SHORETSKY & SHORETSKY

[2015] FamCA 991

FAMILY COURT OF AUSTRALIA

SHORETSKY & SHORETSKY [2015] FamCA 991

FAMILY LAW – PRACTICE AND PROCEDURE –adjournment of parenting proceedings – family consultant recommended assessment by Department of Health and Human Services– whereabouts of the eldest child is unknown – second eldest child not attending school – mother not in attendance at court without explanation – oral application by father for leave to make an oral application for interim parenting order refused.

Family Law Act 1975 (Cth)

Donnelly &Donnelly [2000] FamCA 1789
Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Shoretsky

RESPONDENT: Ms Shoretsky

INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

FILE NUMBER: MLC 390 of 2013

DATE DELIVERED: 15 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 23 April 2015

REPRESENTATION

APPLICANT: In Person (with the assistance of an Interpreter)

THE RESPONDENT:	No appearance
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

Orders

IT IS ORDERED THAT

1. Leave be granted to the father to make an oral application for interim orders to spend supervised time with the children and such application is refused.

2. The father’s oral application for leave to make an oral application for interim orders to spend supervised time with the children is refused.

3. All applications for final orders be adjourned for hearing before Justice Thornton on 18 August 2015 at 10.00 am as a two day matter and that the evidence in chief of all witnesses be given by affidavit.

4. As soon as practicable, the Department of Human Services (“the Department”) IS REQUESTED in accordance with s 69ZW of Family Law Act 1975 (“the Act”) to forthwith provide the Court with documents, records or written information in respect of the children B born … 2000, C born … 2004 and D born … 2005 (“the children”) arising from:

   (a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child/ren;

   (b)any assessment by the agency of investigations into a notification or that kind or findings or outcomes of those investigations; and

   (c)any reports commissioned by the agency in the course of investigating a notification

   AND IT IS FURTHER REQUESTED that any such documentation or report be sent to the Court as soon as practicable, following its preliminary investigations in relation to the children, AND IT IS NOTED THAT in accordance with s 69ZW(3) of the Act nothing in this order is to be taken to require the agency to provide the Court with:

   A.documents or information not in the possession or control of the agency; or

   B.documents or information that include the identity of the person who made a notification.

5. The Department have liberty, upon application to the Registrar, which may be made by letter sent to the Registrar, to search and take copies of the documents on the Court file in relation to the said proceedings.

6. The Independent Children’s Lawyer and each of the parties be provided with a copy of any information produced by the Department pursuant to s 69ZW of the Act and provided to the Court, if deemed appropriate by the Registrar.

7. The reasons for the decision made this day be settled and provided to the parties forthwith.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shoretsky & Shoretsky 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 MELBOURNE

FILE NUMBER: MLC 390  of 2013

Mr Shoretsky

Applicant

And

Ms Shoretsky

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These parenting proceedings were listed on 23 April 2015 for a two day trial.  There are 5 children of the marriage, two of whom are adults.  The children the subject of these proceedings, are B, aged 15, C aged 11, and D aged nine. (“the children”) The mother did not attend the hearing and had failed to attend appointments with the children to be interviewed by the family consultant.  The parties separated in May 2011 and the father has not seen the children since then.

2. Before me was the question of whether the trial should be adjourned and if so, whether the father should be granted leave to make an oral application for interim orders that the children spend time with him.

3. The matter proceeded by way of oral submissions and after giving brief reasons and making the orders, I indicated that I would publish written reasons and these are my reasons for judgment.

4. In untested evidence the family consultant reported that B’s whereabouts are unknown and that C is enrolled in primary school but has attended only one day of school this year.  The Department of Health and Human Services (“DHHS”) had begun an investigation but no information was provided to the court.

5. The father, who was self-represented, sought to proceed with his application to spend time with the children. This was opposed by the Independent Children’s Lawyer.

