DAU & PHUONG

[2014] FamCA 963

FAMILY COURT OF AUSTRALIA

DAU & PHUONG [2014] FamCA 963

FAMILY LAW – CHILDREN – Parenting proceedings – first day of hearing before a judge – parents fail to attend or offer an explanation as to why – evidence form family consultant to be transcribed – information from Department of Human Services liaison officer – information obtained by independent children’s lawyer – proceedings dismissed without consideration of the merits of the case.

APPLICANT: Ms Dau

RESPONDENT: Mr Phuong

INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

FILE NUMBER: MLC 11442 of 2011

DATE DELIVERED: 28 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 28 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT:	No Appearance
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms M Agresta

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1.      All extant parenting applications be and are hereby dismissed.

2.The evidence of Mr A, senior family consultant, be transcribed and when transcribed a copy be placed on the Court file and published to the parties.

3.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and published to the parties.

4.The costs of the independent children’s lawyer of and incidental to this day be fixed at $1,404 and the liability of either or both of the parties for payment of those costs be reserved.

AND IT IS NOTED:

A.That for case management purposes, this Order concludes the proceedings before the Court.

B.That the dismissal of the parenting applications is done without consideration of the merits of the applications.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11442 of 2011

Ms Dau

Applicant

And

Mr Phuong

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

ex-tempore

1. This matter comes before me as the first hearing day for contested parenting proceedings about N who was born in 2010 and H who was born in 2007. 

2. The parents of the children are Ms Dau (“the mother”) and Mr Phuong (“the father”). 

3. Today, there is no appearance by or on behalf of either parent. 

4. The Independent Children’s Lawyer, Ms Lonergan, has briefed Ms Agresta of counsel to appear and Ms Agresta does appear.  The matter has been called at the door of the Court with no response.  Attempt has been made to contact each party by telephone but to no avail.

5. These reasons explain the circumstances in which I have decided to dismiss the current application of the mother with the effect that these proceedings will be at an end.  I make clear, however, that the dismissal of the mother’s application is done without considering the matter on its merits.  The consequence of that is that either parent may apply to the Court again without having to demonstrate a change in circumstance.  However if either of them proposes to do so, they should certainly explain why they did not bother to attend Court today and he/she be well advised to address issues raised in the evidence to date.

6. The mother’s application was filed on 30 May 2013.  At that stage, she was represented by Matthew William Harper, a lawyer from Hughes Watson Marks and Kennedy.  She sought final orders in relation to financial matters, in particular relief pursuant to s 79A in relation to final orders which had been made on 10 February 2012.  The mother also sought orders in relation to the children. She sought equal shared parental responsibility, for the children to reside with her and for the father to have specified, but not insubstantial, time with the children.

7. The father filed and served a response to that application on 30 July 2013.  At that stage, Ms Prudence Burrell of Burrell Family Law solicitors acted on his behalf.  In his response, he sought that the financial relief be dismissed and in relation to the children, he sought that the orders that were made on 10 February 2012 continue in full force and effect “save that the mother spend supervised time with the children as deemed appropriate by this Court”.  The father also sought that the mother pay his costs of and incidental to the proceedings. 

8. By way of background to the matter, the husband was born in 1966 and the mother was born in 1985.  They were both born in Vietnam.  At the time of the wife filing an application for divorce, in December 2011, both parties lived in Suburb X.  The parents married in 2005 and they separated in June 2008.  The details of two children to whom I have referred do not appear in the divorce application.  In fact, the application says that there were no children under the age of 18 years. 

9. The divorce application was adjourned on a number of occasions.  It was originally returnable on 21 February 2012 then again on 17 April 2012 and then on 31 May 2012, 24 July 2012, 18 September 2012, 30 October 2012 and it was finally granted on 13 December 2012.  Counsel for the Independent Children’s Lawyer has a note of the parties having been married in 2006.  Nothing much turns on the date of marriage for today’s purposes.

10. On 26 February 2014, orders were made by consent which set aside the earlier property order and made further financial provisions.  It was noted that the proceedings concerning the children were on foot and were unresolved.  The earlier order in relation to the children made on 10 February 2012 provided that the father have sole parental responsibility for the children and the children live with the father and “the children spend time and communicate with the wife as agreed between the parties from time to time”.  It is from that parenting order that the mother seeks a variation in the form of her application initiating proceedings filed on 30 May 2013.

11. On 16 January 2014, the matter came before Senior Registrar FitzGibbon who requested the appointment of an Independent Children’s Lawyer which was ultimately attended to by Victorian Legal Aid and Ms Lonergan is the Independent Children’s Lawyer.  As indicated, it was ordered by paragraph 3 “that the children spend time and communicate with the wife as directed by the Berry Street Children’s Contact Service at Richmond” and the parties do all things necessary to enrol in that contact service.  An 11F assessment had earlier been prepared by Dr J and is dated 1 November 2013.

