Mitchell and Mitchell (No 3)

[2017] FamCA 714

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL (NO. 3) [2017] FamCA 714

FAMILY LAW – APPLICATION TO VARY INTERIM ORDERS – Barrow Order  FAMILY LAW – COSTS – No material change to warrant variation

Family Law Act 1975 (Cth) s 117

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Mitchell

RESPONDENT: Ms Mitchell

INDEPENDENT CHILDREN’S LAWYER: Ms Garwell

FILE NUMBER: AYC 255 of 2013

DATE DELIVERED: 11 September 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 11 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr A Bak, Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Rama Myers Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Albury

Orders

1. The Barrow Order application filed by the father is adjourned to 11am on 27 October 2017, for a period of up to two hours.

2. The wife is to file and serve all material she seeks to rely upon 21 days in advance of that date.

3. The father is to file any material strictly in reply that he seeks to rely upon seven days in advance of that date.

4. Each party’s costs of today are reserved for determination on that date should either of the parties maintain their application for costs.

5. In this matter the parties have jointly accepted that the factual issues for determination at trial are those as reflected in the document prepared by the Independent Children’s Lawyer filed 28 July 2017, headed “Factual Issues for Determination at Trial”.  Having examined the matters that are set out there I determine that these are the factual issues for determination at trial.

6. The parties are restrained from filing evidence in this matter that falls outside the factual issues for determination at trial and evidence that falls before the hearing of the previous trial before Judge Harman.

   IT IS NOTED THAT

7. The parties accept that they will be bound by the factual findings made by Judge Harman as to those matters that occurred before the hearing before Judge Harman, the parties accept that this Court will not be bound by the discretionary outcomes arrived at by Judge Harman.

   IT IS FURTHER ORDERED THAT

8. The parties are restrained from leading evidence as to any matter occurring before the hearing of the matter before Judge Harman.

   IT IS NOTED THAT

9. The father is contemplating engaging with a treating practitioner as recommended by the Single Expert, as set out in recommendations 5 through 10, as made by the Single Expert.

10. It is unclear whether the father will be able to do that at this point, in particular given that he has limitations in his ability to fund such attendances.

    IT IS FURTHER ORDERED THAT

11. To facilitate the father’s engagement with treating practitioners, and noting that an occasion may arise where the father will seek to rely upon their evidence in Court, such matter to be dealt with at the relevant time, I make orders in accordance with Order 11 in the father’s Application in a Case filed 31 August 2017 with the following additions.

    11.1 Before providing the report to any mental health practitioner, the father’s solicitor is to notify the mother’s solicitor and the Independent Children’s Lawyer of the identity and contact details of the father’s mental health practitioner;

    11.2If the mother’s solicitor or the Independent Children’s Lawyer object to the provision of the report to the father’s mental health practitioner, they shall be at liberty to file an Application in a Case to deal with that issue on short notice.  If such an Application is filed then the father’s solicitor must not provide the father’s mental health practitioner with a copy of the report;

    11.3The father’s solicitor must tell the father’s mental health practitioner, in writing, that the father is not to be provided with a copy of the report and the individual is not permitted to make any further copies of the report;

    11.4The father is restrained from obtaining a copy of the report from a mental health practitioner.

    IT IS NOTED THAT

12. The Independent Children’s Lawyer seeks a listing of this matter for trial.  At present a trial date is unable to be allocated.  A trial date may be allocated when the matter comes back before the Court on 27 October 2017.

13. The parties will need to be in a position on that date to identify the evidence that will be called in the trial and the duration of the trial.

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 Mitchell & Mitchell (No 3) 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 CANBERRA

FILE NUMBER: AYC 255 of 2013

Mr Mitchell

Applicant

And

Ms Mitchell

Respondent

REASONS FOR JUDGMENT

1. The matter was listed today for the potential dealing with a Barrow Order to enable the husband to fund his litigation.  The requirements set out before the matter was to be heard today were that the filing would happen in a timely manner, such as to allow all parties to have a proper opportunity to file material.  It is not clear whether or not at this stage that condition has been met. 

