Carlevaro & Carlevaro
[2024] FedCFamC2F 1736
•9 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carlevaro & Carlevaro [2024] FedCFamC2F 1736
File number(s): NCC 1039 of 2022 Judgment of: JUDGE KEARNEY Date of judgment: 9 December 2024 Catchwords: FAMILY LAW - parenting – cultural identity – whether the father poses an unacceptable risk – what is the nature of the children’s relationship with the father? - where the mother is opposed to the children having any contact with the father or alternatively only limited professionally supervised time - whether the mother’s parental capacity would be impaired if the children spent time with the father - capacity of parents to meet children’s needs - taking into account the children’s views – family consultants – what weight should be given to the designated family consultant’s opinions? - role and function of family consultants – best interests of the children
FAMILY LAW – costs application – whether each party should equally contribute to the independent children’s lawyers costs – not necessary to find a clear case to make a costs order – financial hardship – costs application dismissed
Legislation: Evidence Act 1995 (Cth): ss 76, 79, Pt 3.11
Family Law Act 1975 (Cth) Part VII, Div12A & ss 4, 4AB, 11A, 11B, 11C, 11J, 11K, 55A, 60B, 60CA, 60CC, 60ZN, 62G, 69ZS, 69ZX, 95 & 117
Family Law Amendment Act 2023 (Cth) s 2
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 280
Federal Court of Australia Act 1976 (Cth) Division 4, Pt IIB & ss 18ZH & 18ZI
Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) rr 7.08, 8.11, 12.08
Family Law Regulations 1984 (Cth) reg 7
Family Law Amendment Bill 2023 Explanatory Memorandum (Cth)
United Nations Convention on the Rights of the Child
‘Complaints policy’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <
‘Family Consultants FAQs’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <
‘Child Impact Report - FAQs’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <
‘Reports prepared by Court Children’s Services’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <
‘Family Reports FAQs’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <
Cases cited: A & A [1998] FamCA 25; (1998) 22 Fam LR 756
Bass & Bass [2008] FamCAFC 67; (2008) FLC ¶93-366
Behrendt & Cadenet (No 2) [2021] FamCA 19
Blinko & Blinko [2015] FamCAFC 146
Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389; (2021) 64 Fam LR 94
Eastley & Eastley [2022] FedCFamC1A 101
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 63 ALD 577
Fasham & Rina [2022] FedCFamC2F 134
Friscioni & Friscioni [2010] FamCAFC 108
Godfrey & Sanders [2007] FamCA 102; (2007) 208 FLR 287
Goodryngton & Salter [2023] FedCFamC1F 641
Helbig & Rowe [2016] FamCAFC 117
Honeysett v The Queen (2014) 253 CLR 122
In the marriage of Hall & Hall [1979] FamCA 73; (1979) 5 Fam LR 609 at 615; (1979) FLC 90-713
Isles & Nelissen [2022] FedCFamC1A 97
Jansen & Kwan [2022] FedCFamC1F 355
Keane & Keane [2021] FamCAFC 1; (2021) 62 Fam LR 190
Lainhart & Ellison [2023] FedCFamC1A 200
Lang v The Queen [2023] HCA 29
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Mazorski & Albright [2007] FamCA 520
McGrath v McGrath [2012] NSWSC 578
Nagel & Clay [2020] FamCA 326
Napier & Hepburn [2006] FamCA 1316
Padley & Padley [2020] FamCA 717
Penfold v Penfold [1980] HCA 4; (1980) 5 Fam LR 579; (1980) FLC ¶90-800
Ralton & Ralton [2017] FamCAFC 182
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
R & C [1993] FamCA 62
Thompson & Platt [2016] FamCA 1116
Tryon & Clutterbuck & Attorney-General of the Commonwealth (Intervenor) [2010] FamCAFC 229; (2010) 44 Fam LR 361
Velevski v The Queen [2002] HCA 4
Weston & Laurent [2013] FamCAFC 34; (2013) 49 Fam LR 338
Division: Division 2 Family Law Number of paragraphs: 286 Date of hearing: 26-28 February 2024 and 13 August 2024 Place: Newcastle Counsel for the Applicant: Mr Willoughby Solicitor for the Applicant: Joplin Lawyers Counsel for the Respondent: Mr Flanigan Solicitor for the Respondent: Grant & Co Solicitors & Attorneys Counsel for the Independent Children's Lawyer: Ms Court Solicitor for the Independent Children's Lawyer: Foat Roberts Lawyers ORDERS
NCC 1039 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CARLEVARO
Applicant
AND: MR CARLEVARO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
9 DECEMBER 2024
Amended pursuant to rule 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 9 December 2024
THE COURT ORDERS THAT:
Parental Responsibility
1.The applicant, MS CARLEVARO (‘the mother’) shall have sole parental responsibility for the children X born in 2015 and Y born in 2017 (‘the children’).
Lives with
2.The children shall live with the mother.
‘Spends time with’ during school terms
3.The children shall spend time with the respondent, MR CARLEVARO (‘the father’) during school terms as exercised by the children’s school(s) (‘term time’) as agreed in writing between the parents, failing which as follows:
a.Until the conclusion of term 4 2024 on each alternate weekend from the conclusion of school (or 3.00pm) Friday to the commencement of school (or 9.00am) Monday in the same pattern as currently experienced by the children,
b.From the commencement of term 1 2025 on each alternate weekend from the conclusion of school (or 3.00pm) Friday to the commencement of school or 9.00am) Monday.
‘Spends time with’ during school holidays
4.The children shall spend time with the father during school holidays as exercised by the children’s school(s) (‘school holiday time’) as agreed in writing between the parents, failing which as follows:
a.During the 2024 Summer school holidays – on three (3) occasions for three (3) consecutive nights being
i.3.00pm 25 December 2024 to 3.00pm 28 December 2024,
ii.3.00pm 10 January 2025 to 3.00pm 13 January 2025, and finally
iii.3.00pm 20 January 2025 to 3.00pm 23 January2025,
b.During the Autumn, Winter, and Spring school holidays - for five (5) consecutive nights from the conclusion of the last day that the children are required to attend school (or 3.00pm) until 3.00pm on the sixth day,
c.During all Summer school holidays after 2024 – on three (3) occasions for five (5) consecutive nights as follows –
i.In 2025 and each odd-numbered year afterwards from –
A.3.00pm 31 December to 3.00pm 5 January,
B.3.00pm 12 January to 3.00pm 17 January, and finally
C.3.00pm 22 January to 3.00pm 27 January,
ii.In 2026 and each even-numbered year afterwards from –
A.3.00pm 25 December to 3.00pm 30 December,
B.3.00pm 6 January to 3.00pm 12 January, and finally
C.3.00pm 18 January to 3.00pm 23 January.
‘Spends time with’ during special occasions
5.The children shall spend time with each parent on the following special occasions and for that purpose any time the children would otherwise spend with the other parent is suspended:
a.Mother’s Day – with the mother from the conclusion of school (or 3.00pm) on the Friday before the Mother’s Day weekend until the commencement of school (or 9.00am) Monday,
b.Father’s Day – with the father from the conclusion of school (or 3.00pm) on the Friday before the Father’s Day weekend until the commencement of school (or 9.00am) Monday,
c.Christmas Day –
i.In 2024 and each even-numbered year afterwards with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day,
ii.In 2025 and each odd-numbered year afterwards with the father from 3.00pm Christmas Eve to 3.00pm Christmas Day.
Facilitation of the children’s living arrangements
6.During all periods of specified time between the children and the father, Order 2 is suspended.
7.During all periods of specified time between the children and the mother, Orders 3 and 4 are suspended.
8.To ascertain the resumption of term time following any school holiday time, the sequence of alternating weekends shall be maintained, (although not taken during school holidays) and used in calculating time in these orders.
9.To facilitate Orders 3, 4 and 5; at times when the children are not being collected or returned to school, and unless otherwise agreed in writing between the parents, each parent is to nominate a person known to the children (‘the nominee’) who shall facilitate changeovers of the children on behalf of each of them from the McDonald’s Restaurant on B Street, Suburb C in the State of New South Wales and neither parent is to be within eyesight of those premises 15 minutes before, during or after the specified changeover time.
10.To facilitate Order 9, the parents are permitted to provide a copy of these Orders (‘the communication’) to the nominee(s) for the purpose of each parent satisfying themselves that the nominee(s) has/have read and understood the communication and has/have agreed to comply with any obligations because of them accepting the nomination.
Parental communication
11.All communications between the parents shall be facilitated using the AppClose application and forthwith the parents shall do all acts and things reasonably necessary to register with that application and shall forthwith notify each other that they have done so.
Injunctions
12.Save for notifying each other of their registration with AppClose, the parents are restrained, and an injunction shall issue prohibiting them from communicating with each other than via AppClose and the only purpose of such communication is to facilitate the time the children shall spend with each of them.
13.The father is restrained, and an injunction shall issue prohibiting him from consuming alcohol for 12 hours prior to, and when, the children are spending time with him.
14.Pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’), the father is restrained, and an injunction shall issue prohibiting him from:
a.Doing any of the following to the mother,
i.Assaulting or threatening the mother,
ii.Stalking, harassing, or intimidating the mother,
iii.Intentionally or recklessly destroying or damaging any property, or harming any animal that belongs to or is in the possession of the mother,
b.Approaching the mother or contacting her in any way, unless the contact is:
i.Through a lawyer,
ii.To attend accredited or court-approved counselling, mediation, and/or conciliation,
iii.As ordered by this or another Court about contact with the children,
iv.As agreed in writing between you and the mother about contact with the children,
v.Attending, approaching, or remaining within 100 metres of the home of the mother and the children,
c.Entering or remaining at:
i.Any place where the mother lives,
ii.Any place where the mother works, or
iii.D Street, Suburb C NSW.
15.The above order is an order made for the personal protection of the mother and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Act.
16.Subject to Orders 3, 4, 5, and 9 and pursuant to s 68B of the Act, the father is restrained, and an injunction shall issue prohibiting him from:
a.Knowingly attending, approaching, or remaining within 100 metres of any place where the children attend for the purposes of employment, education, or regular extra-curricular activities, and
b.Removing the children from any place or person where/with whom the mother has arranged for the children to be.
