Waverley and Labelle

[2018] FamCA 710

FAMILY COURT OF AUSTRALIA

WAVERLEY & LABELLE [2018] FamCA 710

FAMILY LAW – CHILDREN – Parenting Proceedings – psychiatric assessment of mother by same psychiatrist as has assessed the father – case management – sundry issues in respect of which independent children’s lawyer arranged for matter to be mentioned – possible change of schools – counselling for one child – child travelling on public transport – communication between parents – mediation.

APPLICANT: Mr Waverley

RESPONDENT: Ms Labelle

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1021 of 2017

DATE DELIVERED: 6 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 6 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Tesoriero

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED THAT:

(1)The mother and the father do all acts and things necessary to obtain generalist counselling for the child B born … 2006 (“B”) at O Centre located closest to the residence of the mother. Subject to any recommendation by the counsellor, the mother and the father share equally the responsibility of taking B to such counselling and each be responsible for one half of the costs thereof.

IT IS FURTHER ORDERED THAT:

(2)I discharge paragraph 2 of the Order made on 28 May 2018 with the effect that the s.62G(2) report may be released notwithstanding that the assessment of Dr P has not been received. Following the release of the assessment of Dr P the independent children’s lawyer send the assessment to the family consultant as soon as practicable upon receipt NOTING THAT the family consultant may be asked to prepare an addendum report or, alternatively, will be called as the first witness in the final hearing in addition to also being called as the last witness at the final hearing.

(3)The mother pay for and attend for assessment by Dr P as directed by the independent children’s lawyer and not less  than 14 days prior to the appointment pay Dr P’s fees to the independent children’s lawyer in clear funds.

(4)The independent children’s lawyer provide Dr P with copy of the s.62G(2) family report.

(5)By not later than Monday 10 September 2018 the father notify the mother, or cause her to be notified, by email if he has the means to pay J School to secure B’s place there in 2019 and that the fees can be paid within 48 hours.

(6)By not later than Wednesday 12 September 2018 the mother notify the father by email, or cause him to be notified, of her decision about withdrawal of the child B from J School.

(7)In the event that B is to be withdrawn from J School for the 2019 academic year the mother as soon as practicable inform the father of the schools which she is considering B attend in 2019 onwards and the father respond by email within 7 days his choice of schools.

(8)The independent children’s lawyer arrange with my Associate for this matter to be mentioned upon release of Dr P’s assessment of the parents or 24 October 2018 (whichever first occurs).

(9)Each parent file and serve a Financial Statement by not later than 1 October 2018.

(10)That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

AND IT IS NOTED

A.That the father says that he is not currently able to make any contribution to school fees for B or for the child C born … 2008 for 2019 which is a decisive factor in the mother’s decision to withdraw B from J School.

B.That this matter remains set down for final hearing before me on 29 October 2018 at 10.00 am.

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 Waverley & Labelle 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 MELBOURNE

FILE NUMBER: MLC 1021 of 2017

Mr Waverley

Applicant

And

Ms Labelle

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. This matter comes before me on a mention arranged by the Independent children’s lawyer for a number of outstanding matters including the failure of the mother to attend upon Dr P for a psychiatric assessment.  The appointment which has just been cancelled by Dr P’s rooms was the second appointment which the mother has failed to attend.  The Independent Children’s Lawyer has now arranged a further appointment in the near future and the mother assures me that she will raise the money to pay for the assessment and will attend. A number of other issues were raised.

Psychiatric assessment of mother

1. As I have mentioned previously this is a matter of some complexity particularly as to high parental conflict.  One parent has an appetite for litigation and to agitate issues and the other appears utterly exhausted by the prospect.

2. The father presents as not particularly assertive with an inclination to evade issues in response to direct questions which he could reasonably perceive could reflect negatively upon him.  An example was, when I asked him about his financial support of the children, he informed me that the mother had spent the last weekend at a luxury hotel in the city.  It transpired that she was the guest of her partner who is also going to pay Dr P’s fee.