2. The wife was served with an application on 31 August 2017.  She asserted that this was the first point that she was on notice that the application would be pursued and that there has been insufficient time for her to have adequately prepared for the matter.  If that was the first proper time at which she was on notice as to the application going ahead, then it is reasonably arguable that that timeframe would have been too tight to enable her to prepare adequately for the case.

3. For the husband, it is put that the wife was on notice at an earlier date consequent to correspondence to her solicitor, presumably received by her solicitor on 10 August 2017, wherein it was asked whether or not the wife would consent to any order to allow the release of funds to the husband so that he could pursue the litigation.  A component of that correspondence indicated that if the wife was not to consent to the release of any funds then the Barrow Order application would be pursued today. 

4. Hence, it can be argued that the wife was on some notice that an application would be made, but of course at that stage was not on notice as to the material that might be relied upon for that application.  Consequently, it is an open question at present whether or not the timing has been sufficient to allow a response to be made.

5. An application is made for adjournment by the wife and in the absence of material filed by her, and with the open question as to whether or not she has had an adequate opportunity to answer the husband’s material, it is in the interests of justice that an adjournment be granted.

6. A question of costs has arisen in relation to today’s proceedings.  The wife seeks indemnity costs against the husband on the basis that she was given insufficient notice and that the husband did not consent to an administrative adjournment.  The husband, I take it, also seeks his costs from today, although a formal application has not yet been made.

7. The costs of today will be reserved to the next occasion in part because there is insufficient material to deal with the matters under s 171.  One of the live matters to be dealt with in considering whether or not any costs order should be made or whether the usual Rule should be followed will be the question of the degree of notice that the wife had to prepare for the proceedings.  At this stage it is premature to make a finding firmly one way or another in respect of that particular matter, and therefore in respect of the wife’s ability to properly prepare for today’s proceedings.

Change to Interim Orders

1. In this matter an interim judgment was delivered on 16 May 2017 following a hearing date on 8 May 2017 in relation to whether the father would be able to spend time with the children.  The material before the Court on both occasions (as in on 8 May and now) indicates the significant likelihood that the father suffers from psychological or psychiatric fragility.  While orders were made that enabled him to have access to the Single Expert’s report in advance of the interim hearing, he indicated to the Court that he would not be reading that report.  He has subsequently engaged a lawyer and by virtue of the affidavit material that is before the Court it appears that he has had some ability to consider the contents of that report.  Against that, the highest at which a change in circumstances is advanced is that the father now has a willingness to engage in supervised time with the children. 

2. Objection is taken on behalf of the mother in particular as to whether or not the matter should be able to be re-litigated on an interim basis at this point.  The context of that re-litigation is that the matters have been recently determined in May of this year and in the reasonably close future, that is, within the next 12 months, it is hoped that a final hearing will be reached to deal with what the arrangements should be. 

3. The case of Rice & Asplund[1] is the seminal case dealing with the reopening of proceedings.  It of course has a different application in relation to interim proceedings as in relation to final proceedings but it is observed to be an expression of the best interests principal.  In crude terms, the role in examining an application through the lens of Rice & Asplund is as to whether there is a sufficient change in circumstances as to mean that the children’s best interests warrant a re-opening of the matter as against the detriment of the conduct of further proceedings. 

   [1]Rice & Asplund (1979) FLC 90-725.

4. Here the change at its highest is a willingness to undergo professional supervised time in the context where the father has now examined the Family Report that was available to him on the last occasion.  At this stage, absent other factors going towards a change in circumstances, it appears that he has not crossed the Rice & Asplund threshold to establish that there is a sufficient change in circumstances to warrant the re-litigation of this matter.  This of course does not shut him out in the medium term or in the longer term depending on how long it takes for the matter to reach a final hearing.  It is conceivable given the nature of the matters that have been raised in the Single Expert’s report that the father is dealing with those matters to the extent that he is able to do so, and this, acknowledging that he is hampered in doing so at present by reason of his financial circumstances, may open the door for a further consideration of interim proceedings to be made.  That is not the case at this point and his application is refused in relation to further consideration of the interim children’s proceedings at present. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 11 September 2017.

Associate: 

Date:  13 September 2017