Peter and Elspeth (No. 2)

[2007] FamCA 843

FAMILY COURT OF AUSTRALIA

PETER & ELSPETH (NO 2) [2007] FamCA 843

FAMILY LAW  -  children – contravention applications  -  respondent’s health in issue  -  case-management.
FAMILY LAW  -  children – interim and final orders sought – case management

Family Law Act 1975 (Cth)

HUSBAND: PETER

WIFE: ELSPETH

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBC 748 of 2007

DATE DELIVERED: 3 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 3 August, 2007

REPRESENTATION

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

SOLICITOR FOR THE HUSBAND: Temple-Smith Partners

COUNSEL FOR THE WIFE: Mr McGuire

SOLICITOR FOR THE WIFE: Murray & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Waterhouse

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: P.L. Corby & Co.

Orders

1. That on or before 28 September, 2007 the wife file and serve expert evidence relating to her then current diagnosis, treatment and prognosis including but not limited to, her capacity to be directly involved in litigation, in the course of which she would be required to :

   (a)give instructions to legal practitioners, prior to any court hearing and in the course of that court hearing;

   (b)attend (whether by electronic means or in person) a court hearing (noting that the court routinely sits from 10:00 am. to 1:00 pm. and from 2:15 pm. to 4:15 pm.);  and

   (c)to give oral evidence and be cross-examined.

1. That the following applications be otherwise adjourned to 22 October, 2007 at 10:00 am. or such earlier date as is advised:

   (a)contravention application filed by the husband on 31 May, 2007;

   (b)contravention application filed by the husband on 15 June, 2007;

   (c)form 2 application filed by the husband on 15 June, 2007;

   (d)form 1 application filed by the husband on 18 June, 2007;

   (e)form 1A response filed by the wife on 13 July, 2007;

   (f)form 2A response filed by the wife on 13 July, 2007 (save paragraph (1) which has been determined and paragraph (7) which is not pressed);  and

   (g)form 2 application filed by the wife on 13 July (save paragraph (1) which has been determined).

1. That the venue of the hearing on the adjourned date be advised by the Court to the parties no later than seven days prior to the adjourned date.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as Peter & Elspeth.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: HBC 748 of 2007

PETER

Husband

And

ELSPETH

Wife

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Benjamin J. having disqualified himself from further involvement in this case, I have been asked to manage the continuing litigation.  For that reason, I listed it for mention this morning.

1. Counsel summarised the outstanding applications, as follows :

   ·a contravention application filed by the father on 31 May;

   ·a second contravention application filed by the father on 15 June;

   ·a form 2 filed by the father on 15 June in which he seeks an interim change of residence;

   ·a form 1 application filed by the father on 18 June in which he seeks final orders in essentially the same terms as those sought in the interim application;

   ·a form 1A filed by the mother on 13 July in which she seeks the suspension of the existing orders for the father to spend time with the children and that she have sole parental responsibility for the children;

   ·a form 2A filed by the mother on 13 July in which she seeks orders in the same terms as those in the form 1A;

   ·a form 2 filed by the mother on 13 July in which she sought that Benjamin J be disqualified and a stay of the contravention applications until the father's applications for a change in parenting orders is dealt with.

2. I add that an application by the mother seeking that Mr. CH, psychologist, have no further involvement in the case was not pressed, the Court being advised that, sadly, Mr. CH himself is unwell and is no longer in practice. 

1. I note that the Full Court has yet to determine the sanction to be imposed on the mother in respect of an earlier contravention found proven.  On 5 July, 2007 it set aside the sanction imposed by the trial judge and put in place a filing regime for submissions on that point and on costs.  It is improbable the Full Court will not sentence the mother until September. 

1. As I have made clear, I would not be prepared to hear the two outstanding contravention applications until aware of the sanction imposed by the Full Court, basic sentencing principles requiring that to be taken into account (were another contravention proven) when determining subsequent sanctions. 

1. Further, I am satisfied the contravention applications and the outstanding interim applications must be adjourned until the Court has some current evidence about the mother's health.  Before me is an affidavit sworn by Dr B on 28 May 2007.  He swore then that the wife's survival time was short;  her cancer is inoperable.  He said it was uncertain whether she would respond to the treatment she was about to undertake;  if she did not respond then, within a reasonably wide range, he estimated her life expectancy at about three months.

1. I am told, and accept, that the mother is not well enough to be present today.  As I understand it, she is undergoing chemotherapy.  In my judgment her state of health and, in particular, her capacity to take part in litigation must be established before the Court could proceed with the contravention applications.  The father presses the contravention applications; I understand his concern.  He has had no contact with the two youngest children (indeed, with the three children under 18) since the end of May and, from his perspective, every week that passes has the potential to damage his relationship with them.  However, a contravention application cannot be heard in the absence of the respondent.  He or she must answer the charge, hear the evidence, and be able to give evidence, if desired.  An appearance could be by phone or video but a capacity to engage with the litigation is essential. 

1. I do not propose to determine the stay application today as I am satisfied that would be premature.  That application may be overtaken by other events.  I will require the wife to file and serve expert evidence by 28 September relating to her then current treatment and prognosis, and her capacity to give instructions, attend a hearing and give evidence. 

1. I will otherwise adjourn the further hearing of all applications to 22 October and direct that a family consultant be in attendance that day.  I will then hear any submissions arising from the medical evidence, and determine the order in which applications are heard, if able to proceed.  It may be best to move the applications for final parenting orders towards hearing.

1. I make it clear, that I have not yet determined whether a family court consultant or an external expert should prepare any fresh family report.  But the application for final orders was filed after 1 July, 2006 so the less adversarial procedures apply.  I am satisfied a family consultant should be in court on the adjourned date to give such evidence as is required by the judge and, indeed, advice to the parties, if the judge thinks that appropriate. 

1. As there is a possibility (no more) that 8 October may be available, the order will adjourn the case to 22 October or such earlier date as is advised.  If it were an earlier date, it would be 8 October.  My associate will confirm the date, and the venue.

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

Dated the           day of            2007.

…………………………………………
Associate.