THISTLE & THISTLE

[2014] FamCA 66

FAMILY COURT OF AUSTRALIA

THISTLE & THISTLE   [2014] FamCA 66

FAMILY LAW – PRACTICE AND PROCEDURE – Evidence – Leave to adduce evidence 

Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth)
APPLICANT:	Mr Thistle

RESPONDENT: Ms Thistle

INDEPENDENT CHILDREN’S LAWYER: Ms Sheehy

FILE NUMBER: BRC 9645 of 2011

DATE DELIVERED: 10 February 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 10 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley

SOLICITOR FOR THE APPLICANT: Sarah Cleeland Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Pendergast

SOLICITOR FOR THE RESPONDENT:	Dean Kath Kohler Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Black
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Rhonda Sheehy & Associates

Orders

1. The Mother have leave to adduce oral evidence from Mr L.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thistle & Thistle 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 BRISBANE

FILE NUMBER: BRC 9645 of 2011

Mr Thistle

Applicant

And

Ms Thistle

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 6 March 2013 orders were made by consent, including an order in paragraph 4:

   That the mother forthwith arrange for therapeutic counselling at Relationships Australia, Lifeline or similar organisation for herself and the children [J] and [T] to address strategies to assist the family to support [Y] in the transition to commencing time spent with the father.

2. The matter again came before the Court on 8 October 2013, when Tree J made further orders by consent simply varying the earlier orders made in terms of supervised time between the subject child, Y, born in September 2004, and her Father.  Otherwise by that order the trial of this matter was adjourned until today and set down for two days of hearing commencing today. 

3. In the result one Mr L is the counsellor, a social worker, who undertook the therapeutic counselling referred to in paragraph 4 of the order referred to and the Mother seeks to call Mr L to give oral evidence. That is opposed by the Father.

4. On 16 January 2014 the Mother issued a subpoena to Mr L to give evidence.  As was pointed out by Counsel for the Father, there was no leave sought or granted in relation to that subpoena as required by the relevant rules, although at that time the Mother was self-represented.  In the event, Mr L has provided today, for the first time, so far as the Father and, as I understand it, the Independent Children’s Lawyer is concerned, details of the evidence he would seek to provide to the Court if called as a witness.

5. I sought from Ms Pendergast of Counsel for the Mother an outline of the evidence Mr L would propose to give if permitted to give oral evidence.  That seemed to fall into three categories.  First, a category of J having made disclosures to Mr L on the subject issue of inappropriate touching by the Father.  Second, Mr L would purport to express an opinion as to the response of the Mother in terms of her coping capacity if an order for unsupervised time were made.  And, third, Mr L, as having undertaken the counselling referred to, would provide evidence about his opinion as to the further therapy or counselling that should take place into the future.

6. It is plain that Mr L’s role since the order of 6 March 2013 referred to is concerned goes beyond the terms of paragraph 4 of the orders, in that it would seem he has undertaken counselling with Y.  I am not satisfied that a social worker qualified as such, with all due respect to Mr L, is qualified to express what seems to me to be a medical opinion in terms of the Mother’s capacity to cope or otherwise, in terms of her parenting ability, in the event that this Court ultimately determined that there ought be time on an unsupervised basis. His evidence otherwise seems to be relevant.

7. On that basis I indicated in the course of argument that Mr L should be permitted to give evidence but he would not be permitted to give evidence on that aspect referred to.  In the light of that, Counsel for the Father indicated a preparedness on the Father’s part to proceed with the trial, in circumstances where Mr L’s evidence is so confined rather than seeking an adjournment. 

8. For these reasons I give leave to the Mother to adduce evidence from Mr L confined to the categories to which I have made reference in these reasons.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 10 February 2014.

Associate: 

Date:  11 February 2014