CHAN & PHU
[2015] FCCA 1776
•29 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAN & PHU | [2015] FCCA 1776 |
| Catchwords: PRACTICE AND PROCEDURE – Parenting program – where parties referred to parenting program – appointment of Court Expert – appointment of child and family psychiatrist – where substantive proceedings likely to exceed four hearing days – protocol between Courts – transfer to Family Court. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA Federal Circuit Court of Australia Act 1999 (Cth), s.39 |
| Cases cited: Chan & Phu [2010] FMCAfam 1084 Chan & Phu [2012] FMCAfam 1300 Chan & Phu [2013] FCCA 556 Chan & Chan & Anor [2015] FCCA 265 Phu & Chan [2015] FCCA 275 Chan & Phu (No.2) [2015] FCCA 292 Phu & Chan [2015] FCCA 1208 |
| Applicant: | MR CHAN |
| Respondent: | MS PHU |
| File Number: | SYC 1714 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 14 May 2015 |
| Date of Last Submission: | 14 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2015 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
| Solicitor for the Independent Children's Lawyer: | Mr Christaki |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER
All previous parenting Orders are suspended.
The Applicant Father is to have sole parental responsibility for making decisions about major long-term issues concerning the care, welfare and development of the child X born (omitted) 2001.
The child X is to live with the Father.
Unless otherwise agreed by the parties in writing, the child X is to spend time with the Mother as follows:
(a)on the third weekend of each month during the school term from immediately after school on Friday until the commencement of school on the Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the following Tuesday;
(b)on the weekend during which Mothers’ Day falls from immediately after school on the Friday before the weekend until the commencement of school on the Monday;
(c)during the Autumn, Winter and Spring school holidays for a period of seven (7) nights commencing immediately after school on the last day of the school term and concluding at 6:00pm on the following Friday;
(d)during the Christmas/January school holiday period for a period of two (2) weeks from 9:00am on 2 January until 6:00pm on 16 January in each year for the purpose of which the mother is to collect the child from the Father’s residence at the commencement of the time and return the child to the Father’s residence at the conclusion of the time;
(e)from 6:00pm on Christmas Eve until 6:00 pm on Christmas Night in 2015 and all odd-numbered years thereafter and from 6:00pm on Christmas Night until 6:00pm on Boxing Day in 2016 and all even-numbered years thereafter;
(f)from immediately after school on the child’s birthday until the commencement of school the following morning; and
(g)from immediately after school on the mother’s birthday until the commencement of school the following morning.
In the event that Easter falls within a school holiday period then Good Friday and Easter Monday are to be included within the school holidays for that year but in the event that Easter falls on a weekend outside the school holiday period then those days will be treated as regular public holidays.
Each parent must ensure that the child X attends all school sporting events and other activities that she is required to attend by her school on a weekend and during school holiday periods.
In the event of a medical emergency involving X, the parent with whom the child is staying or living according to these Orders must notify the other parent as soon as reasonably practicable by text message or telephone call advising the nature of the emergency and giving necessary details of any medical treatment.
The Father must notify the Mother of any significant accident, illness, hospitalisation or any circumstances requiring specialist medical treatment and advise the Mother of the location of the hospital and the name and address of any specialist medical practitioner involved in treating the child.
This Order is to operate as authority for any educational or other professional care provider for X whether school, medical practitioner, hospital or otherwise to release any information including school, medical other professional or development reports concerning X to both the Mother and the Father.
Each parent is at liberty to request the provision of any documents normally provided to parents direct from X’s school including but not limited to correspondence, school photographs and school reports.
The Father is to provide X with a mobile telephone for her personal use upon which the parents will be at liberty to call the child at any reasonable time whilst she is in the care of the other parent.
Each parent must do all things necessary to ensure that X can communicate with the other parent in accordance with her wishes including by ensuring that her mobile telephone is charged and has a credit balance.
Each parent must ensure that X is afforded privacy when she is speaking with the other parent on the telephone.
All communication between the parties is to be by email except in the case of emergency.
In the event that the Mother is not able to spend time with the child in accordance with these Orders then she must provide the Father with not less than two (2) weeks’ notice of her inability except in the case of emergency.
