Pearce and Gough

[2007] FamCA 1617

FAMILY COURT OF AUSTRALIA

PEARCE & GOUGH [2007] FamCA 1617

FAMILY LAW – CHILDREN – Application by father to adjourn proceedings to obtain psychological report – Previous report recommended the father obtain counselling – No other evidence before the Court regarding the father’s current health – Unable to determine the matter of whether the relationship between the father and the child should be re-established – Order: that the father and the mother obtain counselling – Matter adjourned

Family Law Act 1975 (Cth)

APPLICANT: Mr Pearce

RESPONDENT: Ms Gough

FILE NUMBER: ADF 1477 of 2005

DATE DELIVERED: 5 December 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 5 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M.G. Pickhaver

SOLICITOR FOR THE APPLICANT: Pappas J Attorney

COUNSEL FOR THE RESPONDENT: Mr J. Hicks

SOLICITOR FOR THE RESPONDENT: Alderman Redman Lawyers

Orders

1. That the father undertake therapeutic counselling in relation to his emotional reactivity and management of that reactivity and do provide any counsellor providing such therapy with a copy of the reports of Ms H of OA Psychology dated 2 March 2006 and of Ms C of OA Psychology dated 14 March 2007.

2. That the mother continue therapeutic counselling in relation to her anxiety concerning the possibility of the child … born … January 2002 spending time with the father and the management of that anxiety and do provide any counsellor providing such therapy with copies of the reports of Ms H of OA Psychology dated 2 March 2006 and of Ms C of OA Psychology dated 14 March 2007.

3. That further consideration be adjourned to 9:30am on 1 February 2008.

4. That leave be granted to the father to attend the adjourned hearing by way of telephone.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1477 of 2007

MR PEARCE  

Applicant

And

MS GOUGH  

Respondent

EX TEMPORE REASONS

1. This matter was listed before me today for trial.  It is a difficult matter and the orders sought have far-reaching consequences for the child, the subject of these proceedings. 

2. The problem that has become readily apparent is that the father is not in a position to proceed, given that there is no evidence that he has presented to the court as to his current health and as to any counselling that he either has been or is still undertaking in line with the recommendations of Ms C in her report from earlier this year.

3. As I understand Ms C's position - and it would be mine as well if I was to hear this case - the difficulty is that given the history of the matter, and given the fact that the father has not seen the child for at least three years and there is no current relationship between the child and the father, should that relationship be re-established and if it should on what basis and upon what terms? 

4. The father simply has not presented the evidence that would be required for this Court to make a fully informed decision as to that important issue.

5. The father, through his counsel, indicated that he has been involved in a personal support program which provides psychological services and he is confident of being able to get a psychological report, at least, through that program. In addition, his counsel tells me that, on his instructions from the father's solicitor, a psychiatric report might very well be able to be obtained as well, depending upon funding. On that basis the father sought an adjournment of this trial.

6. I should also mention that I raised at the start of this hearing why there had not been an Independent Children’s Lawyer appointed. I do not know whether I actually got an answer to that, but the fact of the matter is there has not been and in my view there should have been.  This is a prime example of a case that requires an independent children's lawyer.

7. As I indicated when I raised that matter I was not proposing to adjourn the case for that reason but obviously, given I am now going to adjourn this case, that issue should be revisited.

8. Mr Hicks's client's position is that she wants this matter finalised.  She wants to move on with her life and know what is happening with her child and the future of her child vis-à-vis the father.  She is ready to proceed with her case but she did not oppose the adjournment on the basis that the matter could be relatively quickly re-listed as a trial.  However, I have informed the parties that that simply cannot happen.

9. I am now told by the mother's counsel that, even though the trial cannot be re-listed for some time, she still does not oppose the adjournment that I am prepared to give, which is an adjournment to a directions hearing in early February, to allow the father one last chance to sort out his position and particularly his ability to present the evidence that would be required to properly determine this matter.

10. I put it in that way because, after hearing the initial submissions, Mr Hicks referred me to the affidavit of the father filed on 25 September 2007 where the father himself deposed to what had been happening with counselling, and, frankly, not much has been happening. 

11. I became concerned about whether the father was serious about wanting to pursue counselling with a view to re‑establishing a relationship with his child.  I say that because, according to his own affidavit, he has not had any counselling since not long after the report of Ms C.  He says that is because his case manager was transferred and no replacement case manager has been appointed.

12. That is all very well, but I do not know what the father expected to happen this time around with this trial, given that he simply has not carried out the recommendations of Ms C.  In the end result, that led me to the position that I have now indicated to both parties, namely that - and to repeat - I am only prepared to adjourn it for a relatively short time, to give the father one last opportunity to sort out what counselling he can receive.

13. However, it must be from an appropriate source. It seems to me that the personal support program which is referred to in the affidavit, at first blush, is not a program which will provide the sort of counselling which the father needs according to Ms C, and which needs to occur before he can even think about re-establishing his relationship with his child.

14. The content of that affidavit also changed my mind about what I should do with the appointment of an independent children's lawyer. I now propose to leave that until the father can satisfy me that he is undertaking the counselling that is required and that the appropriate reports can be obtained, psychiatric, psychological or both.

15. In the end result I propose to adjourn this matter, but reluctantly. I am not going to go into the manoeuvres the judges in this registry have had to undertake to provide a Judge to hear this matter this week.  It has all come to nothing, which concerns me greatly for the other cases which we have had to put off, juggle and re-list, to get this matter on when it is simply not ready to proceed.

16. In any event, I cannot do anything about that now.  As I say, I propose to adjourn the matter to a directions hearing only, in early February, with a view to then being told what the father's position is in terms of counselling, the availability of reports and the like.

17. Equally, I am told that the mother has continued to undergo counselling and I am keen for that to still take place.  Indeed, I propose to make an order about that as well.  What is good for the father is good for the mother.

I certify that the preceding 17 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

5 December 2007