Tasman & Tisdall (No. 2)

[2008] FamCA 793

FAMILY COURT OF AUSTRALIA

TASMAN & TISDALL (NO. 2) [2008] FamCA 793

FAMILY LAW – CHILDREN – application in a case filed by father – oral application by father seeking recovery order – consideration of paternal grandfather’s role in proceedings – orders made with respect to preparation of family assessment report – provisions made for child to attend eye examination – court declined to make interim orders with respect to children

FAMILY LAW – PRACTICE AND PROCEDURE – application to transfer matter to Federal Magistrates Court – transfer unsuitable due to complexity – procedural orders made

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Tasman

RESPONDENT: Ms Tisdall

INDEPENDENT CHILDREN’S LAWYER: Mr Kent

FILE NUMBER: ADF 2845 of 2007

DATE DELIVERED: 28 February 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 28 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Milen

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Leeson

Orders

1. A fresh family assessment be carried out by Dr O if she is available within the appropriate time frames, otherwise by a family assessor nominated by the Independent Children’s Lawyer after discussions with the father, the mother’s solicitors and the paternal grandfather or his solicitors.

2. A family assessment report be prepared to be ready for consideration of the parties at least one [1] month before the final trial date and that the Docket Registrar ensure that my order is put into effect by notifying the Independent Children’s Lawyer that the time has come for the family assessment to be prepared.

3. The family assessment should involve all parties to the proceedings, the mother and father and the two children and if the paternal grandfather seeks to continue his role in relation to the child C and is a respondent to the proceedings it will be appropriate for him to participate in the assessment as well.

4. Within fourteen [14] days from today the mother file and serve an affidavit annexed to it a full and detailed report of the doctor who examined C reporting on whether she had ever been pregnant.

5. IT IS DIRECTED that within fourteen [14] days both the mother and father confer about C’s attending an eye examination and if they are unable to agree upon a place at which C should attend for the eye examination then they provide to the Independent Children’s Lawyer their preference in relation to the eye examination .  Both parties are to ensure that C attends that assessment and noting that the father understands should not be any costs for the eye assessment.

6. AND IT IS FURTHER DIRECTED the Court officer to make available to the parties and their solicitors the Kids-Are-First brochure which sets out the programmes and each party give strong consideration to all of the parties, including the children C and M attending such Kids-Are-First programme if they are considered suitable.

7. The mother within seven [7] days from today file and serve an amended application for final orders specifying the orders that she seeks in relation to C and M.  The paternal grandfather is to be a respondent to the application and that he also be served within that time frame.

8. Any response by the father or paternal grandfather is to be filed and served within fourteen [14] days of service upon them of the mother’s amended application.

9. The father’s application for contravention is to be listed for a short trial as soon as possible UPON NOTING that the father’s evidence is held on file and the only other witness is the mother and the mother may call Dr P whose report is on file (refer document 19).

10. The father is to notify the mother’s solicitors within fourteen [14] days from today whether he requires Dr P to be available for cross-examination on his report or whether the report can be received in evidence on behalf of the mother without the necessity to call Dr P.

11. In relation to the final application the matter is referred to the Docket Registrar for directions.  As soon as the contravention proceedings have been given a listing date the Docket Registrar to prepare the matter for a first day hearing before the Docket Judge as soon as possible (at that time provide for an updated family assessment).

12. The Court declines to make any interim orders in relation to C or M at this stage.

13. The mother serve upon the paternal grandfather at the time of serving the amended final orders application copies of affidavits filed by the mother in proceedings since they commenced in May 2007 and copies of the affidavit material filed by the Independent Children’s Lawyer since that time.

14. The respondent father to provide the paternal grandfather with copies of affidavits filed by him in proceedings thus far when serving the paternal grandfather with any response for final orders application by the father.

IT IS NOTED that publication of this judgment under the pseudonym Tasman & Tisdall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 2845 of 2007

MR TASMAN

Applicant

And

MS TISDALL

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application in a case filed by the father, Mr Tasman, who is unrepresented.  It comes on for hearing before me in the duty list this morning.  The application seeks numerous orders as set out in that document 35, including that a further family assessment be carried out by Mr R; that a family assessment report involve the mother, the paternal grandfather, the father and the two children.

