Pullman and Pullman (No 3)

[2012] FamCA 1056

FAMILY COURT OF AUSTRALIA

PULLMAN & PULLMAN (NO. 3) [2012] FamCA 1056

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application – where the mother’s application for a six (6) month adjournment was dismissed – where the adjournment would cause undue delay and be an inefficient use of public resources – Naczek & Dowler [2007] FamCA 830 and Storey & Storey [2000] FamCA 1360 distinguished – where the mother sought an adjournment on the basis that she did not have the mental capacity to participate and that she wished to commence treatment for her Borderline Personality Disorder prior to the hearing – where the expert evidence revealed that any treatment would last for not less than twelve (12) months and there was no guarantee of success – where the Court found the mother likely had capacity to effectively participate in the proceedings

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Naczek & Dowler [2007] FamCA 830
Storey & Storey [2000] FamCA 1360

APPLICANT: Mr Pullman

RESPONDENT: Ms Pullman

INDEPENDENT CHILDREN’S LAWYER: Coast Law

FILE NUMBER: NCC 1740 of 2011

DATE DELIVERED: 8 November 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 8 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C. Boyd

SOLICITOR FOR THE APPLICANT: Aubrey Brown Partners

COUNSEL FOR THE RESPONDENT: Ms D. Bampton

SOLICITOR FOR THE RESPONDENT: Monardo Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Coast Law

Orders

1. The Application in a Case filed by the mother on 27 October 2012 is dismissed.

2. Any and all outstanding interlocutory applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pullman & Pullman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1740 of 2011

Mr Pullman

Applicant

And

Ms Pullman

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE

REASONS FOR JUDGMENT

1. These proceedings began in June 2011 when the father filed an application for parenting orders following the mother’s decision in May 2011 to sever all contact between the children and the father. 

2. The substantive trial began in June 2012, but could not be completed because of the mother’s acute distress, her asserted inability to continue her participation in the trial, and her successful application for an adjournment of it in a part-heard state. Interim orders were then made reversing the children’s residence. Other procedural orders were made to procure an update family report and also a single expert report from a psychiatrist, addressing the mother’s mental state. 

3. The trial was designated to resume today, Thursday 8 November 2012. The update family report and the single expert’s report were acquired and released to the parties several weeks ago.

4. On 27 October 2012 the mother filed an Application in a Case seeking that resumption of the trial be deferred for a period of “not less than six months”. The father and Independent Children’s Lawyer opposed the adjournment application and wished the part-heard trial to resume today as planned. 

5. These reasons explain why the Application in a Case will be dismissed and the trial will resume. 

The Evidence

1. In support of the Application in a Case the mother relied upon her two affidavits filed on 27 October 2012 and 7 November 2012. 

2. Neither the father nor Independent Children’s Lawyer filed any affidavit in reply. 

3. Given the nature of evidence adduced and the argument posited for the mother, it was also necessary for the Court to take into account the evidence of the family consultant in her updated family report, dated 8 October 2012, and the evidence of the single expert psychiatrist in his report, dated 17 September 2012.

The Submissions

1. Counsel for the mother explained in both written and oral submissions the dual basis of the mother’s adjournment application. 

2. It was submitted that because the mother now accepts, having read the update family report and single expert report, that she suffers from some form of psychological affliction for which she can and should be treated, firstly, the trial should be further adjourned to permit her to accept the necessary treatment “in order to be able to offer the best possible environment for the children”, and secondly, if the trial proceeds as planned without her having such treatment she may not “cope very well with the hearing” and may not be able to offer instructions to her lawyers. 

3. It was further submitted orally today that an adjournment of the trial would permit the parties to further their settlement negotiations, which are allegedly well advanced.

Conclusions

1. The single expert psychiatrist concluded that the mother meets diagnostic criteria for Borderline Personality Disorder. Such a disorder is capable of treatment by psychotherapy. 

