Arness & Murad
[2022] FedCFamC2F 1794
Federal Circuit and Family Court of Australia
(DIVISION 2)
Arness & Murad [2022] FedCFamC2F 1794
File number(s): MLC 1506 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 December 2022 Catchwords: FAMILY LAW – listed for final hearing but did not proceed – new allegations made by mother but raised by independent children’s lawyer – allegations of child exploitation material on hard drive – mother made complaint to Victoria police – father unaware of allegations – matter transferred to division one. Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 2 Family Law Number of paragraphs: 30 Date of hearing: 5 December 2022 Place: Melbourne Counsel for the Applicant: Mr S Kuan Solicitor for the Applicant: Bowlen Dunstan and Associates Pty The Respondent: In person Counsel for the Independent Children's Lawyer: Ms H Bonney Solicitor for the Independent Children's Lawyer: Aitken Partners Pty Ltd ORDERS
MLC 1506 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ARNESS
Applicant
AND: MR MURAD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 DECEMBER 2022
THE COURT ORDERS THAT:
1.The Final Hearing listed on 5 December 2022 with an estimate of three (3) days be and is hereby vacated.
2.The matter is referred to the National Assessment Team for consideration of transfer to the Federal Circuit and Family Court of Australia (Division 1) by the Chief Justice.
3.The transcript of the proceedings this day be made available to parties, and the Independent Children’s Lawyer is to provide a copy of the transcript to Ms B.
AND THE COURT NOTES THAT:
A.The parties will be contacted directly by the National Assessment Team confirming the transfer of proceedings and the next listing date.
B.The Final Hearing was vacated because of new information that Victoria Police are investigating criminal allegations.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Arness & Murad has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
The parties in this matter were previously known as C but now as Mr Murad (‘the Father’) and Ms Arness (‘the Mother’). The parties married in July 2012 and they separated on or about 1 August 2019 following the service of the intervention order by police against the Father and protecting the Mother and children. The parties have two children, X who is now aged 9 years old and in year 3 and Y who is aged 5 years old (collectively ‘the children’). X is in grade 3 and Y is in kindergarten and I assume starting school next year.
The proceedings were issued by the Mother in February 2020 seeking orders relating to property and subsequently also for the children, including, inter alia, orders for sole parental responsibility and orders that the father spend time as agreed with her, which is very little time. The Father in his response sought orders for, inter alia, equal shared parental responsibility and time with the children each alternate weekend as well as half school holidays and special occasions.
The property proceedings were ultimately finalised with the assistance of a Senior Registrar on 14 September 2022 and, to the credit of the parties and the Registrar, quite complex orders were made dealing with the parties’ not-insubstantial property.
The matter had previously been listed for Final Hearing and for a number of reasons that it is unnecessary to go in to at this point, was unable to proceed on those occasions. Pursuant to the scheme of section 102NA of the Family Law Act 1975 (Cth) (‘the Act’) and the allegations of family violence and the final Intervention Order, both of the parties are prohibited from cross-examining each other personally or other than with a lawyer. After each of the parties were, at different times, self-represented and the consequences of the provisions of section 102NA, orders were made on different occasions for the Mother and Father to be represented pursuant to the scheme.
The Mother comes before me represented by solicitors and counsel appointed under that scheme. The effect of that is that the Mother, by her counsel, would be unable to cross-examine the Father, but not vice-versa. The Father has been similarly restrained from cross-examining the Mother personally, but may do so by a lawyer. On 7 December 2020, Judge Blake made an order, the effect of which is to prohibit cross-examination, but requested assistance under the cross-examination scheme for the Father. Pursuant to that scheme, it appears that at one point lawyers were nominated, or at least appointed by, the Legal Aid Commission administering that scheme. I note that is a separate bucket of money to that which the usual legal aid provision applies to, made available by the Commonwealth Government.
However, the Father has not been able to enjoy the services of those solicitors as they sought to cease acting for him, and I believe ultimately filed a Notice of Ceasing to Act. It appears there may have been a second firm of solicitors that may have been appointed, but they have been unable to act. I have not been informed of the reasons of that and that would likely be subject to legal professional privilege.
The matter has been before the court on many occasions and recently on 15 September 2022. The family consultant who had previously prepared a short-form family report, had a further appointment to see the family in August of 2022. The events around that troubled the Father, the Mother, the children and the family report writer and that family report was unable to be completed.
On 15 September 2022 I made orders which included a request for the previous family consultant to return the Father’s credit card and funds paid to him. On the last occasion the matter was before me, it was necessary to make very detailed orders to cover the release of the credit card to the Father and the payment of the funds to enable the family report and the children’s contact service observational report to be released to the Court and to the parties.