3. The father is a comfortable self-represented litigant.  On the other hand the mother appears to be immobilised to an extent which is curious.  She may be competent within her professional life but appears to be unable to deal with the father and with these court proceedings.  Her failure to attend upon Dr P may be emblematic of that.  It is axiomatic that a less than satisfactorily behaved litigant does not necessarily indicate a less than satisfactory parent.

4. The mother presents as a person under siege.  The father is fairly cool and calm. I have no picture as to where the children stand although I suspect that small matters turn into big issues between the parents and the children are conduits for parental strategies and messages.  Hopefully Dr P’s evidence will assist the court to decode the parental relationship and to address it in the context of formulating parenting orders which are in the best interests of the children.

Counselling for child B

1. The school at which B is enrolled, J School, had suggested that counselling be accessed for her outside the school.  The father has communicated his agreement and sourced counselling but, apparently, the mother had not done anything.  Between the Independent children’s lawyer learning of the outstanding request and this mention today, the school has notified the parents that outside counselling does not appear to be necessary for B.  I have made an order, by consent, about counselling. 

Withdrawal of child B from J School

1. The mother informed the court that the father has refused to pay any school fees for B or the 2019 academic year.  There is no child support obligation that he do so but he had been paying one half until now.  The account for 2018 is going to be issued in the next few days and is due for payment in October 2018.  The mother was tearful as she said that she was in the process of trying to renegotiate her mortgage to access funds with which to pay for B to continue at J School.  The father stated that he had recently signed some properties over to the mother, after his appeal against enforcement orders failed before the courts overseas, and the mother could sell one of those properties to pay for school fees. 

2. The mother’s position is that she would manage to pay one half of the school fees if the father pays the other half but she does not want to be on tenterhooks each school billing cycle as to whether the child can continue at her school.

3. In general discussion with the mother, it appears that B’s continued attendance at J School may be unrealistic.  The mother is in arrears of her one half share of B’s fees.  If fees cannot be paid in respect of one child (B) who is in Year 6, there seems little point in her continuing on to middle school.  Particularly, as the parents would, presumably, be looking at placing her brother, C, at that school in Year 5 (2019) or soon thereafter.  Sad as it may be for B, at the end of this year she will participate in Year 6 valedictory celebrations and could move on with some closure.

4. I have made orders whereby the father has until next Monday to notify the mother that he can and will pay one half of B’s education costs in 2019.  By next Wednesday, 12 September 2018, the mother is to notify the father of her decision to withdraw (or not withdraw) B from J School.  The issue of which school B is to attend in 2019 should be resolved prior to the father’s next weekend of spending time with the children.

5. The parents will have liberty to apply in the event that there is a dispute is relation to which new school B will attend next year and/or which school C will attend in 2019.  The parents will be required to file and serve a Financial Statement prior to me considering a selection of school, not from the perspective of child support but from affordability generally.  The father is not paying periodic child support at the moment.

Child B on public transport

1. The father raised an issue about the mother objecting to B taking public transport to his house after school on the spend time weekends.  The father said that the mother also objects to his partner collecting one of the children and he obviously cannot be at two places (schools) at once.

2. The mother does object to B taking public transport.  I consider that objection to be reasonable given that B is 12 years old and would be taking the bus only as frequently as once a fortnight and, necessarily, not as part of a cohort of regular bus travellers on that route with whom she is familiar.  The mother eschewed any objection to the father’s partner collecting one child so it appears that is the solution.  In the event that the father and/or his partner are unavailable, the father should use after school care and be responsible for the cost thereof.

Communication between the parties

1. The father took exception to the mother’s partner communicating with him on behalf of the mother.  I see no difficulty with that communication providing the communication is clear and authorised and the mother is bound by it.

Final hearing

1. As I dictate these reasons, I note that the hearing date is 29 October 2018 whereas reference was made during the hearing to 29 September 2018.  Interviews for the s62G(2) family report have already occurred.  There is every chance that the matter can proceed this year.

Family Dispute Resolution service mediation 

1. Through counsel, the independent children’s lawyer has agreed to make arrangements for another FDRS mediation through Victoria Legal Aid after the release of Dr P’s report on the mother.  The date of the further mediation should be notified to my Associate as and when known.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 6 September 2018.

Associate: 

Date:  12 September 2018