12. Dr J’s report recorded his assessment of the mother and the father on 22 October 2013 and then a further meeting with the parents in the presence of the children on 28 October 2013.  The assessment bears reading in its entirety.  It is fair to say however that the family consultant, Dr J, records the parties as having separated in 2011 with the mother having had little to do with the children following that time until she obtained some time with the children in 2013 and over-held them.  The children were returned to the father on the occasion of the older child being taken to hospital with a laceration to her genital area and DHS initiated an investigation.

13. Dr J’s report identifies the physical and emotional wellbeing of the children in the care of their mother as being a key issue in the case as well as “reports of alarming behaviour on the part of the mother and of her associates towards the father and the ramifications of this on the ongoing co-parenting relationship between the parties”.  In his conclusion, Mr J opined:-

    ·The relationship between the parents has reached an impasse, and may well be irretrievably damaged.  [The mother] impressed as volatile and quite callous in relation to [the father]. There was little overt appreciation of the important role he has played in the lives of the children, and the need for him to continue to have meaningful input into their lives.  [The father] presented as quite wary of [the mother], and potentially somewhat traumatised by the alleged events of the last two years.  However, he repeatedly asserted the importance of [the children] having some form of relationship with their mother.  In short, he was not wholly negative about the applicant mother, despite the issues that have arisen in the co-parenting relationship.

    ·[The father] presented a cogent narrative of events.  He impressed as genuinely invested in the wellbeing of his children.  He detailed a number of issues that he felt created risk for the children, and he was able to present – in detail – accounts of past events that led him to form his views.  Moreover, his affidavit material included a range of collateral information that was commensurate with his account.  He did not appear intent on misleading the assessment process or motivated by any other factor aside from ensuring that [the children] are safe and appropriately cared for.

    ·There were a number of concerns about the presentation of the applicant mother during the interview.  She did not impress with a thorough understanding of the emotional needs of the children.   Her account of past events was sorely lacking, and her responses to various protective concerns raised by [the father] were vague and inadequate.

    ·There are considerable concerns about the children spending time with their mother.  Even observations of her interactions with the children at the Registry, at the most basic level, show her to have a poor grasp of the emotional needs of the girls.  She was uncontained and seemingly oblivious to their overt distress.  In addition, her ongoing association with Mr [Y], the allegations of continued gambling problems, and the enduring ambiguity about her lifestyle, does not bode well about her assuming care of the children (or spending time with them unsupervised).  In addition, it is quite likely that protective services would intervene if the court were to order the children spend time without a third party present.

    ·The emotional ramifications on the children of spending time with their mother are likely to be considerable.  They were both demonstrably apprehensive around [the mother].  If the children are to recommence a relationship with their mother, there may need to be additional professional involvement to ensure they are properly prepared and supported during the reintroduction.

14. Notably, in his recommendations, Dr J stated:  “If the children are to recommend spending time with their mother, an independent (and targeted) clinical assessment of [the mother’s] (alleged) gambling difficulties should be undertaken.”  And further, “The court may need to consider whether [the mother] should be restricted from allowing any other adult males around the children, including her current partner, Mr [Y], if she were to recommence spending time with [the children].”

15. The matter was assigned to me for defended hearing in the first week of October 2014.  By correspondence dated 7 October 2014 the parents and the independent children's lawyer were informed of today’s hearing and the time of listing.  That notification by correspondence was addressed to the father, who was self-represented by that stage and to Francis Lhanh Doan Lawyers of 179 Queen Street Melbourne on behalf of the mother.  That firm of solicitors had filed a notice of address for service for the mother on 6 June 2014. 

16. On 13 October 2014, some six days after the letter had been sent by the court to the parties, the mother’s solicitors filed a notice of ceasing to act.  They specified that they would advise the court that the last known residential address for the mother was W Street, Suburb V and that her telephone number was …15.  That is the telephone number which the court has, on three occasions, tried to contact the mother through this morning without success. 

17. There is no explanation as to why the mother or the father have not attended court today. 

18. For the purpose of the first day for hearing, which is a significant date, the court arranged for the attendance of two interpreters for the parties.  The court has been put to that expense, it would appear, totally unnecessarily. 

19. I arranged for Mr A, who manages the allocation of resources of family consultants to defendant lists, to attend court to give some expert evidence on the best way forward for assessment of the parents and the children.  I have heard some evidence from him in that respect. 

20. His view is that, prior to any family report – and certainly prior to any form of assessment or further interviewing of the children, the parents should each undergo a psychiatric assessment by the same clinician who is requested to produce a report for the attention of the parties, the court and the independent children's lawyer.  At that point, Mr A or the family consultant to whom he assigns the matter – which may well be Dr J - would give some evidence in relation to the appropriateness of the matter moving forward to preparation of a full family report for which the children are interviewed and assessed.  In this case more than in some others, Mr A is concerned that the young girls not be disturbed by further assessment interviews which are not necessary.  Particularly before issues of parental capacity are investigated further.  I agree with that view.  Mr A’s evidence is transcribed. 

