Rickard and Griffin

[2008] FamCA 1083

FAMILY COURT OF AUSTRALIA

RICKARD & GRIFFIN [2008] FamCA 1083

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

APPLICANT: Mr Rickard

RESPONDENT: Ms Griffin

INDEPENDENT CHILDREN’S LAWYER: Caroline Smith

FILE NUMBER: MLF 2650 of 2006

DATE DELIVERED: 24 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 24 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Whitchurch

SOLICITOR FOR THE RESPONDENT: Hogg & Reid

Orders

1. That all existing applications shall be adjourned to be heard before me on 30 March 2009 for four days.

2. That the Registrar shall advise the parties of a telephone mention time and date to be held in early to mid-February 2009.

3. That the respondent mother’s costs of this day thrown away shall be reserved.

4. That my reasons for judgment given this day shall be prepared with priority and forwarded by the court to the parties.

5. That the applicant and respondent shall do all acts and things requested by the ICL to apply to have the children’s names placed on a waiting list at Gordon Care Contact Centre.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2650 of 2006

MR RICKARD

Applicant

And

MS GRIFFIN

Respondent

REASONS FOR JUDGMENT

1. This case started before me on 13 February this year.  There are children's and property issues.  The children are 9½-year old B and 6½-year old T.  They have lived with their mother since their parents separated at the end of January 2006.  The property is mainly the proceeds of sale of the home, and superannuation.

2. The brief history before the case started before me is as follows.  It seems that between January and August 2006, the father saw the children intermittently.  On 8 August 2006 the wife obtained an intervention order (recently extended until 2015).  She subsequently gave permission for the father to continue to carry a firearm for work purposes. 

3. On 7 September 2006, the father filed an application for the former matrimonial home in which he was living to be sold; for shared parental responsibility; for the children to live with the mother; and for him to spend substantial time with them, primarily around alternate weekends. 

4. In October 2006, a Registrar made consent orders for the father to spend some hours several times per week with the girls, for telephone contact, and for a Family Report.

5. Psychologist Mr L prepared a Family Report on 4 February 2007, recommending that the children's time with their father be built up to alternate weekends by Easter 2007.  On 26 February 2007, the parents entered consent orders for shared responsibility and for the father, until further order, to spend alternate weekends and holiday time with the children, and to have telephone contact. 

6. On 12 April 2007, the father filed a contravention application, alleging 10 breaches of those orders by the mother.  On 27 April 2007 she filed an application seeking that there be the appointment of an Independent Children’s Lawyer, reduction in the time that the father spent with the children, and a restraint against him in relation to offensive dealings with her solicitor, it being alleged that, amongst other things, he had dumped chattels for the mother immediately outside the solicitor's office. 

7. In May and June 2007, various orders were made for a Conciliation Conference and for handovers of the children to occur at a neutral centre, at GordonCare.

8. In July 2007, the father was charged with several counts of possessing child pornography, and later with manufacturing child pornography.  He was suspended from his employment (and ultimately resigned in February 2008).  He has consistently denied the allegations that are the basis of the criminal charges.

9. On 6 July 2007 he wrote to the mother’s solicitor, saying that he would not see his children "until these matters are resolved".  He has not spent time with the children since then.

10. When the case first started before me, on 13 February 2008, it was agreed that the children's issues should be adjourned until after the father’s upcoming criminal trial. 

11. The case returned on 6 June, but it transpired that the criminal case had been adjourned part-heard to 10 June, for completion.  This case was then adjourned to the Registrar for case management purposes, awaiting the outcome of the criminal proceedings. 

12. There was a mention before the Registrar on 16 July.  She listed it before me for mention on 26 August.  On that day I was informed that the father had been found guilty on the pornography charges, sentenced to over one year’s imprisonment with six months’ suspended for two years, and that he had been registered as a sex offender.  I was also advised that he had lodged an appeal.  The appeal was due to be heard in the County Court, for three days commencing in early 2009.  I was told that within days he also faced a committal for stalking and breaching the intervention order, and then a set of charges involving alleged threats to kill the police and some other charges were due to go to a committal mention in October 2008. 

13. The father made it clear that he would fight all the criminal charges, through every avenue, including appeals for as long as it took.  In the circumstances, it became clear that an updated Family Report was needed, as to how the children were faring, and to decide if any orders should be made for the children to see their father, during what was shaping up as a much longer interim period than had been anticipated. 

14. The mother sought a psychiatric assessment of the father.  He said his treating psychologist could provide a report.  An order was made for him to produce that psychologist's report to the ICL, who could arrange a psychiatric report in the event that the psychologist's report did not address all the issues relevant to this case. 

15. The father sought a psychiatric report of the mother.  Through her counsel, she objected, but the report was ordered nevertheless.  Otherwise, there were orders to ensure that the interim children's issue could proceed today, including for relevant Victoria Police records to be released, and for the Family Report writer to have access to the psychiatrists’ reports.

16. The case was again mentioned on 9 October.  There were a number of issues arising from the previous orders.  They included payment for the various reports.  An order was made for payment from the joint funds held in trust.  There was an order for Mr L to see the parties on completely separate dates, as both parties requested.  There was an issue as to the mother keeping a particular appointment with Dr K, and that was dealt with so that Dr K could see the parties and then Mr L could have the benefit of his reports.  And the father was to serve affidavits that he had filed, on the mother’s solicitors.