2. The single expert explained that the mother was unwilling to acknowledge her disorder or participate in psychotherapy, but according to the mother’s evidence, she has now changed her mind about both of those things and has now engaged a psychologist to proffer certain treatment to her. It is unknown to the Court whether the treatment being proffered to the mother by her psychologist is treatment in the nature of that deemed necessary by the single expert psychiatrist. 

3. The single expert explained further that if the mother was willing to accept treatment then the designated treatment would be Dialectical Behavioural Therapy. However, two things were made plain by the single expert. There is no guarantee the therapy would be successful and the therapy is an intensive program lasting a minimum of 12 months. Those two caveats are, in my view, fatal to the mother’s application for an adjournment; whether it be for a period of six months, as pressed, or for some other arbitrary longer period. These proceedings have already been existent for 18 months in total and have involved no less than three interim events and three days of interrupted final trial. 

4. As was recognised by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (at 189-190, 211-215), avoidance of undue delay and efficient use of public resources are considerations which may transcend the interests of parties in litigation. Further, (at 223) the Court recognised that proceedings involving the interests of children generally warrant speedy resolution.

5. The mother sought to rely upon comments made by Cronin J in Naczek & Dowler [2007] FamCA 830, a case in which his Honour deferred completion of the trial for several months to enable the mother a few months within which to undertake therapy for her Borderline Personality Disorder. Significantly in that case, his Honour was concerned about how the children would cope with reversal of their residence from the mother to the father. That concern is not present in this case, in which the evidence suggests the children have settled well with the father since their removal from the mother’s care pursuant to interim orders made in June 2012.

6. His Honour was also interested to see whether, in the period of adjournment, the parties could “negotiate some form of parenting arrangement” and communicate with one another better.  Although it has been submitted to the Court that the parties are now presently attempting to negotiate a compromise of these proceedings, that is something which has developed at only the last moment, when several months have been available for the purpose of negotiations. The Independent Children’s Lawyer made cogent submissions as to why a current compromise of these proceedings may be impossible. 

7. The mother also sought to rely upon the Full Court of the Family Court’s decision in Storey & Storey [2000] FamCA 1360, in which an adjournment was granted to a self-represented husband of the hearing of his appeal because of his alleged depression. But that was in circumstances where the appeal related to property settlement, child maintenance and spousal maintenance, not parenting orders, and the evidence suggested the husband would be fit to resume the appeal within a month.

8. Undoubtedly the mother is concerned about the evidence before the Court upon which final parenting orders will be determined, but it is not a persuasive consideration that the mother is worried about a result that she would consider unfavourable. Nor is it persuasive that the mother is uncertain about her capacity to continue instructing her lawyers. She had the cognitive acumen to appreciate the significance of the single expert’s evidence, instruct her lawyers about the adjournment application, and swear two affidavits in support of the application. 

9. If the mother is unable to maintain sufficient composure throughout the trial to competently instruct her lawyers, it is further reason why the litigation should be finalised sooner rather than later, when there is no reliable evidence of her imminent recovery.

10. The Court is a forum in which disputes are determined according to law on the evidence adduced. It is not a body which has any obligation to patronise the manner in which adults live their lives, manage their parenting capacity, compile their evidence or choose to conduct their case. It is not the role of the Court to keep the litigation alive for the purpose of reprieving the mother and affording her the opportunity to improve the quality of her evidence. The Court’s jurisdiction has been regularly invoked and it should now be exercised to determine the pending proceedings.

11. The circumstances, in my view, warrant expeditious completion of the trial, given that it has already been interrupted for five months, rather than its adjournment for at least another six months.  

12. The mother’s counsel fairly acknowledged that the mother may be able to later make a fresh application for different parenting orders in light of changed circumstances. Parenting orders are intended to be final, but they are never immutable. If the mother can later demonstrate changed circumstances, such as her permanent recovery from psychological affliction, which would warrant review of the parenting orders made at the conclusion of this trial, then her fresh application can and presumably will be entertained. 

13. For now the Court will proceed to determine the outstanding substantive applications on the available evidence, which will be tested during the remainder of the trial. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Austin delivered on 8 November 2012.

Associate: 

Date:  15 November 2012