Sillwell and Spartan

[2010] FamCA 212

FAMILY COURT OF AUSTRALIA

SILLWELL & SPARTAN [2010] FamCA 212

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Orders for psychiatric assessment

Family Law Act 1975 (Cth)

APPLICANT: Ms Sillwell

RESPONDENT: Mr Spartan

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3398 of 2009

DATE DELIVERED: 5 MARCH 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 5 MARCH 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS BEN SIMON

SOLICITOR FOR THE APPLICANT: NANCY BATTIATO

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS DE VINE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: FARAM RITCHIE DAVIES

Orders

1. That all outstanding applications be adjourned for final hearing before Justice Mushin as the first case (as at this time) in the list of defended matters for the period of ten days commencing on 21 June 2010 at 10.00am as a three day matter.

2. That unless otherwise impracticable, Registrars Sikiotis and Kaur be appointed as the docketed registrars responsible for the management of the case.

3. That by 4 pm on 31 March 2010 the respondent father file:

   (a)an amended response setting out with precision what orders are being sought;

   (b)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day.

4. That by 4 pm on 1 June 2010 the Independent Children’s Lawyer file and serve upon all other parties, the affidavit material relied upon.

5. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

6. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

   (a)If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

   (b)refer the case to the trial judge for directions as to its future management; or

   (c)if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or

   (d)return the case to the Registrar’s docket on a date to be fixed for further management

   AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

7. That the practitioners for the parties file and serve electronically to the Associate to Mushin J by 4 pm on 18 June 2010 the following:

   (a)a concise set of orders to be sought if different from those already filed;

   (b)a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon; and

   (c)a bullet-point summary of argument in relation to the issues in dispute.

8. That the mother undergo a psychiatric examination with a psychiatrist approved by the Independent Children’s Lawyer unless the father indicates that he is not proceeding to oppose her application.

9. That Family Consultant Ms G undertake a family report specifically in relation to the following two issues:

   (a)the assessment of J’s views as to the ongoing relationship with both parents; and

   (b)a chronology of events throughout J’s life as indicated in the court documents and subpoenaed material, looking at the matters through the eyes of J.

10. That the Family Consultant have access to all material on the court file.

11. That the mother’s application for interim orders be consolidated for determination with the final hearing.

12. That the reasons relating to the husband’s application for an adjournment be transcribed and be made available to the parties.

13. That the father’s oral application for an adjournment of the proceedings is refused.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3398  of 2009

MS SILLWELL

Applicant

And

MR SPARTAN

Respondent

REASONS FOR JUDGMENT

1. On 5 March 2010, pursuant to an order that I made previously, I began the first day of hearing relating to the parenting dispute between Mr Spartan and Ms Sillwell concerning their son J.

2. The litigation between the parties over J has been extant all of his life.

3. There is a significant judgment of Morgan J in 2004 in which not only orders were made but clear findings of violence were also made. 

4. In 2006, proceedings were before Watt J but they culminated in orders that the parties requested and consented to.

5. There have been hearings relating to contraventions. The father who has for some considerable period of time represented himself asserted that the Court had done nothing about enforcing its orders and that that had contributed to the problem because in his view, the mother had been allowed to “get away with it”.  The father is vociferous about the fact that subsequent to the hearing before Morgan J, the Court had the benefit of a report of psychiatrist Mr W in which an opinion was expressed that the mother was paranoid.  The father maintained that nothing had changed in respect of that finding or opinion and as such, there was no need for any further psychiatric assessment. 

6. The Independent Children’s Lawyer is fresh in the case. I requested that consideration be given to reappointing the previous Independent Children’s Lawyer but because of the New South Wales and Victorian jurisdictional difference relating to legal aid, that could not occur.  The current Independent Children’s Lawyer requested a fresh psychiatric examination.  The mother saw no reason for one to occur.  I propose to order that one be undertaken on the basis that it is not to be taken as a finding that she is in need of psychiatric treatment or that she has any psychiatric disorder.  Rather, it may clarify the question of whether or not the real dilemma in this case is attributable in some way to her behaviour.

7. In respect of the father, I asked him at least three times whether he would undertake such a psychiatric assessment.  He said there was no basis to do so but in any event, he could not afford to make any such payment.  I requested him to indicate whether he would attend if such an order was made and he consistently said that he could not afford such an assessment.  On the basis that I have concluded that he will not attend whether for financial reasons or otherwise, I have not made any order relating to a psychiatric examination of the father.  However I have made it plain to him that as the assertion has been made against him by the mother that he has problems, a court may draw an adverse inference against him if he does not provide the necessary evidence.

8. The significant feature of this case is that J vomits at periods associated with the handover between the parents who are clearly in significant conflict.  Whether that vomiting is simply car sickness bearing mind there is a long distance between the parties that requires J to travel or it is the manifestation of anxiety or something similar arising out of the conflictual nature of the problem between his parents seems to me to be about what this case is all about.  Each party makes significant assertions against the other about behavioural matters all of which may be exacerbating the problem.

9. I have proposed that this case be heard by Mushin J and that various witnesses can be called.  The father said that he is calling his former wife, his adult daughter and his current girlfriend.  I have warned him that the evidence must relate to the issue in dispute because otherwise it will not assist the Court.

10. I was significantly hampered in dealing with the application this day because the mother was very late in filing her affidavit material.  In an amended application, she sought suspension of the existing orders.  Her lateness clearly delayed the father in filing his material.  On the basis of what material I had, it was inappropriate to try and deal with the suspension of the existing orders and for that reason I have adjourned them to be consolidated with the substantive issue before Mushin J. 

11. Towards the end of the opening of the cases by each party, the father said that he wanted an adjournment of two weeks to consider his position.  I understood him to mean that he would go away and decide whether or not he intended to pursue his relationship with J or simply give up.  It would be very sad if he did but that is a matter that he will need to contemplate having regard to the nature of the allegations.  I have put in train some orders which if the father decides not to proceed, will go no further.  If in a very short space of time he does not indicate that is what he wants to do, all of the timetable must be kept.

12. I have also had the benefit of some assistance from family consultant Ms G.  I have ordered an updated family report notwithstanding it involves the child meeting a new family consultant.  I have set out in the order that there are specific things that I want addressed.  None of the parties disagreed with that approach.

13. Notwithstanding the cost involved, I propose to ask the Registry to ensure that Ms G has an opportunity to travel to the home area of the child to see him in a non-controversial environment to be exercised at her discretion.

14. This is a very difficult case and having regard to its litigious history, it needs to be resolved quickly.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 March 2010