DUFFY & GOMES (No.2)
[2015] FCCA 1757
•21 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUFFY & GOMES (No.2) | [2015] FCCA 1757 |
| Catchwords: FAMILY LAW – Costs – costs of Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975, ss.10D, 10E, 60B, 60CA, 60CC, 61C, 65DAA, 68LA, 69ZN, 69ZV, 69ZX, 106A, 117 |
| Duffy & Gomes (No.1) [2015] FCCA 1121 Minister for Immigration and Citizenship v Maman [2012] FCAFC 13 Feinster & Feinster and Anor [2006] FamCA 232 Mellish v Martinson 1993 CanLII 1825 R v SLR 1991 CanLII 4532 Elkins v United States, 364 U.S. 206, 234 (1960) Rex v Duchess of Kingston, 20 How. St. Tr 355, 572-73 (1776) United States v. Byran, 339 U.S. 323, 331 (1950) R. v S (RJ) (1985) 45 C.R. (3d) 161 M. (A.) v. Ryan [1997] 1 S.C.R. 157 Lombard & Foster [2015] FCCA 1499 Other Articles cited: A. Ligertwood, Australian Evidence (4th Ed), 2004, LexisNexis Butterworths, Sydney. Paruch, D. ‘The Psychotherapist-Patient Privilege In The Family Court: An Exemplar Of Disharmony Between Social Policy Goals, Professional Ethics, And The Current State Of The Law’, Eliminating Unintended Bias National Association of Children’s Counsel Manual 2011 Levy, J, Galambos, G and Skarbek, Y, ‘The erosion of Psychiatrist-Patient Confidentiality by Subpoenas’, Journal of Australasian Psychiatry, Vol 22, no 4, 2014 Robertson, M.D, and Walter, G ‘Many Faces of the Dual-Role Dilemma in Psychiatric Ethics’, Australian and New Zealand Journal of Psychiatry 2008 (42:2, 228-235) Ross, Nicola M, ‘Independent Children’s Lawyers: Relational Approaches to Children’s Representation’ (2012) 26(3) Australian Journal of Family Law 220-239 Kaspiew R, Carson R, Moore S, De Maio J, Deblaquiere J, Horsfall B, Independent Children’s Lawyers Study: Final report, 2nd edition, June 2014, Australian Institute of Family Studies ‘National Legal Aid Guidelines for Independent Children’s Lawyers’, 6 December 2007 The Law Society of New South Wales, ‘Representation Principles for Children’s Lawyers’, 3rd Edition, September 2007 Legal Aid Commission of New South Wales, ‘Practice Standards for Independent Children’s Lawyers in Family Law Matters’, October 2014 Hon. D Bryant Chief Justice of the Family Court of Australia, ‘Children’s Participation in Decision Making in Relation to their Post Separation Living Arrangements’, Australian Institute of Family Studies Conference, 30 July 2014 Fernando, M. ‘Children’s Direct Participation and the views of Australian Judges’, (2013) Family Law Matters, 92 Australian Law Reform Commission and Human Rights and Equal Opportunities Commission in their report, ‘Seen and heard: Priority for children in the legal process’ (Report No. 84) (1997) Canberra: Commonwealth of Australia Morrow, V., ‘Understanding families: Children’s perspectives’, (1998) London: National Children’s Bureau Fernando, M. ‘Proposed Guidelines for Judges Meeting with Children in Family Law Proceedings’, (2012a) Family Law Review, 2(4), 213–224 Benjamin, Justice R, ‘Judges Receiving Evidence Directly from Children’, (2012), Family Law Review, 2(2), 99-107 Young, L., Ryrstedt, E., ‘The Child and the Judge: Reflections on the Voice of the Child in Australian Family Court Parenting Disputes’, (2013) Journal of Family Law and Practice, Vol. 3.1, pp. 19-28 Sachs, A., ‘The Strange Alchemy of Life and the Law’, (2009), Oxford University Press |
| Applicant: | MS DUFFY |
| Respondent: | MR GOMES |
| File Number: | AYC 463 of 2007 |
| Judgment of: | Judge Harman |
| Hearing dates: | 20, 21 May 2015 |
| Date of Last Submission: | 21 May 2015 |
| Delivered at: | Albury |
| Delivered on: | 21 May 2015 |
REPRESENTATION
The Applicant appeared in person
The Respondent appeared in person
| Counsel for the Independent Children’s Lawyer: | Mr Blackman |
| Solicitors for the Independent Children’s Lawyer: | Robb & Associates Solicitors |
ORDERS
By consent final Orders are made in accordance with the Terms of Settlement executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.