6. The Independent Children’s Lawyer was ambivalent about whether the proceedings should be adjourned to obtain information about the children from DHHS or whether the matter should proceed on the limited evidence available. The Independent Children’s Lawyer had not interviewed the children. The report of the family consultant recommended that the proceedings be adjourned to obtain this information.

Background

1. The parties were married in 1988 and separated in May 2011. 

2. The father consented to an intervention order in favour of the mother and children in the Suburb E Magistrates’ Court in November 2012 as a result of a complaint by the mother.  The father consented to the order without admission as to the allegations in the complaint.

3. These proceedings were initiated by the father in the Federal Circuit Court by application filed 22 January 2013, seeking to spend time with the children

4. The mother was required by order to file a response within seven days.  She never did.

5. Judge Connolly in the Federal Circuit Court dealt with this matter on a number of occasions and ordered a family report and the appointment of an Independent Children’s Lawyer.  On 3 September 2013 the mother was ordered to attend a mediation conference with Victoria Legal Aid and a further family report was ordered.  Concerns were raised by the family consultant about the mental health of the father and family violence.

6. Judge Connolly transferred the case to the Family Court of Australia on 28 January 2014 with a notation that the husband’s “capacity” to conduct the litigation was “somewhat uncertain”.  It would appear that no interim application was made by either party.

7. Earlier interim orders had been made by consent between the parties for the children to live with the mother and both parents to enrol at a contact centre.  However, the interim consent order drawn by the parties’ lawyers provided the following:

   That supervised time at the contact centre not commence without the written agreement of the parties or order of the Court.

8. The parties appeared unrepresented in this Court, before Justice Cronin on 16 April 2014.  The hearing concerned an application by the father to expedite the proceedings to a first day hearing before a Judge. The mother explained to his Honour that she had not filed a response because she had to care for her mother, who suffered dementia, and because of her responsibilities for the children.

9. She stated that she had consulted lawyers but they were going on holidays and could not see her for six weeks and ultimately she was too busy.  The mother was ordered to file and serve a response by 4.00pm on 2 May 2014. 

10. The father’s application was refused on the basis that amongst other things:

    On any view of the present evidence before the Court, the type of orders being pursued by the husband seem unrealistic and that much more needs to be done by him to address the issues in the family report.  Those are matters that go to the question of the priority that this case should be given.  Absent some specific change in the husband’s position supported by evidence, the prospect of time with the children is not looking hopeful.  There is therefore not so much urgency about a court case but rather about the husband getting his health and understanding of his obligations towards his children right.[1]

    His Honour went on to note that the children seemed settled and there were no indications of them wanting a relationship with the father.  He also noted that the father had opportunities to make an interim application but had not done so and that it was apparent that the case was not ready for trial although this was disputed by the father. 

    [1] See paragraph 19 of the reasons for judgment in the hearing before Justice Cronin from 16 April 2014

11. Justice Cronin noted that Judge Connolly had discerned a need for a case guardian for the father and that this may be a consideration. 

12. His Honour noted that if any interim application were made, the Court would have the benefit of an untested family report but that it would be unlikely that any interim order would be made.

13. Justice Cronin also noted the basis of the concerns of the family consultant were that on what she had seen, read and heard, there were significant family violence concerns and the mother was protecting the children.  The family consultant thought that the prognosis in relation to the father’s mental health was poor and the children were described as “ambivalent” about their father which she thought was reflective of emotional harm to them.  All of that evidence was untested at the time.

14. On 29 October 2014 the proceedings were fixed for a first day hearing before Justice Bennett where the matter was referred to a Round Table Dispute Management Conference and the Independent Children’s Lawyer was authorised to provide Victoria Legal Aid with all of the relevant documents including the family report and reports of any other professionals. 

15. A family report had been prepared by Dr M dated 4 November 2013.   In that report Dr M described the issues in dispute as:

    ·The father’s parenting capacity;

    ·The stability of the father’s mental health;

    ·The father’s capacity to spend time with the children.

