Tisdall & Tasman

[2009] FamCA 67

FAMILY COURT OF AUSTRALIA

TISDALL & TASMAN [2009] FamCA 67

FAMIL LAW – PRACTICE AND PROCEDURE – where father failed to attend the hearing or participate by telephone upon being contacted by the Court – whether to proceed with hearing on an undefended basis

FAMILY LAW – CHILDREN – with whom a child lives – children aged 16 and 14 – where eldest child living independently – consideration of evidence regarding the father’s health and his ability to attend Court – presumption of equal shared parental responsibility rebutted – whether children should spend equal or substantial and significant time with their parents – clear views expressed by the children – need to protect children from ongoing litigation – appropriate to make final orders – mother to have sole parental responsibility – youngest child to live with the mother

FAMILY LAW – PRACTICE AND PROCEDURE – father given liberty to reinstate his application within 6 months provided such application is accompanied by reports regarding the father’s capacity to participate in the proceedings and to spend time with or communicate with the children

Family Law Act 1975 (Cth) ss 60CC & 61DA

APPLICANT: Ms Tisdall

RESPONDENT: Mr Tasman

INDEPENDENT CHILDREN’S LAWYER: Mr A.M. Kent

FILE NUMBER: ADC 2845 of 2007

DATE DELIVERED: 28 January 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 28 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J.N. Milen

SOLICITOR FOR THE APPLICANT: Jo-Anne N. Milen and Associates

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Cocks

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

Orders

1. All previous parenting orders are discharged in relation to the children C born on the … September 1992 and M born on the … July 1994.

2. The mother have sole parental responsibility for the children C and M.

3. The child M live with the mother.

4. The father have liberty to reinstate his applications in this matter within six [6] months from today PROVIDED THAT accompanying any application for reinstatement of these proceedings the father file and serve a report of his General Practitioner and an independent psychiatrist being a psychiatrist who is the single expert agreed upon by the mother and the Independent Children’s Lawyer.  Those reports to provide the Court with detailed consideration of the father’s capacity both physically and mentally to participate in Family Court proceedings and the father’s physical and mental capacity to spend time with, live with or communicate with the children.

5. The appointment of the Independent Children’s Lawyer is discharged six [6] months from today.

6. All proceedings are dismissed and removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2845 of 2007

MS TISDALL

Applicant

And

MR TASMAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter in which proceedings have been on foot for a considerable period of time.  One set of proceedings was commenced in the year 2000.  These current proceedings commenced in May of 2007.

2. The proceedings concern the two children of the parties;  C, who was born in September 1992 and is therefore aged 16; and M, who was born in July 1994 and is therefore aged 14.  The father is Mr Tasman and the mother, Ms Tisdall.

3. The arrangements concerning the children have altered over a period of years, but M has been residing in the mother's care since March of 2007.  C was at one stage residing with the paternal grandfather but is now living independently and supporting herself. 

4. There have been reports prepared by Dr O in September 2007 and more recently by a family consultant, Ms D, in October 2008, following upon interviews in late September 2008 with the mother, the father, the mother's partner and M.  There were also telephone interviews with the paternal grandfather and the eldest child C.

5. The proceedings were before the Court for a considerable period of time.  There were orders made in June 2008 following upon an application by the father.

6. Subsequently, Parenting Questionnaires were completed in September and October of 2007, with a view to having the matter proceed to trial.  The first day of the trial was listed in October 2008.  On 17 October 2008, the first day of the hearing listed on 24 October was adjourned to 2 February 2009 at 10 am before me.  The matter was brought forward to today, due to the fact that I am not able to sit in this registry on 2 February 2009.  All of the parties were notified of that change. 

7. The father is indeed aware of the change because he has filed a further affidavit.  On 23 January 2009 he filed an affidavit which has clearly typed on the front, "Court date, 28 January 2009 at 2.15."  In the affidavit itself he says in paragraph 5:

   “I say that I am unable to adequately represent myself in the Family Court due to my current circumstances and will not be able to represent myself on Wednesday, 28 January 2009 at 2.15.”

