Sullivan and Dickens

[2017] FamCA 980

FAMILY COURT OF AUSTRALIA

SULLIVAN & DICKENS [2017] FamCA 980

FAMILY LAW – CHILDREN – Parenting

APPLICANT: Mr Sullivan

RESPONDENT: Ms Dickens

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms K Hams

FILE NUMBER: MLC 571 of 2016

DATE DELIVERED: 14 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Devine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Southern Family Law

Orders

BY CONSENT IT IS ORDERED THAT

1.The child B born … 2010 spend time with his parents during the 2017/2018 Christmas school holiday period as follows:-

(a)     From the close of school 2017 until 3:00pm Christmas Day 2017 with the Mother;

(b)    From 3:00pm Christmas Day 2017 until 5:00pm 1 January 2018 with the Father;

(c)    From 5:00pm 1 January 2018 until 5:00pm 8 January 2018 with the Mother;

(d)    From 5:00pm 8 January 2018 until 5:00pm 15 January 2018 with the Father;

(e)    From 5:00pm 15 January 2018 until 5:00pm 22 January 2018 with the Mother;

(f)     From 5:00pm 22 January 2018 until 5:00pm 29 January 2018 with the Father;

(g)    From 5:00pm 29 January 2018 until the commencement of school 2018 with the Mother.

2.Both parents be entitled to have access to and discuss any medical issues including, but not limited to medical records of the child, with any of the child’s treating medical practitioners (at his/her own expense).

IT IS FURTHER ORDERED THAT:

3.This matter be fixed for final hearing before me on 14 May 2018 estimated to take 4 to 5 days (“the final hearing”) and not to run over to the week of 21 May 2018.

4.That all extant interim applications be otherwise dismissed.

5.Each party file and serve an undertaking as to disclosure by 15 February 2018.

6.All documents produced in compliance with a subpoenae be released to the practitioners for the parties for inspection and copying.

7.Until further order, each party is at liberty to cause subpoena(s) to issue until the final hearing date.

8.In anticipation of the final hearing, each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her case, as follows:-

a)      The applicant father by 19 February 2018;

b)      The respondent mother by 5 February 2018;

If the respondent is required to file prior to the applicant this does not alter the order of proceedings and, at trial, the applicant’s case will still precede the respondent’s case. If either parent fails or neglects to file his or her documents on time the independent children’s lawyer re-list this matter through my Associate – email … – not later than 23 February 2018.

9.Each party has leave to contact the docket Registrar  - email…-  to arrange to have this matter listed for mention before him/herself or before me, on notice to all other parties, to seek any further directions as any party considers are necessary to ensure that the matter is ready for trial or to narrow the issues in dispute.

10.The parties do all acts and things necessary to have Dr C prepare a further family report to be released by not later than 28 March 2018.

11.For the avoidance of doubt Dr C be and is hereby authorised to have reference to:-

a)      all documents filed in these proceedings;

b)      any documents produced on subpoenae and released for inspection by all parties;

c)      any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;

d)      any documents or things referred to in this Order.

12.The independent children’s lawyer contact Dr C to ascertain what (if any) testing ought to be done on the child B born … 2010 to exclude organic causes for the child’s disturbed behaviour and to identify any biological basis for the behavioural characteristics.

13.Until further order, the mother and the father do all acts and things necessary to follow the recommendations of Dr C for testing, such testing to be completed by 1 March 2018 so that the results thereof are available prior to Dr C’s assessment on 5 March 2018.

14.The father be solely responsible for the cost of Dr C’s further report without any right of contribution by the mother.

15.The independent children’s lawyer facilitate such conference (including a conference by telephone) between the said expert witnesses as he/she considers appropriate and in respect of which he/she provides the other parties with prior written notice.

16.Until further order, notwithstanding any other order to the contrary, the parties and any independent children’s lawyer be at liberty to provide any mediator or expert with a copy of all relevant expert reports in this matter including, but not limited to, family reports and parent and children’s issues assessments.

17.IT IS DIRECTED that any party wishing to cross examine on a document or tender a document into evidence at the final hearing, ensure that his or her counsel has a minimum of 5 copies of any such document available at the time of cross examination, evidence or proposed tender (being a copy for counsel for each party, a copy for the witness and two copies for the Court).

18.IT IS DIRECTED that the independent children’s lawyer give consideration to preparation of a court book of documents to be referred to or tendered during the trial and contact my Chambers well prior to the final hearing if he/she thinks that a court book would assist in the expeditious running of the hearing.