Either party is at liberty to remove X from the Commonwealth of Australia for the purpose of an overseas holiday at times that the child is in that party’s care PROVIDED THAT both parties are restrained by injunction from taking the child to any country about which the Department of Foreign Affairs and Trade has issued a travel advice on the Smart Traveller Website in one of the following categories:
(a)Reconsider your need to travel; or
(b)Do not travel.
The Father is to retain the child’s passport except when it is required by the Mother for her to travel out of Australia as provided by Order (16) above in which case the Father must deliver the passport to the Mother no less than two (2) weeks prior to the proposed date of travel and the Mother must return the passport to the Father upon the child’s return to the care of the Father.
In the event that either of the parties removes the child from the Commonwealth of Australia for the purpose of a holiday that party must ensure that the other party is provided with an itinerary that details:
(a)Flight numbers including times and dates and full details of the return flight;
(b)The identity of the carrier; and
(c)An address and a contact telephone number for the period when the child is out of Australia.
The parties are each restrained by injunction from making any critical, disparaging or derogatory remarks about the other party or any member of the other party’s immediate family or household to X or in her presence or hearing whether by verbal, written or electronic means or from permitting any third parties to do so.
The parties are each restrained by injunction from discussing these proceedings and X’s wishes with the child or in her presence or hearing.
The parties are each restrained by injunction from showing to X or discussing with her:
(a)A copy of any Orders made by the Court;
(b)A copy of any document filed in the proceedings including but not limited to any Application, Response or any affidavit filed by or on behalf of either of the parties;
(c)Any document including any Memorandum or Family report prepared by a Family Consultant or Court Expert; or
(d)A copy of the Court’s Reasons for Decision.
The Mother is restrained by injunction from taking X to see any counsellor or psychologist without the written consent of the Independent children’s Lawyer or leave of the Court.
Within seven (7) days from the date of these Orders the Mother must provide to the Father her residential address and advise him of any change of address within a further period of seven (7) days.
Within seven (7) days of the date of these Orders the Mother and the Father are to contact Unifam Sydney on telephone number (omitted) and do all acts and things necessary to arrange to enrol and participate in the Keeping Contact Program conducted by Unifam Sydney.
The Mother and the Father must each comply with all reasonable directions and requirements of the employees of Unifam, including but not limited to:
(a)completing all requirements for intake into the Keeping Contact Program;
(b)attending any individual or joint sessions at a frequency nominated by the employees of Unifam from time to time;
(c)enrolling in and completing all courses or programs as recommended by Unifam; and
(d)arranging for the attendance of the child X at Unifam if required and ensuring that the child attends upon Unifam as directed at a frequency nominated by the employees of Unifam from time to time.
The parties will each be liable for the associated fees of Unifam and must pay those fees upon request by Unifam.
The Independent Children’s Lawyer is given leave to provide a copy of these Orders, any other relevant parenting Orders and a copy of any Family Report and Child Dispute Conference Memorandum to Court by Family Consultant Ms S to Unifam.
The Mother and Father are each to authorise Unifam to provide the Independent Children’s Lawyer with the following information:
(a)the attendance of the parties and the child upon Unifam;
(b)compliance by each party and the child with the recommendations of the employees of Unifam;
(c)the progress of the parties and the child;
(d)any referrals made to the parties and the child.
