Asturias & Nasir
[2024] FedCFamC1F 829
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Asturias & Nasir [2024] FedCFamC1F 829
File number: BRC 8781 of 2023 Judgment of: CAREW J Date of judgment: 29 November 2024 Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE – Ex parte – Where the Independent Children’s Lawyer made an urgent request to manage the release of a psychiatric report – Where leave was given to the Independent Children’s Lawyer to make an oral application – Where a psychiatric report of the parties raised the risk of kidnapping and fleeing, as well as filicide-suicide by the mother if she perceived the child was at undue risk or any threat to her current relationship with the child – Where the Court has to balance protection of the child from a possible adverse reaction of the mother and ensuring fairness and transparency of the process to the parents – Where the Court will bring forward the next appearance and order that the child be brought in for a meeting with the Independent Children’s Lawyer to allow an opportunity for the parties to be heard on the appropriate course of action – Where the order made and reasons are suppressed until the next appearance or earlier order. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.11 Number of paragraphs: 17 Date of hearing: 29 November 2024 Place: Brisbane Solicitor for the Applicant: No appearance Solicitor for the Respondent: No appearance Solicitor for the Applicant: Ms Danks-Brown, Legal Aid Queensland ORDER
BRC 8781 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ASTURIAS
Applicant
AND: MS NASIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.This Order and the reasons for judgment delivered ex tempore on 29 November 2024 are to remain supressed until 4.00pm on 5 December 2024 or earlier Order of the Honourable Justice Carew.
2.A transcript of the hearing before the Honourable Justice Carew on 29 November 2024 is to be requested with urgency and provided to the Chambers of the Honourable Justice Carew only.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Asturias & Nasir has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
This matter comes before me on the urgent written request of the Independent Children’s Lawyer (“ICL”) dated 27 November 2024 to manage the release of a psychiatric report which raises serious risks posed by the mother to her child if the report is released to her while the child is in her care.
There is currently no application filed because of the concern by the ICL that doing so could alert the mother to the application. The ICL seeks an ex parte hearing. The ICL has been granted leave to make an oral application in terms of an amended minute of order which has been marked as exhibit 1 in the proceedings today.
A hearing without notice to a party or parties may occur if the Court is satisfied that shortening the time for service and fixing an early hearing date would not be more appropriate and that such a hearing should take place in the absence of a party or parties (r 5.11(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). There are obligations on the part of an applicant seeking to proceed ex parte to ensure that all relevant evidence and information is provided to the Court (r 5.11(b)).
The mother and the father in this case have recently been psychiatrically assessed by Dr C, a general adult and forensic psychiatrist. The most concerning feature of her report dated 22 November 2024 (with an addendum dated 27 November 2024) relates to the mother about whom she opines:
137. I am of the opinion that the specific risk of kidnapping and fleeing with the child, as well as the risk of filicide-suicide would be very significantly elevated. In fact, I would regard her risk to herself and the child as the highest possible risk category.
138. Should [Ms Nasir] perceive that the child is at undue risk, or any threat to the current relationship she has with the child would result in [Ms Nasir] likely reacting in an erratic manner. This would include the stressors of, e.g., learning about the outcome of this report or learning that Court outcomes are not in her perceived favour etc. This would also include entertaining the possibility that the Court might be what she would perceive as engaging the father in a bigger aspect of her child's life.
BRIEF BACKGROUND
By way of brief background, there are substantive parenting and property proceedings pending in this Court and the matter has been listed for a case management hearing on 30 January 2025, when it was anticipated the matter would be allocated trial dates in the first half of 2025.
The applicant in the substantive proceedings is Mr Asturias and the respondent is Ms Nasir. They are the parents of one child, X, aged six years. The parents were married in 2012 and separated in March 2023. The child lives with the mother, and pursuant to an interim parenting order made on 18 December 2023, the child spends time with the father for five nights per fortnight. In week one, the child spends time with the father from Friday to Sunday and overnight the following Wednesday and in week two the child spends time with the father from Sunday to Monday and overnight the following Wednesday.
On 19 December 2023, a further order was made that the parents engage in family therapy with Dr B. This order was made by consent.
In his Further Amended Initiating Application filed in February this year, the father is seeking to reverse the current parenting arrangements. In the mother’s Amended Response to Initiating Application filed in May this year, the mother is seeking to reduce the father’s time to three nights per fortnight, namely, Friday to Sunday each alternate week, and overnight on the Thursday of the other week, and for half school holidays.
The mother’s position, in relation to the final order she seeks, seems at odds with the impression gained by Dr C about the mother’s apparent opposition to the father having a significant role in the child’s life.
On 17 June 2024, the parties identified the following issues as significant for trial at a case management hearing before a registrar:
(a) Whether the respondent is a risk of emotional harm to the child arising from alleged inability to manage the child’s significant developmental delays;
(b) Whether the respondent’s mental health is impacting on her capacity to meet the child’s developmental, emotional and medical needs;
(c) Whether the respondent has the capacity to support a relationship between the child and The applicant;
(d) Whether the parties have any capacity to co-parent the child;
(e) Which parent should be responsible for making decisions about the child’s health issues;
(f) Whether the applicant’s alleged excessive consumption of alcohol impacts on his capacity to parent the child;
(g) Which parent is best able to meet the child’s developmental, medical and educational needs;
…
The decision today is of very narrow compass. It is about how best to protect the child from a possible adverse reaction from the mother upon release of the contents of Dr C’s report, while also ensuring transparency and fairness of the process to the parents, but particularly the mother.
It seems to me that it would be appropriate to at this stage secure the presentation of the child at the Court Children’s Service on Level 3 for the stated purpose of the child meeting with the ICL, which is now a mandatory requirement in most parenting cases, and then having the matter listed before me that same day.
As I already have the matter listed for a case management hearing in January next year, it seems to me that it would be entirely orthodox to bring forward the case management hearing to a date when the child will be secure at the Court.
I propose to supress these reasons until the matter is heard on the adjourned date or earlier order and to make an order only for a case management hearing on the proposed date and a direction for the ICL to meet with the child next Thursday at 9.15am at Court Children’s Service on Level 3. In the event, the ICL experiences any difficulty in ensuring the child is brought to the Court on that day she may contact my chambers on an urgent basis.
On 5 December 2024, I anticipate that I will order that the parents receive a transcript of today’s proceedings and a copy of these reasons.
I will then hear from the parties about what further order I should make about the release of Dr C’s report and any short-term change to the living arrangements of the child.
Nothing should be included on the Court’s case management system that might alert the parents to the proposed purpose of the listing prior to it occurring.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 5 December 2024
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