19.The mother and the father participate, by themselves and their legal advisers, in any round table conference which the independent children’s lawyer appoints, through the Victoria Legal Aid Family Dispute Resolution Service, in the week commencing 16 April 2018 (not Friday) and the independent children’s lawyer notify my Associate, … - as soon as possible of the date and time of the conference, once appointed.

20.IT IS REQUESTED that the family consultant, Dr C, be available to discuss the matter by telephone with the independent children’s lawyer on the day of any round table conference appointed pursuant to paragraph 17 of this Order.

21.Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the independent children’s lawyer is hereby authorised to provide to Victoria Legal Aid Family Dispute Resolution Service Management:-

a)      any family report;

b)      any document referred to in this Order;

c)      any document filed in these proceedings and any transcript of viva-voce evidence of a family consultant; and

d)      any other report by a professional in this matter that the independent children’s lawyer considers is necessary.

22.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

23.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Dickens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 571 of 2016

Mr Sullivan

Applicant

And

Ms Dickens

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX-TEMPORE

1. The matter of Sullivan and Dickens comes before me as the first day of hearing.  Mr Sullivan appears on his own behalf, although says he is planning to retain a member of counsel directly (without solicitors) for the final hearing of this matter.  The mother also appears in person and is today accompanied by one of her sisters.  Ms Devine of counsel appears on behalf of the independent children’s lawyer, Ms Hams.

2. A few days ago, Ms Hams wrote to the court highlighting the fact that the mother had then filed a further amended response to an initiating application seeking to relocate the residence of the child, B, born in 2010, to the D Town in Queensland, and that given the lateness of this new direction in the proceedings, Ms Hams was unable to form any preliminary view to communicate to the parties prior to today’s hearing.  I have now seen a copy of the further amended response to the initiating application, and, indeed, the mother does seek to relocate the child’s evidence. 

3. From the bar table, the mother says it is because the bulk of her family members are on the D Town in Queensland, she has more family support and she is hopeful of getting employment in real estate in Queensland.  She seeks that the matter proceed as soon as possible. 

4. I have had the benefit of perusing some of the documents on the court file, and I have read the report of Mr C, psychologist, dated 13 April 2016 [folio 15].  It is agreed that a further report should be obtained from Mr C with appointments due in or about 5 March 2018.  I’m in a position to take the matter for final hearing in May 2018. 

5. The father reports that the child is still struggling at school.  He is still reading at a level which represents around the bottom of the ability for his class.  The mother, at Mr Sullivan’s suggestion, has commenced taking the child to Kumon for reading.  Both parties having noted the recommendation in Mr C’s report that there be some form of speech assessment for the child, I asked the parents how his speech was progressing. Both said that his speech is now much improved. 

6. The father says his behaviour is continuing to be unusual at school, whereas the mother says that he is behaving as a typical seven year old, although he is intermittently disciplined for some transgressions at school, apparently. 

7. I am concerned to exclude any organic basis for what appears to be the child’s continued behavioural difficulties and unusual characteristics;  that is, to exclude nature over nurture and to do so prior to Mr C seeing the parties in March 2018.  Accordingly, I will direct that the independent children’s lawyer forthwith contact Mr C to ascertain what, if any, testing ought to be done on the child to exclude organic causes for his disturbed behaviour and to identify any biological basis for the child’s behaviour or characteristics.   

8. The parties are to do their affidavit evidence and any amended applications or response prior to seeing Mr C.  The mother is to have hers filed and served by 5 February 2018 and the father by 19 February 2018.  That essentially reverses the filing order because the mother is the respondent and the father is the applicant; however, I have made clear to the parties that when the trial commences in May before me, it will commence with the mother’s case preceding that of the father. 

9. I have reversed the order for the filing of documents merely because the mother’s case has now changed significantly and the father is entitled to know what the mother’s case is before the father has to meet it. 

10. I have required the independent children’s lawyer to notify my associate to have the matter listed by not later than 23 February 2018 in the event that either party is late, is seriously late or fails or neglects to file documents when they are supposed to do so.  That is because I would then consider cancelling the assessment with Mr C and also cancelling the trial date, which is the first date that I have had available to give the parties and which has given them some priority over other matters. 

11. The parties should therefore understand that it’s important to have their documents filed in court on time.  I have stressed to them that whilst either or both may seek to obtain legal representation for the case or some part of the preparation of the case, I will not accept as an excuse that they were let down by a practitioner because each party has been informed today that the responsibility to prepare their documents is a responsibility of themselves personally. 

12. Otherwise, I'm pleased to see that the parties have been able to work out Christmas parenting arrangements, and there is an order entitling each to discuss medical matters in relation to the child and to view any documentation or records at his or her own expense.  That concludes these reasons. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 November 2017.

Associate:

Date:  27 November 2017