17. There was an issue about the mother and her legal representatives' access to subpoenaed Victoria Police records relating to the pending threats to kill case.  The father was opposed to that access, but ultimately did not object to the release of a police summary.  An order was made to that effect.

18. Dr K’s report is now to hand, as is the updated Family Report.  Both were received quite late in the piece. Dr K expressed a number of opinions about the father’s psychiatric health.  On page 7 of his report he said that the father presented with:

    (a)A personality disorder not otherwise specified.

    (b)Marked feelings of persecution associated with anger outbursts.

    (c) There appear to be thoughts of ending his life, and his drinking to excess is part of ongoing behaviour difficulties.

19. Dr K described that the father was apparently living out of his car at present, and drinking up to a bottle of Scotch each day.  Dr K indicated that he needed psychotherapy and medication, and he described him as presenting as "a high suicide risk".  He described him as being a significant risk to some police, and that there was some risk of him acting out towards other people, such as acting with aggression and being dangerous to others.  He thought it was unlikely that that would take place, but special precautions were needed.

20. Mr L for his part in his report also expressed concern about the father’s presentation and mental health.  He said at paragraph 8.1.5:

    Whatever its root cause or duration, I think that there is little doubt now, even from my non-clinical involvement with him, that [the father] is currently experiencing intense psychological distress and exhibiting symptoms of a severe depressive episode with major impacts on his affect, cognition and personality.  This disorder needs active treatment and [the father] should seek professional help with it immediately.

21. Although Dr K had said that he could see no reason why the father could not spend time with his children, provided it was supervised, Mr L - who had previously been in favour of reintroducing immediate time between father and children - said that he now took the view that prudence suggests the need for supervision until the criminal matters are resolved.

22. Having received Mr L’s report, the father wrote to the Independent Children’s Lawyer on 20 November.  He wrote:

    In view of the apparent wishes of [the children] not to see or have contact with me in the short-term, I will make no further application in those regards. 

23. As to the property settlement, he wrote:

    Property settlement will be treated in exactly the same way as children's matters - until criminal charges are fully resolved there will be no property settlement.

24. He also wrote:

    I can advise that I will not be seeking any psychiatric treatment, and especially since that would require the use and taking of drugs of dependence.  I have seen the effects those drugs have and I will not take that path.

25. So far as the property case is concerned there have been two failed Conciliation Conferences.  The father has been adamant that the property case should not proceed until the children's issues are resolved.  There is often a logic to that approach.  In this case however, once it became apparent that the criminal charges would not be finalised for what could be a very long time, orders were made in August, in accordance with the wife’s application, to prepare the property case for hearing.  The parties separated what was then about two and a half years earlier; what is now almost three years ago.  The mother has been living with her mother and stepfather.  Her mother has been very unwell.  The mother receives no child support.  She works full‑time.  She is incurring legal costs.  There was no question that she needed resolution of the property case.  The father too was effectively shut out of the existing assets.

26. Today the father is not at court.  One option for me was to hear the case unopposed.  That would no doubt be the mother’s preference, as she is here and has been ready to go ahead.  I must balance fairness to both parties.  It would be fair to her for the case to proceed.  In my view, it would not be fair to the father.  I say that, despite the fact that he should have appeared, but did not.  I say that because the professional evidence received only at the end of last week discloses a man who is very unwell; who, without the assistance of legal representation, is genuinely not well-placed to exercise judgment or properly represent his interests today.

27. The father has written that he will not seek help.  Dr K and Mr L are obviously very keen that he do so.  It is impossible not to share that view.  I want to emphasise that the case cannot again be adjourned on this basis.  If the father again fails to appear, or if in appearing he has not done anything to seek the help advised by the experts, fairness would need to weigh in favour of the mother’s argument for the case to go ahead.

28. The next available date hear the case is 30 March 2009, for four days.  I propose adjourning the existing applications until then in order to secure that date. 

29. So far as the children's issues are concerned, the Independent Children’s Lawyer has told me today that there is a nine-month waiting list for GordonCare.  Accordingly, it is her proposal that the parties at this point do all that is necessary for their names to be put on the waiting list.  That is sensible.  Without pre-empting any future decision, it seems sensible to be moving up that waiting list, so that if things can hopefully be resolved in the course of next year, and that service is needed, there will not be any long delay.

30. So far as the property issues are concerned, Mr Whitchurch for the mother has made an application on his client's behalf for at least a partial property settlement today, to cover either the outstanding child support and $20,000 in legal fees currently outstanding, or at least for the $20,000.  I am sympathetic to the wife's predicament in having this case adjourned today.  That said, there are so many uncertain circumstances as to what will need to be addressed in the property case that at this stage I am not going to make any interim orders.

31. So far as the case management is concerned, there should be a telephone mention with the Registrar in mid February 2009.  The current court documents that have been prepared need not be wasted.  They are appropriate on the mother’s side for the case to proceed.  On the father’s side, they address various issues, although not necessarily all of the issues that he may need to address in relation to the property.  Whether or not he shall add any material can be considered in the mention before the Registrar. 

32. The mother’s costs thrown away today shall be reserved.

33. There shall be a transcript of these reasons today.  They shall be sent to the parties.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  24 November 2008