Tannir & Shay
[2023] FedCFamC1F 660
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tannir & Shay [2023] FedCFamC1F 660
File number: MLC 2952 of 2022 Judgment of: BENNETT J Date of judgment: 1 August 2023 Catchwords: FAMILY LAW- PARENTING- where applicant mother seeks to relocate young child to Country B to reside permanently- where mother’s relocation application is opposed by father- where independent children’s lawyer has only recently been appointed- where final hearing is due to commence in 14 days and matter is listed at the volition of the court because of concern with non‑compliance by the applicant mother.
FAMILY LAW- PARENTING- where solicitor for the mother sought leave to withdraw prior to filing of mother’s material for trial- where mother unable to secure funds for representation- where mother seeks to be represented by a Legal Aid funded lawyer but had not applied for legal assistance.
FAMILY LAW- PARENTING- Where psychiatric report of the mother released- where mother has a medical condition and some cognitive impairment- where no concerns identified as to mother’s ability to select representation for final hearing however her choice would necessarily be restricted to a solicitor that is prepared to accept and qualified to take legal aid work- where final hearing vacated and the matter adjourned for directions- where mother’s application to relocate to Country B will be significantly delayed by reason of the adjournment and other business before the court.
FAMILY LAW- PARENTING- Where mother’s language of origin is the language of Country B- where an interpreter requested on adjourned date- where given the mother’s medical condition it is desirable that there be continuity of interpreter and the mother be familiar with interpreter before commencement of the hearing- where Registry Manager to be notified accordingly.
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 1 August 2023 Place: Melbourne (via MS Teams) Counsel for the Applicant: Ms Paterson Solicitor for the Applicant: Nambiar Hogg Family Lawyers Solicitor for the Respondent: Waterson Legal until granted leave to withdraw and then Litigant in person assisted by Duty Lawyer Mr Field Counsel for the Independent Children's Lawyer: Mr Marchetti Solicitor for the Independent Children's Lawyer: Bowlen Dunstan And Associates Pty ORDERS
MLC 2952 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TANNIR
Applicant
AND: MS SHAY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BENNETT J
DATE OF ORDER:
1 AUGUST 2023
THE COURT ORDERS THAT:
1.There be leave to Waterson Legal to withdraw from the proceedings as solicitor for the respondent mother.
2.The mother file a Notice of Address for Service.
3.The final hearing set down for 14 August 2022 be and is hereby vacated.
IT IS DIRECTED THAT:
4.The report of the mother’s neurologist, Dr C, dated 25 July 2023 be marked Exhibit “M1’ and remain on the Court file NOTING THAT the parties now have a copy of that report.
IT IS FURTHER ORDERED THAT:
5.The mother forthwith advise Victoria Legal Aid of her practitioner of choice who is willing and eligible to take legal aid work.
6.This matter be otherwise adjourned to 8 September 2023 at 9:00am for directions and the hearing be by MS Teams (“the adjourned date”).
7.If by late August 2023 it appears to the independent children’s lawyer that the mother has failed or neglected to satisfactorily progress the matter, the independent children’s lawyer give consideration to having Dr C available to give evidence electronically on the adjourned date in relation to the mother’s capacity to understand and conduct this litigation.
IT IS NOTED:
A.That the mother’s former solicitor, Mr Waterson, does not assert a lien over any documents in this matter and is willing to help any new solicitor appointed to act for the mother.
B.That the mother advised the court today, for the first time, that she does not have the funds to pay for legal representation.
C.That the Duty Lawyer, Mr Field, has assisted the mother this day with filing a Notice of Address for Service which is now available on the Court Portal.
D.That the Duty Lawyer, Mr Field, has assisted the mother this day with documents required by Victoria Legal Aid for an application for legal assistance for these proceedings. However, it is anticipated that the application may take six weeks to process.
E.That the court was informed that the mother’s response and evidence has been prepared but that the mother wants her new solicitors to settle the documents.