16. The family consultant further identified the following issues:

    ·    The father’s incapacity due to his mental illness;

    ·    The mother’s limited cognitive capacity;

    ·    Allegations of family violence by the father toward the mother and children.

17. In her reasons for judgment delivered on the day of the hearing, her Honour Justice Bennett detailed the report of Consultant Psychiatrist, Associate Professor Y of the Melbourne Clinic dated 14 November 2012 which was annexed to the father’s affidavit which he affirmed on 18 January 2013.  In that report Associate Professor Y was of the opinion that the father suffers from chronic paranoid schizophrenia and that there has been a recent exacerbation of that psychotic illness.  He referred to the father as having a psychotic condition, being out of touch with reality and preoccupied by the wrongdoing of others.  He stated that the father believes that he is subject to conspiracy and surveillance and that as the psychotic symptoms pervade his thinking, his paranoid beliefs will flavour his instructions and he will not be able to instruct his solicitor in a rational way or be able to consider appropriate legal advice.

18. When assessed on 21 October 2012, Associate Professor Y found the father to be:

    …evasive, guarded, rigid and controlling and out of touch with reality.  He persistently had difficulty changing his mental set.  He was preoccupied by the issues of compensation and the wrongdoing of other persons.

    He was not able to reflect, or stand back and give thoughtful consideration as to why the marriage had dissolved and intervention order was taken out against him.  That is, he is not insightful.

19. However, Associate Professor Y was doubtful that the father met the criteria for involuntary care under s 8 of the Mental Health Act1986 (Vic). He stated that:

    There is no clear evidence that he meets all five criteria under s 8 of the Mental Health Act 1986.

    In particular he noted that the father did not require immediate involuntary care or that he was a risk to self and others.  He was of the view that the father would only require compulsory treatment in circumstances where there is a further exacerbation of his psychotic condition giving rise to immediate and significant deterioration of his mental health.

20. In terms of whether the father would be at risk when spending time with his children, Associate Professor Y noted that the father’s parental ability was impaired because of his mental illness.  He noted that the father is unable to separate reality from his irrational beliefs and that his mistaken beliefs pervade his view of the world.  He was of the opinion that there is no imminent or foreseeable physical risk to the children’s welfare but that the risk would be for the long term progressive deterioration in his mental health leading to alienation and isolation from his family and society.  He noted that:

    The risk to the children, in my opinion, is not about their physical health; rather it is the risk that they will be subject to the father’s mistaken beliefs and irrational ideas, thus leading to a distorted view of their family and their environment.

21. He went on to state:

    There is the potential that a paranoid person will be argumentative, stubborn, rigid and unyielding in their belief systems and may be critical, angry and dismissive of those other persons, which may include the children, who do not agree with their mistaken beliefs.

22. Her Honour Justice Bennett noted that during the hearing before her, the father proffered a document from his general practitioner, Dr H, which stated that the father suffers from depression and anxiety and a panic disorder for which he has psychological treatment and that “his mental condition has stabilised”.  Her Honour in her reasons for judgment noted that neither the general practitioner nor the psychologist, Dr R, discussed the father’s history of requiring anti-psychotic medication or necessarily why he does not need it now.

23. Her Honour wrote:[2]

    In spite of trying, I am not able to make the father understand that so far the evidence filed in this case does not support him having a reintroduction of time with any of the children of the marriage and that it may be in his interest to submit to the further psychiatric assessment that is proposed by the Independent Children’s Lawyer.

    The father repeatedly said that he is fine now.  He says that there will be proof that he can cope with the children when he gets to see the children.  I was at pains to explain to him that he will not get to spend any time with the children for the purpose of proving or satisfying the Court or anyone else that it is appropriate that he have that time.  I stated that the Court would need to be independently satisfied that it is in the children’s best interest to see him again, regularly or at all, before the time takes place.

    [2]  See paragraph 18 of Justice Bennett’s reasons for judgment delivered on 29 October 2014.

