Darley & Darley

[2022] FedCFamC1F 566

Federal Circuit and
Family Court of Australia (DIVISION 1)

Darley & Darley [2022] FedCFamC1F 566

File number(s):	BRC 2317 of 2013
Judgment of:	HOGAN J
Date of judgment:	5 August 2022
Catchwords:	FAMILY LAW – PARENTING – Preparation of a Child Impact Report.
Legislation:	Family Law Act 1975 (Cth)
Division:	First Instance
Number of paragraphs:	17
Date of hearing:	5 August 2022
Place:	Brisbane
Applicant:	Litigant in person
Respondent:	Litigant in person

ORDERS

BRC 2317 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DARLEY

Applicant

AND:

MS DARLEY

Respondent

order made by:	HOGAN J
DATE OF ORDER:	5 AUGUST 2022

IT IS ORDERED THAT:

1.The matter is listed for hearing for two (2) days before Justice Hogan commencing at 10.00 am on 14 September 2022, at the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

2.All parties attend the hearing in person.

AND IT IS FURTHER ORDERED THAT

3.Pursuant to s 62G of the Family Law Act 1975 (Cth), the parties and children (Y, born 2009 and X, born 2006) attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report.

4.For the purpose of Order 3 and pursuant to s 62G(5) of the Act:

(a)the first appointment shall occur by video using Microsoft Teams on 31 August 2022 and:

(i)the Applicant will attend at 9.00 am; and

(ii)the Respondent will attend at 10.30 am.

(b)the second appointment shall occur in person at the Brisbane Registry at Level 3, Harry Gibbs Commonwealth Law Courts Building, 119 North Quay, Brisbane on 1 September 2022 at such time and in such manner as advised by the Court Child Expert in writing.

5.Pursuant to s 62G(5) of the Act, each party will do all things necessary to ensure the children attend upon the Court Child Expert at the time and place and in the manner advised by the Court Child Expert in writing.

6.Pursuant to s 62G(5) of the Act, the parties shall attend at any other times, dates and places as the Court Child Expert may advise in writing and shall ensure, if advised, that the children attend also.

7.Not later than 4.00 pm on 26 August 2022, the parties provide to … their contact telephone/numbers and email addresses that they are prepared to have used for the purpose of communication for the purpose of the report.

8.The Court Child Expert shall provide a written report to the Court, which report shall address the following matters:

(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views; and

(b)the impact of the issues in dispute before the Court on the children; and

(c)the issues of domestic violence and its impacts upon the children and the parents; and

(d)any other matters that the Court Child Expert considers appropriate as being relevant to a consideration of the welfare and best interests of the children.

9.The Court Child Expert shall be at liberty to inspect any material filed by the parties, exhibits and subpoena material.

10.Unless otherwise ordered, no person shall release the report prepared by the Court Child Expert, or provide access to the report prepared by the Court Child Expert to any other person other than for the purpose of obtaining legal advice.

11.The parties are restrained from providing a copy of the Court Child Expert notes to any person other than a legal practitioner for the purpose of obtaining legal advice.

12.The parties are to bring the copy of the Court Child Expert notes provided to them to Court at the commencement of the trial.

AND IT IS FURTHER ORDERED THAT

13.By 4.00 pm on 7 September 2022, each party file and serve any further affidavit material on which they seek to rely at the hearing of this matter.

14.By 4.00 pm on 13 September 2022, the parties file and serve a short affidavit, if any, addressing only any issues raised in the Child Impact Report.

15.The Respondent has leave to issue a subpoena to UU Town Medical Practice seeking provision of information about the father and the children in relation to medical issues.

IT IS DIRECTED THAT

16.The Child Impact Report be provided to the Court by 4.00 pm on 9 September 2022.

17.The Court Child Expert provide the parties with a copy of the notes taken in the process of the preparation of the report by providing a copy of the same to them by no later than noon on 13 September 2022.

18.The Court Child Expert have regard to the Reasons provided to that person and the parties.

19.The file … Darley & Darley, including any subpoena material, be made available to the parties for their use in the current proceedings.

IT IS NOTED THAT:

A.The Court intends that the Reasons delivered today, once settled, together with an addendum to those Reasons setting out an identification of the issues raised on the material filed be provided to the Court Child Expert via an Order made in Chambers in order to assist the Court Child Expert to gain an appreciation of the issues in these proceedings.

B.The Court Child Expert should not regard themselves as bound by the summary as contained in the addendum to the Reasons delivered today, as it is intended to be aid (not a restriction) on the consideration of issues raised by either parent or the children.

C.Upon the Child Impact Report being made available to the Court, an Order will be made in Chambers for the release and provision of the Child Impact Report to the parties.

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Darley & Darley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

HOGAN J:

1. I have today raised with the parties in these proceedings the issue of whether I should, given the circumstances which I have outlined during the course of my discourse with them this morning since the proceedings began:

   (a)make orders to ensure that the parents and children attend upon a Child Court Expert for the preparation of a Child Impact Report on the dates 31 August and 1 September of this year; and then

   (b)have a report provided by 9 September of this year; and

   (c)list the matter for hearing on 14 and 15 September of this year.

2. I do not intend, in these short Reasons delivered orally, to canvass again the matters that I have already outlined in reasonably significant detail during the course of my discourse with the parties this morning – to the extent that it is necessary, I adopt the comments that I have made, by way of summary of my appreciation of the issues and the background and how it has come to be that I have raised the issue of making orders appointing a Child Court Expert for the preparation of a report, so they are adopted in these Reasons.