F.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 in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym Tannir & Shay has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREBENNETT J:
This matter comes before me for mention prior to the scheduled final hearing of the matter, which is set down for 14 August 2023, estimated to take two to three days. The mother seeks an adjournment.
Today, Ms Paterson, of counsel, appears on behalf of the father.
Mr Waterson appears as the solicitor who had been retained by the mother, but is now seeking leave to withdraw.
The mother seeks an adjournment of the final hearing on 14 August 2023.
The matter was set down before me by the Chief Justice at his call over on 31 May 2023. Directions included that, 21 days prior to the trial date, the father file and serve any amending initiating application, his own trial affidavit, and affidavits of any witnesses upon whom he intended to rely. It appears that the father has complied with that order by filing a suite of documents on 24 July 2023. The father seeks 6 out of 14 days with two of the 14 days being Saturdays and with the additional two days in each school holiday period increasing to equal time and from 1 June 2024 7 out of 14 days. The mother was required to file any amended response upon which she relied, her trial affidavit, and the affidavits of any witnesses upon whom she relies by yesterday. She has failed or neglected to do so.
After the matter was allocated to me, I requested the appointment of an independent children’s lawyer. Mr Marchetti of Counsel appears on behalf of Mr Bult, solicitor, who was appointed last week.
Mr Waterson says that the mother’s material has been completed by him, and that he had retained counsel to appear today. However, the mother has run out of funds and was unable to secure a loan for representation. She now seeks to be represented by a Legal Aid lawyer but has not yet made an application for assistance.
The mother has an understanding of English and can converse in English, but is not particularly comfortable doing so. At times of stress, she finds her ability to do so is diminished. The mother should be assisted by an interpreter. No interpreter was ordered for today because none was requested.
The directions and orders made on 31 May 2023 also included a notation that, in the event of non-compliance by a party with orders or directions or rules or regulations of this court relating to the filing of documents or any other procedural issues, the application may be struck out, the proceedings may be directed to proceed on an undefended basis, or the trial date may be vacated, and the court may direct a further trial date not be fixed until all parties have complied with the orders, directions, rules and regulations.
In very short compass, the relevant background of this matter is that the father is 40 years old, and the mother is 39 years old. There is one child of the relationship, X born in 2021 and is two years old. The parties met through an internet dating service in Country B and commenced their relationship in 2013. They separated finally in December 2021, however, the mother says it was October 2021 but living under the same roof. In any event, the parties had a relationship which spanned some eight years, but only a few months of it with X as a member of their family. That was a fractured and eventful few months. The material indicates that, a week following X’s birth, the mother was diagnosed with a medical condition, having experienced some classic symptoms and, on one occasion, dropping X.
The parties relocated from Country B to Australia in 2016. As to the families of origin, the father has his mother and father living in Country B. They are mentioned quite significantly in the psychiatric assessment of the parties by Dr D. They have not been meaningfully involved with X. The mother’s family of origin is also in Country B. Her father died a year ago. Her mother is in Country B. The mother in these proceedings says she will rely on her sister for support, and also her aunt. She does not say that she will rely on the maternal grandmother for support.
At the time of separation, the father retained primary care of X, because it was uncertain whether the mother could actually cope with the physical demands of caring for X and the father retained primary care of X. In early 2022, the mother and father either argued or had a discussion about some financial matters in the midst of which the father said that he would kill himself. Thereafter, the mother withheld X from the father for a period of some six weeks until a regime of supervised time was agreed upon and introduced. By this stage, the mother had become entitled to support by a social worker who seemed to also to be acting as a nanny.
