Wilmont and Wilmont

[2013] FamCA 273

FAMILY COURT OF AUSTRALIA

WILMONT & WILMONT [2013] FamCA 273

FAMILY LAW – PRACTICE AND PROCEDURE – Application adjourned to a fixed date for hearing – Trial directions made re payment of hearing fee and filing of documents – Leave granted for parties to restore the matter upon notice – Injunctive Orders – Order that communications made during Parental Guidance Counselling be confidential

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilmont

RESPONDENT: Ms Wilmont

INTERVENOR:

FILE NUMBER: ADC 197 of 2011

DATE DELIVERED: 14 March 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 14 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Ann Josephson Lawyers

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Georgina Parker Lawyers

Orders

1. These proceedings be listed for hearing commencing 10.00am Monday 19 August 2013 at Adelaide.

2. These proceedings be listed for call-over for the August sittings at 4.00pm (Adelaide time), 4.30pm (Tasmanian time) on Tuesday 23 July 2013 by telephone by dialling … .

   IT IS DIRECTED

3. The applicant husband pay the hearing fee on or before 4.00pm 14 June 2013.

4. The parties file and serve affidavits or set out the affidavits they rely upon and updated financial circumstances on or before 4.00pm 14 June 2013.

5. The parties arrange updated valuations and have those filed on or before 14 June 2013.

6. The parties provide a case outline, setting out the orders they seek, the affidavits they rely upon and an outline of their submissions three business days before the commencement of the hearing.

   IT IS FURTHER ORDERED

7. Leave be given to the parties to have the matter listed before me on the giving of seven (7) days notice.

8. The parties be restrained from filing any further affidavit material after 14 June 2013 without leave of the court.

9. Within fourteen (14) days of the date hereof the parties do all such things as are necessary to instruct SGIC to authorise and release all insurance monies payable in relation to the Toyota … motor vehicle (registration number …) to the husband.

10. The parties attend for Parental Guideance Counselling with a family consultant nominated by the Director of Family Consultants at Adelaide at a time reasonably provided by that family consultant, such Guideance Counselling/mediation to be in accordance with Divison 3 of Part II of the Family Law Act in that the communications are confidential.

    IT IS FURTHER DIRECTED

11. A copy of Ms L’s report be made available to the family consultant and that the family consultant report to the court as to whether the parties participated or did not participate in that process.

12. A copy of the reasons for these orders be taken out and placed on the court file.

    IT IS NOTED

13. The parties have agreed that there ought to be mediation and there is issue as to whether that is completed by the family reporter or some other person.

    IT IS CERTIFIED

14. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilmont & Wilmont 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 HOBART

FILE NUMBER: ADC 197 of 2011

Mr Wilmont

Applicant

And

Ms Wilmont

Respondent

REASONS FOR JUDGMENT

1. In the proceedings of Wilmont an application in the case was filed on 8 March 2013 by the father following the release of a report from Ms L recommending joint non-privilege counselling between the parties. 

2. The parties engaged in some communication with respect to that proposal and agreed that some form of mediation or counselling, as recommended by Ms L, ought to take place.

3. What they disagreed about were two fundamental issues.  Firstly, whether Ms L should be the facilitator in such a process and secondly, whether it should be a reportable process or non-privilege process.

4. The father, in his affidavit, says that he wishes to adopt the recommendation by Ms L and wishes to engage in that process with the mother and sets out in his affidavit, in particular at paragraph 9, the steps he has taken to try and find solutions to this matter.

5. He asserts, in his view, that the mother is undermining his relationship with the children and notes that he has not seen the children for some three months although at this stage he is not pressing to see them.  He says it is important that the process be transparent to be effective.

6. As a fall back position, and it’s clearly a fall back position, he says that if Ms L is not appropriate, there is Ms H, who has prepared three reports.  And finally, when I raised the issue about a family consultant, he said he would adopt that course.

7. The mother has filed an affidavit in reply, and this all happened quickly and I acknowledge the pressure that must have been on her legal advisers in putting material before the Court.

8. The mother says that that would fundamentally undermine the process of the counselling or medication in two respects.  Firstly, it would undermine the role of the independent reporter and secondly, that the mother and father could not speak frankly having regard to the reportable nature of it so the opposition of the mother was firstly to the use of Ms L and secondly, the reportable nature of it and she sets that out in her affidavit.

9. I have great sympathy for the father’s approach.  However, I am always concerned when a single expert may become involved in therapeutic or negotiation processes between the parties.

10. It is important that parties can explore options in such a process without running the risks that those options can come back before a judge and perhaps prejudice or create a feeling of prejudice in terms of the outcomes that they seek at that time.

11. Accordingly, in this instance, I am not prepared to direct the parties to counselling and/or mediation with Ms L. There was a suggestion of Ms H but it strikes me that the Court has family consultants who can undertake that task particularly having regard to s 65L of the Family Law Act 1975 (Cth) (“the Act”) and particularly if I treat it as Family Dispute Resolutions pursuant to s 10F, G and H of the Act

12. That would mean that Ms L’s report was before the family consultant.  The family consultant would be aware of the process that Ms L recommends and it could be done relatively quickly.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 March 2013.

Associate:     

Date:              14 March 2013