2. The father seeks orders specifying issues to be considered by the person conducting the family assessment.  He then further seeks orders that the child C attend the S youth service for a full medical examination in relation to her 12‑week miscarriage, and ancillary orders in relation to that.

3. He also seeks that C attend for an eye examination at Marion, and that the mother attend a recognised and approved course in communication and joint parenting with Relationships Australia, and that the final orders applications be transferred to the Federal Magistrates Court.

4. This is a matter which involves the welfare of two children of the mother and father:  C who was born in September 1992 and is therefore aged 15, and M who was born in July 1994 and is aged 13.

5. It appears from the documents in the current file before me that these current proceedings have been on foot since May of 2007.  However, the earlier file has a year 2000 date and there were substantial orders made in 2004.  It is therefore of serious concern that the parties have been unable to attend to their responsibilities as parents for these children without recourse to the Family Court for many years.  It is therefore important for the issues concerning their welfare to be resolved promptly but also carefully.

6. The father, when he addressed the Court this morning at length, also made an oral application that there be a recovery order issued and that the child C be ordered to live with him or the mother.  I understood his application to be primarily that the child C live with him.

7. When attempting to ascertain from the parties and their legal representatives the actual current status of the orders in relation to the children, the responses were not useful.  It appears that orders were made some years ago which had not been discharged, but from a practical point of view the children's current arrangements have nothing to do with the orders of this Court.

8. It appears that M currently resides with the mother and rarely spends time with the father. It also appears that C resides with the paternal grandfather, occasionally sees the mother and, according to the father's affidavit, has in the recent past spent a limited amount of time with him.  These arrangements, as I said, bear no resemblance to the orders of the Court.

9. In relation to who exercises parental responsibility for C, there is also considerable doubt about the authority of anyone actually exercising parental responsibility to do so, particularly to do so without conferring with both the mother and father.

10. I agree with the Independent Children’s Lawyer that the paternal grandfather should not merely be a witness in these proceedings, but as he purports on a day‑to‑day basis to be the person providing practical care for C and making decisions concerning her welfare, it is therefore appropriate that he becomes a party to these proceedings and to seek, if he chooses to do so, appropriate orders.  If he does not choose to seek appropriate orders in relation to C, then the Court will bear that in mind when making the necessary arrangements for C.

11. I therefore propose to make some particular orders to get this matter in proper form so that the Court can deal with it in the usual way.  I express serious concern that the matter has been allowed to drift in its current form, particularly since the proceedings were instituted in May of last year.

12. I turn now to consider the application of the father, which is the application which is before me filed on 31 January 2008.  The first issue is in relation to the family assessment.  There is on the file already a family assessment of Dr O, which was carried out as a result of a referral in July 2007 as a result of interviews and telephone calls conducted in August and September 2007, but it does not appear that the paternal grandfather participated in that report by Dr O.

13. Much has happened in relation to the children since September 2007.  It would be appropriate to have an updated family assessment concerning both children prior to the hearing of the final orders applications in this matter.

14. In relation to who should be the person to conduct the assessment, I am not satisfied that the father has set out, either in his affidavit or in his submissions, any ground which would suggest that Dr O would not be an appropriate person if she is available and willing at the appropriate time to conduct that investigation. Obviously if she is not available or willing within the appropriate time frame, then a further family assessor should be approached.

15. I propose to order that a fresh family assessment report be carried out by Dr O if she is available within the appropriate time frames, but otherwise by a family assessor nominated by the Independent Children’s Lawyer after discussions with the father and the mother's solicitors and the grandfather and/or his solicitors.

16. It is not appropriate at this stage to order the family assessment to take place immediately, because before the final orders application can be heard it will be necessary to dispose of the father's application for contravention which was filed in July 2007.  For some reason this has not yet been listed for final hearing.

17. In relation to those persons who should participate in the family assessment, the family assessment should involve all parties to the proceedings;  obviously the mother, the father and the two children.  If the paternal grandfather seeks to continue his role in relation to the child C and is a respondent to the proceedings it will be appropriate for him to participate in the assessment, as well.

