Peter and Elspeth

[2008] FamCA 566

FAMILY COURT OF AUSTRALIA

PETER & ELSPETH [2008] FamCA 566

FAMILY LAW  -   PROCEDURE  -  parenting  -  mother terminally ill  -  question of capacity to proceed to trial

APPLICANT: PETER

RESPONDENT: ELSPETH

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBC 748 of 2007

DATE DELIVERED: 27 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 27 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr N.J. Ackman QC

SOLICITOR FOR THE APPLICANT: Murray & Associates

THE RESPONDENT: In person

INDEPENDENT CHILDREN'S LAWYER

Mr. Waterhouse,

P L Corby & Co

Orders

1. That a family report be prepared pursuant to s 65G(2) of the Family Law Act 1975 and released before 5 September 2008, the report relating to the applications for parenting orders in respect of the children of the marriage J born … January 1994 and C born … December 1998 AND IT IS REQUESTED that the report writer consider (in addition to all other matters thought relevant by her):

   (a)the views of the children and the children’s maturity;

   (b)the likelihood of a change in the children’s views in the foreseeable future;

   (c)the children’s relationship with each of the parties and with other family members;

   (d)the impact on the children of the change in residence proposed by the husband;

   (e)the viability (in terms of the children’s compliance) with orders requiring the children to spend time with or to live with the husband, and

   (f)the parties’ respective proposals for the children to spend time with the parent with whom they do not live.

2. That on or before 24 October 2008 each of the husband and wife, by letter (through a legal practitioner, if legally represented) advise the other and the Independent Children’s Lawyer with specificity of the final parenting orders then sought by him or her and a copy of each such letter be faxed within 24 hours of it sending to the Associate to the Honourable Justice Brown on fax number ….

3. That all extant applications be otherwise adjourned for mention at 9.30 am on 14 November 2008 and all parties may appear by telephone, if desired.

4. That a transcript of the hearing this day be obtained and a copy be provided to each of the parties.

5. That the reasons for judgment be transcribed and a copy provided to each of the parties.

IT IS CERTIFIED

1. That pursuant to rule 19.51 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor acting as Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  HBC 748 of 2007

PETER

Applicant

And

ELSPETH

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Before me is the father's application in which he seeks that the mother be dealt with for contravention of orders made by Benjamin J., which provide for him to spend time with the younger children of the marriage.  There is a second application, filed on 18 June 2007, in which the father sought that the parenting orders made by Benjamin J. be varied in relation to the children J and C, and that J and C live with him and spend time with their mother.  By way of response to that application, the mother, too, seeks that the orders of Benjamin J. be varied by discharging the orders which provide for the father to have time with the children.

2. In Launceston in late 2007, after hearing submissions and some evidence from a family consultant, I declined to proceed further with an interim application for a change of the children's residence at that time, leaving the contravention application and application for final parenting orders on foot. 

3. Before the court are a number of reports about the mother's health.  The mother is terminally ill.  Her cancer is currently controlled by chemotherapy which causes significant side-effects.  They include hand-foot syndrome, fatigue, dizziness, light headedness and intermittent nausea;  she has also described memory loss and insomnia.  She has experienced depression, which is not at all uncommon in an oncology patient.  The most recent report from Dr W, the medical oncologist, is that she would probably be physically able to attend court for a hearing, although one could not give any guarantee about her capacity on any particular day, having regard to the symptoms.  There is then the more difficult question as to whether she would be psychologically able to attend a hearing.

4. As the lawyers in the case know, there have been some changes in the way trials are conducted since Benjamin J. heard the first trial.  In a sense, since the matter was listed in Launceston in 2007, the court has conducted the first day, and a number of continuation hearings, under the less adversarial trial process.  Understandably, the father is pressing for the litigation to be heard;  he has not seen the children for a long time, save for two periods at a contact centre, arranged this year between his then solicitor and the mother's solicitor.  A third period of contact at the centre did not eventuate;  there seems to have been a mix-up.  No subsequent time has been spent with the children.  The parties’ eldest son recently suggested the father see the children for ten to fifteen minutes, an offer the father declined.

5. There must be a balance of the parents’ competing interests, as Mr Waterhouse has said.  The focus must remain on the best interests of the children, but they live within a social context.  I propose to order that a family report be prepared.  Under the less adversarial trial model, that would routinely be done prior to considering trial directions.  It will impose some stress on the mother, but the process can be fitted around her.  For example, she can be seen at home by the Family Court consultant if that is considered appropriate and there will be no need for the parents to be seen together.

6. When that evidence is before the court, it will be in a better position to decide the future conduct of the litigation.  Expert social science evidence will be before the court on the next occasion, and that will inform its decision about how it proceeds. 

7. I have not had an opportunity to contact the family consultant involved.  You will recall she was present in Launceston when the matter was before me there.  I will make the order for a family report and fix a return date after enquiries are made of her.  It is highly improbable that date will be within two months.  She will need to set up the interviews and fit them into her calendar, and the parties live far apart.  I make it clear that I have not determined whether, when the family report is before me, the matter will proceed to directions for trial, or whether there will be need to be further adjournments. 

8. I order that a transcript of today's mention be made and a copy be placed on the court file and given to each of the parties.

9. The father now acts for himself.  He recently wrote to the court, advising of the problems he faces and seeking assistance. While acknowledging the difficulties he faces, two things must be made clear.  First, a party who sends any correspondence to the court should send a copy of it to all the other parties.  Second, the court cannot give legal advice to a party.  The father has advised that he will be instructing a legal practitioner to act for him in the eventual trial and he may need to seek some advice from that practitioner or a community legal source.

I certify that the preceding
9 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.