Morrissey and Morrissey (No. 2)

[2008] FamCA 807

FAMILY COURT OF AUSTRALIA

MORRISSEY & MORRISSEY (NO. 2) [2008] FamCA 807

FAMILY LAW – PROCEDURAL – Case management orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Morrissey

RESPONDENT: Ms Morrissey

FILE NUMBER: DGC 3488 of 2007

DATE DELIVERED: 28 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms B.M. Phelan

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr D. Crabtree

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN'S LAWYER COUNSEL Ms J.S. Elleray

Orders

1. That all extant applications be adjourned before me at 9 am on 29 September 2008.

2. That if the wife fails to comply with paragraph 6(b) and 7 of the orders made on 15 April 2008 the husband have leave to seek a recovery order on an oral application without affidavit material at the hearing on 29 September 2008.

3. That the final hearing of the parenting applications continue to finality (part-heard) commencing on 19 January 2009 at 10 am (three days are allocated).

4. That the husband and the wife attend upon and follow all lawful directions of the psychiatrist nominated by the Independent Children's Lawyer for the purposes of a psychiatric assessment including an assessment as to any issue which may affect their respective parenting capacities.

5. That each party forthwith do all things necessary to seek funding for said psychiatrist reports from Victoria Legal Aid. 

6. That if Victoria Legal Aid declines funding and as a consequence, the assessments cannot be undertaken, the issue of such assessment be listed for determination before me on 29 September 2008.

7. That on the resumed final hearing in January 2009, if any party desires the attendance of the family consultant for the purposes of cross-examination, that party advise the Independent Children's Lawyer who in turn shall make arrangements for the family consultant to give evidence by telephone.  The date by which that notice shall be given to the Independent Children’s Lawyer shall be 19 December 2008.

8. That the husband file and serve any affidavit upon which he intends to rely by 4 pm on 28 November 2008; such affidavit(s) be confined to:

   (a)       the proposals he wishes the Court to contemplate;

   (b)the matters relevant to equal shared parental responsibility and the factors set out in s 60CC(2), (3), (4) and (4A) of the Family Law Act 1975 (Cth); and

   (c)any matter of an historical nature relating to family violence and anti-social behaviour of either the wife or himself with precise particularity.

9. That the wife file and serve any affidavit upon which she intends to rely by 4 pm on 19 December 2008 such affidavits be confined to:

   (a)       The proposals she wishes the court to contemplate.

   (b)The matters relevant to equal shared parental responsibility and the factors set out in section 60CC(2), (3), (4) and (4)(a) of the Family Law Act 1975 (Cth); and

   (c)Any matter of an historical nature relating to family violence and anti-social behaviour of either the wife or herself with precise particularity.

10. The Independent Children's Lawyer file and serve any affidavit of any psychiatrist or other professional witness by 19 December 2008.

11. That each party provide:

    (a)       A summary of argument in bullet point form.

    (b)       A list of documents to be read in evidence.

    (c)A precise list of orders sought if those orders are different from either the application/response document or the affidavit of evidence‑in‑chief.

    and such documents are to be filed and served by Friday, 17 January 2009.

12. That paragraph 3 of the orders made by O'Dwyer FM on 23 August 2007 be amended to add and include the surname WE to that order.

13. That my associate provide a copy of this order to the Australian Federal Police drawing their attention to paragraph 12 of these orders, with a request that the Airport Watch List be amended accordingly.

14. That the husband spend time with the child J from 4 pm on Saturday, 3 January 2009 until 4 pm on Sunday, 18 January 2009.

15. That, for the purposes of changeover in relation to paragraph 14 of these orders, the husband collect the child J from the wife at the base of the overpass to the railway station at the domestic terminal of Brisbane Airport at the commencement of the period and return the child J to the wife outside of this court at 305 William Street, Melbourne at the conclusion of the said period.

16. That all parties have leave to issue such subpoenae as they may be so advised.

17. That during the period referred to in paragraph 14 of this order and paragraph 6 of the orders made 15 April 2008 the husband do all things necessary to ensure that the child J is in his care and not left in the sole care of Ms B.

18. That my reasons for judgment this day be transcribed and copies be made available to all parties.

19. That my Associate make approaches to the Brisbane Registry and arrange for the return to Melbourne of all material produced under subpoena used for the purposes of the family report.