Direct the Independent Children’s Lawyer to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
Ms Duffy shall have sole parental responsibility for any application for the issue of Australian Passports for the children X born (omitted) 2000 and Y born (omitted) 2001 and upon the issue of such passports Ms Duffy shall be entitled until X and Y each reach their majority to hold those passports on their behalf.
The Court requests that the appropriate officer of the Department of Immigration and Citizenship seized with responsibility for processing any application for Passports give such expedition to the processing of any application made by Ms Duffy as can be accommodated.
IT IS NOTED that the purpose of the above Order is to vest in Ms Duffy both for the purposes of the Family Law Act 1975 and section 11 of the Australian Passports Act 2005 sole parental responsibility for the children X born (omitted) 2000 and Y born (omitted) 2001 confined to the issue of a passport.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Leave is granted to the Independent Children’s Lawyer to seek an Order for contribution for costs as against each parent in the sum of $4,787.43.
Dismiss the application for costs.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
EXHIBIT ‘A’
That pursuant to section 61C of the Family Law Act 1975, each parent shall have parental responsibility for X, born (omitted) 2000, and Y, born (omitted) 2001, when they are in their care.
That the children live with the mother.
That the children spend time with the father in accordance with any agreement reached between each child and the father.
That the father communicate with X by phone each Monday between 6.00pm and 7.00pm with the father to initiate the call directly to X's mobile and the mother to ensure that X is available to take the call and that the telephone is charged and operational.
That either child be permitted to call the father whenever they choose.
That during any period of telephone communication the children be afforded such privacy as is practical.
That the mother and the father do all such acts and things as are necessary to do the following:
7.1 Keep each other advised at all times of their respective applicable, land line telephone number.
7.2 Advise the other immediately in the event that a child or either of them suffers a significant illness or injury.
7.3 Authorise any medical and dental practitioner including but not limited to any mental health practitioners or allied health professional upon whom the children may attend from time to time to communicate with the other parent in respect of the child's medical, dental or other requirements.
7.4 Authorise the school at which the children may attend from time to time to provide the other at the expense of the other, copies of all school reports, school notices and school photographs in relation to the children.
7.5 Each parent is to communicate with the other either by text message or in writing including electronic forms of communication about the children's progress and attendance at school and in extracurricular activities.
That each parent be permitted to attend all school functions to which parents are normally invited provided they are notified of the function by the relevant child and invited to attend by the relevant child.
That each parent, his/her servants and agents, be and are hereby restrained from assaulting, molesting, harassing, threatening or otherwise interfering with the other parent or a person with whom the other parent has a domestic relationship or the children of the relationship.
That neither parent engage in any other conduct that intimidates the other parent or person with whom the other parent has a domestic relationship or the children of the relationship.
That neither parent stalk the other parent, or a person with whom the parent has a domestic relationship or the children of the relationship.
That neither parent change the children's school without the written consent of the other parent or an Order of the Court.
That in the event that a child seeks to spend time with a parent, the parent with whom they live is to do all acts and things necessary to facilitate that request.
That the mother make available to the father within 28 days digital copies of all photos in her possession which include the children or either of them and request that her mother, father and brother provide to her all copies of photos of the children or either of them they have and she will provide copies of these to the father as soon as practicable and within 28 days of receiving the photos.
That the mother provide to the father copies of the following:
15.1School notes including excursion notes.
15.2Scout newsletters.
15.3Scouting activity forms.
Within 24 hours of her receiving.
That the father register forthwith at to access the school newsletter.
That the mother provide copies of the photos of the various children's activities from time to time and she encourage the children to communicate with the father directly and to spend time with him.
That the mother be restricted from:
18.1Changing the family name of the children from Gomes to any other name or combination of names.
18.2From using any other family name for the children or identifying the children by any other family name than Gomes for any purpose whatsoever.
That the Independent Children's Lawyer be at liberty to forward copies of Orders made today to:
19.1(omitted) Community Health.
