Swefford and Tarbell (No 2)

[2012] FamCA 561

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL (NO. 2) [2012] FamCA 561

FAMILY LAW – PROCEDURAL – ex parte orders sought – application refused

Family Law Act 1975 (Cth)

APPLICANT: Ms Swefford

RESPONDENT: Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER: Mr Christaki

FILE NUMBER: SYC 889 of 2008

DATE DELIVERED: 16 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 16 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Merkin

SOLICITOR FOR THE APPLICANT: Consolidated Lawyers

SOLICITOR FOR THE RESPONDENT: n/a

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: n/a

Orders

1. Application 1 made by the mother in her Application in a Case filed 27 June 2012 be dismissed.

2. The mother’s Application in a Case filed 27 June 2012 be otherwise listed on 9 August 2012 at 2.15pm.

3. The mother serve the Application and the supporting affidavit on the father’s lawyers and the Independent Children's Lawyer as soon as is practicable.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell 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 SYDNEY

FILE NUMBER: SYC 889  of 2008

Ms Swefford

Applicant

And

Mr Tarbell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In application 1 filed 27 June 2012. the mother, presumably on the advice of her lawyers, has sought that two interim applications be dealt with on an ex parte basis.

2. The first application is that pursuant to s 91B(1) Family Law Act, the Family Court request intervention of the office of NSW Department of Family and Community Services to assess the welfare of the child D Tarbell. The second is that an order be made for urgent psychological medical assistance and assessment for the father.

3. The Family Law Rules provide for an order to be made in the absence of a party. The court must be satisfied as to why a fixing of an early date would not be more appropriate and why an order should be made without notice to the other party.

4. I have invited counsel for the mother on a number of occasions to first focus on her submissions on why it would be appropriate to make the orders sought on an ex parte basis. For most of the submissions, she sought to argue the merits of the applications rather than why it would be that I would entertain, what in the context of this case, were significant applications without hearing from the Independent Children's Lawyer or the father.

5. The first application seeks that I make a decision about whether or not the Department was invited to intervene as a party to the proceedings without hearing from, inter alia, the Independent Children's Lawyer. The mother seeks an order that the child be assessed by the Department in circumstances where the mother has successfully made an application and has had it confirmed on appeal, that an eminent child psychiatrist carry out that process. The Independent Children's Lawyer may well have some things to say about those applications which will be of assistance to the court.

6. In terms of the application that is made in relation to the father to be medically assessed, I note, given the history of this matter, that he has already been subject to interview by one psychiatrist who has provided a report to the court and will be assessed again by another psychiatrist pursuant to the orders the mother has sought already.

7. This matter has a complex history involving the mother’s removal of the child from Australia during the part heard proceedings; his secret retention overseas; his subsequent apprehension by authorities overseas and detention by child welfare authorities overseas and his eventual interim repatriation to his father.

8. None of the matters referred to by counsel for the mother are sufficiently serious in my view nor sufficiently recent to lead me to take the extraordinary steps that she invites.

9. It is quite inappropriate that the application in terms of application 1 has been made in the terms that it has, given the history of this case and the nature of the issues involved in this case. There are aspects of the history of what has happened to the child which are not controversial that may well be relevant to much of the behaviour that is currently being referred to by the mother, but I am not in a position to form any concluded view about that. I do not have the benefit of submissions from the Independent Children's Lawyer nor the father and of course I do not have the benefit of any updated expert report from A/Prof Q.

10. In my view the mother has failed to satisfy me that it would be appropriate to hear the mother’s applications on an ex parte basis and accordingly I dismiss application 1 made by the mother on 27 June 2012.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 16 July 2012.

Associate: 

Date:  20 July 2012