Wooley and Wooley

[2017] FamCA 1131

FAMILY COURT OF AUSTRALIA

WOOLEY & WOOLEY [2017] FamCA 1131

FAMILY LAW – PRACTICE AND PROCEDURE – Parenting dispute – Issues not at all clear.

Family Law Act 1975 (Cth)

APPLICANT: Mr Wooley

RESPONDENT: Ms Wooley

FILE NUMBER: MLC 8016 of 2011

DATE DELIVERED: 4 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 December 2017

REPRESENTATION

THE APPLICANT: Mr P. A. Wooley in person

COUNSEL FOR THE RESPONDENT: Ms Chennell

SOLICITOR FOR THE RESPONDENT: C Town Legal Resolutions Services

Orders

1. That pursuant to Section 68L(2) the Family Law Act 1975 the child B born on the … 2007 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

2. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

3. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon

4. That pursuant to s 69ZT of the Family Law Act 1975 (Cth) (“the Act”), the rules of evidence shall apply to all evidence of the parties and their witnesses.

5. That the reasons this day by transcribed and be placed on the court file.

6. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 19 March 2018 subject to any part heard case as a three day case.

7. The evidence in chief of all witnesses shall be given by affidavit.

TIMETABLE:

1. By 4 pm on 12 January 2018 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)all affidavits of evidence to be relied upon.

2. The applicant pay all required court fees by 4 pm on 12 January 2018.

3. By 4 pm on 29 January 2018 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision the orders to be sought; and

   (b)all affidavits of evidence to be relied upon.

4. By 4 pm on 15 February 2018 the applicant file and serve any affidavit in reply.

5. By 4 pm on 16 March 2018 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

6. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

7. Pursuant to s 62G (2) of the Family Law Act, the parties attend upon and at the direction of a family consultant nominated by the Director of Child Dispute Services for the purposes of the preparation of a family report not to be commenced until after 15 February 2018 but to be completed and released by 15 March 2018.

8. The appointed single expert/family consultant:

   (a)may require a party to attend with, or bring in, a child whose interests may be affected by the proceedings;

   (b)may have access to the court file (but be conscious that the evidence of the parties is contained in their affidavits as ordered above);

   (c)may have access to any documents produced under subpoenae that have been released for inspection;

   (d)should consider the factors in s 60CC of the Family Law Act 1975 so far as the consultant considers them relevant and specifically address the issues of;

   i.parental capacity to care for the child;

   ii.parental responsibility in respect of the children; and

   iii.the impact on the children of separation from either parent for any specific periods of time;

   and

   (e)should advise the Court generally about matters of child welfare and development.

   SUBPOENAE

9. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

10. By 4 pm on 16 March 2018 all parties file electronically to …  a case outline in one document setting out:

    (a)     the outline of the issues in dispute;
    (b)     the list of the affidavits to be read;
    (c)     a concise set of orders to be sought;
    (d)     the list of objections to evidence requiring a ruling.

    AND THE PARTIES SHOULD NOTE:

    A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

    B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

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 Wooley & Wooley 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 8016 of 2011

Mr Wooley

Applicant

And

Ms Wooley

Respondent

REASONS FOR JUDGMENT

1. This is a parenting dispute that comes before the Court today for directions so that the case could be set down for trial. 

2. I do not have the benefit today of an independent children’s lawyer.  That is an entirely unsatisfactory situation where there is now asserted sexual impropriety against the father.

3. These parties had a relationship from 2004 to 2011, and the child was born in 2007. Between the time of separation and the child’s ninth birthday, the father says – and it does not seem to be disputed – that he saw very little of her, even with Court orders in existence. I have done my best today to try and find out why that occurred and there is no answer. The father says that he was simply denied time. That might very well be a significant section 60CC factor in this particular case.

4. After the child’s ninth birthday, the father was told that he was not to see her.  He then sat on his hands for the best part of four or five months and did nothing about that.  He says that, as a Christian, he thought that that was not something that he should become a protagonist in.  Meanwhile, the clock ticked on.

5. I am told that the child has been assessed as being autistic, although the father seems to doubt that.  I am told that the child has been having counselling and there has been over 100 sessions.  The father rhetorically asks whether that is of any benefit if it has taken that long.

6. Some of these matters do not seem to be particularly controversial, because, when the matter was in the Federal Circuit Court, a curious application was made by the father at a time at which he was represented which simply sought final orders that previous orders made in 2015 continue in full force and effect.  Why should a Court make an order repeating itself?  On two occasions after the document was filed when both parties attended before the Federal Circuit Court sitting in C Town, further orders were made that did not advance the matter.

7. Ultimately, in November 2016, the case was transferred to this Court.  The reason most of those cases are transferred by the Federal Circuit Court is because of complexity.  Notwithstanding my questioning today, I do not know what the issue is that is complex.  The best I have been able to discern is from a notation attached to the orders of the Federal Circuit Court of 29 November 2016 in which this note appears:

   This is involving complexing parenting issues, including the child drowning her own pet guinea pig, having 70 sessions with a treating psychologist, orders were made in May 2015 and failed to be adhered to, and there’s another child who has a history of mental illness.

8. Whilst that might be one way of defining complexity, it does not tell me any of the details about what the issues are in dispute or why it is that an expert cannot resolve them.  That makes it very difficult for the Court to make directions to family consultant.  The family consultant’s role in Court proceedings is to give advice to the Court as a social scientist.  I have no idea what it is that is in dispute.

9. Some five weeks ago, and still not having seen the child for the best part of 20 months, the father was told that the child had made an allegation of sexual impropriety against him.  Again, nothing was done by the mother to bring the matter to the Court’s attention and no notice of risk of child abuse was filed.  Be that as it may, by extracting information today, it seems that the child was having a discussion with her friends at school about her behaviour, trying presumably to explain it, and other children told a teacher, who in turn, under the mandatory reporting requirements in the State of Victoria, notified the Department of Health and Human Services, who in turn contacted the police.  Nobody bothered to tell the father until he attended what seems to have been some form of counselling appointment with a relationships centre in C Town.

10. I am still not any the wiser as to what the allegation is, other than the fact that it occurred some five or six years ago.  For reasons that are completely mystifying, the Department gave the mother an opportunity to choose between taking what might be seen as a litigious route as distinct from some sort of therapeutic route.  Whether that had something to do with a suggested autism spectrum problem I am unaware.  But clearly she took the route of going to SECASA.  It troubles me that no discussion took place with the father about the issue, and role of the Department is confusing.

11. SECASA is being seen as some sort of investigative body but I would be surprised if that is their mandate.  Just exactly what the psychologist is doing who is said to have had over now 100 sessions, I am not sure.  No doubt someone can provide some evidence in proper form.  On that basis, I think this case needs to be heard expeditiously.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 December 2017.

Associate: 

Date:  29 January 2018