17.The parents are restrained, and an injunction shall issue prohibiting either of them from denigrating each other or members of the extended paternal or maternal family in the presence or hearing of the children (or any one of them) and from allowing the child(ren) from remaining in the presence or hearing of any other person doing so.
International travel
18.Pursuant to s 65Y(l)(c)(ii) of the Act, the mother is permitted to travel to a place outside Australia with X born in 2015 and Y born in 2017 whether or not the father has consented to such travel.
19.Subject to Order 18, the marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children, X born in 2015 and Y born in 2017, on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s names on the watch list.
20.Subject to Order 18 and in accordance with Order 19, the children shall remain on the Airport Watchlist until they attain the age of 18 years.
Explanation of Orders
21.By Friday 20 December 2024, the Independent Children’s Lawyer (‘the ICL’) is to meet with the children in person to explain these Orders (‘the meeting’) and to facilitate that happening the parents shall comply with all reasonable written request made of the ICL irrespective of who has the care of the children at the specified time of the meeting.
22.By Friday 13 December 2024 the father’s lawyer is to mail or cause to be mailed a hard copy of the judgment to the father via Australia Post.
23.By Monday 20 January 2025 the father’s lawyer is to read the judgment aloud to the father, explain the judgment to the father and answer any questions he may have about the judgment.
ICL’s costs application
24.The oral application made by the ICL for the parties to contribute towards the ICL’s costs is dismissed.
IT IS DIRECTED THAT:
25.All outstanding applications are dismissed.
26.At the expiration of the appeal period, the ICL is discharged.
THE COURT NOTES THAT:
A.The intention of Orders 4.c. and 5.c. is to minimise changeovers during each Christmastime period, so that in each year from 3.00pm on Christmas Day the children will then spend some extended time with each of their parents in an alternating pattern starting with them spending extended time with the father this Christmastime.
B.In making Order 10, the Court is satisfied that the nominee(s) are a person(s) with a significant and legitimate interest in receiving the communication: s 114S(1) of the Act.
C.In making Orders 19 and 20, the Court’s intention is not to exclude the father from ever bringing an application to take the children overseas; but instead the Orders reflect that there was no evidence of the father’s intention to do so and to otherwise protect the children from the father doing so without first obtaining permission from the Court.
D.In making Order 23, the obligation imposed upon the father’s lawyer will expire in about six (6) weeks’ time and if the father fails to take up a reasonable opportunity of having the judgment read aloud to him and/or having his solicitor explain the effect of the judgment to him then if those circumstances are established, the Court will not be critical of the father’s lawyer.
E.Should a parent exercise their right to file an application for costs, THEN registry staff are permitted to consult directly with the chambers of Judge Kearney for the making of chambers orders allocating a hearing date before Judge Kearney and directions in support of such event.
F.Pursuant to s 65DA(2) and s 62B of the Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached “Parenting Orders – obligations, consequences and who can help” Fact Sheet, which forms part of these orders.
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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION
Two (2) children want to spend more time with their father whose cultural background is very different to their mother’s. The mother says that the father is a perpetrator of family violence and even if he does not pose an unacceptable risk, any unsupervised time will adversely impact her parental capacity. The father and the independent children’s lawyer want the current regime of unsupervised time increased. How do I manage the risks in a way that meets the children’s best interests?
Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth). It is acknowledged that because the trial started on 26 February 2024, my decision is informed by Part VII as it existed at that time.[1]
[1] See Family Law Amendment Act 2023 (Cth) s 2, item 2 of the table.
These proceedings were commenced by the applicant MS CARLEVARO (‘the mother’). The respondent is MR CARLEVARO (‘the father’). There are two (2) subject children namely-
(a)X aged 9 years, and
(b)Y aged 7 years,
and collectively described as ‘the children’.
During the first tranche of the trial, the children were represented by Ms E and when the trial resumed, they were represented by Ms Roberts as Independent Children’s Lawyer (‘the ICL’).
Out of respect for each person’s gender and social status, all persons will be identified by their surnames unless they are parties and where applicable, there will be an avoidance of the use of gendered pronouns.
In broad scope, the issues for determination by me were:
·What weight should be given to the designated family consultant’s opinions?
·What is the nature of the children’s relationship with the father, and should this be promoted in the future?
·Does the father pose an unacceptable risk of harm to the children and if so what should happen?
·If the father does not pose an unacceptable risk of harm to the children, what will be the impact of any prospective parenting orders upon the mother’s parental capacity?
·What are the children’s views and what weight (if any) should be given to them?
·Where a proposal will change the children’s circumstances, what will that look like?
·What is the cultural identity of the children and how can their rights to engage with, enjoy and develop those identities be promoted?
·What is the capacity of each parent to meet the needs of the children?
·What are the parents’ attitudes towards the children and to the responsibilities of parenthood?
·Is it just to make a costs order against either party by way of contribution towards the costs of the ICL?
These issues are informed by the following circumstances.
The parties agreed that the mother should have sole parental responsibility for the children and the children should live with her.
In summary, the mother opposed the children having any contact with the father, with her alternative position being for limited professionally supervised time. The father and the ICL proposed that the children continue to spend unsupervised time with the father, to increase upon the father completing a men’s behaviour change course.
I intend to increase the time the children spend with the father but not to the extent as sought by the ICL and the father. In doing so, I have taken the parties as I find them.[2] To support the mother’s significant role in the children’s lives and to otherwise protect her and the children, various injunctions will be placed upon the father. Other ancillary orders will be made to support the new parenting regime.
[2] Lainhart & Ellison [2023] FedCFamC1A 200 (‘Lainhart & Ellison’) at [29].
Statements of facts as set out below should constitute findings of fact unless otherwise expressed.
I now return to the issues.
THE ISSUES
What weight should be given to the designated family consultant’s opinions?
At any time during a child-related proceeding, a family consultant may be designated by the Court, albeit the specific allocation of a particular person is usually left for administrative determination by an appropriate delegate within the Court Children’s Service.[3]
[3] See for example ss 11A, 11B, 11K of the Act, Division 4, Pt IIB s 18ZH of the Federal Court of Australia Act 1976 (Cth) and s 280 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the Court Act’); as well as r 8.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); cf. s 69ZX(1)(d) of the Act relating to receiving expert evidence.
In these proceedings, two (2) s 62G reports were prepared, namely –
(a)a Child Impact Report dated 28 September 2022[4] (‘the 2022 CIR’), and
(b)a Family Report dated 17 July 2023[5] (‘the 2023 FR’).
[4] Exhibit ‘A’.
[5] Exhibit ‘B’. Future references to this document shall be identified by the acronym FR.
Both reports were prepared by the same author (‘the designated family consultant’). Before tackling the identified issue, it is important to identify what the role and obligations of a family consultant are.
The role and responsibilities of a family consultant
There are various pieces of legislation prescribing how a family consultant is appointed, what their roles and functions are, and how they are designated (and removed) within a proceeding.[6]
[6] Sections 11A & 11B and reg 7 of the Family Law Regulations 1984 (Cth).
The role of the family consultant can be integral to the efficient and cost-effective forensic analysis of complex interpersonal and familial relationships and dynamics. At times that role is filled by court child experts who are employed by the Court and at other times the role is filled by Regulation 7 family consultants who are nonetheless appointed by the Court and whose services are paid for by the Court.
Firstly, s 11A of the Act specifies the various functions of family consultants including the provision of reports pursuant to ss 55A and 62G.
Secondly, the chief executive officer of the Federal Court of Australia appoints family consultants (that are never used by that court) unless that person delegates their power of appointment to the chief executive officer of the Federal Circuit and Family Court of Australia, being the nomenclature used to describe the administrative entity supporting the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) (‘the administrative entity’).[7]
[7] Sections 18ZH(2) & 18ZI(4) of the Federal Court of Australia Act 1976 (Cth).
Thirdly, the chief executive officer of the administrative entity is then responsible for providing directions relating to the functions of family consultants (which is presumably tied to s 11A of the Act).[8] There does not appear to be any publicly available documents identifying what these directions look like, but rather a series of factsheets or policies available on the Court’s website.
[8] Section 280 of the Court Act.
Attempts have been made to cure any perceived lacuna. For example, the Full Court (Coleman, Thackray & Le Poer Trench JJ) in Tryon & Clutterbuck & Attorney-General of the Commonwealth (Intervenor) [2010] FamCAFC 229; (2010) 44 Fam LR 361 (‘Tryon’) observed at [71] that –
71. The family consultant preparing a s 62G report undoubtedly has an obligation to deal fairly and impartially with parties and/or other persons who are interviewed for the purpose of preparation of the s 62G report…
(my emphasis)
As far as the function of a family consultant relates to writing s 62G family reports, it is a welcome relief to see the insertion of ss 11J and 11K which respectively define what a designated family report is and for the promulgation of regulations setting standards and requirements including for the writers of such reports. When those regulations will become publicly known is unclear.
With s 11J in mind, the Parliament explained that -
443. New subsection 11J(1) focusses on the method of preparing, and the content and function of a report, to establish whether it meets the definition of a designated family report. New paragraph 11J(1)(a) provides that to meet the definition, a report must follow a family assessment, which is a professional forensic assessment undertaken to assist a court and/or the parties decide on parenting arrangements for children of separated parents or caregivers. It is an independent, professional and comprehensive forensic appraisal of the family, done from a social science perspective. The assessment provides information about the needs of children and their relationships with their parents and other significant adults, and of the attitudes and parental capacities of the adults with regard to the children's needs. The definition reflects and is consistent with the description and purpose of family assessments provided by the Australian Standards of Practice for Family Assessments and Reporting, that are intended to guide the preparation of family reports. Where possible and appropriate the report will also often, but not always, include obtaining and conveying the views of a child. The views of a child are required when designated reports are ordered under section 62G.[9]
(my emphasis)
[9] Family Law Amendment Bill 2023 Explanatory Memorandum (Cth) at [443].
The Parliament explained that this new provision ‘…introduces a power to make regulations that set standards and requirements, including recognition, monitoring and enforcement of compliance with the set standards and requirements for family report writers, and to provide for consequences for non-compliance…’[10] The regulations will apply across the board to single expert witnesses paid for by the parties to prepare designated family reports and those employed by the Court, noting that by using the definition of designated family report which is subject to s 11J, the family report writer is to also be subject to s 11K, and therefore a family assessment must form part of the report.[11]
[10] Family Law Amendment Bill 2023 Explanatory Memorandum (Cth) at [56].
