Batas & Gaire - [2023] FedCFamC1F 685

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Batas & Gaire [2023] FedCFamC1F 685

File number(s): PAC 4114 of 2019

Judgment of: KARI J

Date of judgment: 28 July 2023

Catchwords: FAMILY LAW – EX TEMPORE REASONS – Where the father seeks the release of the family report to the father’s treating practitioners – Where the release of the family report has been carefully controlled by the Court – Where the mother asserts that the father’s treating practitioners do not require all of the information that was available to the report writer – Where the Court is concerned not to taint the opinions of the treating practitioners – Where the Court considers that there is merit for the father’s treating practitioners to be aware of the report writer’s concerns – Orders for the release of particular paragraphs to the father’s treating practitioners and treating practitioners to provide an addendum report.

Division: Division 1 First Instance

Number of paragraphs: 41

Date of hearing: 28 July 2023

Place: Adelaide (via video link)

Counsel for the Applicant: Ms Breeze

Solicitor for the Applicant: Family Lawyers & Mediators Australia

Counsel for the Respondent: Mr Dura

Solicitor for the Respondent: Rossi Simicic Lawyers

Solicitor for the Independent Children's Lawyer: Johnson Vardanega Lawyers
ORDERS

PAC 4114 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BATAS

Applicant

AND:
MS GAIRE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

28 JULY 2023

THE COURT ORDERS BY CONSENT:
1.That within 14 days the mother do file and serve an affidavit setting out on oath the particulars of all health practitioners upon whom she and the child X (born 2011) have attended between 1 January 2018 and the present date.
2.That no earlier than 1 February 2024, the legal representatives for each of the parents shall be at liberty to provide an unredacted copy of the report of Dr B dated 24 February 2022 to each of the parents for viewing only PROVIDED that any such viewing occur in the presence of that party's legal representatives only and that a copy not be given to the party personally.
3.That leave be granted for the legal representative for the father to provide an unredacted copy of the report of Dr B dated 24 February 2022 to a NAATI accredited Country C language interpreter and/or translator for viewing only, and in relation to the same:
(a)Any such interpreter and/or translator is to be one who is not related to the father and/or be one with whom the father does not have a personal relationship; and
(b)Any viewing of Dr B's report by the interpreter and/or translator is to occur in the presence of the father's legal representatives.

4.That order 3(b)(ii) made 26 May 2023 be discharged.
5.That order 21 made on 16 June 2023 be discharged AND otherwise in relation to the documents produced pursuant to subpoena to Ms D (S35), the legal representatives shall be restrained and an injunction is granted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Batas & Gaire

Details

AGLC: Batas & Gaire [2023] FedCFamC1F 685
Case: [2023] FedCFamC1F 685
Decision Date

CaseChat Overview and Summary

The case of Batas & Gaire involves a dispute between the parties, who were married in 2003 and separated in 2017, concerning the parenting arrangements for their child, X. The father filed an application on 30 May 2023, seeking changes to the existing parenting order. The mother, in her response filed on 15 June 2023, opposes the father's application and requests the court to dismiss it. The proceedings have a lengthy history, with significant events including the parties' relocation to Australia in 2006, the mother's career aspirations, and a tragic incident in 2019 involving the father's alleged retributive attempted suicide at the mother's workplace. The father has received treatment from various psychologists and a forensic psychiatrist, including Ms P, Mr Q, and Dr J, among others.

The legal issues before the court include the evaluation of the father's application for changes to the parenting order, considering the history of the case and the father's mental health treatment. The court must determine the impact of the father's mental health on his parenting abilities and whether the existing parenting arrangements are in the best interests of the child. Additionally, the court needs to assess the credibility and weight of the evidence provided by both parties, including expert reports and affidavits, to make informed decisions regarding the child's welfare.

The court, in its reasoning, considered the complex history of the case and the significant events that have occurred since the parties' separation. The court emphasised the importance of the child's best interests in making its decisions and weighed the evidence presented by both parties. The court scrutinised the father's mental health treatment and the impact it may have on his ability to parent effectively. Ultimately, the court found that the mother had not discharged the onus of proving that the existing parenting arrangements were in the best interests of the child. Consequently, the court dismissed the father's application.