8. There was also, as I understand it, correspondence which indicated that the father was aware of the change in the listing from 2 February to this afternoon at 2.15 pm.  I am informed from the bar table, however, of what appears to be an error on the part of the Family Court, in that the Cause List published in the paper this morning did not indicate that the matter was listed before me today and in fact was generally incorrect as to all listings before the Court today.

9. I am asked nonetheless, in the absence of the father, to deal with the matter on an undefended basis, due to his failure to attend. 

10. In the unusual circumstances of this case, I arranged for the Court Officer to telephone the number which was given to the Court when the father had previously sought to appear by telephone in October 2008.  In my absence the Court officer telephoned the father and a conversation took place in open Court between the father and counsel for the Independent Children’s Lawyer Ms Cocks.

11. The father apparently terminated that call.  I am informed that, during that call, he informed those present that he was not in a position to participate until he had legal representation.  He was made aware that one of the options would be that I would be asked to make default orders in his absence.

12. I then came back into Court and, having been informed of those matters, I requested that the Court Officer telephone the number again.  He did so whilst I was present and informed me that whoever answered the telephone call indicated that the father was too upset to participate in these proceedings.

13. I have subsequently heard the request of both the counsel for the mother and the Independent Children's Lawyer that the matter proceed by way of default orders. 

14. This seeks final orders.  When making final orders in relation to the children of this relationship, I am required to consider the welfare of the children as the paramount consideration.

15. I must weigh against that, however, the justice and fairness to each of the parties, and particularly the father in being able to present his case to the Court.  However, I take into account the affidavits filed by the father in October 2008 and, more recently, on 23 January 2009 concerning his health. 

16. The affidavit filed in support of his adjournment in October 2008 annexed to it a report concerning the father's health.  That report is from W and Associates, a Mr W, who is described as "Principal Psychologist".  That report says, apart from other matters, that it is his opinion that "[the father] does not have the psychological resources to attend Court and defend himself".  He concludes that "the demands of a Court appearance and the demands of representing himself will have an injurious effect on his health, prompting a relapse of decompensation" and supported the father's application for an adjournment, quote:

    “For a reasonable period, to allow his mental health to recover to a level where he can cope and perform.”

17. That letter of 29 September 2008 is also accompanied by a letter from Dr J of the C Surgery concerning the father's health, which says:

    “This man has a medical/psychological condition that renders him not fit to represent himself at Family Court.  He may request an adjournment.  Thank you for your consideration.  Yours sincerely.”

    And that letter is dated 17 September 2008.

18. The most recent affidavit filed by the father (which appears not to have been served upon the solicitors for the mother, nor did the Independent Children’s Lawyer counsel have a copy of it this afternoon when I raised it) annexes to it a letter from Dr K of the C Surgery, which is dated 22 January 2009:

    “To whom it may concern.  Medical report, [the father].  Dear Sir/Madam.  [The father] has a medical and psychiatric illness that renders him not fit to represent himself at Family Court.  He has not been able to get any Legal Aid assistance since the last adjournment.  Thank you for your assistance in this matter.”

19. In the affidavit filed by the husband he says, "I am still under the supervision of a general practitioner and a psychologist."  There is no mention of a psychiatrist in his affidavit, albeit that the doctor's letter refers to him having a psychiatric illness.  He again in the affidavit asserts that: 

    “I am still unable to adequately represent myself within the Family Court due to my current circumstances and will not be able to represent myself on Wednesday, 28 January at 2.15.”

20. He then refers to his difficulties in relation to legal aid and annexes to the affidavit a letter of 16 January 2009 requesting that he provide bank statements to the commissioners of the Legal Services Commission of South Australia for their consideration in his appeal.

21. The affidavit of the father does not specifically request an adjournment of the hearing on 28 January 2009, nor does it indicate when the father anticipates he will be either healthy enough to represent himself or in a position to know the outcome of his appeal in relation to legal aid.  They are the circumstances, however, set out in the father's documents which would be considered by the Court as supporting an adjournment by the Court of the trial in this matter. 