[11] Family Law Amendment Bill 2023 Explanatory Memorandum (Cth) at [438].
In doing so, the Parliament also recognised that –
450. New subsection 11K(1) also provides that regulations, in full or in part, may apply to all family report writers, or a subset of family report writers. Family report writers are typically from a variety of social science professions, including but not limited to social work, psychology or psychiatry. Family report writers are also engaged to write reports in a variety of ways, either as family consultants employed by the family law courts or appointed under Regulation 7 of the Family Law Regulations 1984, or as single expert witnesses jointly appointed by, or on behalf of, both parties to the proceeding as allowed for in the relevant rules of court. Given the different professional backgrounds and employment types, family report writers have diverse regulatory, professional and employment obligations that do not apply equally to each individual. For example, a family report writer who is also a registered psychologist, is regulated by Ahpra. However, a person with a psychology degree and other work experience, but not registered as a psychologist, would not be regulated by Ahpra. Providing that regulations may apply to all family report writers, or a class or classes of family report writers, will enable standards and requirements, as well as consequences for non-compliance with standards and requirements, to be established that are fit for purpose and facilitate an equitable regulatory approach across all professionals. Competency an accountability requirements for family report writers as established by the regulations can leverage or work within existing regulatory frameworks where appropriate, to reduce duplication and unnecessary additional regulatory burden.[12]
(my emphasis)
[12] Family Law Amendment Bill 2023 Explanatory Memorandum (Cth) at [450].
Relevant to the issue before me, from a public-facing perspective, to say that this process of appointment and the Court’s expectations of how family consultants should conduct their functions are opaque, and confusing, is an understatement. In my view, this dearth of information represents a lacuna of articulation.
However, some things are clear, such as that as part of their forensic examination of a family’s circumstances in preparing reports, communications with family consultants and notes prepared by them are admissible.[13]
[13] Section 11C and Weston & Laurent [2013] FamCAFC 34; (2013) 49 Fam LR 338 at [56].
Section 69ZS provides that ‘at any time during child-related proceedings, the court may designate a family consultant as the family consultant in relation to the proceedings’. The term the court is defined within s 4 as ‘the court exercising jurisdiction’ in the proceedings. As alluded to earlier, s 11J defines what a designated family report is and sets out a process which in summary says that a report is prepared following a family assessment
It is common practice that the designation of an individual as the family consultant to a particular proceeding is done administratively (via Court Children’s Services).[14] As such, the judicial function as expressed within s 69ZS is not widely used in court, but in my view informs r 8.11 and the ability of a judicial officer to remove (rather than to designate) a family consultant. Because of how the case was argued, I am not obliged (in the exercise of my discretion) to inquire further into whether the Court’s practice is a legitimate exercise/delegation of power.
[14] See for example Fasham & Rina [2022] FedCFamC2F 134 at [36] & [38] where Judge Dickson relied on s 69ZS to direct that a different family consultant (to the one who prepared two (2) earlier s 62G reports) be engaged for the purpose of observing the children with the father. The order made did not designate who that person would be - which created a vacuum, resolved (presumably) at an administrative level by an authorised person within the Court Children’s Services.
Section 62G Child Impact Reports
Criticism was raised about the 2022 CIR, and it is important to consider that criticism in context.
As identified within the Court’s factsheet[15] –
…The purpose of a Child Impact Report is to provide information about the experiences and needs of children in the context of the dispute before the Court. In preparing the report, the Court Child Expert will consider a range of issues such as your children’s development, your children’s relationships and the presence of risk factors (such as family violence). Child Impact Reports focus on the impact these types of issues have upon children and parenting.
Information about their children's experiences can help parents better understand how separation and other family changes affect their children. By involving children early in the Court process, parents are helped to understand their children’s experiences and needs, and to consider what future arrangements would best meet these needs. A Child Impact Report also helps the registrar or judge to understand what is happening for your children, and assists them in making decisions about how your case should be managed.
[15] ‘Child Impact Report - FAQs’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <Child Impact Report - FAQs | Federal Circuit and Family Court of Australia>.
When ordered by the Court, all child impact reports are prepared only by employees of the Court (court child experts) and not Regulation 7 family consultants.[16] Although I accept the differing nomenclature is confusing (because nowhere in the Act is there a reference to a court child expert), when conducting any form of family assessment, a court child expert is one (1) and the same as a family consultant (for the purposes of the Act).
[16] I acknowledge that Chapter 7 of the Rules allow for the preparation of a diverse range of family assessments to be prepared by privately funded single expert witnesses (who are not Court Child Experts) including “child impact reports”.
Child impact reports provide a preliminary assessment prepared early in proceedings to assist in the determination of interim parenting disputes and/or dispute resolution. There are two (2) parts – usually video-meetings between the court child expert and each parent separately, followed up in the days afterwards by an in-person meeting between the court child expert and the children and/or a parent-child observation. Ultimately how those meetings are conducted (including the forum, with or without support persons or at all) are at the discretion of the court child expert.
The child impact report is ‘primarily focused on obtaining insight about children’s views, needs and experiences, and the screening, identification and preliminary assessment of risk issues and other factors relevant for the children and family.’[17] The child impact report is a tool to support early-decision making and the Court is clear to identify that ‘due to its limited nature, the Child Impact Report does not provide an assessment suitable for final hearing or cross-examination.’[18]
[17] ‘Reports prepared by Court Children’s Services’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <Reports prepared by Court Children’s Service | Federal Circuit and Family Court of Australia>.
[18] FN-17 above.
Section 62G Family Reports
Much criticism was raised about the 2023 FR, and it is important to consider that criticism in context.
Relevantly, s 62G permits the Court to direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable, with some legislative guidelines including around the gathering and reporting of a child’s views and the attendance of various persons for interviews.
As identified within the Court’s factsheet[19] –
[19] ‘Family Reports FAQs’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <Family Reports FAQs | Federal Circuit and Family Court of Australia>. It is unclear whether this document was available at the time the family report process was occurring for this family.
In preparing the report, the family consultant considers the children’s experiences and development, the family circumstances and other issues relevant to the case. The family consultant makes recommendations for arrangements that will best meet the children’s future care, welfare and developmental needs.
…
Generally, the family consultant will gather information about:
•the issues in dispute
•past and present parenting arrangements
•the parenting capacity of each party
•your children’s relationships with significant people
•your children’s wishes and views, and
•any risks to the children.
The family consultant may request your permission to contact teachers, doctors or other relevant professionals for more information about your children. The Court may also direct that the family consultant have access to material which has been subpoenaed.
…
The Family Report is only one source of evidence that the Court considers in making its decision. The Court is not bound by any recommendations made in the report.
Family consultants produce s 62G family reports, as opposed to single experts who variously use the same nomenclature or something else (like ‘family assessments’).[20]
[20] See Chapter 7 of the Rules.
Like child impact reports, the structure and process are driven by the individual family consultant’s assessment of the family’s circumstances. There was no evidence of what internal guidelines are relied upon to support their process although it was clear from the designated family consultant’s curriculum vitae[21] that they had been a family consultant (off and on) for some years.
[21] See the last page of the 2023 FR.
If there is a defended trial then there is an expectation that family report writers will be required for cross-examination so that the contents of their report can be tested. With all the above in mind, I cannot leave this topic entirely unexplored because of an argument that was the subject of some limited cross-examination but only superficially developed during submissions.[22]
[22] See the mother’s Outline of Case document filed 23.02.2024 at [43] where it was observed that the family consultant read affidavit material which set out complaints about how the CIR was conducted. Future references to this document shall be identified as ‘mother’s mental health condition’.
The Court’s Complaints Policy
The Court has published a Complaints Policy.[23]
[23] ‘Complaints policy’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <Complaints policy | Federal Circuit and Family Court of Australia>.
Within that document two (2) pathways are identified –
(a)the administrative complaints process[24], and
(b)the judicial removal/challenge process.[25]
[24] FN-23 above at pp. 3 & 4.
[25] FN-23 above at pp. 3 & 4.
In theory, if a party is even aware of the Complaints Policy (which I suggest would be the minority) then there remains nothing stopping an unhappy litigant from venting their angst via one (1) or both processes. Obviously if the proceeding is finalised, then the judicial removal/challenge process is closed.
Usually, any concerns about a family consultant will arise once they are designated and have started working with a family during extant proceedings, particularly regarding the preparation of s 62G reports because of their forensic purpose at trial.
The judicial removal/challenge process arises where there is unhappiness about a family consultant’s work which is then capable of being agitated before a judicial officer either by -
(a)applying to have the family consultant removed: r 8.11, and/or
(b)by challenging either the admissibility and/or weight to be given to the family consultant’s evidence: ss 76, 79 & Pt 3.11 of the Evidence Act 1995 (Cth); see for example Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [85] (Heydon JA).
The administrative complaints process is explained within the Complaints Policy and seems to apply as a way of giving constructive criticism about either process, methodology and/or exercise of opinion undertaken by the family consultant and/or (potentially) Court Children’s Service more broadly.
Of note is that the Court’s Complaints Policy specifically says this –
Complaints about family consultants, or the assessment they have conducted, cannot be investigated nor brought to the attention of the family consultant while the matter is currently before the Court. This is because the family consultant is an expert witness and doing so could be considered to be interfering with a witness in a matter.
The judicial removal/challenge process expects parties to be given procedural fairness, and this can be important in order to sustain a certain line of cross-examination of the family consultant (for example). As such, the complaining party must file and serve documents. This may take the form of –
(a)an Application in a Proceeding and supporting affidavit being filed and served seeking to remove a family consultant, and/or
(b)in preparation for the trial, there is evidence within the complaining party’s trial affidavit and/or written contentions within their Outline of Case document, which sets out the basis for the contention that will be made about the admissibility and/or weight to be given to the evidence.
A failure to take one (1) of these basic steps would run the risk of any relief sought being adjourned and/or dismissed with the potential of the trial being derailed (depending on the timing).