24. Her Honour also noted that unless the father had some better evidence of his psychiatric health than he currently had that the prospect of him being successful and obtaining supervised time did not look good.  She also noted that there was nothing to indicate that the father’s condition had improved or to indicate that the assessment made by Associate Professor Y no longer applied.  Her Honour noted that at the end of the day it was a matter for the father as to whether he wished to obtain a psychiatric assessment or to participate and that if he was resistant then it was not productive for an assessment to be undertaken in those circumstances.  She noted that:

    The risk the father runs is that if he does not have evidence that supports his application, his application will fail.  

25. Accordingly the deficiencies in the father’s evidence in support of his application were emphasised in circumstances where the father was not represented by a lawyer.  Both Dr H and the Court advised the father he would benefit from obtaining some legal advice as to how to approach the application.  However as Justice Bennett noted the father did not have a lawyer and there was no likelihood of him obtaining one.

26. Before me, the father indicated that he had consulted a lawyer but that the lawyer had returned his documents to him the previous day and advised him that he would not be representing him.  He also claimed that his lawyer had referred him to the legal aid duty lawyer who was unable to assist him on the day.

The Parties’ Proposals

Proposals of the applicant father

1. In his Initiating Application filed 22 January 2013 the applicant father sought the following final orders:

   ·That the parents have equal shared parental responsibility for the three children;

   ·That the children live with the mother;

   ·That the children spend time and communicate with the father as follows:

   (a)Each alternate Saturday from 10.00am until 6.00pm;

   (b)Each Christmas Day for a period of four hours agreed between the parties and failing agreement from 2.00pm until 6.00pm;

   (c)On Father’s Day from 10.00am until 6.00pm;

   (d)On the father’s birthday and the children’s birthday from 3.30pm until 6.30pm if the birth dates fall on a school day and for four hours as agreed on non-school day and failing agreement from 10.00am until 2.00pm;

   (e)By telephone each Wednesday between 4.00pm and 5.00pm with the father to call the children and the mother to facilitate such calls; and

   (f)As otherwise as agreed between the parties.

   ·That changeovers occur at a place as agreed between the parties;

   ·That the parties are hereby restrained from exposing the children to conflict during changeovers and shall limit their communication to greetings only;

   ·Each party shall immediately notify the other by telephone of any serious medical treatment required by the child;

   ·The father be at liberty to attend all school functions, social and sporting activities to which parents are normally invited to attend, including any parent/teacher interviews;

   ·This order shall act as an authority authorising the father to receive any school notifications, newsletters, copies of reports, photo application forms and notices, at his expense, if any;

   ·This order shall act as an authority with respect to the release of any medical information concerning the children by any health insurance provider and in the event the health service provider seeks a specific authority from the mother before the release of information to the father, the mother provide such an authority as soon as practicable;

   ·The parties, their servants and/or agents be and are hereby restrained by injunction from discussing or allowing third persons in their presence to discuss with the children the court proceedings and in particular, any of the allegations raised therein;

   ·The parties, their servants and/or agents be and are hereby restrained by injunction from denigrating the other party or their family in the presence or hearing of the children and from allowing anyone else to do so in their presence or hearing.

2. The father has not filed a trial affidavit and the Independent Children’s Lawyer is not aware of the precise orders the father seeks save that from a perusal of the family report of Dr M dated 13 March 2015 he is reported to have stated a desire for the children to spend time with him.

Proposals of the mother 

1. The mother has not filed any documents in these proceedings.  Dr M has never interviewed B but interviewed C and D for the report dated 4 November 2013.

2. That report, where the mother was engaged with the process, records that the mother advised that her response to the father’s proposals were as follows:

   ·That the children live with her;

   ·That she have sole parental responsibility for the children;

   ·That the father’s time with the children be reserved.