20. That by 4.00pm on 5 September the wife advise the Independent Children’s Lawyer of the name of her psychiatrist and sign any authority prepared by the Independent Children's Lawyer to the psychiatrist to provide information about the wife's mental health and treatment.

IT IS NOTED that publication of this judgment under the pseudonym Morrissey & Morrissey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3488 of 2007

MR MORRISSEY

Applicant

And

MS MORRISSEY

Respondent

REASONS FOR JUDGMENT

1. Today was to have been the first day of a less adversarial trial between Mr and Mrs Morrissey.  I'll refer to them as the father and the mother for no other reason than my own convenience.  This case has been in the system since August last year and, looking at the size of the file, it desperately needs a permanent resolution.  That was one of the reasons why I ensured that it was listed today as the first day of a less adversarial trial. 

2. Orders provided for the parties to complete the necessary procedures to file the questionnaires, and I have both sides' documents.  It is to those documents that I shall turn.  The parties were before the court in April of 2008 at which time a number of orders were made.  Two significant orders were that if anybody wanted to make an application for an expedited final hearing they could do so, and specifically the order provided for the father to do that.

3. The second significant order was that the parties consented on that day to an order pending final hearing that covered school holidays in the June-July period and in the September-October period of 2008.  The orders were consented to and they were quite specific.  Paragraph 7 of the orders provides for the changeover to be at the base of the overpass to the railway station at the domestic terminal at Brisbane Airport.  The orders made by the registrar as a result of the referral by me to her included the completion of a section 62G report by a family consultant. 

4. The mother in this case is living in Queensland.  The court organised for the family consultant in Brisbane to undertake the report, and that has been delivered to me on 7 August.  I'll turn to the family report in a moment but what I have been told is that of the contact period in the June, July period of the order to which I've just referred, that coincided with the time that the family consultant was undertaking the task.  So, to that extent, the contact by the father occurred.  There is now some concern that the next period of time, which is September, may not occur. 

5. That gives rise to the question of what has occurred this morning.  I was provided this morning with a facsimile from the mother's practitioners, annexed to which is a medical certificate on a Queensland Health letter head from a Dr J from B in Queensland.  That refers to two things of some concern.  One is that it relates to a child, H WE, and that indicates to me that the mother is certainly using that name, notwithstanding that is not the name used for the child J.  I'll come back to that in relation to the Passport Watch issue. 

6. The second issue is that the certificate refers to the fact that H has been admitted to hospital and is on IV fluids and antibiotics.  The report says that it is imperative that the child should be in hospital for ongoing care and that the child needed her mother.  The obvious conclusion was that the mother could not attend court.  This is a case where previous orders have been made that the mother was to attend the hearing. 

7. Ms Phelan, on behalf of the father, has indicated to me today some concern about the use of the WE name because of the fact that the Passport Watch order relates to the children under the name of Morrissey.  I propose in the circumstances to ensure that there are no further problems, at least on an interim basis, to make further a order that provides for the Passport Watch order to be extended to include the surname WE in respect of the children.

8. Mr Crabtree appears on behalf of the wife.  There was little he could do or say in relation to the trial proceeding, having regard to the absence of instructions.  It's all very well to be able to deal with matters over the telephone but in a trial, particularly a less adversarial trial, it is imperative that the parties be present because on the first day of the trial they are sworn and need to give evidence.  I appreciate very much, with the medical certificate that I have, that the mother may not have been available in any event, but I adjourned the proceedings temporarily and Mr Crabtree has told me that the child has been released from hospital this morning and he spoke to the mother who was at home.  To that extent, even if she was at home, I really could not deal with the matter in a comprehensive fashion by telephone.  So I have decided to adjourn the proceedings to early January so that I can conclude the hearing, now that I have most of the evidence. 

9. The family consultant has done a very comprehensive report.  It is one that I don't propose to refer to in any detail.  That is a matter that can be dealt with on the return date.  What is clear from what Mr Crabtree told me is that the mother is not at all happy about what is said in the report.  That is a matter that can be sorted out by cross‑examination.  In paragraph 9 of the report, the mother indicated very clearly to the family consultant that she did not support J having any visits with the father.  In the recommendations that Mr C has made, he says that the court might find it useful before making final determinations to have current psychiatric assessments of both mother and father.  There is a typing error in respect of that but it is quite clear to everybody what the family consultant means. 