In these proceedings (it seems) the mother adopted both processes by -
(a)Filing an affidavit on 9 November 2022 (after the 2022 CIR had been released) but before the interim hearing occurred (‘the November 2022 affidavit’),
(b)Instructing their solicitor to write to someone within the Court Children’s Services which communication made its way to the designated family consultant, and
(c)Including within their trial affidavit further evidence about their concerns following the 2023 FR being released and foreshadowing their objection to the weight to be given to the designated family consultant’s evidence within their Outline of Case document.
Potential inconsistency between the two complaint processes
The above commentary brings into sharp relief the potential for inconsistency between the two (2) processes as relevant to the family before me, because the designated family consultant in cross-examination agreed that:
(a)as part of the usual family report process they read the November 2022 affidavit, and
(b)they read a letter sent by the mother’s solicitor.[26]
[26] The actual contents of the letter were not explored, and whether the other party(s) were aware of it is not clear to me and certainly was not the subject of any oral submission.
The point being that whilst the Court’s Complaints Policy abhors the subject family consultant being made aware of an administrative complaint (such as whatever was contained in the letter referred to above) because there is a concern of this interfering with a witness, if a party adopts the judicial removal/challenge process before that same witness has concluded their investigations and/or is sitting in the witness box at trial (a ‘pre-emptive’ application), then there is the prospect of the witness being “interfered with” because they are aware, at least informally, of a party’s unhappiness about their evidence which may inform any further interactions that witness has with the parties.
In these proceedings the factual matrix set out above was only superficially explored and I was not asked to make a finding that specifically addressed an apprehension of bias because of any potential “premature” exposure of the designated family consultant as a witness.
Returning then to the case before me.
Challenges to the evidence of the family consultant?
Below is an excerpt setting out the mother’s contentions against the designated family consultant as contained within Exhibit ‘M1’ –
45. The conduct of [Ms F], and any perception of bias arising from that conduct, if accepted, is perhaps less important than the actual content of each report.
46. The following content is well beyond the ambit of the remit of the CCE and/or her particular qualifications.
i. ‘The mother’s views in relation to the children’s nutritional needs appear to be quite extreme, and there are indications that this is adversely impacting on their understanding of food and health.’
The CCE is not qualified to make these comments and it seems she is not aware that the mother’s approach is consistent with medical advice.
ii. ‘It appears that the mother’s relationship with food, and choices around the children’s diet are leading to them developing distorted thinking around diet and health.’
Same as above.
iii. ‘The mother’s rigid and extreme beliefs…’
Extreme is a value judgment which does not fall within her remit and suggests bias.
iv. ‘There are indications that the father’s religion, race and culture have been used by the mother as a means to elevate and escalate the perceived harm that he poses to herself and the children…’
This suggests the mother is being disingenuous in her evidence. It is a value judgement which falls outside her remit and which suggests bias. It also ignores the collateral materials which set out the mother’s genuine experience of the father’s alcohol abuse; violence; aggression and threats.
v. ‘The mother’s explanation for this proposal and underlying motivation does raise concerns in regards to her ability to prioritise the needs of the children above that of her own agenda. The mother’s perceived ongoing risk of harm posed by the father does not appear to be grounded in any realty and is likely based on her perception as opposed to any current significant risk posed.’
The words ‘agenda’ and ‘does not appear to be grounded in reality’ are extreme value judgements which are well beyond her remit and which expose quite a strong perception of bias, especially being that there is a clear reality via the mother’s own experience of the father, which is supported by his own contemporaneous admissions.
vi. ‘It appears that the mother’s belief system may lead to some difficulties for the children, both in contrast to the father’s parenting approach, and that of mainstream societal experiences.’
This is quite inflammatory language and it is bias. It ignores the facts.
vii. ‘The mother was guarded in discussing this issue, and it was considered by the writer, that this view is not firmly held by the mother, rather that it is information she shares which supports her position in seeking for no relationship between the father and the children.’
This suggests the mother is being disingenuous in her evidence. It is a value judgement which falls outside her remit and indicates bias. It also ignores that the mother is a victim of violence and experiences trauma when discussing the father.
viii. ‘The manner in which the parental relationship commenced is relevant to the family circumstances and ongoing parental dispute. It appears that the foundations upon which the parents developed their relationship was based upon a marked imbalance of power, with the mother being […] older than the father who was [a young] refugee. The father had no family, connections or understanding of Australian culture, and reported to be dependent upon the mother. The mother presented as someone who seeks to exercise control over her lifestyle and has firm views on a range of issues related to the children.’
This paragraph is the worst of all. It suggests that the CCE formed the view that the mother is the perpetrator of violence in the relationship due to her exerting coercive control over the father. It ignores the admissions by the father in the collateral material as to alcohol use and his aggressive behaviours during the relationship.
47. The CCE infers that the mother is either making up her account or is embellishing it. She makes no comment whatsoever to identify that the father’s account of his alcohol use during CIR interview is wildly inconsistent with the collateral material of contemporaneous reporting of same to his psychologist. She appears to accept his version without challenge and despite the collateral material whilst suggesting that the mother’s version ‘isn’t grounded in reality’.
48. The report is poor. It does not accept, in any way, that the mother is a victim of violence, which she clearly and obviously is. Being that that is the case, the report should be given little to no weight whatsoever and the evidence of the mother as to the manner in which the CCE participated in the interview should be given significant weight as it is consistent with the dismissive attitude conveyed by the report.
It is deeply dissatisfying that someone, who the collateral material clearly evinces is obviously a victim of violence, should be so dismissed and mistreated by a CCE because she suffers trauma and as a consequence of which her account is imprecise from time to time.
The designated family consultant was thoroughly cross-examined about their state of mind at the time of interviewing, assessing and then producing both reports.
How does the Court expect family consultants to perform their duties as a witness?
As opined by Gibbs CJ in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (‘Re JRL’) at [6] –
6. … In the performance of this function the court counsellor [as it was then known] becomes a potential witness - a court appointed witness who is perhaps in some respects analogous to an expert witness - but is not part of the court, and has no right to communicate with a judge in relation to a pending matter except through the medium of the report if it becomes evidence and by giving evidence if the counsellor is called as a witness.
(my annotation and emphasis)
Despite the nomenclature of being an officer of the court[27], and unless otherwise made clear in the legislation[28], when they become potential witnesses, family consultants are not bound by any different rights or obligations than other expert witnesses. However, the Rules of Court (in this case the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) (‘the Rules’)) do not apply to the provision of reports prepared by family consultants[29] and there are no relevant regulations in place, the best we have is Part III of the Act. So superficially at least, there is a difference between each class of witness.
[27] Section 280 of the Court Act.
[28] Including subordinate legislation.
[29] Ralton & Ralton [2017] FamCAFC 182 (Bryant CJ, Strickland & Aldridge JJ) at [117].
Unlike Chapter 7 of the Rules, there are not properly articulated and publicly available rubric(s) informing expectations in the function and role of a family consultant when preparing a s 62G report. There is an expectation that the family report they prepare is done independently[30] and they are impartial and deal fairly with parties.[31]
[30] FN-9.
[31] See Tryon.
This means that whilst parties and expert witnesses understand the import of their role (see for example Division 7.1.5 of the Rules which includes an expressed duty to give an objective and unbiased opinion that is also independent and impartial), the standard by which family consultants are required to operate is largely opaque insofar as (at least) the public is concerned.
Until there are regulations promulgated because of s 11K, the only specific information about the role of family consultants is embedded in Part III, ss 55A and 62G along with the various factsheets prepared by the court – all of which are largely silent on the Court’s expectations as to the important premises underpinning their work.
As witnesses, are family consultants subject to scrutiny for apprehended bias?
As I observed during submissions, reciting Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389; (2021) 64 Fam LR 94 (‘Charisteas’) did not resonate with me. This is because at first blush, family consultants are not ‘decision makers’[32] but rather their evidence can be used (where appropriate) by a decision maker (like me) in the exercise of my judicial discretion through the prism of ensuring natural justice. As part of that process of weighing up the evidence including as to admission or not – the decision maker can be invited to explore issues of impartiality (my word as opposed to the various iterations of the ‘bias principle’ that exist including actual bias or apprehended bias) and/or whether there is a proper basis for the expressed opinion.
[32] Despite the surreal nomenclature of them being described as ‘officers of the court’ at s 280 of the Court Act.
In support of my preliminary view, Brasch J in Jansen & Kwan [2022] FedCFamC1F 355 (‘Jansen & Kwan’) at [33] observed that the evidence from experts is part of the broader composition of information that informs judicial discretion. In making this connection to my case, I have adopted a broad approach to the definition of ‘experts’ to include the evidence of family consultants who are not otherwise bound by Chapter 7 and because of the dearth of case law on family consultants, this will continue to be my approach which is also informed by the previously cited passage of Gibbs CJ in Re JRL at [6].
In any event, my preliminary view is not widely supported although it has been touched upon by various judicial officers as they wrangled with whether to remove a family consultant or discharge an expert witness on the ground of apprehended bias before their expert evidence was subjected to cross-examination (the ‘pre-emptive application’).
In 2020, Harper J observed in Nagel & Clay [2020] FamCA 326; (2020) 60 Fam LR 60 550 (‘Nagel & Clay’) at [149-150] that the application of bias to the evidence of an expert remains unclear and that there is authority that the principles of apprehended bias do not apply to witnesses at all but nonetheless Harper J accepted that it is generally desirable for a single expert family report writer to ‘conduct, and be seen to conduct, his or her process of forming an opinion, generally in compliance with sub-rule 15.59(3)’ (as it was then known), ‘and in an even handed manner, ideally by hearing from all relevant parties, if they co-operate, and receiving their material consensually.’[33]
[33] Nagel & Clay at [156].
In Padley & Padley [2020] FamCA 717 (“Padley’) at [44] & [45] and Behrendt & Cadenet (No 2) [2021] FamCA 19 (‘Behrendt & Cadenet’) at [27] Harper J approved of obiter from Pembroke J in McGrath v McGrath [2012] NSWSC 578 at [21] that –
…Too high an insistence on independent experts being required to avoid even an impression of partiality would not be in the interests of justice. It might…encourage unwarranted challenges and unnecessary litigation by those too readily prone to suspicion and paranoia.
