Wilshaw and Wilshaw (No 2)

[2015] FamCA 343

FAMILY COURT OF AUSTRALIA

WILSHAW & WILSHAW (NO 2) [2015] FamCA 343

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – where the matter was expedited – where the expert recommended family therapy – where family therapy was to commence prior to the final hearing – where family therapy has not commenced – where the father no longer agrees to the family therapy – where the father seeks an alternate therapist – where the matter is to be heard on a final basis within a month – best interests of the children

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilshaw

RESPONDENT: Ms Wilshaw

INDEPENDENT CHILDREN’S LAWYER: Cathy-Anne Grew

FILE NUMBER: PAC 3218 of 2013

DATE DELIVERED: Orders made: 30 March 2015
Judgment:  8 May 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 30 March 2015

REPRESENTATION

APPLICANT – LITIGANT IN PERSON: Mr Wilshaw

COUNSEL FOR THE RESPONDENT: Mr Friedlander

SOLICITOR FOR THE RESPONDENT: Catalyst Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cathy-Anne Grew, Matthews Folbigg Pty Ltd

Orders

1. The Applicant father’s Application in a Case filed on 13 March 2015 is dismissed with Reasons to be published.

2. The hearing dates of the 27, 28, 29 and 30 April 2015 and 1 May 2015 are confirmed.

3. The time for the Applicant father to file and serve any amended Initiating Application, Financial Statement and chronology is extended to 13 April 2015.

4. The time for the Applicant father to file and serve one consolidated affidavit of his evidence and one consolidated affidavit from each of the witnesses upon which he relies in support of the orders sought by him with such affidavits to be in compliance with Rule 13.12 of the Family Law Rules 2004, is extended to 13 April 2015.

Notation

1. It is expected that the father will comply with the amended timetable for the filing of his application, affidavits and financial statement.

2. A further application to adjourn the proceedings on the same grounds as the Application in a Case filed 13 March 2015 will not be entertained.

3. In the event that the father fails to file his evidence in accordance with these orders, it should not be assumed that leave will be granted for late filing of those documents and the matter may proceed without any of the father’s material being read.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilshaw & Wilshaw (No 2) 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 PARRAMATTA

FILE NUMBER: PAC 3218 of 2013

Mr Wilshaw

Applicant

And

Ms Wilshaw

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by a father who is a party in parenting and property proceedings to vacate the final hearing date and to seek other related orders.  On 30 March 2015 I dismissed the father’s application and indicated I would publish my Reasons at a later date. These are those Reasons.

Background

1. These proceedings concern the long term parenting arrangements for the children of Mr Wilshaw (“the father”) and Ms Wilshaw (“the mother”) and property matters. The parties have four children, Ms C who is currently 18 years old (and not the subject of these proceedings), D aged 16, E aged 14 and F aged seven.

2. The parties married in 1994 and separated on 30 June 2010. The father has not spent time with the children for some years.

3. The mother lives in Region G. The father lives in Region H.

4. The children have lived with their mother since separation. Initially the children spent time with their father on a regular basis, but since July 2011 each of the three older children made their own decision to spend no further time with their father. F, who is seven, has also not spent time with the father for some years.  The children are now effectively estranged from their father.

5. The father commenced these proceedings on 30 July 2013 seeking orders that the children live with him and spend supervised time with the mother and that he have sole parental responsibility for the children. It is the father’s case that the mother may have a mental illness and that it is in the children’s best interests for his orders to be made.  The mother seeks orders that she have sole parental responsibility, that the children live with her and spend time with the father in accordance with their wishes.

6. The parties participated in the Child Responsive Program and were interviewed separately and together by a Family Consultant on 18 December 2013 and 23 January 2014. A Child Responsive Program Memorandum was prepared on 7 February 2014 for the assistance of the Court.

7. The Family Consultant recommended that a Chapter 15, expert report of a child and family psychiatrist was required if further assessment was necessary. The Family Consultant made this recommendation based on the presentation of the parties, “characterological factors that may be negatively affecting the parties parenting capacity”, along with concerns of the children’s emotional and behavioural well-being. The father also reported emotional and psychological abuse towards the children by the mother and that she may have possible mental health issues.

8. On 7 July 2014 orders were made by consent for the appointment of Dr B, Child Adolescent and Family Psychiatrist, as the single expert. The parties also consented to orders regarding the terms of reference for that assessment and that the costs of the assessment be shared.

