Salmon and Marin

[2010] FamCA 1248

FAMILY COURT OF AUSTRALIA

SALMON & MARIN [2010] FamCA 1248

FAMILY LAW – PROCEDURE – Party refusing to comply with order for attendance for psychiatric assessment – Court entitled to proceed on notice and deal with application on undefended basis if party continues to refuse to attend for assessment

Family Law Rules 2004 rule 11.02(2)

APPLICANT: Mr Salmon

RESPONDENT: Ms Marin

FILE NUMBER: BRF 3924 of 2003

DATE DELIVERED: 7 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 7 December 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Davies
Delaney & Delaney

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hawdon

Forest Glen Lawyers

Orders

IT IS ORDERED

1. The mother’s application in a case filed 13 October 2010 be listed for further hearing at 10.00am on Monday 14 March 2011.

2. The time referred to in paragraph 8 of the orders made on 15 June 2010 for the filing of material as set out in that paragraph is enlarged until 4.00pm on Friday 14 January 2011.

3. In relation to paragraph 9 of the orders made on 15 June 2010, if the mother should not provide to the father by 4.00pm on Friday 14 December 2010 the name of a registered valuer or firm of registered valuers to be appointed as the single expert valuer in the proceedings, the father may at the trial rely on valuation evidence arranged by him and the mother may at the trial rely on valuation evidence arranged by her. 

4. The mother must attend upon Dr R, psychiatrist, at 1.00pm on Monday 17 January 2011 at Suites … Brisbane QLD 4000 for psychiatric assessment and a report. 

5. If the mother should fail to attend that appointment or if the mother or the father should fail to comply with paragraph 8 of the orders made by the Honourable Justice O’Reilly on 15 June 2010 (as enlarged today to 14 January 2011), the Court may without further notice proceed pursuant to Rule 11.02(2) of the Family Law Rules 2004 to dismiss all or part of that party’s case both as to children and property or proceed on the basis that the case against that party both as to children and property is undefended. 

6. The matter remain listed before the Honourable Justice O'Reilly at 10.00am on Monday 14 March 2011 for trial for 10 days now confirmed as fixed dates.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3924 of 2003

MR SALMON

Applicant

And

MS MARIN

Respondent

REASONS FOR JUDGMENT

1. The mother, by application in a case filed 13 October 2010, seeks several orders including that until further order the parties’ three children reside with her.

2. The children have resided with the father for a very long time now, about five to six years.  I would refer to the lengthy history of my involvement in this matter for several years, going back to mid - late 2005.

3. On 18 November 2010, I ordered in Chambers:

   1.The father must attend upon Dr [R], psychiatrist, at 11.30am on Monday 22 November 2010 at Suites […] Brisbane QLD 4000 for psychiatric assessment and a report.

   2.The mother must attend upon Dr [R], psychiatrist, at 11.30am on Monday 29 November 2010 Suites […] Brisbane QLD 4000 for psychiatric assessment and a report.

4. The father attended upon Dr R as ordered.  The mother did not attend upon Dr R as ordered.  In filed material, and by an explanation at the Bar table, the mother said that she was not able to attend upon Dr R on the date ordered because her own mother was ill and she needed to attend upon her. I accept fully the mother’s explanation for not attending that appointment on 29 November 2010.

5. The independent children’s lawyer, Ms Hawdon, has notified that she has made an appointment for the mother with Dr R at 1.00pm on Monday 10 January 2011. 

6. The mother categorically has stated from the Bar table that she will not attend that appointment, being firmly of the view that she has no need to.

7. The mother has said she will not attend on the basis that in her view she does not require assessment. 

8. The matter is such that I have observed her now over a very long period of time, and would refer to the several transcripts and orders going back at least to 15 May 2006 when I endeavoured to have a litigation guardian appointed for the mother but failed.

9. I am not prepared to hear and determine the mother’s application for an interim residence order until the mother attends for psychiatric assessment and a report, pursuant to a Court order for psychiatric assessment and report, or at least until she provides independently a report by a psychiatrist relating to recent psychiatric assessment.

10. I will order, despite the mother telling me that she will not attend, that she attend upon Dr R at 1.00pm on Monday 10 January 2011 for psychiatric assessment and a report.  The mother said to me during argument that on that date she will be available to attend, but will not attend.

11. If the mother does not attend, I will proceed pursuant to the Family Law Rules 2004, rule 11.02(2) to dismiss her parenting proceedings on 14 March 2010, without more, unless in lieu of compliance with the Court order the mother presents a report by a psychiatrist relating to recent psychiatric assessment

12. The Court, of course, has a discretion not to hear applications by people in default of its orders in circumstances of demonstrated contempt. However, in this particular case, I would prefer to proceed pursuant to rule 11.02(2).

13. In the meantime, I will list the mother’s application in a case filed on 13 October 2010 for further hearing at 10.00am on Monday 14 March 2010 on the basis that today, realistically, it is not able to be heard, and realistically cannot be heard until the mother presents for psychiatric assessment.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 7 December 2010.

Associate:     

Date:              2 February 2011