Taro and Sanders

[2019] FamCA 207

FAMILY COURT OF AUSTRALIA

TARO & SANDERS [2019] FamCA 207

FAMILY LAW – CHILDREN – Where the mother seeks to discharge or set aside interim orders for the child to live with the father and spend supervised time with the mother– where the mother has filed a number of applications to this effect ‑ where there is insufficient evidence to cause the Court to revisit the orders – order made restraining the mother from filing any further applications to set aside or vary the interim orders without leave of the Court ‑ where the mother seeks to discharge the Independent Children’s Lawyer – application dismissed – where the mother seeks the expert evidence to be struck out – application dismissed – where a priority trial listing has already been allocated to the matter.

Family Law Act 1975

Taro & Sanders [2018] FamCA 1103

APPLICANT: Mr Taro

RESPONDENT: Ms Sanders

FILE NUMBER: BRC 3460 of 2018

DATE DELIVERED: 4 March 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 4 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A Ehlers

SOLICITOR FOR THE APPLICANT: Steindl Braldey & Associates

THE RESPONDENT APPEARED IN PERSON

INDEPENDENT CHILDREN’S LAWYER

Ms V Khushal

Bridges Family Law Specialists

Orders

1. That the mother’s Application in a Case filed 21 February 2019 be dismissed.

2. That the mother be restrained from filing any further applications to set aside or vary the Orders made 7 December 2018 and 24 January 2019 without leave of the Court.

3. That the father file and serve by no later than 4.00pm  on 21 May 2019:

   (a)       one (1) consolidated Affidavit setting out all evidence in chief; and

   (b)       one (1) Affidavit of each witness intended to be relied upon at trial.

4. That the mother file and serve by no later than 4.00 pm on 3 June 2019:

   (a)       one (1) consolidated Affidavit setting out all evidence in chief; and

   (b)       one (1) Affidavit of each witness to be relied upon at trial.

5. That the father file and serve by no later than 4.00 pm on 10 June 2019 one (1) Affidavit strictly in reply.

6. That the Independent Children’s Lawyer file and serve by no later than 4.00 pm on 10 June 2019 any further reports or assessments to be relied upon by the Independent Children’s Lawyer and the list of material the Independent Children’s Lawyer intends to rely upon at trial.

7. That each party file and serve on each other no later than 4.00 pm on 19 June 2019, a case outline setting out:

   (a)       a precise minute of the final orders sought;

   (b)       a relevant chronology; and

   (c)       a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.

8. That the Independent Children’s Lawyer be at liberty to apply to have the proceedings re-listed.

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 Taro & Sanders 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 BRISBANE

FILE NUMBER: BRC 3460 of 2018

Mr Taro

Applicant

And

Ms Sanders

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. The unrepresented yet highly articulate, intelligent mother Ms Sanders has brought a further application seeking to discharge or set aside earlier orders.  The gravamen of those orders made 7 December 2018 which have, I understand, already been the subject of an appeal still pending before the Full Court; an application for stay and at least one other application to set aside, for the reasons delivered, effected an immediate change of residence.  It was, as the reasons indicated at the time, always going to be a very difficult transition for the child and for the mother.

2. Nonetheless, at the time the order was made or shortly thereafter, on or about 20 December 2018 the mother indicated she had made arrangements to see other health professionals. As a result, the Court made orders for the Independent Children’s Lawyer to provide those health professionals, at least the treating psychiatrist, with material before the Court including the Reasons for Judgment, the transcript of the oral evidence of Ms C, the family report of Ms C and a psychiatric report of independent Psychiatrist, Dr D.

Mother’s Application in a Case filed 21 February 2019

1. The mother’s Affidavit in support of the Application in a Case filed 21 February 2019 provides, as best she can, what those health professionals will give her.

2. The letter from Ms H (Psychologist) dated 14 February 2019 and addressed “to whom it may concern”, sets out that the mother attended for her appointment on 14 February 2019 for initial assessment under the mental health care plan.  It is not clear what further treatment has been undertaken by Ms H.  She has not referred to the material sent to her by the Independent Children’s Lawyer.

3. Ms H’s view was that the mother “would most likely require a Forensic Family Assessment to assess her risk of harm and capacity to protect her child.”  In my view, I already have such an assessment by Dr D and, to a degree, by Ms C in the family report, although I accept that Ms C is not qualified to make a medical diagnosis.

4. Dr L, a Psychiatrist, has seen the mother at least on 22 January 2019 and, according to the mother’s statements from the bar table, at least on one occasion more.  Dr L says that:

   “There is significant complexity involved, as well as a requirement for me to gather more information from [Suburb J] hospital [sic] in order to understand [Ms Sanders’] treatment needs.  I will schedule another appointment with [Ms Sanders] next week to conclude the assessment.”

5. The letter dated 22 January 2019 is the most recent letter I have from Dr L. It does not provide any details of the treatment options that had been identified by him as a treating Psychiatrist for the mother after the updated information was available to him.  I am told by the Independent Children’s Lawyer that she provided to Dr L a copy of the same material provided to the Psychologist, Ms H.

6. Importantly, Dr L, clearly wanting to make it clear that he has been engaged as a clinician to assess and treat any mental illness, indicated that he was “not willing to provide a medico-legal report and no section of this correspondence should be interpreted that way.”  Of course, Dr L’s reluctance to provide a medico-legal report is a matter which is not unusual.  However, if there is information he has, he can be required at the trial to attend by subpoena.