18. In relation to paragraph 5 of the father's application which seeks that the child attend a full medical examination in relation to a miscarriage, the factual situation in relation to whether C was ever pregnant is in dispute.  From the bar table today the mother's solicitor says that the child has been taken by the mother to a doctor and examined.  That examination indicated that the child had never been pregnant.

19. I propose, rather than make the order sought by the father in paragraph 5, to order that the mother provide a full report of the doctor annexed to an affidavit of the mother, within 14 days.

20. In relation to the issue of an eye examination, the father raises questions concerning the ability of the child to cope with her current vision.

21. I note that the father understands there should not be any cost for the eye assessment.  I make that order on the basis that if the matter can be attended to without cost, it is not a matter which requires a great deal of effort on any of the parties and is something which might benefit C in the long run and therefore should be attended to.

22. I will put a time limit of 14 days on the parties conferring about C attending an eye examination, and ensuring that C attends that assessment.

23. In relation to paragraph 7 of the father's application in relation to the mother attending an approved course in communications, I do not propose to make that order today, but I do direct the Court officer to make available to the parties and their solicitors the Kids Are First brochure available, which sets out the programs. I would certainly give serious consideration to all the parties, including the children, attending such a Kids Are First program if they are considered suitable.

24. The parties are requested to consider the attendance of all the parties and the children at the Kids Are First parenting orders program.  In due course if the matter is heard, the judge who hears the final proceedings may well consider making an order that both the parties and both the children attend such a program.  At this stage it is not appropriate to merely order one of the parties to attend.

25. In relation to the application that these matters be transferred to the Federal Magistrates Court, the complexity of the matter is clear.  The ongoing proceedings have formed a large part of these children's lives, the allegations in relation to the welfare of the children include alienation of the children from one of the parents and an inability of the parents to confer on even a basic level about the proper parenting roles of the parties.

26. The proceedings now involve a third party, the paternal grandfather.  The matter is of such a complexity as to make it unsuitable for referral to the Federal Magistrates Court.  Further, I am not sure that referring it to the Federal Magistrates Court at this stage of the proceedings, having been afoot for many months in this Court, would bring about a prompt hearing in any event.

27. I will make some procedural orders to direct that the final orders application be heard as soon as possible after the conclusion of the contravention proceedings.

28. The father's application for contravention is to be listed for a short trial as soon as possible, noting that the father's evidence is already on file.  The only other witness is proposed to be the mother, and the mother may call Dr P whose report is on file, document 19.

29. I estimate that the contravention application can be listed for a short trial.

30. In relation to the application for final orders, I am proposing to have it referred to the docket registrar for directions and then, as soon as the contravention proceedings have been given a listing date, for the Docket Registrar to prepare the matter for a first day hearing before the Docket Judge as soon as possible and at that time highlight the need for an updated family assessment.

31. I refer to the oral application of the father for recovery orders that the child C live with him or the mother.  At this stage the unsatisfactory nature of the proceedings is such that the paternal grandfather has filed an affidavit but has not been made a respondent to the proceedings.

32. There are significant issues in dispute concerning the welfare of the child C.  Her attendance at TAFE rather than school; her welfare generally.  Those matters are matters of significant concern.  However, at this stage and bearing in mind the authorities which require me to take into account the best interests of the children and, in particular, the authority of Goode & Goode (2006) FLC 93-286 in relation to interim proceedings, I am not satisfied, having considered the various criteria discussed in Goode & Goode (supra), that it is in C’s best interests to make that order at this stage.  In particular, it is an oral application, but at the same time I bear in mind that the orders which currently exist in a formal sense in relation to C are not being obeyed.  Those matters need to be remedied as soon as possible.

33. I note there is an Independent Children’s Lawyer in relation to C and M.  The Court expects the Independent Children’s Lawyer to follow the guidelines of Independent Children’s Lawyer and ensure that, particularly so far as children of this age are concerned, that their input is received by the Independent Children’s Lawyer.  If indeed they wish to make an application to the Court, a child at the age of 15 may well be one who can make an appropriate application.  I therefore decline to make any orders in relation to C or M at this stage.

34. That leaves only the final orders applications outstanding and the contravention application outstanding.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  22 September 2008