19.2Headspace (omitted).
19.3(omitted) College.
19.4(omitted) Medical Clinic
That the father be at liberty to communicate with the children in writing.
IT IS NOTED that publication of this judgment under the pseudonym Duffy & Gomes (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
AYC 463 of 2007
| MS DUFFY |
Applicant
And
| MR GOMES |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to future care arrangements for two young women:
X born (omitted) 2000, (15 years of age); and
Y born (omitted) 2001, (13 although nearly 14 years of age).
The parties to the proceedings are the parents of these young people being their mother Ms Duffy who is the Applicant in the substantive proceedings, and Mr Gomes their father and the Respondent in the substantive proceedings.
The interests of these young people are capably represented in these proceedings by an Independent Children’s Lawyer.
Applications
I have referred to the parties as Applicant and Respondent in the substantive proceedings as there is also before the Court, or possibly so, an Application for Contravention. An Order had been made on 11 August 2014 consolidating all extant Applications. There is some controversy as to whether that Order for consolidation included the Application for Contravention filed by Mr Gomes on 8 July 2013. That Application would appear, at least from that which is endorsed upon it in my hand, to have been disposed of through its withdrawal on 28 August 2013.
Consequent upon the filing of the Application for Contravention directions were made by me requiring that Ms Duffy file and serve an Application Initiating proceedings. That Application has been filed and seeks variation of the primary parenting Order the subject of the Application for Contravention. The direction for filing of that Application was made as it was apparent, without any concession having been sought from or made by Ms Duffy, that the primary Order had not operated for quite some little time.
An Application in a Case was ultimately filed by Ms Duffy. Orders were made to deem the Application in a Case to be an Initiating Application. A Response to the Application in a Case was then filed by Mr Gomes and it has similarly been deemed, by Order, to be treated as a substantive Response.
The Application for Contravention can be dealt with in very short measure. The Application, after reciting the majority of terms of the primary Order does not then provide any allegation of contravention. Certainly the Affidavit filed with the Application refers to that which would be relied upon in support of the Application. However, on its face the Application could not succeed. It does not make any allegation which can be put to or answered by Ms Duffy.
Accordingly, I will, in due course and when making an Order dismissing all outstanding Applications, include within the scope of that Order, the Application for Contravention.
I am satisfied by reference to section 17A of the Federal Circuit Court of Australia Act 1999 that the Application for Contravention can and should be summarily dismissed as not being capable on its face of establishing a Contravention nor making any claim for relief from this Court which is capable of being entertained. Further, the evidence which has been led to date (and the evidence had not concluded at the point where agreement has been reached between the parties) makes it irresistible to find a reasonable excuse established even if a specific allegation were made by the Application and I am satisfied that the Application could not be successfully prosecuted.
The above discussion is not intended to be overtly critical of Mr Gomes. He is, and has at all times throughout these proceedings, been self-represented. It is very clear from his evidence, indeed it is clear from that which is alleged by Ms Duffy, that Mr Gomes has some real difficulty with reading and writing. Again, that is not a criticism of him. I simply acknowledge that which is clearly established and agreed between these parties. It is one of precious few agreed facts.
Circumstances of Settlement
This trial has, regrettably, had a somewhat tortured path to disposal.
The matter had been listed for hearing in the March 2015 circuit. The matter commenced and occupied the majority of one day of hearing on that occasion. Ms Duffy’s cross-examination by Counsel for the then Independent Children’s Lawyer occupied the majority of that day.
Prior to the conclusion of cross-examination by the Independent Children’s Lawyer it became readily apparent that there were significant sources of information which were relevant to the determination of these young people’s best interests and which information could readily be obtained through the issue of a subpoena. Indeed, it was clear that the best interests of these young people could not be properly determined without that information.
No such subpoena had been issued. On that basis the proceedings were adjourned and a separate Judgment delivered, now reported as Duffy & Gomes (No.1) [2015] FCCA 1121. During the adjourned period, a period of about two months, a fresh Independent Children’s Lawyer has been appointed. I will return to and deal with that issue shortly.
Following a chain of unusual events the parties have now reached a resolution of their dispute. I have now made Orders, by consent, in accordance with the document that has been executed by the parties and which deals with the totality of their controversy, save one issue relating to Application for Passports for each of these young women.