10. Reading the background of this case and the report, I'm not terribly sure why an assessment of the father is necessary but I think it might be useful if he undertakes that as well as the mother.  During the break to which I have referred, Mr Crabtree got instructions from the mother and she will agree to the psychiatric assessment but the independent children's lawyer, who will need to organise it, must take into account that she is some considerable distance from Brisbane.  It may very well be that the Queensland Health Department can provide someone a bit closer to the mother.  The father can have his assessment done here by somebody else.

11. What Mr C recommends is that after the psychiatric assessment is completed that:

    Provided the court is not aware of clear risk to the contrary, I would suggest that [J] continue to spend time with her father for no less than one week during each school holiday period and communicate with her father by telephone no less than once per week.  Spending time with to be on the condition that [the father] is present and [J] is not left in [the father’s] partner's sole care. 

12. Mr C also goes on to recommend that the other two children not be required to spend time with the father unless they so request.  It is clear, therefore, that the orders to which the mother consented in April this year are in line with the recommendations of the family consultant.  Whilst the indication is that the mother is not happy with the report, it is hard to see how she can complain about the recommendation, having regard to what orders she consented to in April this year. 

13. It is important to also note that in the recommendation that I have just referred to, the family consultant uses the words "for no less than one week".  That gives rise to the problem of the forthcoming holidays in September and then the holidays subsequently in the Australian summer.  Ms Phelan indicated to me this morning some concern about whether or not the mother would comply with the orders from April relating to the September school holidays.  Mr Crabtree, in a very candid way, has indicated that when he raised the subject with his client she said that there was something about a wedding that she was desirous of going to and, quite properly, he has indicated that she has not only consented to orders but they are orders of the court and the mother is bound by them until such time as the court orders otherwise. 

14. On what I have read, there is certainly no basis that I can see that I could vary or discharge those orders.  I take that issue seriously because when I look at the questionnaire that the mother has filed on 14 August there is nothing particularly in there that would indicate to me a basis either interim or urgent, to discharge that order.  To that end it is abundantly clear that the mother is bound by the order and I would expect her to comply with it.  Insofar as she may have any hesitation about that, I am proposing to list the matter on the last Monday in September, which is the middle of the school holidays, before me. 

15. If the order is not complied with, I would have no hesitation in issuing a recovery order on that day and, more importantly, that would have a very significant impact upon the ultimate determination of the substantive proceedings.  The mother would have a very significant task in convincing me that serious parenting orders would not have to be made to ensure that the relationship between J and her father continues. 

16. I turn then to the question of the summer holidays.  There are no orders in existence for the summer holidays and I have absolutely no confidence that the parties could communicate sufficiently well to be able to work that problem out.  In that sense the parties need to have some orders in place.  It seems to me, having regard to the recommendation of Mr C, that orders should be for a two-week period.  The period of time that seems most logical is that commencing in 5 January because, at the conclusion of the period of two weeks, I can then resume the defended hearing on 19 January 2009.  By that time the parties will have some evidence before me and also have completed the psychiatrist assessments that I am proposing to order.

17. Mr Crabtree, in his candid way, indicated some concern about the capacity of his firm to be continuing in the proceedings, having regard to his obligations to Victoria Legal Aid who are funding the mother's case.  It is one thing for the mother to say she is not happy with the report; it is another thing entirely for her to bury her head in the sand and not participate.  I intend to hear this case to its conclusion.  It is a significant part of every parenting case that both parents provide all of the information about the welfare of their children so that I can determine which of the respective proposals best suits the children's futures.  I now have the evidence of the family consultant and I will wait to see what the psychiatrist says about both of the parents. 

18. If the mother's position is that she does not follow the recommendations of her lawyers, that is her prerogative, and I clearly understand that Victoria Legal Aid may then cease funding her.  Whether she is represented or not makes no difference.  Legal representation is a privilege, not a right.  If she chooses not to fulfil her obligations to Victoria Legal Aid, then she will have to face the court by herself.  The absence of her lawyers will not obviate the necessity for her to comply with the procedural orders that I am now proposing to make in relation to filing information in affidavit form on the dates that I set.  If either party fails to comply with the orders, either in respect of the assessment by the psychiatrist or, more importantly, the filing of the affidavit evidence, then I will presume that they do not wish to participate in the proceedings and I will do the best I can on an undefended basis with the information that I have.

19. For those reasons I propose to make some orders. 

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 September 2008