9. Dr B had interviews with the parents and each of the children on 15 and 16 July 2014 and her report was released on 5 September 2014.

10. In her report Dr B recommended that the family receive therapeutic intervention and that the father spend time with the children in the course of that family therapy. It is Dr B’s view that the preferred therapeutic intervention be family therapy with an experienced clinician. She also foreshadowed that multiple clinicians might need to be involved, and that given the geographical distance between the parents, family therapy would require both parents to travel and to contribute to the therapist fees.

11. On 9 October 2014, after the release of Dr B’s report, the parties participated in the first day of the Less Adversarial Trial. All parties agreed that it was in the best interests of the children for family therapy to begin to address the estrangement between the father and the children. The cost of the therapy was a live issue and it was anticipated that the costs could be high, given that the process could be protracted and involve multiple therapists.

12. Consent orders were made providing for the Independent Children’s Lawyer (“ICL”) to coordinate the appointment of the therapist which was first to commence with obtaining a recommendation from Dr B as to an appropriate professional In Region G to undertake the therapy. The orders provided for the ICL to provide a copy of the expert report to the proposed therapist and seek details in relation to the anticipated cost of the therapy, which would be provided to the parties before therapy was to begin. The parties were to respond to the ICL within seven days of receiving the information and indicate whether they would be in a position to fund half of the anticipated costs of the family therapy. The ICL was granted leave to relist the matter should the parties be unable the fund the family therapy.

13. Following the 9 October court event, the ICL obtained a recommendation from Dr B as to two suitable service providers in Region G.

14. The ICL then contacted the parties and proposed that she contact both agencies to ascertain whether a clinical psychologist with family therapy experience was available to commence therapy with the family within four to six weeks. Secondly, the ICL proposed that she would liaise with the available practitioner and send that person a copy of Dr B’s report to obtain an estimate for the necessary therapy.

15. The ICL then contacted each of the service providers but only one of them, the I Clinic responded.  The mother and father each also suggested alternate therapists, other than those recommended by Dr B.  The ICL wrote to Dr B asking whether she had any objection to either of the parents’ proposals.  Before hearing from Dr B in relation to each of the parents’ alternate proposed therapists the ICL was informed that an appointment for the family with the I Clinic was available on 22 January 2015.  Subsequently, an earlier appointment, on 27 November 2014 became available or was tentatively set aside for the family.  The ICL then proposed to confirm a particular therapist at the I Clinic be nominated as the family therapist and that she send that therapist the expert report of Dr B to receive an estimation of fees for the necessary therapy, prior to the therapy commencing, in accordance with the orders.

16. On 24 November 2014 the therapist sent the ICL a letter which outlined that the therapist had read Dr B’s report and provided a format for the family therapy and an estimate of anticipated costs.  The anticipated total cost of the family therapy was $3,360.00, with potential additional costs of up to $4,180.00 (a total of $7,540.00). The letter from the therapist further says:

    This clinic would need written reassurance via a solicitor that this full amount is able to be paid by the parties involved in this case. It would be extremely detrimental to the children and their relationship with their father to commence this process only to have it ceased due to financial constraints.

17. Subsequent to being provided with an estimate of the total costs of therapy, both parents confirmed that they would pay their share of the cost of family therapy.  The ICL then proposed a more specific arrangement, that the parties pay $2,500.00 each to the clinic prior to the commencement of therapy and sought confirmation from each of the parties as to this arrangement and informed the parties that if they were not able to comply she would relist the matter before the Court.  By letter dated 11 December 2014 the mother agreed to the proposal of paying $2,500.00 in advance.  By email dated 16 December 2014 the father said that he was unable to agree to this proposal and once again raised the possibility of using an alternate psychologist.

18. In early January 2015 the matter was set down for final hearing for five days commencing on 27 April 2015.  The matter was expedited as requested by the father.

19. The ICL relisted the matter and it was again before the court on 10 February 2015.  It was noted that the father no longer agreed to the arrangements made with respect to the therapy for the children pursuant to orders made on 9 October 2014.

20. On 10 February the mother confirmed that she was in a position to borrow the sum of $3,600.00 to meet the estimated costs of the family therapy.  She proposed that she would pay this initial sum to the clinic to enable the therapy to commence and that the father deposit $80.00 per session to the total of $1,800.00 and that she would bear the cost of any therapy greater than $3,600.00.  The father rejected this proposal for funding the family therapy even though he was aware that the effect of the rejection of this proposal was that the family therapy with an agreed therapist would not commence prior to the commencement of the trial.