3. That report also noted that the mother was vulnerable due to her apparent limited cognitive functioning.

Proposals of the Independent Children’s Lawyer

1. In the case outline for the Independent Children’s Lawyer the preliminary view of the Independent Children’s Lawyer is to support orders that would give effect to the recommendations in Dr M’s report dated 13 March 2015 namely:

   ·    The mother have sole parental responsibility for the three children;

   ·    The children reside with the mother;

   ·    There be no order for the children to spend time with the father;

   ·    The children be referred for counselling at their school;

   ·    The Independent Children’s Lawyer have liberty to serve a copy of any orders made upon the principal of the school attended by the children; and

   ·    All extant applications be dismissed.

2. In view of the addendum report of the family consultant dated 14 April 2015, the Independent Children’s Lawyer submitted that the proceeding either be adjourned to obtain information from DHHS in accordance with the recommendations in the report or that leave be granted for the proceeding be heard in the absence of the mother.

The untested evidence

1. The evidence is untested.

   The evidence relied upon by the father is unclear.  He filed his Initiating Application in the Federal Magistrates Court on 22 January 2013.  The only evidence was an affidavit sworn 18 January 2013 and filed 22 January 2013 in the Federal Magistrates Court annexing a report from Consultant Psychiatrist, Associate Professor Y and a letter from Dr E, Director of Clinical Services, F Health Service.

2. The mother has filed a Notice of Address for Service but otherwise has not filed any documents.

3. The mother did not attend the hearing and did not provide any explanation for failing to appear.  The mother and children did not participate in the most recent family report process.  The children have not been interviewed by the Independent Children’s Lawyer and the two younger children have not seen the family consultant since the initial report on 4 November 2013. The eldest child initially refused to engage with the family consultant and later moved to Queensland.

4. The Independent Children’s Lawyer relied upon the following documents:

   ·    Family report of Dr M dated 4 November 2013, 13 March 2015 and addendum dated 14 April 2015

   ·    Outline of Case filed 20 April 2015.

Family Reports

1. Dr M completed a family report dated 4 November 2013 for the Federal Circuit Court proceedings.  Dr M interviewed both parents, and the two younger children C and D.  The eldest child, B, was not interviewed and refused to attend the session with the mother.

2. In that report Dr M made the following recommendations:

   a.That the mother has sole parental responsibility for the long-term decisions regarding the care, welfare and development of the children;

   b.That the children reside with the mother;

   c.That the children be referred for counselling through their schools;

   d.That an independent children’s lawyer be appointed for the children;

   e.That the children’s time spent with the father be reserved.

3. The report writer noted that the parties separated after a long-standing and gradual deterioration in the father’s mental health which resulted in him posing a risk to the mother and children. She reported that the mother and children conveyed a history of family violence and other abusive behaviour such as withholding the children from school.  Her opinion of the mother was that she presented as a parent who had overcome significant adversity to protect her children from the father’s abusive behaviour.  She reported that the circumstances had been compounded by the mother’s vulnerabilities due to her apparent limited cognitive functioning, indicated by her vague recollection of historical details and her limited responsiveness to the children’s need for counselling.

4. The report writer noted that the father’s presentation highlighted his significant mental illness and his lack of insight. She reported that he presented with no insight into his abusive behaviour and the impact it had on the family.

5. At paragraph 47 of her report, she wrote:

   [Mr. Shoretsky’s] presentation during the session was characterised by a degree of emotional instability. His controlling manner, paranoid ideation, lack of insight and disregard for authority raises concerns about the predictability of his behaviour when with the children. The allegations of domestic violence by the mother and children are contradictory to his denial of the violence. If these allegations are deemed reliable, it raises serious concerns about his capacity to engage in a relationship with his children that attends to their best interests. According to the mothers and children’s accounts the violence committed was not a single event but was characterised by a pattern of controlling and domineering behaviour. The potency of the violence was dangerous with allegations of ongoing acts of violence toward the children. The father’s current stalking behaviour has been persistent and by his own admission has continued since the final separation as he acknowledged that he has visited the children at their school and did not perceive that his actions were inappropriate.

