FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ciardha & Ciardha [2024] FedCFamC1F 279
File number(s): MLC 7445 of 2022 Judgment of: SMITH J Date of judgment: 19 April 2024 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – application by mother for review and subsequent application in a proceeding – mother seeking interim time with child – mother charged with multiple counts of sexual offending against stepchild – mother found not guilty on all counts – in circumstances where mother has not spent time with the child in almost three years – finding that expert opinion would greatly assist in the judicial decision of whether interim time should commence – expert opinion available in about 8 weeks - matter listed for continuation of the interim defended hearing on receipt of single expert report. Legislation: Evidence Act 1995 (Cth) Pt 4.1, ss 140, 141
Family Law Act1975 (Cth) Pt VII, ss 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DA, 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 7.1, r 7.04
Evidence Act 2008 (Vic) Pt 4.1, s 141
Supreme Court (Criminal Procedure) Rules 2017 (Vic)
Division: Division 1 First Instance Date of hearing: 19 April 2024 Place: Newcastle Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 19 April 2024 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Ms Mariole Solicitor for the Applicant: Coote Family Lawyers Counsel for the Respondent: Ms Ferrari Solicitor for the Respondent: M and K Lawyers Group Pty Ltd Counsel for the Independent Children's Lawyer: Ms Brennan Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 7445 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CIARDHA
Applicant
AND: MR CIARDHA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
19 APRIL 2024
THE COURT ORDERS THAT:
1.The matter be listed for continuation of this Interim Defended Hearing on Thursday, 25 July 2024 at 10.00am by Microsoft Teams for consideration of further orders.
Part 7 – Single Expert Report
2.Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Dr C (the “Single Expert”) is appointed as the Single Expert to enquire into and report upon issues relating to the welfare of X, born 2016 (the child).
3.The parties shall each pay one-half of the single expert’s fees and the funds to be paid out of the funds held on trust on behalf of the parties consequent of the sale of the former matrimonial home.
4.In the event that any of the parties of ICL request the attendance of the single expert at Court for the purposes of cross-examination, the parties shall be equally responsible for the single expert’s costs in respect of such attendance.
5.The single expert shall prepare a report (the single expert report) which addresses the following matters:
(a)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law…
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CaseChat Overview and Summary
The primary legal issue before the court was whether Ms Ciardha should be granted interim time with her child, considering the criminal charges that had recently been dismissed and the length of time since the last contact. The court needed to weigh the child's welfare and best interests against the mother's right to spend time with her child. The court also had to consider the impact of the mother's criminal charges on the child's understanding and relationship with both parents.
In its decision, the court acknowledged the importance of expert opinion in such complex family law matters, particularly given the sensitive allegations and the extended period of non-contact. The court ordered the appointment of a single expert to prepare a comprehensive report addressing various aspects of the child's welfare and the potential impacts of the proposed interim arrangements. The report was to cover the child's views, understanding of the situation, and the potential impact of resuming contact with the mother. The court scheduled the matter for a continuation hearing on receipt of the single expert's report, anticipating that the expert would need about eight weeks to prepare the report. The court also directed the parties to facilitate the expert's access to necessary information and interviews, including with the child, the mother's new partner, and potentially the alleged victim, Mr B. The parties were also required to provide relevant documents and arrange for the child to attend the expert's interviews.
The court made several orders to facilitate the preparation of the single expert's report, including appointing Dr C as the single expert, directing the parties to share the costs of the expert's fees, and outlining the scope of the expert's report. The court emphasised the importance of the expert's independence and the confidentiality of the report, allowing limited disclosure only with the court's permission or for specific purposes related to the child's care and welfare. The court also noted that the parties should arrange for the child to commence counselling and resolve their financial and business valuation issues before the next hearing.