There have been two family reports in the matter and one psychiatric assessment of both parties. The psychiatric assessment was done by Dr D, who saw the father on 8 June 2022 and saw the mother on 14 June 2022. Dr D found that the father, “on gross cognitive testing, he did not display any signs of cognitive deficits and he had good recall of member. He was orientated in time, place and person”. The diagnosis was that the father does not suffer from any diagnosable psychiatric condition. Dr D also comments that the father, “appeared to have experienced a considerable sense of parental neglect in the communal upbringing of [his culture],” “and had developed ongoing anxiety, which had manifested itself through a fear of intimacy with women. He appeared to have also developed some narcissistic personality traits, such as difficulties with intimacy and empathy, and need for admiration and difficulties with frustration of his wishes. However, these are not pervasive enough to warrant a diagnosis of a Personality Disorder”.
It was Dr D’s opinion that the father “should be able to manage caring for the child on an unsupervised basis, providing that he is able to demonstrate that he is no longer using drugs, that he engages in parenting sessions and continues with his psychotherapist on a regular basis. There are no signs that he is currently suicidal, at risk of self-harm or a risk to others or that he has symptoms suggestive of any psychiatric disorder”. The recommendations were:
(1) Ongoing psychotherapy with [Mr E],
(2) child centred parenting sessions with a suitably qualified practitioner;
(3) hair follicle testing for six months at three-monthly intervals.
In relation to the wife’s cognition, Dr D noted, “she had an impairment of both long and short term memory and was only able to remember three objects at five minutes and three out of three objects when given a hint. She was orientated in time, space and person”. In relation to insight, “she seemed to have a reasonable degree of insight into her own capacities but had a limitation of insight about the effect of her withholding a child might have upon the child’s bonding with the father”. The diagnosis by Dr D of the mother was:
Over the last three years in the setting of developing [a medical condition] and difficulties the relationship that eventually – and difficulties in the relationship that eventually lead to separation, [Ms Shay] developed symptoms of anxiety and lowered mood consistent with a diagnosis of an Adjustment Disorder with anxiety and depressive features. Her anxiety is helped by taking [medication].
Since [her medical condition] can be associated with psychiatric soliloquy such as anxiety and mood problems, it is possible that there is an organic component to her symptoms. She describes periods of effective dysregulation suggestive of having cluster B personality traits, which could act as a predisposing factor for developing anxiety and mood problems. It would be considered that her own history of being exposed to paternal effective dysregulation would be a strong contributary factor to such traits and that her capacity to make an accurate estimation of the risk in response to the father’s suicidal threat would have also been impaired as a result of her exposure to violence.
Amongst the matters that Dr D expressed an opinion on was, “although it could be expected that, providing she follows the recommendations for appropriate treatment, her symptoms would likely to become under control within a number of months, her long term prognosis would follow the progress of her [medical condition]. She will need long term support to assist her in dealing with future relapses. It would not be uncommon her to develop a major depressive episode in the event of further [medical] relapses and she will need increased support at that time to care for the child. A backup plan should be put in place if [Ms F] [a support worker] has to leave for extended periods, or stops working [Ms Shay] altogether.” Dr D’s recommendations were:
(1)Ongoing psychological treatment with [Dr G],
(2)Psychiatric review [Dr H], with a view to commencing trial of [a medication], or similar mediation.
(3)She may derive support from being involved with self-help groups, such as [J Organisation].
It was indicated that the mother sought an adjournment and wanted to talk to the duty lawyer. I’m grateful to Mr Marchetti also making himself available to speak to the duty lawyer and Mr Waterson said he would be available to speak to the duty lawyer as well. The matter was stood down for the convenience of counsel.
I have noted above the mother’s apparent need for an interpreter. In my experience, it has been difficult for the court to retain interpreters of the mother’s language of origin. This is notwithstanding that Melbourne has a large population that speaks the language. I direct that special mention be made to the registry manager of the court’s need to secure an appropriate interpreter for the mother. I suggest that the mother be able to have at least one introductory session with the interpreter prior to the commencement of a trial. Clearly, it would be desirable for there to be continuity of an interpreter.
I make orders and directions set out at the beginning of these reasons.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 9 August 2023
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