Bant and Clayton

[2017] FamCA 96

FAMILY COURT OF AUSTRALIA

BANT & CLAYTON [2017] FamCA 96

FAMILY LAW – PARENTING – Practice and procedure – Whether an updated Family Report should be prepared by the same report writer – Where the Full Court remitted the matter for re-hearing on the issue of whether the time the child spends with the father should be supervised

Family Law Act 1975 (Cth)

APPLICANT: Mr Bant

RESPONDENT: Ms Clayton

FILE NUMBER: LEC 310 of 2013

DATE DELIVERED: 24 February 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 23 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Watts McCray

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: GJ Legal

Orders

1. That by close of business on Friday, 3 March 2017, the solicitors for the father shall inform the solicitors for the mother in writing which one of the professionals, Ms AB, Mr BC or Ms CD, the father chooses to be the single expert to prepare a report for the assistance of the parties and the Court in these parenting orders proceedings and should Ms CD not be a psychologist then the father shall choose one of the other two persons named.

2. That the solicitors for both parties shall liaise with each other and between them make arrangements for the chosen single expert to be retained for the purposes of preparing a family report and for this purpose the parties shall attend upon the chosen single expert and cause the child, Y born … 2009 (“the child”), to attend upon that expert as and when required by the said single expert for the purposes of the preparation of a family report, the costs of the preparation of such report to be paid for in equal shares by each of the parties and the report to be made available to the solicitors for the parties by no later than close of business on Friday, 12 May 2017, with a copy of the report to be attached to an affidavit prepared by the mother’s solicitors and filed by them on or before Monday, 15 May 2017.

3. In advance of meeting with the parties and the child, the chosen single expert report writer shall be provided with copies of:

   (a)       Mr M’s report dated 4 October 2013;

   (b)       Kent J’s judgment delivered 19 November 2013;

   (c)the Full Court’s judgment on the father’s appeal delivered 25 November 2015;

   (d)       the judgment of Justice Forrest delivered 24 February 2017;

   (e)all affidavits of evidence in chief that are yet to be filed and relied upon at the fresh hearing;

   (f)a joint letter of instructions signed by the solicitors acting for both parties; and

   (g)any other documents as might be agreed upon by the parties.

4. The chosen single expert report writer has leave to inspect any documents that have been produced under subpoena to this Court to the date of this Order.

5. The chosen single expert report writer shall, within his or her expertise, report on matters relevant to all of the matters set out in s 60CC of the Family Law Act 1975 in so far as they are relevant to the determination by the Court of the time, if any, that the child should, having regard to the paramountcy of the child’s best interests, spend with the father in Australia and any conditions under which such time is to occur and, in doing so, shall give particular consideration to the matters listed by each of the father and the mother as issues in the proceedings, as set out by me in paragraphs [9] and [10]of my Reasons for Judgment published with these Orders this day.

6. The mother and the father shall each file and serve one affidavit of their own evidence in chief and one affidavit of evidence in chief from each witness upon which they intend to rely at the fresh hearing in this matter by close of business on Thursday, 13 April 2017.

7. The matter is listed for a further trial management hearing before Justice Forrest at 9.00 am on Tuesday, 16 May 2017 for the making of all such directions as might be necessary for the further progress of this matter, including, if considered appropriate, directions for the listing of the matter for trial, and unless otherwise ordered by his Honour prior to that date, such hearing shall be conducted by telephone with the solicitors and barristers to provide the Court in advance with landline telephone numbers at which they will be able to be contacted by the Court for that hearing to be conducted.

8. That should there be any applications for any further interim procedural orders not able to be agreed upon by the parties prior to the further hearing on 16 May 2017,  such applications and any supporting affidavits are to be filed and served by close of business on Friday, 5 May 2017, save that if there is to be an application by the mother for leave to file an expert report as to her psychological health from an expert other than one who has been treating her to this date, that application and any supporting affidavit shall be filed and served by close of business on Friday, 17 March 2017.

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 Bant & Clayton 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 BRISBANE

FILE NUMBER: LEC 310 of 2013

Mr Bant

Applicant

And

Ms Clayton

Respondent

REASONS FOR JUDGMENT

1. On 19 November, 2013, Kent J pronounced Orders and published reasons for judgment in parenting proceedings between the parties in this matter. Those Orders were extensive and relevantly provided for the child (then three years old) to live with her mother in Australia and to spend only supervised time with her father, a citizen and resident of the United Arab Emirates, here in Australia, with restraints in place aimed at preventing her from being taken from the country.

2. The father appealed against those Orders. On 25 November, 2015, the Full Court delivered its judgment in the appeal and set aside some of the Orders made by his Honour, particularly those that provided for the child’s time with the father in Australia and required it to be supervised, citing insufficient reasons as the grounds for the father’s success on that much of his appeal. 