I will deal with that issue separately. In doing so, I am satisfied that the evidence that is presently before the Court, in the voluminous material that the parties have filed, together with the submissions that each have put with respect to that issue, is sufficient to enable that determination to be made.
Material Considered
Before proceeding further I propose to identify the material that is before the Court (with respect to all issues) together with a brief chronology of events.
I have read and considered a number of documents filed by the parties and each of them.
In the case of Ms Duffy, I have read and considered the following Affidavits filed by her:
a)An Affidavit sworn or affirmed 12 June 2014;
b)An Affidavit sworn or affirmed 8 May 2015;
c)An Affidavit sworn or affirmed 27 September 2013;
d)An Affidavit of the maternal grandmother Ms R sworn or affirmed 14 May 2015.
In the case of Mr Gomes, I have read and considered the following Affidavits that he has filed:
a)An Affidavit sworn or affirmed 28 April 2015;
b)An Affidavit sworn or affirmed 9 March 2015;
c)An Affidavit sworn or affirmed 12 March 2014;
d)An Affidavit sworn or affirmed 6 August 2014;
e)An Affidavit sworn or affirmed 18 December 2014;
f)An affidavit sworn or affirmed 24 October 2013;
g)An Affidavit of the paternal grandmother, Ms D sworn or affirmed 27 April 2015.
I have received a number of Court Exhibits comprising:
a)Court Exhibit C1 - a Family Report completed by Ms E, 29 October 2013;
b)Court Exhibit C2 - an Updated Family Report completed by Ms E, 27 March 2014;
c)Court Exhibit C3 - a file of material produced by the school attended by these young people and comprising both non-contentious documents, in the nature of school reports and the like, and material with respect to which objection was raised by the Department of Education as to its inspection by the parties and primarily comprising records evidencing communication between these young people and school staff and in the nature of counselling or chaplaincy notes.
I have also received seven Exhibits in the case of the Independent Children’s Lawyer comprising:
a)Exhibit ICL1 - a chronology;
b)Exhibit ICL2 - case notes;
c)Exhibit ICL3 - further case notes;
d)Exhibit ICL4 - a statement by the mother;
e)Exhibit ICL5 - material from the Department of Human Services 26 March 2014;
f)Exhibit ICL6 - a Minute of Orders proposed by the Independent Children’s Lawyer;
g)Exhibit ICL7 - patient records with respect to one of the children.
The final Exhibit that the Court has received is Exhibit A, the Terms of Settlement in accordance with which Orders have been made and which deal with all disputes between these parties save, as indicated, the issues surrounding Application for Passports for these young people.
Chronology
I do not, in the circumstances, propose to canvas the evidence in great detail or to set it out in full in these reasons. Suffice to say that I have read and considered each of the documents above.
It is of great assistance to the Court that the Independent Children’s Lawyer has provided a most extensive chronology of events, and I incorporate that chronology herein. That will, to a large extent, set out the evidence of the parties.
(omitted) 1999 Date of cohabitation.
(omitted) 2000 X born (now aged 15). Mother suffers post-natal depression. Early 2001 Paternal Grandmother (Ms D) went to visit father and mother at (omitted). Father was out at time. X had pushed open screen door and was crawling to the street. The mother was sleeping at the time.
Mid 2001 Mother moved to unit owned by father’s parents in (omitted), (formal lease). Whilst moving from (omitted) to (omitted), mother and father had an argument. Father took mothers purse, keys and mobile phone and refused to let her take X. Father beat mother on arms and legs (mother is approximately 7 months pregnant). Mother ran outside, and father leaves house with X, locking door behind him.
Father moves in with friends.
(omitted) 2001 Father and Mother re-commence cohabitation.
(omitted) 2001 Y born (now aged 13.8).
Mother suffers post-natal depression.
March 2002 Father taken into custody for outstanding warrant for unpaid speeding fine.
May 2002 Ms D takes father to Dr C – Dr C prescribed father Zoloft for depression.
May 2002 Date of second separation (mother says) – mother asks father and his brother to leave the house.
June 2002 Date of separation (father says) – mother orders father out of house. Mother subsequently leaves the house.