The Father has only seen the children in recent times in a supervised setting and that facility provides up to eight occasions for each family. I was previously advised by counsel that supervised time was progressing well. A more detailed analysis of how that had progressed provided via the contact centre report identifies the Mother complaining of the Father’s interaction with the children and herself indirectly via the delivery of presents and notes to the Mother. The children’s contact service that the parties had been using is no longer available to facilitate time. The Mother’s position is that supervised time could continue for the time being. The Father’s position is that time with the children should move to unsupervised.
This morning, which would have been the first day of the trial, I invited counsel for the Independent Children’s Lawyer (‘ICL’), Ms Bonney, to address me about a rather cryptic communication sent directly to my Chambers about what was said to be an ethical difficulty that the ICL and her counsel had. The long and the short of that was that it appears that the advice that the ICL and counsel had is that the Judge should be persuaded to request from the ICL and her counsel an explanation for what the trouble was. I heard from the parties and there was no objection to me making such request which I was minded to make in any event. I then requested the ICL and her counsel to advise me just what was going on. As a result of that, at my request, I was told the ICL and her counsel were aware that on or about 5 September 2022, the Mother had made a statement to the police relating to a computer hard drive she had in her possession which, it was alleged, contained child pornography or what is known as child exploitation material. The ICL had on the prior Friday, 2 December 2022, inquired directly of the relevant police service as to what was happening, only to be told that the material was in the queue of material to be examined.
The Mother has advised me today via her counsel that when making the statement, the police advised her not to inform or tip-off anyone, including the Father. The suggestion, implicit in that chain of information, was that the hard drive had been in the possession of the Father and/or accessed by the Father at some prior point. I further ascertained that the ICL had taken some trouble to ensure that the police service was aware that an impending Final Hearing as to the welfare of the children was about to start. There was no appearance by the police or any further communication before me this morning.
In my experience, it is the standard practice for investigating police to request any person making a complaint or police not to inform the person who may be being investigated for the purpose of better serving the interests of the investigation.
I advised the parties that I regarded the welfare of the children as the overriding issue in this case. Counsel for the Mother, upon my inquiry as to the consequences of this information, indicated to me that the matter simply could not proceed on the current state of information and that the Mother should file a further affidavit. I raised the issue of the Mother giving that evidence viva voce, that is, orally, immediately in the witness box and there was no objection to that. Counsel for the ICL advised me that regrettably she could not see how the matter could properly proceed as the range of matters that were highly germane to the children’s welfare were simply not in a state where there was any proper evidence or known to the parties, save that the Mother would have more information than anyone else but she too would not have full and complete information.
The ICL’s position was that inevitably and regrettably the matter needed to be adjourned. The Father’s position when I raised it was that he pressed that the matter proceed immediately and I should note that both the Mother’s counsel and counsel for the ICL raised with me the issue of potential prejudice to the Father of being caught unprepared with these allegations only being raised for the first time today. These matters were not covered in the Mother’s affidavit of evidence. I was told that these matters were communicated to the family report writer, but the matters are not covered in the family report save for the following references:
[132]During the course of this assessment, the writer was made aware regarding the possibility of a further notification received by the Department of Health and Human Services, which may prompt an investigation into the care and wellbeing of the children. It is therefore suggested that no future alterations are made to the children’s parenting arrangements until confirmation has been received from the Department of Families Fairness and Housing regarding their potential assessment, and thus this assessment can be finalised.
…
RECOMMENDATIONS
…
[135]Consideration is given to maintaining the children’s current parenting arrangements until confirmation has been received from the DFFH that any ongoing investigations have been completed.
Following receipt of the family report, I had my associates make further inquiries from the Child Protection Family Court Liaison Officer who advised me, in the document now exhibit C1, 5 December 2021, as follows:
Dear Associate, I can confirm the child protection cases for each of the children named are closed. There have been no further reports/notification to Child Protection since the 67Z response dated 28 August 2020 was provided to the court.
The section 67Z response dated 28 August 2020 concluded with the following, though noting that there had been previous Department involvement, and the last two paragraphs are and I quote:
It is assessed that the information provided does not meet the Department’s threshold for the children being at risk of significant harm with the information previously assessed by Child Protection. This report will be classified as a child wellbeing report and closed at the intake phase with the formalisation of contact arrangements appropriately managed by the Federal Circuit Court, as it then was.
I should indicate that that a section 67Z response arises as a result of the rules of Court where a Notice of Risk is filed indicating risk to the children and Child Protection is automatically notified and information is requested.
