Silmon & Holsomback (No 2)

[2021] FCCA 256

FEDERAL CIRCUIT COURT OF AUSTRALIA

Silmon & Holsomback (No 2) [2021] FCCA 256

File number:	DNC 117 of 2018
Judgment of:	JUDGE YOUNG
Date of judgment:	1 February 2021
Catchwords:	FAMILY LAW –  parenting – application to vary spend time arrangements – whether the children should spend time with the father – where the father relocated interstate – where the father has been diagnosed with a major depressive illness – court not satisfied in the best interests of the children to travel interstate to spend time with the father
Legislation:	Family Law Act 1975 (Cth) s 64
Cases cited:	Rice and Asplund [1978] FamCA 84
Number of paragraphs:	10
Date of last submission:	1 February 2021
Date of hearing:	1 February 2021
Place:	Darwin
The Applicant:	On her own behalf
Counsel for the Independent Children’s Lawyer:	Ms Murray
Solicitors for the Independent Children’s Lawyer:	Northern Territory Legal Aid Commission

ORDERS

DNC117 of 2018

BETWEEN:

MS SILMON

Applicant

AND:

MR HOLSOMBACK

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	1 FEBRUARY 2021

THE COURT ORDERS:

1.That paragraph 20, 21, 22, 23, 24, 25, 26 and 27 of the Orders made on 5 November 2018 be discharged.

2.That the children spend time and communicate with the father in Darwin as agreed between the parties.

3.That the father follow all treatment directions from his treating health care professionals.

4.That the parties communicate by email only, except in an emergency.

5.That the children continue to attend upon Ms B for counselling, as well as the parties’ if recommended by her.

6.Pursuant to section 64(B)(2)(g) of the Family Law Act 1975 (Cth)(“the Act”), the rule in Rice and Asplund [1978] FamCA 84 will not apply if the Father makes any application under Part VII of the Act in relation to the children, provided he seeks and obtains leave of a Judge of the Court and for that purpose he files:

(a)an application setting out orders sought and;

(b)an affidavit in support, including a report from his treating health care professionals.

7.That the appointment of the independent children’s lawyer be discharged.

8.That all extant applications be dismissed.

NOTATION

The Independent Children’s Lawyer will meet with the children to explain these Orders within 7 days.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Silmon & Holsomback (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case that is part-heard from December 2020 involving two children, X, who was born in 2011 and Y, who was born in 2013. The children are therefore respectively nine and seven years old.  Orders were made between these parties in 2018 that provided for the children to live with the mother and spend time with the father.  The time orders envisaged that the children would spend time with the father in Darwin.

3. In 2019, or perhaps 2020, the father relocated to Adelaide, or at least to South Australia, and sought orders to vary the time arrangements to reflect the fact that he was resident interstate.  The mother also made an application seeking various orders, though she withdrew her application last year.  The mother had opposed the father’s application to vary the orders on grounds, in my view, that were not well-founded. In particular, in my view, this was based on an erroneous interpretation of the orders.  In any event, once that was pointed out, she withdrew her application.

4. This left the father’s application on foot in respect of time orders. The matter was then set down for hearing in December last year.  In the course of the hearing – a hearing in which both parties were unrepresented – it became apparent that the father was suffering from mental illness and there was some reference to him having had suicidal ideation during the year.  I was not satisfied that I had a complete picture relating to the father’s mental health. Therefore I adjourned the case part-heard to today and directed that the father was to file an affidavit annexing a report from a psychologist about his current mental health.  He has done that. A report from a psychologist was annexed to his affidavit. 

5. The affidavit appears to be drafted in the third person by the father. It is a little confusing in that he refers to some of the issues that had arisen in December, that is, the evidence of suicidal ideation. He submits that the report from Ms C makes no mention of suicidal ideation and in his affidavit he emphasises that factor.  However, the difficulty about that, from my point of view, is that there is no mention in the report from Ms C that she was informed of the earlier report of suicidal ideation. It appears that the history that she has relied on was simply a history given to her by Mr Holsomback . Therefore that assertion from Mr Holsomback does not particularly reassure me at this point. The affidavit goes on to simply quote, it would appear, large parts, if not the entirety, of Ms C’s report.

6. There are issues arising from Ms C’s report. One of the issues is that it reports that Mr Holsomback is suffering from a major depressive illness at the moment.  It also suggests that he is not receiving medication, though that has been recommended by his general practitioner. He states he does not take the medication because he does not like the side effects.  Attached to Mr Holsomback ’s affidavit filed today is a letter from Mr Holsomback which essentially states that he has not coped well with the process of litigation and the system that he has found himself caught up in.  That letter appears to me to be somewhat unresponsive to the issues and also appears to be consistent with the diagnosis of a major depressive illness offered by Ms C.

7. I am satisfied that the evidence before me would not justify making an order, at this stage at least, that the children travel to South Australia to spend time with their father.  I would be concerned about making such an order. In particular, my concerns stem from the clear indications that the father is currently suffering from a major depressive illness. In the circumstances, I would not make the orders that the father sought, even if the father had appeared today.

8. Ms Murray, who appears as the independent children’s lawyer, has put forward a proposal which is essentially that final orders be made today. The mother agrees with this. The proposal is that final orders discharge the earlier orders made on 5 November 2018 regarding time, that the children spend time with the father in Darwin, as agreed between the parties, and other orders including that the father follow treatment directions from his treating healthcare professionals and various ancillary orders which I am satisfied are appropriate.

9. Order 6 of the proposed orders states that the rule in Rice and Asplund [1978] FamCA 84 should not apply if the father makes a further application provided that he seeks and obtains leave of a Judge of this Court for that purpose. Further he must file an application setting out the orders sought and an affidavit setting out the evidence and reasons for seeking those orders, including a report from his treating healthcare professionals. This order will, given the concerns about Mr Holsomback’s mental health at the moment, provide Mr Holsomback the opportunity to come back to court when his mental health improves and make a further application. There is no reason why he should not do that once his health improves, and once his health improves, it’s likely, I think, that a court will make orders that the children spend time with him, possibly in South Australia.

10. I will make the orders sought by the independent children’s lawyer.

11          I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated: 15 February 2021