(my emphasis)
This statement could be seen as an attenuation of the bias principles as they apply to decision makers.
In a further blow to my preliminary view, the Full Court (Finn, Warnick & Thackray JJ) in Bass & Bass [2008] FamCAFC 67; (2008) FLC ¶93-366 (‘Bass’) at [50] suggested that rather than dealing with such issues pre-emptively, the assertion of bias, be it apprehended or actual, on the part of the single expert’ should be explored in cross-examination at trial (my emphasis).
Throw into the mix all the different iterations of expert evidence that can be the subject of the court’s consideration (such as family consultants and/or expert witnesses preparing designated family reports or family consultants preparing child impact reports pursuant to s 62G), and that Chapter 7 does not apply to all of those potential witnesses. This failure in transparency for family consultants is what I have earlier described as the lacuna of articulation.
This curious conundrum was more than likely not fully appreciated by anyone in this trial (because not one (1) case besides Charisteas was raised).
Informed by the non-binding statements in Bass at [50], McClelland J’s binding decision in Danell & Saller [2015] FamCA 859; (2015) 54 Fam LR 416 (‘Danell & Saller’) at [50] to [53] applies, and the evidence of expert witnesses (irrespective of how they were employed to carry out their task and/or the legislative remit underpinning their work) is capable of scrutiny for bias as if they were decision makers.
In my case, what that means is me deciding what weight (if any) I should give to the designated family consultant’s evidence (oral and written) about two (2) s 62G reports.[34] Key principles informing that process are –
(a)Is the evidence impugned because a fair-minded person could reasonably have suspected that the witness had prejudged the subject matter of their evidence?[35]
(b)Is the evidence impugned because of assumptions of facts for which there was no real evidence and/or the path of reasoning is not transparent and cannot be followed and/or the witness was unqualified to give the opinion.[36]
[34] Prepared in somewhat of a vacuum because no one has any clear sense of what the designated family consultant understood their broad obligations to be, other than as they themselves expressed and as specified in publicly available material including the orders for the preparation of the reports.
[35] Informed by the High Court decision in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 63 ALD 577.
[36] See ‘the expert opinion rule’ at s 79(1); the New South Wales Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) and the High Court decision in Honeysett v The Queen (2014) 253 CLR 122.
As I address each criticism made by the mother I am also mindful of the helpful summary identified by McClelland J in Danell & Saller referred to earlier as well as by the mother’s qualification about conduct and perception being of less importance than content.[37]
[37] Exhibit ‘M1’ at [45].
The mother’s contentions
‘The mother’s views in relation to the children’s nutritional needs appear to be quite extreme, and there are indications that this is adversely impacting on their understanding of food and health.’ and ‘It appears that the mother’s relationship with food, and choices around the children’s diet are leading to them developing distorted thinking around diet and health.’
Any decision I make about whether the above opinions are wholly or substantially based on the designated family consultant’s knowledge is determined on the balance of probabilities.
An assessment is not based exclusively on the expert’s training, study, or experience but rather accepts that all fields of specialised knowledge assume observations and knowledge of everyday affairs and events, and departures from them, which is the added ingredient of specialised knowledge to the expert’s body of general knowledge that equips the expert to give [their] opinion.[38]
[38] Lang v The Queen [2023] HCA 29 at [435]; Kiefel CJ and Gageler J at [12]; Velevski v The Queen [2002] HCA 4 at [158].
It was self-evident from their curriculum vitae[39]that there was no specific training or study underpinning the formation of views about the mother’s relationship with food or the propensity (for example) of the children falling prone to eating disorders in the future.[40] As to the question of ‘specialised knowledge’, the answers given by the designated family consultant about adjectives used and the intent underpinning them were self-serving and inexplicable as being capable of forming part of a matrix that would appropriately form part of either their specialised knowledge or demonstrate a pathway of reasoning towards an opinion. In addition, the designated family consultant’s evidence about how their observations of the children informed a prognosis of their understanding of food and health were illogical.
[39] See last page of the 2023 FR.
[40] Section 79 of the Evidence Act 1995 (Cth).
Any opinions about the consequent adverse impacts on the mother’s parenting capacity and/or the needs of the children being adversely affected are rejected and no weight is given to this evidence.
‘The mother’s rigid and extreme beliefs…’
Unhelpfully no cross-reference was included, and the phrase was not the subject of specific cross-examination. In that vacuum, hopefully I am right in deducing the reference is to paragraph [94] of the 2023 FR. So the untested evidence is a conclusion based on what came before it in the same paragraph and again, none of this was the subject of any persuasive cross‑examination. While the language may be offensive to the mother as being a value judgment, nonetheless it is informed by the designated family consultant’s summary of the mother’s attitudes towards the father and the potential benefit the children may receive from an ongoing relationship with him as well as to the other risks posed to the children from the mother’s overall ‘no-time’ proposal.
Ultimately I must weigh up the positive and negative benefits of each party’s proposal through the prism of the children’s best interests and this opinion is just part of the matrix of information I have to consider.[41] It is not in the interests of justice to place too high an insistence on the designated family consultant giving evidence that avoids even an impression of partiality.[42]
[41] See for example, Jansen & Kwan.
[42] Padley at [44] & [45] and Behrendt & Cadenet (No 2) [2021] FamCA 19 at [27].
The mother’s contention is rejected because there was a basis for the conclusion as expressed which was clearly relevant to the overall purpose of the s 62G report within which it was included. What weight I give to it is a matter for me and informed by all the evidence I received, the submissions that I heard and the presentations of the witnesses.
‘There are indications that the father’s religion, race and culture have been used by the mother as a means to elevate and escalate the perceived harm that he poses to herself and the children…’
The contention about the above opinion is rejected. Firstly because even though the designated family consultant may not have had access to it at the time of interview, exhibit ‘M14’ is a statement from the investigating police officer about the mother’s concerns regarding the father’s conduct through the prism of his cultural beliefs. Secondly, when cross-examined about their conclusion, the designated family consultant made concessions that satisfied me that they had an open mind about the issue and were able to give their opinion (which in any event was more speculative than anything else) ‘fresh consideration’.
As an aside, this issue was not the subject of any particularly persuasive submission and so ultimately what the designated family consultant opined was of little import in the exercise of my judicial discretion.
‘The mother’s explanation for this proposal and underlying motivation does raise concerns in regards to her ability to prioritise the needs of the children above that of her own agenda. The mother’s perceived ongoing risk of harm posed by the father does not appear to be grounded in any realty and is likely based on her perception as opposed to any current significant risk posed.’
Dealing with the question of bias first, the contention is rejected. When cross-examined about their conclusions and use of language such as ‘agenda’ and ‘grounded in reality’, the designated family consultant made concessions that satisfied me that they had an open mind about the issues and were able to give their opinion ‘fresh consideration’.
For example –
(a)The designated family consultant accepted that their process of reality testing was flawed by a lack of information including non-disclosure by the father,
(b)Following questions about how the designated family consultant treated the perceived inconsistences between the mother’s written evidence (at that time) and her presentation and responses during the relevant interview, I accept that the designated family consultant appropriately explored (or “reality tested”) initial answers given by the mother and that this was part of a matrix of information available to the designated family consultant which assisted in the formulation of their opinion that the concerns were not as great as they appeared from the mother’s affidavit,
(c)In coming to the opinion that they did, the designated family consultant was cognisant of the potential for the mother’s answers to their questions to be reflective of a trauma response from a victim of coercive and controlling family violence,
(d)Under cross-examination and having been informed of certain matters, there was an identifiable change in perspective by the designated family consultant about the mother’s experience of family violence.
As to the factual matrix underpinning the opinions, the weight I can give to the designated family consultant’s opinions about risk posed by the father are limited because of the father’s non-disclosure and the failure by the witness to properly consider all the business records that were produced under subpoena.
Taking the first point - the father admitted under cross-examination that he was not as fulsome as he could have been in his discussions with the designated family consultant during the interviews conducted for the two (2) reports. As observed by Schonell J in Goodryngton & Salter [2023] FedCFamC1F 641 at [107] & [108], the duty of disclosure is fundamental to parenting proceedings and extends to communications between a family consultant and a party, with a failure to do so ordinarily amounting to a miscarriage of justice. I am satisfied that the views and recommendations of the designated family consultant were hampered by the father’s failure to disclose.
As to the second point – it was common ground that the Local Court file had not been read, in which there was evidence of the police investigation that underpinned the family violence proceedings. These notes were much more contemporaneous to when certain events allegedly occurred and in my view, were significant to the assessment of risk posed by the father (at the very least).
For the above reasons, there is limited weight that I can give to the specified opinion.
‘It appears that the mother’s belief system may lead to some difficulties for the children, both in contrast to the father’s parenting approach, and that of mainstream societal experiences.’
Unhelpfully no cross-reference was included, and the phrase was not the subject of specific cross-examination. In that vacuum, hopefully I am right in deducing the reference is to paragraph [60] of the 2023 FR. So the untested evidence is a conclusion based on what came before it in the same paragraph and again, none of this was the subject of any persuasive cross‑examination.
While the language may be inflammatory to the mother, nonetheless (in part) it is informed by the designated family consultant’s summary of the mother’s attitudes towards parenting versus that of the father’s and there is no reason for them not to give an opinion based on their specialised knowledge.
The only limitation (and where the objection is sustained not because of bias but because of the lack of qualification) is the weight I can give to the opinion being based (in part) on the children’s health. Even on that point as to health, under cross-examination, the designated family consultant conceded that they were unaware of there being a medical basis for the mother’s views which allowed me to find that they had an ‘open mind’ – which was irrelevant in any case for the reasons already explored about the designated family consultant lacking the credentials to opine as they did.
As an aside, I also observe the opinion was expressed in non-binding terms and so what ultimate weight it had in the exercise of my judicial discretion was limited.
‘The mother was guarded in discussing this issue, and it was considered by the writer, that this view is not firmly held by the mother, rather that it is information she shares which supports her position in seeking for no relationship between the father and the children.’