I am concerned at the length of time this matter has been before the Court and the delay for this matter and the consequences of this court case hanging over the parties’ heads.
The Father’s position was that the impact of the delayed proceedings and not seeing his children was having a substantial impact on his mental health and that he feels that he could not proceed one day further. He told me that he had been feeling happy when he was seeing the children at the supervised centre. He said that he feels that these things are just holding things up and he raises that ironically the previous report writer, at least on the day of the trouble, had accused him of holding up the final hearing. Implicit in that he says that, “I am the one who at every opportunity presses for the matter to be listed so that we can get a hearing, yet I am the one that gets accused of holding things up.”
I should note that when it became apparent that the Father would not have a lawyer pursuant to the section 102NA scheme, that the Mother’s solicitor had requested a mention and I infer, for the purpose of the court dealing with that conundrum. On that day, the Mother’s solicitor had raised with the Court the necessity to vacate the trial and adjourn the proceedings because of the Father being unrepresented and the potential procedural unfairness to him of not being able to cross-examine the Mother. The Father’s position was that he wished to proceed without personally cross-examining the Mother. I accepted his application and left the matter listed for this day.
Now, I am concerned at the paucity of evidence about a matter that potentially very much goes to the children’s welfare. The consequences for the children’s welfare, if their Father has been in possession of or viewing child exploitation material, are most serious. When the matter was raised, without a request from me, the Father made it clear that he denied the allegations and was troubled by the mere fact of them being made. If the allegations are made maliciously or without a proper basis or carelessly, that too would have a very serious impact on the children’s welfare. At this point in time I have no information that in any way indicates one way or the other and, of course, those two extremes are not the only possibilities. Nonetheless, given the seriousness of the potential allegations and the serious impact those matters may have on the children’s welfare, it is with regret that I feel compelled not to proceed with the final hearing today but to adjourn the matter.
I raised and am concerned that the issue of the children’s welfare, including responsibility for the parenting decisions should not be indefinitely deferred whilst a police investigation occurs. I have no information as to how long the police investigation will be and I have no information that it is likely to resolve any time soon.
I also raised with counsel and the Father my concern at how long the trial could potentially be given time noting this further matter. This court hears matters of two or three or, at a stretch, four days. This matter is booked in for three days. Where a matter exceeds the time that is available, it creates chaos in the court list and that is of some consequence, and must also consider the real chaos it creates for those other cases that are waiting to be heard on the days when it is then necessary to hear the longer case in fits and starts or in chunks. I have considered the potential length of this case and am concerned that even with the Father unrepresented and unable to cross-examine the Mother, that the range of the issues potentially would mean that this matter is of four or five days or longer duration, given the complexity that can arise in such a case.
In any event, it will be necessary that once there is more information available about the state of the police investigation and the state of the materials that the Mother, as I understand it, asserts were in the possession of police, those matters are likely to need to be addressed by the report writer. Ordinarily a matter of that importance would not be simply put to the report writer on the run in the witness box. Those matters may need to also be put to the existing expert, Dr D, who has prepared a report as to the Father’s psychiatric condition and I note that that psychiatrist was not sought in this hearing to be available for cross-examination at all. The conclusion of that report in regard to the Father, the last sentence, I will repeat and it was as follows:
In the circumstances, I can raise no concerns in relation to [the Father] continuing to have contact with his children.
Likewise the last two sentences of the same psychiatrist’s examination of the Mother was as follows:
[The Mother] is a woman presenting with a mild anxiety disorder in a significant battle for control with her children’s father. There is, in my opinion, nothing in my report that should be of concern to the family court.
It is with that mixed bag of information and lack of it that I am comfortably of the view that the matter is likely to take significantly more than the three days that the matter should take in this court. I further raised with the parties that it has been my experience that a determination or even mere inclination of the trial judge in this Court to hang on to the case for the purpose of trying to conclude it as soon as possible can end up lengthening the period of time that the case is heard in. Rather than it being heard in one chunk, it ends up being heard in several chunks spread over months which can be very stressful and difficult for the parties to cope with.
For all of those reasons, I will be vacating the trial hearing today and making an order to the effect of transferring the further hearing of this case to Division 1 of the Federal Circuit and Family Court of Australia. At the moment, there is an extant order for supervised time; that is, an existing order for supervised time, but no facility available to undertake it and I will hear what the parties have to say about whether there should be any change to the existing order.
And I note that one of the difficulties in this case previously was that despite the extant order for time, it is alleged that one of the parents did nothing about organising that time and that the delay was something like more than a year between the order being made and when the supervised time first actually came to pass.
Those are my reasons.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 23 December 2022
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