Roskam & Roskam [2016] FamCA 1097 (16 December 2016)

Last Updated: 9 January 2017

 

FAMILY COURT OF AUSTRALIA

 

FAMILY LAW – Case management – leave to make an oral application refused – trial to proceed as listed

 

 

 

 

 

 

 

 

 

REPRESENTATION

 

 

 

 

 

ORDERS

IT IS ORDERED THAT:

1. The father have leave to file and serve a Notice of Address for Service nominating Ms Rothschild, solicitor, as his address for service and when a copy of that document is provided to each other party to the proceedings they mark that document “served as sealed”.
2. The observational report of the I Centre dated 12 December 2016 be marked Exhibit “ICL 1” and remain on the Court file. It is not necessary to have that document authenticated by an affidavit providing that the competent witness is called at the hearing or available to be called at the hearing.
3. The independent children’s lawyer be at liberty to file a Notice to Admit Facts directed to the alleged non-compliance by the father with paragraph 4 of the Order made on 5 June 2016 and paragraphs 3 to 9 of the Order made on 19 October 2015 by Senior Registrar FitzGibbon which orders provided for the father to undergo supervised drug screens at the request of the independent children’s lawyer which requests could be random. The Notice to Admit Facts may include various matters as follows:-
   1. The order which was in force requiring the father to undergo supervised urine testing;
   2. The requests sent to the father;
   100. The address to which the request(s) were sent;
   4. What the address for service for the father was as at the date the requests (or any of them) were sent;
   5. That no results were provided in response to the requests.
4. The correspondence from Ms B dated 20 October 2016 and addressed to the independent children’s lawyer be marked “ICL 2” and remain on the Court file.
5. I refuse leave for the father to make an oral application for an adjournment of the final hearing of this matter.
6. My reasons for decision of the refusal of leave for the father to make the oral application be transcribed and when settled be placed on the Court file and a copy be provided to the parties.
7. This matter remain listed on 16 and 17 January 2017 NOTING THAT if there is insufficient court time to conclude the matter on those days the matter may be continued in February 2017 on 2^nd, 3^rd, 9^th and 10^th February 2017.
8. Paragraph 5(d) of the Order made on 17 June 2016 be varied so that the independent children’s lawyer be and is hereby responsible for obtaining a report from Ms B in relation to her assessment of the father necessarily confined to her appointment on 23 August 2016 and any subsequent telephone communication with the father AND IT IS NOTED that the independent children’s lawyer has not yet applied for an extension of assistance to pay for such a report but IT IS REQUESTED that he do so as soon as practicable.
9. The parties and the Independent Children’s Lawyer be restrained and an injunction is hereby granted restraining each of them from making any complaint to a professional body or association concerning the conduct of the Single Expert or concerning the content of the Single Expert’s report, or permitting any other person to do so, without first obtaining leave of the Court.
10. The preceding injunctions remain in full force and effect following completion of the proceedings.
11. For the avoidance of doubt, the independent children’s lawyer may arrange to meet with the children C born … 2005, D born … 2008, and E born … 2011 (“the children”) who are the subject of this application, notwithstanding the opposition of the father to that meeting. The independent children’s lawyer be in a position at the final hearing to make submissions in relation to the views of the children.

AND IT IS NOTED BY THE COURT that the independent children’s lawyer has requested in Court that the father undergo a supervised urine screen for the detection of use by him of illicit substances or drugs and I deem such request to be a request made pursuant to paragraph 4 of the Order made on 17 June 2016.

AND IT IS FURTHER NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Roskam & Roskam 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).

FILE NUMBER: MLC 1335 of 2015

Applicant Husband

And

Respondent Wife

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX TEMPORE

1. This matter comes before me for mention preliminary to a final hearing which is set down before me on 16 January 2017 and has been so for approximately six months.
2. Today, Ms Rothschild, solicitor, has filed an address for service on behalf of the father. However, she says she has limited instructions and no documents.
3. One of the matters that arises for determination and to which these reasons solely relate is the father’s application for leave to make an oral application today for the final hearing on 16 January 2017 to be adjourned to permit him an opportunity to attend a course at an institution called F Group.
4. I have heard oral submissions from Ms Rothschild for the father, Ms Hession for the mother and Mr Marchetti for the Independent Children’s Lawyer with the exception of a letter from Ms B dated 20 October 2016 (Exhibit “ICL2”) there has been no evidence in support of the application to make an oral application let alone the application which is sought to be made orally. The letter from Ms B is of interest.
5. On 17 June 2016, I made various orders by consent and one such order was paragraph 5 which reads:

Within 7 days, the applicant do all things necessary to engage with [Ms B], Family Consultant, at ‘The I Centre’, at …, (tel:- …) for Reportable Family Counselling on the following basis:-

(a) At his cost, noting [Ms B] charges E$300.00 per hour (inc GST);

(b) As directed by [Ms B], with the general objective as identified by [Ms G], Family Consultant, as detailed in her 30 May 2016 Family Report, of assisting the applicant in developing strategies, to assist him in focusing on spending quality time with the children [C] born … 2005, [D] born … 2008 and [E] born … 2011. (“the children”);

(c) For as many sessions as deemed appropriate by [Ms B];

(d) That [Ms B] thereafter being requested to prepare a Reportable Counselling Report, at the applicant’s cost (of E$1,500.00 – E$2,500.00 (Inc GST)), to be released by no later than 25 November 2016, prior to the Hearing; and in sufficient for the parties to attend a further FDRS conference.

(e) The Independent Children’s Lawyer provide to [Ms B], copies of any and all Court Documents he deems as appropriate and relevant, to assist her

Ms B’s letter of 20 October 2016 states (omitting formal and irrelevant parts):

The father attended the first counselling appointment on 23 August 2016.

I note that I had telephone communication with [Mr Roskam] on 12 October 2016, where he advised he had no intention to attend any further sessions. He also cited difficulties with the ongoing financial costs of counselling and mistrust in the process of continuing in counselling with the writer. In an effort to encourage [Mr Roskam] to attend counselling as deemed appropriate by the writer, he was notified in writing of the request that he attend for an appointment on 25 October 2016 at 1.30pm.

[Mr Roskam] responded stating that he has no intention to attend the appointment as directed or any further sessions.

Should you require a report regarding the session [Mr Roskam] attended on 23 August 2016 please advise as to the funding arrangements given the fathers advice that he has no capacity or intention to fund any ongoing counselling sessions or a counselling report.

6. The father’s position in relation to Ms B, as conveyed by Ms Rothschild, was that Ms B was “not interested” in his matter and considered that he ought only to have to spend face-to-face time with the children six times a year as discussed as one option in the most recently prepared family report.
7. I was informed, and it appears to be common ground, that the Independent Children’s Lawyer then proposed that the father attend upon Ms H, also a social scientist who regularly gives evidence in the court. It was conveyed to me by Mr Marchetti (for the independent children’s lawyer) that the father was not interested in going to Ms H. It was conveyed to me by Ms Rothschild that the father says he could not afford to go to Ms H and wants to go to another program which is community based but very much less expensive.
8. Any party is entitled to have due notice of applications which he or she faces. That is why applications are supposed to be in writing. However, applications are frequently entertained by me where I am satisfied that there is no prejudice, or insufficient prejudice, to respondents in facing an oral application. That necessarily involves me weighing up the opportunity which they have had to marshal a response to the application of what he or she is going to say as well as against the prejudice to the party and, significantly in matters such as this, the impact on the children of the delay involved in having an application put in writing. In this case, I am not satisfied that there should be leave to make an oral application.
9. On the sparse evidence which I have, the father has had months in which to make an application for a variation of paragraph 5 of the order made on 17 June 2016. The fact that Ms Rothschild in her submissions discloses that she has made inquiries about the cost of the proposed program indicates to me that she has perhaps done more this morning in relation to that than the father has bothered to do for the previous five or so months.
10. The case has been set down for final hearing for the last six months. If the father had been interested to take an alternative course of therapy, there has not been anything preventing him from doing so. These proceedings have already been adjourned for six months. That adjournment was to enable the father to undertake therapy with Ms B (which he failed to do). Now he seeks another adjournment to undertake a course which Ms Rothschild has researched today.
11. I do not grant leave or permission for an oral application to be made for an adjournment.
12. Accordingly, the trial will commence, as listed, on 16 January 2017. The father has been informed that, if he is not represented, he will have to conduct his own case. If the case takes longer than 16 and 17 January 2017, it will proceed in the following week.
13. There are outstanding orders for filing evidence and documents with which the parties must comply. Failure to comply may result in the proceedings being determined without further input by the defaulting party.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 16 December 2016.

Legal Associate:

Date: 20 December 2016