21. As indicated, Ms Agresta appears on behalf of the independent children's lawyer.  In preparation for today, the independent children's lawyer has also attended to various matters.  I am informed from the bar table, and accept, that Ms Lonergan has telephoned the school attended by the child H, that is X Primary School.  She was informed that there were no issues in relation to H’s presentation or progress at school and that she is a reserved little girl, which is similar to the description offered by Dr J in his report of last year. 

22. Ms Lonergan contacted Berry Street Contact Service at Richmond in view of the last orders nominating that service as being where contact could occur.  She was informed by Berry Street that a place had become available for contact and the parents had been notified of the availability and of the need for them to retain interpreters.  It is appropriate, of course, that any supervision by Berry Street Contact Service be supported by interpreter services so that the supervisor can understand anything which is said to or by the children or either of them.  Berry Street Contact Service informed Ms Lonergan that neither parent was willing or able to pay for the services of an interpreter.  Accordingly, the place was not taken up and the mother did not see the children via that service. 

23. Mr A gave evidence that in preparation for today’s hearing he had contacted the liaison officer for the Department of Human Services and asked about previous notifications for the children.  I note on the court file there is a letter dated the 2^nd of September 2013 from the Department of Human Services in response to a section 67ZA notification.  That letter details eight notifications in relation to the children from 25 November 2011 until 5 August 2013.  It concludes that “protective concerns were reported in relation to the safety and wellbeing of the children whilst in the care of their mother.  It is reported that [the mother] has gambling issues, owes money to loan sharks, is the perpetrator of significant family violence which the children have been subjected to.  Further, that [the mother] prioritises her own needs before those of her children, does not provide adequate supervision, has made threats to kill herself and the children historically.  There are also concerns in relation to [the mother’s] current partner and his insight in relation to the children’s exposure to the mentioned.”

24. The correspondence which was written by Ms M, family law liaison practitioner for the … Metropolitan Region, indicates that the Department were not then minded to intervene “in view of the current intervention order and current Family Court orders.”  The Family Court orders did not give the mother any enforceable or specific right to spend time with the children on an unsupervised basis.

25. Mr A was informed by the Department’s Liaison Officer that there had been subsequent notification.  On 7 October 2013, there was an intervention order granted by a State court in circumstances where the court accepted that the father had been assaulted by the mother’s partner.  The protected persons under the intervention order are the children and the father.  The order specifies that the mother is not to have any contact with the children or the father during the currency of the order and the other is expressed to last until 2019.

26. The reports from Berry Street, Richmond, and from the Department of Human Services together indicate that the children are not likely to have had recent contact with the mother.  In my view, the fact that the mother may not have had any recent time with the children further supports the need for caution in any further assessment of the children moving forward.  It is appropriate that issues of parental capacity be the subject of focussed evidence before the children are subjected to any other form of interview in connection with any application which may be made by either of the parents. 

27. Given that there is no explanation for the parents failing to attend court today, I do not see that there is any amenity in retaining the matter in my defended list.  To do so would be to deprive other cases of opportunities for hearing. 

28. The orders currently provide that the mother can spend time with the children on a supervised basis through Berry Street Contact Service.  If she wants to make further application, she will do so.  At such time as she does, however, there should be an explanation as to why she did not attend court to prosecute this application and what her proposals are in relation to being psychiatrically assessed for the purpose of any future parenting proceedings as well as the matters raised by Dr J and the Department. 

29. For the avoidance of doubt, it would not be sufficient for either of the parties to undergo a psychiatric assessment by a practitioner solely of his or her choice.  It is important that both parties be assessed and that the assessment be done by a single clinician.  The appropriate course would be for the independent children’s lawyer to be reappointed to the case and to nominate to the parties a short list of suitable clinicians, which she composes with the assistance of Mr A from Child Dispute Services.

30. By way of conclusion, I am dismissing these proceedings without a hearing on the merits.  That said, there is nothing in the fairly extensive information I received that that indicates that this disposition is not consistent with the best interests of the children.

ORDERS DELIVERED

1. The independent children’s lawyer is funded by Victoria Legal Aid, which in turn is funded by public moneys.  There should be some explanation by any party who seeks to reopen parenting applications as to why Victoria Legal Aid was not put on notice of his or her intention not to prosecute the applications now before the Court. 

2. At least one of the parties sought costs against the other in these proceedings.  The independent children’s lawyer, in my view, has a reasonable claim for her expenses of today.  As it happens, she is content to have them fixed in the sum of $1404 and for liability for either or both of the parties for payment thereof to be reserved.  I will make that order. 

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 28 October 2014.

Associate: 

Date:  10 November 2014.