21. The father filed his Application in a Case on 13 March 2015 seeking orders to “postpone” the hearing of the matter for six to 12 months to enable family therapy to occur and that his nominated therapist be appointed to commence family therapy as soon as possible.  He proposed that the cost of the therapy be shared between the parents, that the mother participate in it and that all four children (including the adult child) would attend this therapy.

22. The father relied upon a 68 page affidavit in support of his Application in a Case.  A large part of that affidavit deals with his “questions and concerns” in relation to Dr B’s report, an alleged “association” between Dr B and the I Clinic, the cost of family therapy with the I Clinic, matters associated with the mother’s proposal to fund the therapy and his concern that there would be insufficient time for the family therapy to be effective prior to the final hearing in April 2015.  The father did not address any other issue in his affidavit and in submissions focussed on the matters set out in his affidavit.

23. The mother opposed the father’s application and it was submitted on her behalf that it was not in the best interests of the children for the proceedings to be delayed any further.

24. The ICL opposed the father’s application.

25. The proceedings have been on foot since 30 July 2013 and the children have been subjected to a number of interviews with a Family Consultant and a psychiatrist.  The issue of the children’s estrangement from their father has been a live one for the children for around two years prior to the commencement of proceedings.

26. Given the period of time that has passed in which the children have spent no time with their father and having regard to the therapist’s recommendations and likely cost, it appears that the family therapy process will be a lengthy one whenever it commences.  The opinion of the nominated therapist that it would be “extremely detrimental to the children and their relationship with their father to commence this process only to have it cease due to financial constraints” has not been challenged by the parties.

27. One of the significant issues raised by the father now appears to be the cost of therapy.  Although he has not addressed or satisfactorily explained why he rejected the offer by the mother that she would pay the cost of therapy in advance and that he was only required to deposit $80.00 per session to the total of $1,800.00, it is still not clear that the father will even on his proposal accept the mother’s offer to assist in payment of therapy or reach agreement concerning the therapist.

28. The father previously reached agreement as to the appropriate therapist nominated by Dr B and to the engagement of her facilitated by the ICL but in this application expressed concerns about Dr B, Dr B’s alleged association with the I Clinic and the mother’s offer for payment of the therapist.

29. The father has for some time proposed an alternate therapist but has not provided a copy of the therapist’s resume or curriculum vitae to the ICL so that the ICL could be satisfied that she had the appropriate qualifications.  The father’s proposed therapist has expressed the view that she does not regard a request for a copy of her resume as appropriate and declined to provide it.

30. Effectively, at the time of the hearing of the application a stalemate had been reached.  The nominated therapist previously agreed to by the parties was no longer acceptable to the father and the mother and the ICL were unable to assess whether the therapist proposed by the father was appropriate to conduct the family therapy.  Although the father had previously indicated that he was in a position to fund half of the therapist’s fees, he subsequently took the position that he was not able to fund half of the therapy nor would he accept the mother’s offer to fund it in advance and have him reimburse her over time.

31. I am not satisfied in these circumstances, in particular given the father’s change of position that even if the hearing were adjourned that family therapy would, in fact, commence prior to any adjourned hearing date.  I am of the view that if it becomes apparent in the course of the hearing that family therapy is still recommended as being in the best interests of the children and agreement can be reached concerning the appointment of an appropriate therapist acceptable to all parties and arrangements for payment can be made, the matter may be able to be adjourned after the hearing commences for that therapy to occur.

32. The children in this matter appear to be mature and have expressed strong views about their attitude toward seeing their father.  There is no guarantee that the older children will consent to family therapy taking place and so far as Rebecca is concerned she is an adult and cannot be the subject of orders.  I attach significant weight to their views in that there is no guarantee that even if the matter is adjourned and an alternate therapist can be agreed upon that D and E will attend that therapy in any event.

33. The children in this matter appear to be well aware of the proceedings between their parents and they are each seeing psychologists or therapists to deal with their own psychological issues.  In my view, delaying the proceedings a further six to 12 months may very well be detrimental to their psychological health in that they will continue to remain in limbo.

34. Accordingly, the application for an adjournment of the proceedings / hearing is dismissed.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 8 May 2015.

Associate:

Date:  8 May 2015