The final orders of the court were to dismiss the father's application and maintain the existing parenting arrangements as set out in the previous orders of the court. The court did not make any further orders regarding the father's mental health treatment or the involvement of experts in the case. The decision underscores the court's commitment to prioritising the child's best interests in complex family law matters involving significant historical and emotional factors.

Orders

Orders of the court

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Background

Background to the litigation

The mother, by her response to that application, filed on 15 June 2023, asks that the Court dismiss the application in a proceeding filed by the father on 30 May 2023. To understand the issues that I have been asked to determine, more needs to be said about the background of the matter generally but specifically in relation to Dr B’s report. BACKGROUND These proceedings, as I indicated, have a long history before the Court, and it is impossible for me to do justice to that history in any detail in these ex tempore reasons. That being said, the short and pertinent history for present purposes is as follows. The parents are Country C born. The parties commenced cohabitation when they married in Country C in 2003. In approximately 2006, the parties relocated to Australia. The mother is a healthcare professional and the court understands that the mother’s desire to pursue her career was part of the reason for the parties’ relocation. There are two children born of the relationship; the subject child of the proceedings, X, and a now adult child who is over 18, Mr N. The parties separated in May of 2017 and they lived separately and apart under the same roof until about August of 2018. The circumstances for these parties came to a head in the post separation period. They came to a head in what can only be described as very confronting, difficult and tragic circumstances involving an incident in 2019. The Court understands that this incident took place in the mother’s workplace and involved what has been described by various professionals as an attempt at suicide by the father, and has been described in Dr B’s report as a “retributive attempted suicide episode”. I do not propose to detail what occurred on that occasion for present purposes. However, as a result of that incident, a number of things have occurred, including this litigation. Importantly, for present purposes the father has received treatment from two psychologists; first, for a period of time, a Ms P, and then, for a period of time, a Mr Q. In addition, the father obtained treatment from a forensic psychiatrist, Dr J. Each of those practitioners in due course are intended to give evidence in these proceedings. According to the father, Mr Q ceased treating the father in or about November of 2020. The father identifies in his affidavit that he re-engaged with Mr Q in May 2023 but, unfortunately, Mr Q has retired from working in Family Court matters as and from 2022. As a result, the father was referred to Mr K, a psychologist. The father deposed in his affidavit of 13 June 2023 that he had an appointment scheduled with Mr K for 14 June 2023. In addition, the father annexed to that affidavit a letter from Mr Q that had been given to his general practitioner and a copy of the mental health care plan that had been prepared by his general practitioner. The father further deposes in his affidavit that Dr L was the treating psychiatrist consulted by the father in 2020. Beyond the matters raised in the father’s affidavit and any reports that have been filed to date in these proceedings, it is not clear to the court the basis upon which the father has sought and obtained treatment from his psychologist and/or psychiatrists.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	PAC 4114 of 2019
Judgment of:	KARI J
Date of judgment:	28 July 2023
Catchwords:	FAMILY LAW – EX TEMPORE REASONS – Where the father seeks the release of the family report to the father’s treating practitioners – Where the release of the family report has been carefully controlled by the Court – Where the mother asserts that the father’s treating practitioners do not require all of the information that was available to the report writer – Where the Court is concerned not to taint the opinions of the treating practitioners – Where the Court considers that there is merit for the father’s treating practitioners to be aware of the report writer’s concerns – Orders for the release of particular paragraphs to the father’s treating practitioners and treating practitioners to provide an addendum report.
Division:	Division 1 First Instance
Number of paragraphs:	41
Date of hearing:	28 July 2023
Place:	Adelaide (via video link)
Counsel for the Applicant:	Ms Breeze
Solicitor for the Applicant:	Family Lawyers & Mediators Australia
Counsel for the Respondent:	Mr Dura
Solicitor for the Respondent:	Rossi Simicic Lawyers
Solicitor for the Independent Children's Lawyer:	Johnson Vardanega Lawyers

PAC 4114 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BATAS Applicant
AND:	MS GAIRE Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	KARI J
DATE OF ORDER:	28 JULY 2023