7. In my view, this new information, including the report by the mother that she has some copies of photographs from Facebook which she says may challenge the father’s earlier statements that he did not partake in illicit substances, is insufficient to cause the Court to revisit the orders made on 7 December 2018.

8. In my view, even the material which the mother sought to file electronically on Saturday but which through the agency of the Independent Children’s Lawyer I have a copy of, and which has been given leave to file an Affidavit by the mother sworn 26 February 2019 attaching as it does supervision notes from K Group, would be insufficient to persuade me to set aside the current order that the child live with the father on an interim basis.

9. I have read those notes.  They show completely positive, delightful interaction between the mother and X.  I do not underestimate how difficult this is for the mother and X.  I am not surprised that X, at the point of leaving the centre to return to the father, has shown some reluctance and even distress.  The mother also says in her Affidavit in support of this Application that she has noted the child’s distress in telephone calls.  I have no doubt the mother is distressed and the child is probably picking up on some of the mother’s distress as well.

Mother’s application to dismiss the Independent Children’s Lawyer

1. The mother has brought an application that the Independent Children’s Lawyer be dismissed.  She says that the Independent Children’s Lawyer is biased against her.  I am not satisfied that any bias has been demonstrated by the Independent Children’s Lawyer.  Certainly, at the request of the Court, Ms Khushal was invited to do her best to engage with persons who the mother offered as supervisors.  Ms Khushal’s Affidavit filed recently in these proceedings on 1 March 2019 set out detailed notes of enquiries with a number of supervisors.

2. Ultimately, it was a decision of the Court whether the supervisors offered by the mother by various Affidavits were, in the Court’s view, appropriate.  For the reasons I have already delivered, I have taken the view that the only appropriate way at this stage supervision can occur, on the current evidence, is at a professionally supervised environment which is what is occurring at K Group.

3. It would be unfair in my view to criticise Ms Khushal for the effort she made because as I say, ultimately, it was a decision for the Court.  I am also not satisfied on the evidence that Ms Khushal has not fully briefed Dr D as the mother asserts.  To the extent that Dr D will be required to provide an updated report, in my view, so as to avoid any concerns that the mother may have:

   a)Dr D should be invited to confirm that he had read and taken into account the subpoenaed material in relation to the father’s assessment related to previous examples of inter-family or partner violence.

   b)When and hopefully possibly well before trial some further material is available from the mother’s treating Psychiatrist and/or Psychologist, that information be provided to Dr D so that he is in a position to indicate whether his view stated in his current report of the mother, with the benefit of that treating psychiatric support, has altered.

4. I am not satisfied that Ms C, who had access to all the subpoenaed material in accordance with the usual practice of her being a Family Consultant at this Registry, as the mother says, ignored or did not give appropriate weight to the father’s history in terms of her recommendation that the child on an interim basis live with the father.  As I indicated in my Reasons delivered 7 December 2018, the major concern for the Court was the past history of the mother including the notifications to the Department of Child Safety, Youth and Women set out in the Magellan report.  The mother quite rightly indicates, however, that much of that was a long time ago, which is not disputed.  The mother also says that Dr D’s assessment is wrong.

5. The trial which is now set to take place in June 2019 will turn on those factors, however, on the evidence before me at this stage I am not prepared to discharge the Independent Children’s Lawyer.  I am not prepared to strike out the evidence of Dr D and not prepared to engage a further family report writer.  I would expect, however, they will be updated before the trial.  In those circumstances, the mother’s application, therefore, filed on 23 February 2019 will be dismissed.

Restraint on filing further applications

1. Sadly, the mother is unrepresented.  It is not clear to me whether she has sought Legal Aid and been refused.  I would invite the Independent Children’s Lawyer to assist the mother where possible in obtaining legal advice and/or support if she wishes to have it.  It may well be that she does not wish to have a lawyer assisting her.  She is a highly articulate and intelligent lady and may choose to represent herself, however, I think she would be assisted by independent legal advice if it was possible.  I appreciate I cannot order the mother to have a lawyer, and I cannot order the Independent Children's Lawyer to engage Legal Aid in providing her with a lawyer.  I merely make the comments from my position of understanding the difficulties the mother has in some ways in presenting her case to the Court.

2. I am concerned that the father, who has again engaged Counsel for the day’s appearance, and the Independent Children’s Lawyer are incurring additional expenses and costs in coming to the Court on applications such as the one before the Court.  It now having been dealt with, I propose to make an order that the mother be restrained from filing any further applications to set aside or vary the orders made 7 December 2018 and 24 January 2019 without leave of the Court.

3. I will make an order that that the Independent Children’s Lawyer have liberty to relist this matter.  If the mother says there is a sufficiently serious issue that has arisen that the Court should be appraised of before the trial, then I have every confidence Ms Khushal will cause the matter to be relisted.  But I do not think it is appropriate for further applications of this nature be brought before the Court considering the trial is about three months away.

Trial directions

1. It is a totally difficult situation and one which caused this Court to give this matter significant priority over other cases which have been waiting in the system, some for more than two years for a trial.  The matter is listed today for trial directions and those trial directions appear at the commencement of these Reasons.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 4 March 2019.

Associate: 

Date:  9 April 2019