3. Mr Darley does not oppose the course I have proposed.

4. Ms Darley opposes an order that would have a Child Court Expert prepare a report.

5. When the matter was first before me and I had raised the issue of having a report prepared, Ms Darley sought the opportunity to locate appropriate experts for the purpose of having such a person prepare a report. Her affidavit filed 2 August 2022 at 7.05 pm contains her evidence of her efforts to do so; the reality of her efforts has been that none of the persons she approached was in a position to assist in the preparation of a report in this matter.

6. I am persuaded, given the circumstances here, that it is appropriate, proper and in the children’s best interests that they are afforded an opportunity, via interview with a Child Court Expert practicing under their appointment as a Family Consultant, to express their views. This is particularly so given their respective ages and the circumstances which have arisen – which have resulted in them living separately from each other, not having any time with each other and not having any interaction with the parent with whom they do not live.

7. Those are the matters – as well as the matters contained in the affidavit of the mother – that have caused me to make arrangements so that this matter can be afforded hearing time in September and to consider the issue of having a report prepared.

8. Ms Darley’s objection to an order appointing a Child Court Expert to undertake a report may be summarised as follows: she expressed significant concerns about the expertise of such persons, particularly in relation to domestic violence and also in relation to dealing with and assessing the children, particularly X, given X’s assessed circumstances which include, as is set out in correspondence from Dr VV, a Senior Staff Specialist, WW Services.[1] I will not incorporate the extent of that document into these Reasons but, in relation to Ms Darley’s concerns, it is about whether a Child Court Expert has the appropriate qualifications to deal with and consider and assess the situation where, as is the case for X, she has an autism spectrum disorder presentation consistent with Level 1 autism spectrum disorder, as well as the other issues.

   [1]Correspondence electronically signed on 26 October 2021 as found at pages 437 and 438 of the Annexures to Ms Darley’s affidavit filed 5 July 2022.

9. Also, Ms Darley is concerned that, in essence, whatever X says may be the subject of significant scepticism – I think, because she submitted that it is clear that X lies repeatedly; she has been in her father’s care for nine months and, in essence, any view she might express would be coloured as a consequence of that.

10. Ms Darley’s submissions in opposition to the appointment of a Child Court Expert to prepare a report included that Y should not have the opportunity to express views, in essence, because, as I appreciated her submissions, the issues of risk that she raises about the father’s care of the children are such that Y’s views (and those of X) are irrelevant in any event.

11. Ms Darley also submitted that her experience as part of various groups on various forums involved others to those forums expressing consistent refrains critical of family report writers or Child Court Experts in relation to their approach to the assessment of domestic violence and the risk associated with that. She referred to significant concerns about the absence of expertise in that regard. As I understood it also, in essence, Ms Darley’s opposition to the appointment of a Child Court Expert to prepare a report was, as I have said, that the children’s views in one sense do not matter because of the extent of risk she asserts they are at in their father’s care.

12. I have determined that it is appropriate that a report is prepared. Given that there is no person proffered by Ms Darley, I consider it appropriate that: that process be undertaken by a Child Court Expert; that a Child Impact Report be prepared; that the interviews for that process take place on 31 August and 1 September of this year; that the process occur as will be provided for in the orders that will issue (which will include that at the discretion of the Child Court Expert, part of the process may occur via Microsoft Teams but that there will also be in-person assessments as part of the process); that the children will have the opportunity to speak to the Child Court Expert and express their views. In that way, I will have available to me the views of the children, that being a specific consideration to which regard must be had under the Act.

13. So the orders to be made will ensure that each party do all things necessary to ensure the children attend upon the Child Court Expert at the time notified by and in the manner notified by the Child Court Expert (so at such time and such places); that, in order to facilitate that, the parties provide a contact number and email address that they are prepared to have used for the purpose of communication for the purpose of the report; that the Child Court Expert provide a written report dealing with the views expressed by the children and any matters such as the children’s maturity and level of understanding that would affect the weight the Court should place on the views; the impact of the issues in dispute before the Court on the children; the issues of domestic violence and its impacts upon the children and the parents and any other matters that the Child Court Expert considers appropriate as being relevant to a consideration of the welfare and best interests of the children.

14. I will make a Direction that the report be provided to the Court by 4.00 pm on 9 September 2022. I will include a Notation that upon the report being provided to the Court, an order will be made in Chambers for its release and provision to the parties. I will also make an order that the Child Court Expert has liberty to inspect any material filed by the parties. I will make my standard order that, unless otherwise ordered, no person who receives the report release it or provide access to it to any other person other than for the purpose of obtaining legal advice.

15. As I also raised with the parties, it is my intention to attempt to provide – by way of what will be an Addendum to these Reasons, in a sense – short Reasons outlining the history of the current proceedings before me and the competing applications and by way of, I suspect, subparagraphs, an identification of the issues raised on the material filed. I emphasise that the purpose of doing that exercise is to assist the Child Court Expert to gain an appreciation, even if it is on a, in a sense, “high level” (by which I mean absent full particularisation of all of the particulars contained in the material) of the issues that are raised on the material. Of course a copy of that will be provided to the parties.

16. Therefore, I will also make an order that, once that is settled, the Addendum be provided to the Child Court Expert by way of order made in Chambers. The order made in Chambers will also include a Notation that the Child Court Expert should not regard themselves as bound by that summary. It is intended to be an aid, not a restriction, to the consideration of issues raised by either parent or the children; it is an endeavour to assist the process. The parents should not feel in any way constrained to raise an issue that is not mentioned there.

17. If in compiling that document I omit an issue that a parent has raised, I can only say in advance to the parents that any omission is not intended to mean that they are constrained from raising an issue; or that, at the hearing that I will set for two days on 14 and 15 September of this year, they are prevented from raising it. It may be that I have simply summarised too heavily and not provided enough detail – they are, of course, at liberty to provide whatever information they consider appropriate to the Child Court Expert during the interview process that will occur in order for the full report to be prepared.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan.

Associate:

Dated:       22 August 2022