22. That is one of the significant factors to be taken into account.  There are, however, other significant factors which specifically relate to my need to consider the best interests of the children, in particular the report of Ms D which is before me, which I have considered carefully.

23. In relation to the child C, I pointed out that she is already 16 and she has expressed her views with clarity to Ms D.  In relation to the child M, the assessment indicates that he is currently settled in his living arrangements with his mother and has indicated strong views to Ms D concerning seeing or spending any time with his father.  In particular, paragraph 35 says in part:

    “[M] reiterated that he did not want to see or spend any time with his father.  He expressed his views firmly and consistently.  In the writer's view, the risk if any orders were made for him to spend time with his father or to communicate with his father against his express wishes is that [M] will become more hardened toward his father and that the future chances for any reconciliation in this relationship would be reduced.”

24. I take into account the other items referred to in the report, in particular in relation to the assessment by Ms D.  The children have been embroiled in ongoing litigation between the parents for some time and it appears that it is not in the best interests of the children for this litigation to be ongoing and for the finalisation of the matters to be postponed.

25. It seems clear that the father currently is not in a position so far as his health is concerned (suffering from an unknown psychiatric condition and a medical condition which is also unknown) where it would be appropriate for orders to be made without a further independent psychiatric assessment.  Such orders may be likely to increase the ongoing difficulties the children have with their father and reduce the prospects of improving their relationship with him.

26. When making any order in relation to the children, I am required to consider the provisions of Part VII, including whether there is a presumption of equal shared parental responsibility.  The provisions of section 61DA(4) say that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

27. I have before me a history of significant difficulties in the relationship between the parents and strong views by both C and M concerning their relationship with their father, which clearly rebut the presumption by satisfying the Court that it would not be in the best interests for C and M’s parents to have equal shared parental responsibility.

28. Notwithstanding that, it is still of course necessary for me to consider whether the children should have shared equal time or substantial and significant time with both of the parents.  When undertaking the exercise, I am obliged to consider the matters set out in section 60CC which require me to consider those matters when determining what is in the children's best interests.

29. One of the primary considerations is the benefit to the child of having a meaningful relationship with both of the child's parents.  That is of particular concern in this matter, but the evidence in relation to the children's wishes, as clearly set out in the report of Ms D, makes it clear that C has formed her views independently and is of an age where those views should be given significant weight.  In relation to M, he has also expressed his views clearly.  I take into account the conclusion of Ms D that any order makes him spend time or communicate with his father, is likely to reduce the possibility of establishing a meaningful relationship between M and his father in the future.

30. The other primary consideration is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  In this case the additional considerations which are of significance are of course the views of the children and the factors which are relevant to the weight which should be given to their wishes.  I rely upon the report of Ms D and the clearly expressed views of the children.

31. The nature of the relationship, the attitude to the responsibilities of parenthood and the capacity to provide for the needs of the children all indicate that the children's best interests would be served by residing with the mother. 

32. The capacity of the father to provide for the children, including their emotional and intellectual needs, as set out in section 60CC(3)(f), is also a matter of some significance, bearing in mind that the reports that the father has provided to the Court indicate that he has medical, psychological and psychiatric problems which are as yet not specified but, however, call into question his capacity to provide for the needs of the children, whether by way of communicating with them, spending time with them or living with them.

33. One of the other significant factors is the need to bring an end to these proceedings to enable the children to return to a greater sense of normal life without the ongoing stress of these proceedings.  That factor, and the need to protect the children from the possible emotional and psychological harm of ongoing litigation, convinces me that it is appropriate to make final orders at this stage, giving, however, the father liberty to apply within a short time if he is able to provide to the Court psychiatric and medical reports dealing with his physical and mental capacity to participate in the Family Court proceedings and his physical and mental capacity to spend time with or communicate with the children.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  5 February 2009