The contention is rejected because for reasons already explored, I am satisfied that the designated family consultant had an open mind about the expressed opinion including that the inconsistencies observed by them could have been trauma informed. The designated family consultant is entitled to make comments about how an interviewee presented and if they think it worthwhile, to draw a conclusion about it. What weight I can give to a moment in time is likely to be quite limited given I have the benefit of a robust testing of the parties under cross-examination at trial.
It is not in the interests of justice to place too high an insistence on the designated family consultant giving evidence that avoids even an impression of partiality.[43]
[43] Padley at [44] & [45] and Behrendt & Cadenet (No 2) [2021] FamCA 19 at [27].
‘The manner in which the parental relationship commenced is relevant to the family circumstances and ongoing parental dispute. It appears that the foundations upon which the parents developed their relationship was based upon a marked imbalance of power, with the mother being older than the father who was a young refugee. The father had no family, connections or understanding of Australian culture, and reported to be dependent upon the mother. The mother presented as someone who seeks to exercise control over her lifestyle and has firm views on a range of issues related to the children.’
As to bias, the contention is rejected. In part, the basis for the opinion is factually correct - albeit I am still unsure of exactly how old the father was when he came to Australia. As to the mother’s presentation at the time of interview, there was nothing to suggest that this may not have been the case.
However, the weight that I can otherwise give the opinion is limited because –
(a)No compelling submission was made to me that I should consider the father to be the victim of coercive control at the hands of the mother,
(b)The opinion was not informed by material information contained within the Local Court file and the father’s non-disclosure, and
(c)Finally, insofar as the mother’s firm views – the mother’s unchallenged evidence was that despite it not being of particular significance to her personally, she did not allow the children to eat certain foods in deference to the father’s cultural background and the lack of expertise that could possibly have informed the opinion insofar as it related to food and diet.
The evidence was impartial, just not what the mother wanted to hear. It is not in the interests of justice for me to set the bar of ‘impartiality too high’ and ‘true impartiality’ does not equal an expert witness, such as the designated family consultant having no sympathies or opinions.
Given my previous findings and the rejection of bias, when it comes to the designated family consultant’s recording and assessment of the children in interview and observation over both reports and during cross-examination (such as it was) I accept the evidence of the designated family consultant because there was nothing before me or contended that could persuade me to a contrary position.[44]
[44] The mother’s counsel submitted that the children’s views should receive limited weight for other reasons or otherwise did not properly articulate why the designated family consultant’s evidence on that point was impugned.
Importantly, I make the following observations –
(a)Within the 2022 CIR and in the absence of reviewing any subpoenaed material, the designated family consultant outlined each party’s contentions and recommended a resumption of time between the children and the father. The reasons for doing so were informed not only by the limited documents reviewed, but also by the interviews with the parties, the interviews with the children and the preliminary view of the designated family consultant that the option of an observation between the children and the father should be left open (which ultimately occurred), all of which can inform the ultimate assessment.
(b)Just exploring that process further, the designated family consultant was asked whether even before conducting observations (between at least the father and the children), their recommendation would be that the children should spend time with the father? Having already interviewed the parents a couple of days or so earlier, a summary of the designated family consultant’s answers were that –
(i)The decision to proceed with observations was done after the parents were interviewed,
(ii)If it were likely that observations would occur, the parents would have been requested to be present (on the day the children were to be interviewed),
(iii)The interviews with the children reinforced the preliminary decision to conduct observations between each parent and the children,
(iv)If upon being asked, the child/children would have declined the opportunity to be observed with the father then the family consultant would have considered whether there was a “genuine unwillingness for that observation to happen for any reason, then I certainly would have adhered to that position from the children.”
The answers to the questions were balanced, appropriate and demonstrated that had the circumstances been different, the designated family consultant had an “open mind” about this process, capable of being changed depending on what occurred right up to immediately before the observations took place. Sure, a different family consultant may have adopted a different approach and come to a different set of recommendations, but those recommendations are not findings and are not determinative of how judicial discretion is exercised and certainly do not suggest a partisan position.
Indeed, the designated family consultant’s conclusions about the children were reinforced by the children expressing similar expressions about wanting to spend more time with the father when the children met with the ICL earlier this year.[45]
[45] Oral closing submissions made by counsel for the ICL.
It is also worth noting that on the face of the 2023 FR[46], the designated family consultant identified a limitation relative to education records, albeit ultimately not much (if any) cross-examination flowed from this express limitation.
[46] FR ¶83.
I also observe that the designated family consultant conceded that within the 2023 FR they did not recognise as an emerging issue (my language) - that the mother’s parental capacity was impaired because of the father’s perpetration of family violence. I am unwilling to impugn their opinions because of this perceived failure because it may well be that the information reviewed by the designated family consultant did not trigger that as an issue for them, whereas to another family consultant it may have. A difference in opinion is not necessarily something which would diminish weight, rather other factors come into play including whether the expert had specialised knowledge capable of making the opinion and whether it was clear what the pathway of reasoning was leading up that opinion.
At the conclusion of his cross-examination, the mother’s counsel did not ask the designated family consultant whether, armed with this new information, their recommendations as to unsupervised time, changeovers and ongoing counselling and completion of a Parenting after Separation course had changed.
It goes without saying that like any other case where a s 62G family report writer gives evidence without the benefit of seeing and assessing all the evidence that has come before, their evidence is necessarily coloured. This deficit can be ameliorated (but not necessarily cured) if clear articulate questions informed by detailed propositions of asserted facts have been provided before the pivotal question is asked about their opinion.
As to the other broader contentions, I will deal with those as and if they arise during my substantive consideration of the parenting dispute before me.
I wish to digress from the proceeding to reflect further on how the Court deals with the issue just traversed.
Even with (or because of) the expert’s expressed duty as disclosed above (or there is a lacuna of articulation as is the case for family consultants), the court continues to field pre-emptive applications to impugn the expert’s evidence[47] and (more rarely) remove family consultants[48] because of bias. As observed earlier, this process is included within the judicial removal/challenge process.
[47] See for example, r 7.23(b) & (c).
[48] Rule 8.11.
My anecdotal research suggests that most of these “bias applications” fail on the grounds of being premature, either because –
(a)The most appropriate way to challenge for bias is under cross-examination at trial[49] (in the context that there was no application for the expert to be cross-examined at an interlocutory hearing as is invited by the application of r 7.23(a)), or
(b)Chapter 7 (informed by the overarching purpose) specifically gives parties other options to interrogate an expert witness’ written evidence before wasting the precious resources of the court and the parties’ own legal costs[50].
[49] See for example, Nagel & Clay [2020] FamCA 326; (2020) 60 Fam LR 60 550.
[50] Divisions 7.1.6 & 7.1.7 of the Rules; Danell & Saller.
A need for reform?
Because of the reduction in potential systems abuse through meeting with and re-telling traumatic information to more than one (1) expert[51], I accept there is merit in the one (1) family consultant preparing both a child impact report and a designated family report. However, a child impact report is not a forensic tool deployed in expectation of cross-examination. So, already the option is available for a different family report writer (including a designated family report writer) to be allocated either through –
(a)an internal administrative process [where for example there is no capacity for the existing family consultant to prepare a report in a timely fashion and/or a Regulation 7 family consultant is more readily available because (for example) in between times the children have moved away to a location which would make it geographically onerous for them to travel to be interviewed/observed in person by the existing family consultant], or
(b)the parties appointing a single expert (such as a forensic psychiatrist or psychologist who is better qualified to deal with the issues that may have been identified within the preliminary child impact report).
[51] The pain of which I do not discount, minimise or underestimate.
As s 62G report writers, family consultants hold a unique position because their evidence can give forensic expression to the views and lived experiences of children. This is because family consultants usually at least observe (if not formally interview) a child(ren) and their observations and opinions should be seen through the prism of the Part VII paramountcy principle of “best interests” (see for example ss 60CA and 60CC), the United Nations Convention on the Rights of the Child done at New York on 20 November 1989 (see s 60B) and Principle 1 for the Principles for conducting child-related proceedings (s 69ZN(3)).
The case law suggests that the Court is reluctant to remove family consultants before their evidence is tested through cross-examination because ultimately the Court accepts that family consultants are to be treated as just another expert witness, whose evidence is to be weighed and assessed in circumstances where findings and the exercise of discretion remain the sole remit of the trial judge who may or may not accept the evidence of the family consultant and/or find their opinions/recommendations as being persuasive. That said, r 8.11 still exists.
So how can the court determine concerns about expert evidence without, for example, risking a trial being derailed because the trial judge is asked to make a preliminary finding that a witness has been interfered with as a result of some breakdown in the court’s own Complaints Policy and/or expert evidence being ruled inadmissible and the trial being aborted because the trial judge forms the view that expert evidence is necessary to assist it exercise judicial discretion?
When reflecting on the issue, it seems to me that if a party is unhappy with the work of a family consultant in extant proceedings and they want something done about it, then they should only engage with the Court and not adopt the administrative complaints process at all. A party is entitled to vent their spleen, but during extant proceedings the judicial removal/challenge process affords procedural fairness to all. After a matter is finalised, then it remains open for the aggrieved party to explore the administrative complaints process if that is their desire.
Also of assistance is the decision of the Full Court in Helbig & Rowe [2016] FamCAFC 117 which explained, at [214], the correct approach in considering what the mother, in this case, has described as “the Re Andrew Principle”, as reflected in the previous cited excerpt from A v A.
In undertaking the task of considering what steps are proportionate to the degree of risk, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk because of them spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
I have found that the father has perpetrated family violence, but he does not pose an unacceptable risk of harm.
The mother’s evidence is replete with her concerns, anxieties, and distress about the existing parenting regime.
In her trial affidavit, the mother says she was concerned about the father’s lack of insight into his reported perpetration of family violence as being limited to ‘10%’.
Earlier I set out how the mother described the children’s reactions to spending time with the father in a supervised setting. At times, her observations were inconsistent or exaggerated as compared to the independent impartial reporting by the professional supervisor.
The mother was cross-examined about some of the allegations of family violence she asserts against the father, and this is (in part) recounted earlier.
Flowing from that, the father’s counsel took the mother to an incident recounted in the mother’s notes to Ms L[82] which appears to have happened in 2021 regarding Y not being taken to sporting activities –
Counsel for the father It would upset you. Not taking [Y] to [sporting activities] would upset you. Is that your answer?---
The mother Part of.