6. C stated, when asked about spending time with her father: “I would choose not to see him. He used to smack us and it was really mean”. She indicated that she would not like to have any communication with the father by way of letter writing.  C disclosed that her father had hit her on her back and that he usually hit her “a lot” and that she felt sad and scared.

7. D was unequivocal in his views that he did not want to see his father or have any contact with him because he had hit his brother and “strangled him”.  D also said that the father had hit him “lots on the head with his hands”. D told the family report writer that he did not want any contact with his father including any exchange of letters and did not want his father to receive any photographs of him.  He stated that he wanted “for dad to go away. For him to stop annoying us and for him to stop coming to school.”

Report dated 13 March 2015 and Addendum Report

1. The mother and children failed to attend appointments made by Dr M for the report dated 13 March 2015 and the Addendum report dated 14 April 2015 was compiled by the family consultant contacting the principals of the children’s schools.

2. The mother has informed the child’s school that B has gone to Queensland.  However her whereabouts are unknown.  Enquiries from the family consultant revealed that C is enrolled in primary school but has attended only one day of school this year.  The school principal where the youngest child, D attends, has reported to the family consultant that D’s school attendance is within the normal range.  The school principal reported that he presents as:

   …well cared for, with appropriate school uniform and food.

   The principal commented that the mother does not attend school that often but is responsive when contacted.  She reported that the mother is always supportive of the school’s input but does not appear capable of managing her children’s behaviours.

3. The report dated 13 March 2015 made the following recommendations which were the same as the recommendations made in the previous report :

   a.      That the mother has sole parental responsibility for the long term decisions regarding the care, welfare and development of the children;

   b.      That the children reside with the mother;

   c.      That if the children have not already done so, they be referred for counselling through their schools;

   d.      That the children’s time spent with the father be reserved

4. The Addendum report made the following recommendations:

   a.      The matter is referred by this court to DHS [as it then was] for a more thorough assessment of the family situation with regards to the children’s lack of attendance at school and with regard to the whereabouts of B;

   b.      The children continue to reside with the mother;

   c.      C be referred to counselling as recommended by DHS to assist her with her school refusal;

   d.      The matter be adjourned until DHS completes its assessment.

Conclusion

1. In deciding to make any parenting order, the child’s best interests must be the paramount consideration under s 60CA of the Family Law Act 1975 (Cth) (“the Act”). In determining what is in the best interests of the child, the Court must consider the primary and additional considerations set out in s 60CC(2) and s 60CC(3) of the Act. Any determination of what is in the best interests of the child must be made in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

2. The primary considerations are:

   (a)   the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[3]

   [3] Family Law Act 1975 (Cth) s 60CC(2A).

4. The untested first report of the Family consultant referred to abusive behaviour by the father, a history of family violence and a deterioration of the father’s mental state posing a risk to the mother and children.  The father’s affidavit annexes reports about his mental health which raise concerns about risk to the children.  There is no information about the father’s current mental state despite the deficiencies in his case having been highlighted by two Judges in earlier hearings. Crucial to these considerations is a finding about the father’s mental health which needs to be made on a final basis. 

5. The additional considerations include any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views. The views of the children need to be considered and there is no evidence before the court as to the children’s views since 2013. In the case of B there is no evidence at all about her views.

6. The nature of the child’s relationships with each of the parents and other persons must be considered and in this case there has not been a relationship with the father since the parents separated in 2011.

7. The capacity of each of the child’s parents and any other person to provide for  the needs of the child, including emotional and intellectual needs is an additional consideration which is relevant here.  The untested historical evidence of Associate Professor Y about the mental health of the father raises concerns about his capacity to provide for the emotional needs of the children and whether there is any risk to the children spending time with him.

8. The issues raised about family violence are relevant to the additional considerations of the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.  Any family violence involving the child or a member of the child’s family is also an additional consideration which is relevant here.  The evidence of the nature and circumstances surrounding the making of the intervention order in this case has not been tested but is also a relevant additional consideration.