3. The father sought special leave to appeal against the Full Court’s Orders to the High Court, but was unsuccessful in obtaining leave.

4. Pursuant to the Full Court’s Orders, the matter has been remitted for rehearing, limited to consideration of the time the child (now a seven year old) is to spend with the father, and the conditions of the same, including whether that time is to be supervised or not.

5. The proceedings are now in my docket and were before me for a Trial Management Hearing on Thursday 23 February, 2017.  The matter was not ready to be listed for trial, the parties’ legal representatives not being in agreement as to how many days the hearing will take.  Indeed, the mother’s legal representatives were not certain as to the number of witnesses they will be seeking to adduce affidavit evidence from at the trial notwithstanding the fact that it is a very limited remitter. Accordingly, I would not give the matter trial dates yet.

6. Additionally, the parties agreed that another family report should be prepared by an independent expert but disagreed on the identity of that expert. I heard the father’s Application in a Case for an order that a further report be obtained from Mr M, the consultant social worker who prepared a family report for the trial before Kent J and who gave oral evidence at the trial before his Honour.  That application was opposed by the mother who cross-applied for orders that included the appointment of a different family report writer, to be chosen by the father from a list of three south-east Queensland based professionals nominated by the mother. She also sought associated orders dealing with the costs of, attendances for interviews and other matters pertaining to the preparation of a report.

7. Both Senior Counsel appearing in the matter indicated to the Court that they did not require reasons for the decision I make on this issue of the expert report. Although the magnanimity of that concession is appreciated, I nevertheless considered it appropriate to reserve my decision, consider the merits of the opposing submissions and to deliver judgment with some written reasons at a later time.

8. General discussion about the nature of the trial management directions that would be made at the same time as delivering judgment on the competing interim applications was had and substantial agreement reached about the path forward towards listing the matter for trial.

The Family Report Issue

1. At the hearing, I was handed a list prepared by the mother’s legal representatives of the issues said to arise in the remitted hearing. A list of issues prepared by the father’s legal representatives had been sent to the Court the day before the hearing before me.  Relevantly, the father’s list was, effectively, as follows:

   1.What time should the child spend with the father and under what conditions - the father seeks unsupervised time in blocks whilst he is present in Australia.

   2.Whether it is in the best interests of the child (or in any event whether there is any evidence to support the conclusion that it is justified or justifiable) to require that any contact, time or communication the father has or is to have with the child be the subject of supervision or similar restraints.

   3.The practical difficulty and/or expense of any arrangements as to the father’s time with the child.

   4.What effect the imposition of the present constraints within which the father spends time with the child in accordance with the 2013 Orders (including indefinite supervision of the time the child spends with the father) have had, including on the ability of the father to maintain or enjoy a relaxed, secure or meaningful relationship with the child.

   5.Any views expressed by the child and the weight that the Court should afford any such views expressed by the child.

   6.What limited opportunity does the mother’s proposal provide, as opposed to the opportunity which the father’s proposal provides, as to the involvement of the father in the child’s development, including in respect of the child’s exposure to the father’s culture.

   7.The extent to which the mother has facilitated and encouraged a meaningful relationship between the child and the father.

   8.Whether the fears expressed by the mother, including to the effect that the father would act to remove the child from the mother’s care, and/or return her to the United Arab Emirates, are bona fide.

2. The mother’s list was handed to me at the hearing. Senior Counsel for the mother highlighted the issues as seen by the mother to also include the following:

   ·Whether the father spending unsupervised time with the child presents an unacceptable risk to the child’s welfare represented by the risk of her being removed from Australia (whether the father presents a “flight risk”).

   ·Whether the father has engaged in family violence and if so, to what extent.

   ·Whether the father is a witness of credit on disputed issues of fact.

   ·The nature of the relationships between the child and each of her parents.

   ·The child’s psychological functioning including:

   a)Any impact of family violence upon the child;

   b)Any symptoms of psychological distress displayed by the child;

   c)Whether any such symptoms are related to any instances of trauma experienced by the child;

   d)Any relevant diagnosis and prognosis and how these may affect the care arrangements for the child;

   e)The impact on the child of the present arrangements to spend time with and communicate with the father;

   f)The likely impact of any proposed future arrangements for the child to spend time with and communicate with the father;

   g)The likely impact on the child if the mother’s care giving ability is impacted upon adversely by anxiety.

   ·The mother’s psychological functioning including:

   a)Any impact of family violence upon the mother;

   b)The mother’s fears for the safety of the child and that the father may act to remove the child, and whether such fears are genuine;

   c)Any anxiety on the part of the mother, as primary care giver, concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on the mother’s care giving ability;

   d)The magnitude of any risk to the mother’s psychological health in parental function;

   e)The capacity of the mother to facilitate the child’s relationship with the father.