Counsel for the father And because you’re upset, that would affect your ability to parent?---
The mother Yes.
…
[82] Exhibit ‘M3’.
This is one example of where, in my assessment the mother’s anxiety is not rational but nonetheless taking her evidence (as a whole) it is genuinely held.
Under a heading in her affidavit called ‘Effects of family violence and future co-parenting’ the mother says that she has –
(a)A possible diagnosis for a stress-related medical condition and has suffered from another health issue and pain which can set-in randomly causing her to be ‘constantly anxious,’
(b)Suffered anxiety attacks in situations of fear or conflict (arising out of mundane events) but which caused the mother to experience flashbacks of her time with the father and leading to difficulties with her breathing requiring her to take a few minutes to regulate herself before returning to her task,
(c)Suffered from a ‘[medical condition]’ when the children commenced overnight time with the father (back in 2023),
(d)Taken four (4) weeks off work in mid-2023 due to ‘the stress of need to co-parent again with [Mr Carlevaro] and assist the children cope’,
(e)Experienced ‘brain fog’ which is amplified when having to give evidence (in these proceedings) or co-parent with the father or come near to his presence as well as immediately before and after the children have spent time with the father,
(f)Experienced difficulties with sleep albeit she has had some better nights since taking medication (supplements) as recommended by her general physician,
(g)Relied on her parents (with whom she is currently living) to assist her when the children are having ‘difficult behaviours,’
(h)Experienced feelings of self-doubt that her decisions including about the children’s clothing or diet are “good enough,”
The mother says that she has the support of her general physician and her counsellor Ms M. The mental health care plan prepared by the mother’s general physician[83] records the mother’s test results from the diagnostic tool conducted in 2023, as scoring in the extremely severe range for depression, anxiety, and stress. A provisional diagnosis of ‘acute stress response, PTSD, anxiety/depression’ is then recorded.
[83] Exhibit ‘M51’.
The exhibited medical records, particularly the more recent ones highlight that these proceedings and the uncertainty of what lies ahead are factors all contributing to the mother’s symptoms. Broadly speaking, this is not unusual for litigants in any dispute to experience when they feel a loss of control in decisions that can (at times) profoundly affect them. It is not lost on me, and I regret and apologise that this decision has taken so long to publish.
The mother says that her adverse symptoms will only abate if the father demonstrates insight and remorse into her lived experience of him and his perpetration of family violence. The mother has no trust in the father to comply with the law and seems to cite his behaviours in how he made his way to Australia from Country H.
In my observations of the parents as being in high conflict about all manner of things (both significant and mundane), there is zero prospect of the mother ever being satisfied that the father has done enough, but it seems to me, that in making that statement, the mother is reflective that under the right circumstances some of her symptoms (which she globally attributes to the father’s violence against her) will abate.
Holistically, if I accept the mother’s evidence, then since before the parties separated, she has been struggling with how to manage the poor communication, family violence and differing co-parenting views involving the father. From her presentation, the mother likes to be in control, particularly as it relates to her children.[84] I would have expected that with a mindset like that, the mother’s anxieties would have abated (somewhat) by having the protection of a family violence order and then orders of this Court, however she contends otherwise.
[84] Whether this is a trauma-informed response or not is irrelevant to this discussion but I wish to put on the record that I acknowledge that it may be.
Nonetheless the children go to school, there was no evidence of the children being neglected and where they have experienced behavioural difficulties (either in her home or at school) she has been able to rely on the support of her family and treators to help manage the situations as they arise.
A common (and unsurprising) thread that weaves its way through the evidence is that these proceedings are a contributing factor towards the symptoms experienced by the mother. That will cease as of today. Another common (and unsurprising) thread is the uncertainty of the unknown, that will cease today.
I accept that the mother is genuinely distressed about the children spending time with the father and that (in reality) this has been the case since the delegate made interim orders to that effect over two (2) years ago, and yet the mother has demonstrated her excellent parental capacity by continuing to both physically and emotionally support the children, even when having to contend with unexpected events, experiencing various symptoms and/or challenging behaviours from the children either at home or in the school environment.
Weighing up all the evidence and having considered the parties’ submissions, as well as the case law, I am satisfied that the mother’s parenting capacity will not be discernibly impaired by orders providing for the children to spend time with the father on either a supervised or unsupervised basis.
In making this finding I am satisfied that, informed by her past conduct, in the future when something unpredictable and out of her control occurs, and/or her symptoms become heightened, the mother will continue to seek out support from her treators including Ms M as well as from family and friends.
What are the children’s views and what weight (if any) should be given to them?
The children are quite young and lack the cognitive capacity to fully appreciate the impact of any views they have expressed. This was self-evident in the older child’s disclosures to his counsellor in 2023, which included his hope for his family being that ‘mum + dad stay apart + I get double Christmas + birthday presents’[85] and yet it seems just months before hand, X was described as ‘frustrated and confused as to why he had to live at two different houses saying - “I just want to live with mum and dad in the same house”’.
[85] Exhibit ‘M28’.
So from the evidence I have before me, the best I can do is to find that the children love both their parents and feel safe in both households, but X (in particular) is aware of the parental conflict which is reflected in him being aware that his parents have different views about what he should eat, and sometimes this is confusing and at other times this is a change that he likes[86] and him wiping away the tears at changeovers so as not to hurt his mother’s feelings about him wanting to spend more time with his father.
[86] See FR-71.
Where a proposal will change the children’s circumstances, what will that look like?
There is agreement that the mother should have sole parental responsibility for the children who should live with her. Since 2022, the children have been seeing their father on a regular basis.
As far as time is concerned, the mother’s primary position is for that time to cease. The mother’s alternative position is for ‘identity contact’ on a professionally supervised basis to occur on not more than three (3) occasions annually. The mother also seeks various s 68B restraints and for her to travel overseas with the children but that the father should not.
The father and the ICL are united in seeking an extension of unsupervised time, but this is subject to the father completing a men’s behaviour change course. I must take the parties as I find them and even without the decision of Lainhart & Ellison, I am not convinced that the father will ever understand that he is a perpetrator of family violence and what the consequences of that behaviour look like. I will not make an order that invites the court to engage in a therapeutic process and/or a delegation of judicial discretion.
There are also various s 68B restraints sought including one (1) having the effect of arrest without warrant if a police officer forms a reasonable view as to breach.
All parties accept that the mother’s primary proposal will be difficult for the children (particularly X) to adjust to. In my view, the alternative proposal is no different because it will only invite the children into asking difficult questions of both parents about why they spend such limited with the father under the close watch of a professional supervisor.
Part of the mother’s case is that the children’s behaviour in more recent times, including as observed or recorded by others, is symptomatic of the children not coping with the current regime and this behaviour justifies (in part) a cessation or reduction in time. Although the tendered school and counselling records suggest that parts of 2022 and 2023 were difficult for one or both children, in my assessment, the children have turned a corner, reflected in part in 2023 by X describing feeling happy when thinking about his family.[87]
[87] Exhibit ‘M28’.
Having assessed the parties as witnesses and reflecting upon the evidence and all the submissions, I disagree. The children are caught in the middle of two (2) parents who hold very different views about how the children should be parented. X in particular is aware of the conflict between his parents and has struggled over time, but now seems to have found peace in what his family looks like and how is placed within it.[88] It is not uncommon for children aware of parental conflict to sometimes act out in response to them feeling threatened by that conflict.
[88] Exhibit ‘M28’.
Y may still be struggling to adjust but I am satisfied that she will adjust to the different parenting styles that her parents bring and will learn, for example, that it is not right to mock her father because of his language difficulties. Similarly, any quarrels between the siblings appear to me to be just that and not reflective of a deeper more troublesome dysfunction between them and/or between them and one or both of their parents.
For these reasons I cannot make a finding that the children’s behaviours are caused by them spending time with the father, by their exposure to the parental conflict or by something else entirely. There was no evidence to allow a finding that either parent has done something (intentionally or otherwise) to cause the adverse behaviours.
In some sense, the parents’ respective proposals are an extension of their differing parental styles and attitudes. On the one (1) hand, the mother has firm views about the importance of the children eating certain foods, consistently attending extra-curricular activities, and otherwise having a routine.
The father is risk-adverse to having spontaneous contact with the mother in the community, which must be informed in part by what happened at the mediation/counselling session with Mr K and then the correspondence he received from the mother’s lawyer about an upcoming sporting competition on “his” weekend with the children.
From the supervision observation notes there is consistency in the diet the children should have but clearly, the father has (at least in the past) been less than consistent about the time he spends with the children. However, I accept that when there have been delays or early returns it has either been because of miscommunication (with the professional supervision service) or him acting in a child-focussed manner, albeit at some inconvenience to the mother.
The father remains a risk because of his lack of insight into his past behaviours which has likely impinged the steps he has taken to address those concerns. That said, nothing has occurred post 2022 that causes me to consider that there is a significant risk of relapse in the father’s mental health, abusive relationship with alcohol and/or family violence.
If I am satisfied that a parenting regime can be implemented that will acknowledge the mother’s twin roles of primary decision-making and caregiver but allow the children to continue to have a meaningful relationship with the father, then I will.
What is the cultural identity of the children and how can their rights to engage with, enjoy and develop those identities be promoted?
An additional object within s 60B (as it then was articulated) is for the Court to give effect to the United Nations Convention on the Rights of the Child done at New York on 20 November 1989. Articles 30 and 31 provide for children to have the right to enjoy their culture and participate freely in their cultural life.
The children are Australian citizens, but their father’s cultural and religious background is very different to the mother’s. The mother gave evidence of the well-intentioned attempts she has made to support the children’s culture. The mother has supported the children’s religious background by not providing them with certain foods.
The mother has not been able to facilitate direct contact between other members of the paternal family (namely the paternal grandmother). This is not a criticism; it is a fact.
Self-evidently, and despite the father’s self-imposed limitation on direct contact with members from his own background, the father is best placed to give the children an authentic experience of their cultural and religious backgrounds.
What is the capacity of each parent to meet the needs of the children?
Despite all the talk about diet, no restraints were sought to be imposed by either party upon the other. Otherwise, all the practical needs of the children are being met (because I heard very little to say different).