9. The children are aged 15, 11 and 9 years and the mother has failed to make them available to the family consultant or the Independent Children’s Lawyer to ascertain their views since 2013.  The eldest child, B has never been interviewed by the Independent Children’s Lawyer or the family report writer.

10. This is a case where there are allegations of extensive family violence and a historical report from Associate Professor Y which raises serious concerns regarding the capacity of the father to participate in the proceedings or to spend time with the children which will not put the children at risk due to his state of mental health.  There is no updated material before the Court as to the father’s mental state and he does not appear to have an appreciation of the need for that material to be provided, notwithstanding that this has been previously explained to him by two Judges of this Court.  He claims to have seen a lawyer recently who is now not representing him.

11. Of serious concern is the fact that the whereabouts of the 15 year old child, the subject of these proceedings, is currently unknown and DHHS have been notified.  It would also appear that C’s attendance at school has been fleeting on the basis of the untested evidence of the family consultant having made contact with the school.

12. There is no indication of any of the children wanting to have a relationship with the father, although B’s views are not known.

13. The primary consideration of whether there is any risk in the children spending time with the father, questions of the relevance of family violence and the additional considerations which include examining the views of the children cannot be undertaken in a vacuum of information. 

14. The Court is required to consider the best interests of the children and a fundamental requirement is that there be some evidence before the Court about the location of the children and their current circumstances particularly where C has not been attending school and the mother has failed to appear.

15. On the limited evidence available from the addendum report of the family consultant it would appear that the DHHS have been engaged with the family and are currently investigating.  In these circumstances, it is in the best interests of the children that the Court obtain the latest information as to their circumstances before considering what is in their best interests. 

16. The substantive proceedings must be adjourned because of a lack of information about the children.   Accordingly it is appropriate to adjourn the proceedings to obtain that information from DHHS and this is also in accordance with the recommendation of the family consultant. 

Father’s oral application for interim time

1. The father was unrepresented but assisted in court by an interpreter whose services he at times eschewed.  His answers to questions were non-responsive and he had difficulty grasping the need for evidence to be filed before the Court rather than asserted from the bar table.  He claimed that his rights had been infringed because the duty lawyer was not available to represent him in court and that he was unaware that his lawyer was not prepared to represent him until the day before these proceedings when his documents where returned. 

2. Overall the father’s presentation appeared to be the same as in previous court appearances in this Court and as described by Associate Professor Y and Dr M.  The father did not provide any new material and has not filed any further psychiatric assessment or reports since he appeared before her Honour Justice Bennett on 29 October 2014.

3. There is no doubt that there has been a considerable delay in these proceedings since the application was initiated in the Federal Circuit Court but I note that some of that delay was caused by the illness of the mother and her failure to attend court in addition to the failure of the parties to file material on previous occasions.

4. The father complained of this delay and made an application which I have construed as an oral application for leave to make an interim application for him to spend time with the children pending the final hearing of this matter.

5. This was opposed by the Independent Children’s Lawyer having regard to the lack of information before the Court including the recommendations of the family consultant in her report dated 4 November 2013.

6. It is obvious that the oral application sought to be made by the father without notice to the mother would involve the consideration of the same issues on an interim basis which must be determined in the substantive proceedings.[4]

   [4] Donnelly &Donnelly [2000] FamCA 1789

7. For the reasons which I have previously outlined, in circumstances where the whereabouts of one of the children is unknown, the children have not seen or expressed any desire to contact the father since 2011, the latest information about the children has been gleaned through contact with the school which would appear to indicate that only the youngest child is attending school regularly and the mother has failed to participate in the proceedings, I am not satisfied that it is in the best interests of the children for leave to be granted for the interim application to be heard. 

8. Accordingly the father’s application for leave to make an interim application to spend time with the children is refused.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 15 May 2015.

Associate:

Date:  15 May 2015