   ·The capacity of the parents to share in decisions and communicate issues affecting the child.

3. In this context, it can be readily understood why each parent contends that more than three years after the original parenting Orders were made another family report would be of assistance to them and the Court. I accept that as correct.

4. Senior Counsel for the father submitted that as Mr M prepared a family report for the 2013 trial and the scope of the fresh hearing is necessarily limited by the terms of the Full Court’s Orders, further evidence from Mr M would be an integral part of the fresh hearing. He went on to submit that a further report from Mr M in which Mr M calls on his recollections from his previous involvement when considering more recent developments would be a useful piece of evidence. 

5. In support of her opposition to the father’s application for an order that Mr M be engaged to provide a further report, the mother relied upon an affidavit of her own she had filed on 22 February 2017 and an affidavit of her mother filed the same date. In summary, both women expressed a lack of confidence in Mr M and deposed to reasons for that, largely related to their observations and perceptions of how they had been treated by Mr M when he saw them and interviewed them in the course of preparing his family report for the 2013 trial.

6. Of course, one party’s lack of confidence in a report writer cannot, of itself, be grounds for appointing a different expert to provide a family report. It is a rare parenting case where at least one of the parties does not express a lack of confidence or satisfaction with a single expert family report writer. It is unsurprising that a parent on the wrong end of a family report writer’s recommendations might be unhappy with the report writer, just as it is unsurprising that a parent on the wrong end of parenting Orders might be unhappy with the trial Judge. Such is the nature of the jurisdiction in which discretionary judgments as to matters pertaining to the best interests of children have to be made on a daily basis, often with life changing consequences for all the parties involved.

7. However, adduced into evidence at the hearing was an extract of the transcript of the trial before Kent J – that part that included the oral evidence of Mr M. Also, several paragraphs of Kent J’s Reasons for Judgment were adduced into evidence – namely, [237] – [241], [261] – [265] and [301]. Those paragraphs relate to Mr M’s evidence. For completeness, in those paragraphs his Honour said:

   237.In this context Mr [M] expressed the opinion, which I accept, that if [the child] were not to see the Mother again it would be “extremely traumatic” for her. Mr [M] gave evidence to the effect that [the child’s] long-term development would be compromised. On the scenario that [the child] remained in Australia with the Father visiting fairly frequently and for relatively lengthy periods of time Mr [M] opined that the bond between the Father and [the child] (which Mr [M] had assessed as sound) would continue. I accept these opinions.

   238.On balance I find that there presently, and for the foreseeable future, exists an unacceptable risk to [the child] if she were permitted to return to or visit the UAE or to leave the Commonwealth of Australia with the Father that the Father may seek to impose the law of the UAE.

   239.I accept the Mother’s evidence that she will not visit or return to [City Z] or the UAE in future.

   240.I find, by the same process of reasoning, that [the child] spending unsupervised time with the Father would presently, and for the immediately foreseeable future, pose an unacceptable risk to [the child’s] welfare represented by the risk of her being removed from Australia.

   241.Expressed in the language of s 60CC(2)(b) I find that there is a need to protect [the child] from harm in this respect given the obvious psychological harm that would occur if she was either permanently removed from the Mother or there was any significant interruption of the child’s time with the Mother.

   …

   261.Mr [M] is a social worker of long standing and experience, including experience in providing family reports in evidence in parenting proceedings. However, I regret having to observe of his approach compiling his written report that Mr [M did] not appear to analyse or assess, to the extent I would have expected, the nature of the child’s attachments to each of her parents given the competing proposals and issues raised by the parties having regard in particular to the child’s age and level of development. Obviously, the issues raised by the parties, particularly the Mother’s agitation that the Father might act to severely restrict or curtail the Mother’s involvement with the child, would seem to have potentially very damaging consequences worthy of some expert comment.

   262.[The child’s] attachment/s was not identified as one of the “pertinent” issues outlined on page eight of Mr [M’s] report. Moreover, in the “conclusions and recommendations” section of his report there is only this, at paragraph 108:

   I also formed the view that [the child] has a strong bond with both of her parents, that [Mr Bant] has been an involved parent, and that [the child] shows a clear and enduring attachment to him, the same type of attachment she demonstrates with her mother.

   263.When relevant aspects of the history was provided to Mr [M] during cross-examination; such as the feature of the Mother breastfeeding [the child] for some two years and clearly being the primary carer, including in extended periods when the Mother and [the child] were in Australia whilst the Father was in [City Z]; and the feature that [the child] has spent at least half of her life in Australia; there seemed to be some mystifying reluctance on the part of Mr [M] to acknowledge the significance of the Mother as [the child’s] primary attachment figure. In his oral evidence, his attention being drawn to these facts, Mr [M] observed that the child’s attachment to the Mother was “more developed” than that to the Father and Mr [M] expressed in his oral evidence (as distinct from his report) an opinion that the Mother is the child’s primary attachment figure. My impression was that Mr [M], in his report, sought to elevate issues of culture, as important as they may be, in priority to other relevant considerations. For example, it was only in his oral evidence that Mr [M] addressed how traumatic it would be for [the child] if she did not see the Mother as a consequence of UAE law being invoked. It was only in his oral evidence that Mr [M] opined as to the Mother being the primary care figure.