As provided by Rule 15.09 Dr C, Child and Family Psychiatrist, is appointed as Court Expert to enquire into and prepare a report upon matters relating to the care, welfare and development of the child X born (omitted) 2001 and that in preparing the report to the Court, Dr C is requested to consider the following matters:
(a)whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
(b)the effect on the child of any family violence to which she may have been exposed and the need to protect the child from being exposed to family violence in the future;
(c)whether or not either parent has any physiological, psychological or psychiatric issues that need to be addressed;
(d)the mental health status of both parents, including any diagnosis, and whether either of them suffers from any mental health issues that may impact upon parenting capacity or any other parenting issues and any recommendation for therapeutic counselling if appropriate and the party or parties’ willingness to address such issues if they exist;
(e)any views expressed by the child and any factors such as maturity and level of understanding that may affect the weight to be afforded to those views;
(f)the nature of the parents’ relationship with each other and the impact of this relationship on the child;
(g)the nature of the relationship between the child and each of her parents and any other relevant person;
(h)the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;
(i)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other person with whom the child has been living and the likely effect of any change to the child’s schooling;
(j)the capacity of each parent or any other relevant person to provide for the needs of the child, including emotional and intellectual needs;
(k)the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents and any other relevant person;
(l)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(m)the mental health of the child and special needs that she may have and any recommendation for therapeutic counselling for the child if appropriate;
(n)the effect upon the child of spending equal time, or substantial and significant time, with the mother and the father, having regard to the above matters as well as their current and future capacity to:
(i)implement such an arrangement; and
(ii)communicate with each other and resolve difficulties that might arise;
(o)any other matter pertaining to the child’s care, welfare and development that the Court Expert considers relevant; and
(p)the need to make a recommendation, if possible, as to appropriate parenting Orders having regard to the proposals of the parties amongst other matters considered relevant; and
(q)the benefit to the child of having a meaningful relationship with both of her parents.
Each of the parties will be jointly liable for the cost of Dr C’s report and each of the parties must pay within twenty-one (21) days of the making of these Orders their share as directed by the Independent Children’s lawyer, in the sum of $5,000.00 each being one half of Dr C’s estimate of fees, into the Trust Account of Legal Aid NSW for payment to Dr C upon completion of her expert report and the Independent Children’s Lawyer is authorised to make such payment to Dr C.
In the event that there remain monies available subsequent to the receipt of the memorandum of fees from Dr C these monies will remain in the Trust Account of Legal Aid NSW and are to be returned to the Father and the Mother in equal shares upon conclusion of the Court proceedings.
In the event that there is a shortfall in funds the Father and the Mother are to pay such additional sum necessary to meet the costs of Dr C within twenty-one (21) days of a request being made by Legal Aid NSW and the Independent Children’s Lawyer is authorised to make such additional payment to Dr C.
In the event that Dr C is required for cross examination at any hearing in these proceedings the mother and the Father are to pay in equal shares the costs of the Court Expert’s preparation and attendance at Court, and the Independent Children’s Lawyer is authorised to pay Dr C’s fees.
The parties must facilitate the preparation of the Expert Report including attending on and arranging for the children and any other significant persons to attend upon the Court Expert and comply with all reasonable directions and requests made by Dr C to assist her in the preparation of her Report.
The Independent Children’s Lawyer is to prepare all letters of instruction to Dr C and is to forward those letters along with all relevant Court documents and subpoena material listed in those letters to Dr C and is to provide to the parties a copy of those letters sent to Dr C.
Leave is granted to the Independent Children’s Lawyer to uplift and have photocopy access to material produced under subpoena for the purpose of providing copies of the material to the Court Expert and the fees in respect of the photocopying are to be waived.
The Court Expert is authorised and at liberty to speak to the school currently attended by the child, any medical or mental health practitioners or therapists or counsellors of the child or of the parents if she considers it necessary to do so for the purpose of preparing her Report.
The Independent Children’s Lawyer is granted leave to issue a further fifteen (15) subpoenas without charge.
If the Mother does not return the child X to the Father or the child’s school in accordance with these Orders then the Mother’s time with the child is to be reduced by a minimum of one night and up to a maximum number of nights as calculated by the number of nights the child has been away from the Father or the school in contravention of these Orders.
The Application for final parenting Orders is transferred to the Family Court of Australia at Sydney for mention before that Court on a date to be fixed.
All other Applications are dismissed.
THE COURT NOTES THAT
The Independent Children’s Lawyer is under no obligation to brief Dr C if the parties do not comply with Order (30) for the payment of their share of the costs of preparation of the Court Expert Report.
Appointments with Dr C are scheduled to occur on 21 and 22 July 2015.