As to the children’s psychological and emotional health I have some concerns.
Given all the evidence from the mother about the wrongs perpetrated by the father against her and the consequences that she has personally experienced, I am a little perplexed about whether the mother does have the capacity to support a relationship between the children and the father.
The mother presented as quite fixated that her narrative should be accepted and that it should not be the subject of challenge. See for example, my previous recounting of her unwillingness to accept that by offering to return the children early to her, the father was not acting in a domestically violent manner (through a pattern of controlling behaviours) but rather in a child‑focussed manner reflective of the immediate needs of the children.
The children live primarily with the mother and there was no evidence of their relationship with her being undermined by anything the father has done or said.
That said, the counselling records for X do not suggest that he has formed a negative view of the father and despite signs of being exposed to the parental conflict, both children still reported to the ICL that they want to spend more time with their dad.
I am satisfied that any concerns I may have about the mother’s capacity to support the emotional needs of the children, can be ameliorated through parenting orders.
What are the parents’ attitudes towards the children and to the responsibilities of parenthood?
Although I have had no regard to the designated family consultant’s evidence on the topic of diet, the way the parents manage the children’s diet is a flashpoint, with the mother saying it triggers anxiety for her and the father worried about whether there is more to the mother’s attitudes than just the medical needs of the children.
But that is not the end of it because sadly the children have been exposed to this conflict too.
In cross-examination, the mother said (about the children) that, “On the recommendation of the doctor, they avoid [particular food groups].” The mother goes on to say that the children do eat meat, and it seemed uncontroversial that in adherence to the father’s religious background, the mother does not allow the children to eat certain foods. The mother said that the children have been tested by their general physician and that X has the predisposition for a medical condition but has not been formally diagnosed with this medical condition. When asked about whether the children eating food at the father’s house was still a really big issue for her, the mother said, “…I say to them, you just eat Dad’s food at Dad’s house… and my food at my house.”
The mother was taken to paragraph [71] of the 2023 FR. In cross-examination, the mother accepted that X finds it confusing that he gets different messages from his parents about particular food groups. This expression was amplified by X in some of his counselling records.
While the parties agree that the mother should have sole parental responsibility and there are no provisions for the father to be involved in their school or extra-curricular life, I am mindful of what that will look like for the children in the short, medium, and long-term future. In my view, I should try and find a balance between protecting the mother from her anxieties and supporting her decision-making role, whilst also allowing the children to know that their father does care about all that they do.
CONCLUSION - PARENTING
I must make a decision that is in the best interests of the children and is informed by the Act as articulated before the recent amendments.
I am satisfied that the children should live with the mother and that the mother should have sole parental responsibility for major long-term issues about them.
Informed by the previous findings and because of the poor communication between the parents, the mother’s more recent propensity to exaggerate and/or misread the father’s actions and the father’s failure to fully disclose his past difficulties with mental health, alcohol and acts of family violence combined with his limited insight into the impacts of this behaviour on the mother and the children; I am satisfied that there is risk to the children’s emotional health.
However, I am satisfied that the risks posed by both parents, can be ameliorated through injunctive orders and a regime of time that supports the mother’s primary carer role during the school week, reduces the prospect of the parents coming into contact with each, particularises exactly when the children shall spend time with the father and all the while ensuring a meaningful (but not necessarily optimal) parent-child relationship flourishes between the father and the children. [89]
[89] See Napier & Hepburn.
Particularly as to the father, I am heartened in my views about the risk he poses because there is a lack of any recent actions overtly demonstrating a return to adverse behaviours or attitudes about his religion and/or culture informed in part by the manner in which he conducted himself as a witness under robust cross-examination (subject to the qualifications I have previously given).
The children enjoy spending time with their father, and a reduction or removal of time spent in his company will cause emotional harm and distress to them because they will no longer experience time in his company that brings them joy (albeit with the usual sibling quarrels) and allows them exposure to culture, skill sets and attitudes that are different to their mother’s.
The mother has a very negative view of the father, and this compounds my concerns about the effects upon the children from either of the mother’s proposals, even if the ICL were to explain the Orders to them.
Conversely there are problems with the current regime of time because it requires the parties to potentially have direct communication with each other at changeovers on a Wednesday evening and during school holidays.
It seems to me the solution is to try and avoid changeovers like that (by removing after-school exchanges except during school holidays or when the parents want to personally attend) and to otherwise manage the potential risks (including emotional risks for the children from both parties) by including restraints as sought by them.
Given the father was consenting to it, the inclusion of a provision that is informed by s 68C should go some way to reassuring the mother about the consequences of any non-compliance by the father (even though there has been no behaviour to justify the inclusion of that provision in recent times).
What this means is that the existing regime will cease immediately and during school terms from now, the children will no longer see their father on a Wednesday but will continue to spend alternate weekends with him. In addition, the children will start spending time with him on school holidays, with that time to increase in 2025 to allow the children to have more quality time with their father (without the pressure of the school week which I am satisfied the mother is best able to manage).[90]
[90] By dint of her employment, her current primary carer role and the father’s limited language comprehension skills.
This regime of time will also reduce changeovers outside of school and ameliorate the concerns the mother has about contact with the father.
In the exercise of my broad discretion and noting the evidence demonstrates that both parties are supported within the community, all changeovers that are not at school will be carried out by a nominee(s) appointed by each parent to attend on their behalf. In framing the order as I have, the parties do not have to communicate with each other except if they want to change that arrangement and attend themselves.
Although this may appear to be a highly paternalist approach, the limiting of parental communication (poor or otherwise) and the possible side-effects of the children being exposed to it, means I have no choice but to be very particular in each facet of the parties’ interaction with each other to support the children’s best interests.
I am satisfied that the mother is more likely to travel overseas and will so order.
Given the manner of his journey to this country, it is understandable that the mother has some mistrust about what the father can do if he was able to travel overseas with the children, but that anxiety does not convince me that I should impose a final order against future travel by him with the children overseas. Instead, the watch list orders sought by the mother will largely be imposed but are not intended to put a full stop on the father’s ability to approach the court in the future. A notation to that effect will be included. In this way, the mother’s anxiety about the unknown is tempered as best I can whilst still allowing the children a safe opportunity to travel abroad.
Although I contemplated allowing the father some access to the children’s educational records, none of the parties sought I do so and I have decided that this will not necessarily enhance the flourishing of a normal parent-child relationship but is likely to only elevate the mother’s anxiety about possible contact (intentional or otherwise), risk miscommunication (a common theme on the father’s case) and risk the children being exposed to parental conflict (if for example both parents turn up at school for a special event).
If the mother decides to exercise her sole parental responsibility in authorising the relevant service providers to provide information to the father, then it will be at her instigation and discretion and the father should not under any circumstances instigate this happening nor deploy other persons to agitate for it on his behalf.
To ensure the children fully understand the effect of these Orders I shall order the ICL to meet with the children in the next fortnight to explain the Orders to them.
Because of the father’s comprehension skills, I will direct that his lawyer or someone authorised by him to do so will mail out a hard copy of the judgment and for a follow-up conversation during which the lawyer will read that document aloud to the father. The lawyer for the father will then explain the judgment to the father and (of course) answer any questions he may have. This unusual order is to avoid any miscommunication or misunderstanding on the part of the father about his obligations and avoid the children being exposed to any parental conflict that may arise if these steps are not taken. I apologise in advance for not foreshadowing this approach during the trial, however I am satisfied that the facts and findings made and my discretion (as well as the role lawyers are expected to play in explaining judgments to their clients) allows me the remit to do so, albeit without notice.
I know there is funding from Legal Aid NSW to do this, and although I appreciate the time taken will be longer than usually allowed, I am confident that the father’s lawyer can undertake this work, if the father takes up the opportunity within the prescribed time limit.
For the above reasons I am satisfied that the orders and directions I shall make are in the best interests of the children.
IS IT JUST TO MAKE A COSTS ORDER AGAINST EITHER PARTY BY WAY OF CONTRIBUTION TOWARDS THE COSTS OF THE ICL?
The ICL brought an oral application for each party to equally contribute towards the costs of the ICL. Although exhibit ‘ICL2’ specified the costs sought as at 26 February 2024, I did not hear of any proposed adjustment to reflect an increase above the father paying $5,189.75 and the mother paying $3,539.75.[91] I say this because, in reality, the fourth day became a procedural hearing due to the illness of the designated family consultant and so another day was allocated for August 2024.
[91] The mother had already contributed $1,650.
There was no argument about the sum being fair, reasonable, and proportionate.[92]
[92] See r 12.08 of the Rules.
Both parties resisted the oral application.
Having considered the submissions of the parties, I am satisfied that it would not be just to make a costs order against either party. Considering the legislative framework, my reasons for doing so are set out below.
There is a rebuttable presumption in the family law jurisdiction that each party bear their own costs, provided the Court is satisfied that it is “just” to do so: s 117(1) & (2).
I have a broad discretion in exercising the costs jurisdiction including that I do not have to find a ‘clear case’ to make out a costs order pursuant to s 117(2) of the Act: Penfold v Penfold [1980] HCA 4; (1980) 5 Fam LR 579; (1980) FLC ¶90-800 at pp 75,053-75,054.
I have considered all the s 117(2A) matters but for the sake of efficiency, I will only reflect on those that had a significant bearing in relation to the parties’ circumstances and the decision to be made.
Hardship and the financial circumstances of the parties
It is more efficient for me to deal with both these topics at the same time.
Both parties work and both parties have household expenses to pay. The father pays no child support (assessed or otherwise). The mother lives with her parents and the father has managed to secure his own home, subject to a mortgage.
Within the mother’s health records is at least one (1) reference to the mother’s anxiety over the legal costs of this proceeding. The mother pays for all the children’s extra-curricular expenses.
I am satisfied that both parties have limited excess funds available to meet a costs order and given the general circumstances of the family, any costs order is likely to constrain the ability for the parents to support the lifestyle that the children deserve.
In the exercise of my discretion, I am satisfied that there is no justification for making a costs order as sought by the ICL because to do so will cause financial hardship[93] for each parent.
[93] Section 117(4)(b).
The ICL’s oral application for costs is dismissed.
I certify that the preceding two hundred and eighty-six (286) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 9 December 2024
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