   264.To my mind, Mr [M’s] observation in paragraph 109 carries the conclusion that [the child’s] “culture and language” is only that of the UAE. That is against the background of her actual life experience to date and the fact that the Mother and the maternal side of [the child’s] family identify as Australian whilst obviously an important part of [the child’s] cultural background is that of the Father.

   265.On the whole of the evidence I find that [the child] has an attachment to both of her parents but that her primary attachment figure is the Mother.

   …

   301.In assessing the likely effect upon [the child] of such a change the Court does not have the extent of expert assistance it might have had given that Mr [M] did not appear to place proper focus or emphasis upon this aspect. However, in my judgment, given her age and level of development and her experience to date it can be readily inferred that interruption at this point in [the child’s] experience of, and relationship with, the Mother ought be viewed as carrying significant risks for [the child’s] healthy development.

1. Having read the transcript of Mr M’s oral evidence, I understand the basis for Kent J’s findings and the views he expressed in the above quoted paragraphs of his Honour’s Reasons for Judgment, particularly [261] – [265] and [301].

2. Senior Counsel for the mother respectfully referred to those paragraphs in support of the submissions that a fresh family report in its entirety is now appropriately sought and, having regard to the issues raised about the psychological functioning of the mother and the child, that a psychologist experienced in providing family reports to this Court would be a more appropriate professional to provide the fresh report.

3. Senior Counsel for the father pointed out in his submissions that despite the complaints of the mother and the maternal grandmother levelled at Mr M in their recent affidavits, those matters were not raised by Senior Counsel and put to Mr M during his cross-examination at the trial. My reading of the part of the transcript adduced into evidence confirms that submission is correct. However, I hasten to observe that does not prove that there is no basis for the mother’s complaints, but rather it provides a basis as to why I would not say that I accept the mother’s complaints as soundly and accurately made. To do that in these circumstances would be grossly unfair to Mr M.

4. Nevertheless, where more than three years have passed since Mr M saw the parties and prepared his report; where, with respect, Kent J expressed some clear concerns with Mr M’s assessment, that, I accept, on the evidence, were reasonably open to his Honour; where the mother, no doubt fortified by his Honour’s observations, expresses a current lack of confidence in Mr M; and where current psychological functioning of the mother and the child is now part of the factual background against which the determination of the limited parenting Order is to be undertaken, I am satisfied that a different person should now be engaged to prepare a family report for the fresh hearing and that the person should be a psychologist with family report writing experience.

5. Senior Counsel for the father informed the Court that if the Court was minded to have a different person prepare a report, the father would not oppose the mother’s proposal for the father to nominate one from the three names provided by the mother.  Two of the professionals named are well known to me. I know them both to be psychologists who are experienced in providing family reports to this Court. Both have given expert evidence in parenting matters I have heard and determined in my time on this Court. They are Mr BC and Ms AB. The third professional on the mother’s list, Ms CD, is, with respect, not as well known to me. I cannot recall her giving evidence in any matters I have heard and determined. I am not even certain that she is a psychologist as opposed to a social worker. Nevertheless, I will include her name in the list, but condition her selection by the father upon the father’s satisfaction that she is a psychologist. If she is not, then the father will have to select one of the other two nominated persons.

6. I will make other orders in respect to the preparation of the report and will order that each party be responsible for 50 per cent of the costs of its preparation. I will order that the selected report writer be provided with copies of Mr M’s 2013 report, Kent J’s judgment, the Full Court’s judgment, this judgment of mine, all affidavits of evidence in chief that are yet to be filed and relied upon at the fresh hearing and a joint letter of instructions and any other documents as might be agreed upon by the parties. I will also give the nominated professional leave to inspect any documents that have been produced under subpoena to this Court to this point in time.

7. I will require the chosen single expert to report on matters relevant to the matters set out in s 60CC of the Family Law Act 1975 in so far as they are relevant to the determination by the Court of the limited parenting orders the Court is required to hear pursuant to the remit of the Full Court with particular consideration to be given to the matters listed by each of the parties as the issues that are to be considered as set out by me in paragraphs [9] and [10] of this judgment.

8. I will make other procedural orders as discussed and foreshadowed with the parties’ legal representatives at the hearing before me on Thursday 23 February, 2017.

9. Accordingly, I make the orders set out at the commencement of these written reasons.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 February 2017.

Associate: 

Date:  24 February 2017