is in a stronger position than many people who represent themselves, although I have no doubt it is a very difficult situation to find oneself in, having to represent oneself in legal proceedings, particularly with a history of anxiety as noted in the father.
As already noted, the medical certificates are of themselves deficient.
There is insufficient information before me about the proceedings that are said to be occurring tomorrow in relation to the trespass, and, in any event, if the father felt that being cross-examined in relation to such a matter might prejudice him in criminal proceedings, he could, of course, seek the issue of a certificate pursuant to s128 of the Evidence Act 1995 (Cth).
The fact that there are pending proceedings between the parties in another court under the domestic violence legislation is not of itself a reason to adjourn the proceedings. It is not uncommon for this Court to deal with concurrent proceedings relating to allegations of violence and the Court is well able to determine under the Family Law Act1975 (Cth) what relevance those matters may have to making a parenting order that is in the best interests of the children. There is no evidence before me of when that hearing is to occur and why these proceedings should be adjourned for the hearing in relation to those matters under a different Act.
As already noted there is some vague reference to some pending appointment of an expert in the father’s application. I do not know what that relates to but I note that the parties have been psychiatrically assessed by Dr Q and there have been two family reports prepared in this matter, the most recent one dated 30 January 2019.
The most significant issue, in my view, is the impact of an adjournment on the children. As already noted, that is a matter which I am required to take specific consideration by s 69ZN. At least two of these children, the two eldest ones, have had significant mental health issues last year and all four children have been subjected to considerable upheaval. There is now some evidence that the child, X is experiencing some behaviours that might indicate stress. An adjournment of this trial is not, in my opinion, going to be in their interests.
Another important factor is the impact on the mother, who is the primary carer for the children. She sets out in paragraphs 4 to 7 of her affidavit filed 31 January 2019 the impact upon her of reading the father’s material:
4.Whilst I was reading and after I completed my reading of [Mr Myron’s] affidavit, I became extremely distressed and upset such that I had an acute stress reaction. I felt unable to breathe and applied all the coping strategies that I have learnt. These strategies had little effect, so in desperation I tried eating ice to shock my system. This calmed my stress but almost instantly put me into a catatonic like state, able to talk slowly, but no energy to move. [Mr F] suggested I try the pool to ‘wake up my body’. He assisted me to the pool and I walked in, still in my clothing. As soon as I was immersed in the water, I started laughing uncontrollably. I managed to stop this after some time, only to have it change to uncontrollable crying. This then subsided and I began hyperventilating. I started to shake then and decided to move into a warm shower to try to calm down. The warm water was soothing and I sank to the bottom of the shower, turned the water off and passed out for what I believe to be approximately thirty minutes.
5.When I came to I couldn’t move my limbs and I eventually called out to [Mr F] to help me get out of the shower. He helped me to bed where I slept or 2 hours. When I woke, I heated myself some food and noticed my hands not responding in a normal way. My fingers were clenching the bowl very tightly and I couldn’t loosen them. I was unable to chew properly, and involuntary movements began to occur in my face. My mouth was opening and closing, my eyebrows were raising when I attempted to talk, but I was not talking when I wanted to. In this moment I was very scared. This state passed after approximately 30 minutes.
6.Throughout this time [Mr F] stayed with me and videoed my behaviour so that we could show a doctor the following morning. I went to see my GP the following day, and he explained that the hyperventilation caused a saturation of carbon dioxide which led to muscle spasming. This explained my inability to move, and the involuntary movements. He agreed that it was time to fill the Valium script so that I could attend to responding to [Mr Myron’s] affidavit over the following couple of days without experiencing similar response.
7.I was prescribed Valium and was verbally directed by the GP to take up to three tablets per day if required. I can provide a photo of the Valium packet dated 23 January 2019 if required by this Honourable Court.
In addition, I note Mr R’s conclusions in his most recent report, where he refers to “the crisis which has engulfed the family”. He noted that both older children had been highly depressed with suicidal angst and the risk to their welfare was the priority then and remains a priority now. In Mr R’s opinion:
[B] still presents as vulnerable, depressed and emotionally raw and there is a sense that he is trying to find some direction. A mainstay for him is the bond he has renewed with his mother.
Both B and Z have expressed very negative feelings about the father. Mr R describes the family as being:
…at a fragile equilibrium, the welfare of the older children is at a critical point, and I think the capacity of the family (particularly the parents) to manage arrangements cohesively and peacefully, is more important in this family than most, even in the highly litigious arena of this Court.
I am doubtful that this can occur here, and it is my view that the welfare of all four children will be severely compromised if their mother’s confidence and obvious capacity to care for them was weakened, and the possible benefit of them spending time with their father would be negligible if this were to be a possibility.
Mr R’s opinion is particularly relevant in the context of the mother’s response in even reading the father’s material for the preparation of this trial.
Additionally, I cannot say with any confidence when the Court could allocate a further five to seven days for the hearing of this matter. The loss to other litigants of the opportunity to have their case heard is also a factor I take into account if this matter were adjourned, and the cost to the public purse.
The overall justice of the case requires the matter to proceed, in my determination. This is a matter which is urged upon me not only by the mother but also the independent children’s lawyer, whose role it is to act in the best interests of the children.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 11 February 2019.
Associate:
Date: 19 February 2019
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