Patricks & Simpkin
[2008] FamCA 511
•18 June 2008
FAMILY COURT OF AUSTRALIA
| PATRICKS & SIMPKIN | [2008] FamCA 511 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Interpretation of s121 of the Family Law Act 1975 FAMILY LAW – PRACTICE AND PROCEDURE – Applicant dissatisfied with the decision of a first instance Judge and appears to be seeking to have the same application determined by a different Judge – Proper procedure is to appeal to the Full Court – Application Dismissed |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Patricks |
| RESPONDENT: | Ms Simpkin |
| INDEPENDENT CHILDREN’S LAWYER: | Nicola Callander |
| FILE NUMBER: | NCC | 3620 | of | 2007 |
| DATE DELIVERED: | 18 June 2008 |
| PLACE DELIVERED: | Newcastle |
| PLACE DETERMINED: | Newcastle (Ex parte in Chambers ) |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 12 June 2008 |
REPRESENTATION
| APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | No appearance required |
| INDEPENDENT CHILDREN’S LAWYER: | No appearance required |
Orders
Pursuant to section 121(9)(d) of the Family Law Act 1975 (Cth) the applicant is granted leave to publish to Dr M of the Area Health Service the reports tendered in these proceedings of Dr R and Dr W for the purpose of enabling him to prepare a further report having viewed those reports.
Otherwise the father’s Application in a Case filed 12 June 2008 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Patricks and Simpkin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCC 3620 of 2007
| MR PATRICKS |
Applicant
And
| MS SIMPKIN |
Respondent
And
| NICOLA CALLANDER |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Before me is an application by the father for leave to continue proceedings notwithstanding a prohibition created by an order of Justice Mullane made in this court on 23 July 2007.
On that date His Honour ordered:
“1.The father is declared under the Family Law Rules to be a person with a disability.
2.Pending further order the father is restrained from commencing any proceedings in any Court under the Family Law Act in relation to the parties’ child […] born […] March 2004 unless:
2.1he has a Case Guardian appointed for the proceedings; or
2.2he obtains the prior permission of the Court.
3.Any application for permission to commence proceedings in this Court must in the first instance be listed before a Judge in chambers without appearances, and unless otherwise ordered must not be served on any other party.
4.Pending further order the child of the parties, […] born […] March 2004 is to live with the Respondent Mother.”
Following that order application was made by the father to Justice Mullane on 26 September 2007. In his short Reasons for the order His Honour refused the application for leave since:
a)The father had not had a Case Guardian appointed
b)The evidence that he proffered to the court did not address the issue of whether under the Family Law Rules he continues to be a person with a disability.
The Family Law Rules define a person with a disability as a person who:
a)Does not understand the nature or possible consequences of the case or
b)Is not capable of adequately conducting or giving adequate instructions for the conduct of the case.
Justice Mullane found that the father falls within that definition of disability and held that he was not capable of adequately conducting or giving adequate instructions for the conduct of the proceedings.
In support of his application before me the father filed an affidavit with a number of annexures. The annexures comprised:
·a certificate that he had attended a course operated by Uniting Care on parenting dealing with behaviour of children between the ages of 0 and 8 years
·a report of a parenting testing procedure saying he was the father of the subject child born in March 2004
·a copy of an interim order made against him in proceedings commenced by Mr Keulemans who I understand to be the wife’s solicitor; and also
·a document acknowledging the receipt of a tenancy bond
and most significantly for this application he annexed:
·a report of the Area Health Service dated 17 September 2007.
This is indeed evidence which was placed before the court on 14 January 2008 as is also the report attached to his letter and dated 15 October 2008.
Upon the consideration of that same evidence Justice Mullane determined that the application failed.
I cannot as a single judge sit in appeal from the decision of Justice Mullane. It seems from the documents accompanying the application that the father has filed that he asserts that it is inappropriate (for reasons which do not in my view constitute a ground for disqualification) that this matter be heard by Justice Mullane.
It seems that what he is seeking today is to have the same application determined by a different judge.
If the father is dissatisfied with the decision of Justice Mullane or indeed my decision it is open to him to appeal that decision to the Full Court of the Family Court of Australia by leave of that Court.
It is asserted by the father that Justice Mullane’s decision was made upon the basis that the report of Dr M had been prepared without the benefit of Dr M viewing the reports previously tendered to the court of Dr R and Dr W.
The father apparently took the view that section 121 would not permit him to provide those reports to Dr M under the terms of the Act. So that the father’s concern may be set at rest, I direct pursuant to the provisions of s121(9)(d) that the father is at liberty to publish the reports of Dr R and Dr W to Dr M for the purpose of enabling Dr M to have the knowledge of those reports before providing any further report.
This direction will overcome the father’s difficulty with section 121.
Otherwise the application before me is dismissed.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.
Associate:
Date: 18 June 2008
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