Orders
Orders of the court
MLC 7445 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS CIARDHA
Applicant
AND:
MR CIARDHA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
19 APRIL 2024
THE COURT ORDERS THAT:
1. The matter be listed for continuation of this Interim Defended Hearing on Thursday, 25 July 2024 at 10.00am by Microsoft Teams for consideration of further orders.
Part 7 – Single Expert Report
2. Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Dr C (the “Single Expert”) is appointed as the Single Expert to enquire into and report upon issues relating to the welfare of X, born 2016 (the child).
3. The parties shall each pay one-half of the single expert’s fees and the funds to be paid out of the funds held on trust on behalf of the parties consequent of the sale of the former matrimonial home.
4. In the event that any of the parties of ICL request the attendance of the single expert at Court for the purposes of cross-examination, the parties shall be equally responsible for the single expert’s costs in respect of such attendance.
5. The single expert shall prepare a report (the single expert report) which addresses the following matters:
(a) the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(b) any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(c) whether the child has become aware of the allegations against the mother which resulted in her being charged with criminal offences relating to Mr B;
(d) the child’s understanding of why there has been no time with or communication with the mother for almost 3 years and the sources of any understanding;
(e) the impact upon the child and upon his relationship with the mother if the Court made orders as sought by the father;
(f) the impact upon the child and upon his relationship with the father if the Court made orders as sought by the mother;
(g) the appropriate way to re-introduce the child to the mother if the Court determines on an interim basis that supervised time between them is the appropriate course of action pending a final hearing;
(h) any other matters that the family report writer considers important to the welfare or best interests of the child;
(i) an assessment of the risk posed to the child by the mother, the father, Mr B, or any other person, depending on whether or not the allegations in relation which the mother was charged are determined by the court to amount to unacceptable risk or to be incorrect or false;
6. The parties and the child shall attend upon the single expert on 28 May 2024 for interviews at such times and locations and in such manner as is directed by the single expert.
7. It is anticipated that the single expert shall interview Mr B.
8. It is anticipated that the single expert shall interview the mother’s new partner, Mr D.
9. The single expert may, or may not, introduce the child to the mother, including for the proposes of an observation, depending on the single expert’s assessment of the appropriateness of that course of action, given the child has not seen the mother for almost 3 years.
10. The parties shall facilitate the preparation of the single expert report including attending on and arranging for the child to attend upon the single expert as directed by that person.
11. The single expert shall be permitted to speak to the child’s school, or counsellor or any treating medical practitioner, in the preparation of the single expert report.
12. The parties will provide to the single expert, copies of all documents contained in the list of documents to be identified by consent between the parties, or otherwise by Order of the Court.
13. Within seven days of the report being finalised, the Independent Children’s Lawyer shall cause a copy of the single expert report, annexed to an affidavit of the single expert, to be filed with the Court.
14. Unless a party objects in writing within 14 days of the date of releasing the single expert report, a copy of the single expert report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child:
(a) a Children’s Court;
(b) a child protection authority;
(c) a State or Territory legal aid authority; and
(d) a convener of any legal dispute resolution conference.
15. Except with the Court’s permission, no person shall release the single expert report, or provide access to the single expert report to any other person other than those mentioned in these orders.
16. A copy of these orders are to be provided to the single expert.
Subpoena
17. The ICL to subpoena the child's school and medical and allied health records, and the father to forthwith provide to the ICL all information necessary for the issue of comprehensive subpoena.
18. The father forthwith to supply to the ICL details of each educational institution and each medical practice or practitioner, or allied health practitioner or practice, which the child has attended since January 2021.
THE COURT NOTES THAT:
A. The parties agree that the child should commence counselling and will liaise with the ICL to arrange such counselling.
B. The parties financial issues remain outstanding.
C. The parties agree they will liaise to arrange a valuation of, or such processes as are necessary to agree a value for, the father's business.
D. The parties should each comply with their obligations as to full and frank disclosure prior to the next hearing.
E. Depending on the parties’ balance sheet the Court will consider allocation of a conciliation conference.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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