IT IS NOTED that publication of this judgment under the pseudonym Chan & Phu is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1714 of 2010
| MR CHAN |
Applicant
And
| MS PHU |
Respondent
REASONS FOR JUDGMENT
Application
The substantive proceedings between the parties involve an Application by the Father for orders that the parties’ daughter, X, should live with him and spend time with her mother. X is now fourteen years of age.
Due to the intractable conflict between the parties, which has subsisted for almost all of the child’s lifetime, an Independent Children’s Lawyer was appointed in 2012.
Background
There has been a history of litigation between the parties, first in the Family Court and now in this Court, both in its earlier incarnation as the Federal Magistrates Court and now as the Federal Circuit Court. I have handed down seven judgments in this matter since 2010.
After an interim hearing in June 2013, I made the decision on 18th June 2013 that the child X should live with her father, the Applicant, until a final hearing (Chan & Phu[1]). There have been other proceedings between the parties, including a contravention Application by the Mother, which I have decided at the same time as making this decision.
[1] [2013] FCCA 556
On 28th November 2014, as a result of some disturbing events, I made Interim Orders suspending the Mother’s time with the child completely. It was never my intention that this state of affairs should continue until the final hearing, but there have been other interlocutory proceedings which have impeded the progress of this matter towards a final hearing.
The relationship between the Father and the Mother is very poor, which is marked by the Mother’s extreme hostility toward the Father. The Mother has been represented by solicitors for a comparatively short period of time, but she has mainly been unrepresented.
The Mother has brought a number of applications, including:
a)An application to remove the Family Consultant who prepared the Family Report;
b)An application to remove the Independent Children’s Lawyer; and
c)An application for disciplinary action against the Father’s then solicitor.
I declined to accede to any of those Applications (Phu & Chan (No.2)[2]).
[2] [2015] FCCA 292
As it has turned out, the Family Consultant has recently retired and the previous Independent Children’s Lawyer was off work for some time as a result of a lengthy illness. The current Independent children’s Lawyer, Mr Christaki, has submitted that the Court should appoint Dr C, a Child and Family Psychiatrist, as a Court Expert under Rule 15.09. I propose to do just that.
Submissions
The Mother seeks orders that the child should return to her care until further order. The Father seeks a reinstatement of the orders of 18th June 2013l albeit with some modifications. He is critical of the Mother for not revealing her current address, which she has been reluctant to do. There is no family violence order in force against the Father for the protection of the Mother and there is no current application for such an order. It appears to me to be quite reasonable for the Father to know where his child is staying when she spends time with her mother.
The Independent Children’s Lawyer supports the Father’s proposal and seeks a number of procedural orders relating to the parties attending the Keeping in Contact program run by Unifam and the arrangements for the appointment and payment of the Court Expert.
I am not satisfied that it is in the child’s best interests to change her living arrangements again before final hearing. The communication between the parties is so poor that an order that they should have equal shared parental responsibility for the child would be futile and would clearly not be in the child’s best interests. I propose to leave parental responsibility with the father until further order.
Transfer to the Family Court
I have warned the parties that this matter looks unlikely to be resolved within four hearing days at a final hearing. I believe that a final hearing will take at least a week, based on my experience with the parties.
There is a protocol between this Court and the Family Court that provides that if a matter looks as if it is likely to require more than four hearing days to complete it should more properly be heard in the Family Court, which is better equipped to deal with lengthy and more complex matters.
In my view, this is clearly such a case. The Federal Circuit Court is currently dealing with an increasing number of filings in both family law and general federal law, and several Judges have retired in both New South Wales and Victoria and have not been replaced. In my view the Federal Circuit Court at the Sydney Registry does not have the capacity to hear this matter for at least a year, if then.
There is another reason why this matter should be transferred. I have today handed down a decision in respect of a Contravention Application brought by the Mother against the Father. I have found in favour of the Father and dismissed the Application. In doing so, I discussed the mother’s demeanour in Court and made unfavourable findings about the credibility of her evidence. It would be inappropriate for me to hear a matter where the credibility of the Mother’s testimony will clearly be important, now that I have already found against her in that regard.
I propose to transfer this matter to the Family Court of Australia at Sydney under the provisions of s.39 of the Federal Circuit Court of Australia Act 1999 (Cth).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 29 June 2015
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