May 2002 or June 2002 Mother moves to maternal grandfather's house in (omitted) (6 hr drive from (omitted)). She stayed for 1 month. Father makes 4 trips to see children.
June 2002 Father moves to his brother's house in (omitted). Stays for 1 month.
Father charged with theft. Suspended sentence.
July 2002 Mother moved to (omitted) and finds herself independent accommodation. She stayed for 12 months.
Father spends time with children every weekend.
July 2002 Father lives out of his car for two weeks.
Father attends counselling through (omitted) Family Services – lives at (omitted) House for four months.
October 2002 Father arrives at mother's house at (omitted) at midnight. Father was told that he wasn’t welcome and that he should leave.
Father found a piece of rope and put a loop around his neck and threw the rope over a tree. The mother came back outside and the father jumped off the chair that he was standing on. The rope didn’t pull tight and was just used as an attempt to convince the mother that the father really cared for the children.
The mother telephoned friends who came around to talk to them.
November 2002 Father lives with a (omitted) group as they set up shows around the countryside.
Christmas 2002 Father expected to be able to stay at the mother’s house in the Christmas period. Mother arranged for him to stay at the local caravan park.
Father only spends Christmas morning with the children.
February 2003 Father moves to (omitted) House in (omitted).
May 2003 Children spend overnight time with father.
July 2003 Mother moves to (omitted) with maternal grandmother and stays with her for 7 months.
Father lives with mother for 6-8 weeks.
March 2004 Mother moves to (omitted).
March 2004 Father moves to Caravan Park in (omitted).
November 2004 Mother alleges father physically forced the mother against the back door and pinned her there by my chest and forehead while he verbally abused her.
19 November 2004 Interim IVO made against father. Lasts until 21 January 2005.
End November 2004 Mother moves to (omitted) and routinely helps out her mother and her mother’s partner in the running of the (business omitted). Mother stayed at (omitted) for 12 months.
November 2004-current Father sees children every two weeks and half of school holidays.
January 2005 IVO before the court. Mother withdrew application because things had improved between her and the father.
February 2005 Father moves to (omitted).
Mid 2005 Mother purchases house in (omitted).
April 2006 Maternal Grandmother relocates to Western Australia.
June 2007 Father goes to mother’s house early to collect the children. Father stated that he had no intention of turning 30 years old and that he had no desire to live. He also stated that he had set a date of (omitted) on which he intended to take his own life.
June 2007 Father turns up to mother’s friend's house where mother and children were having dinner. He was not invited.
June 2007 Mother attends fathers home and told him that she did not want to reconcile. Mother stayed the night at a motel.
June 2007 Father, mother and children go to (omitted) to visit maternal grandmother.
Whilst there, father sends mother a picture message of him with a noose around his neck.
July 2007 Father returns to (omitted). Mother promises to return with children by 20/21 July 2007.
July 2007 After repeatedly trying to contact maternal grandmother, the father speaks with her and she says that the mother is on a flight back to Melbourne and will be arriving at 11pm that night.
August 2007 Father receives text message from mother saying that she and the children are on the train on way back to (omitted). Father noted arrival time to be 11.46am. Mother organises for a male friend to pick her and the girls up from (omitted) station.
4.30pm - Mother and children arrive at father's house.
5.00pm - Father is handed a letter from mother accusing him of being suicidal and refusing to allow him to see the children until he receives medical treatment. Father says that Mother was in her car with motor running when she handed letter to father. She then drove off.August 2007 Despite the letter the Father travels to (omitted) to pick the girls up from school. Father was told that the mother had removed the children from school at 2pm. Father drove to mother's house, mother refused to talk to him.
4.00pm -Father goes to (omitted) police station. Father was informed that mother had taken out restraint order against him, not yet been served.
August 2007 After speaking to his parents about 3 August event, the father and the paternal grandfather attended (omitted) Police Station where father was served with IVO.
August 2007 Interim Intervention Order made against father.
Allegations that the father will suicide if the mother does not return to him. Father states that allegations made by mother are a fabrication.
Father agrees to have the IVO against him without admissions. Expires on 14 November 2007.
Verbal Parenting Arrangement made in front of the Magistrate.
August 2007 Paternal grandfather rings mother. Mother states that the children would not be available that weekend as she had planned to visit her father this particular weekend, and that this weekend was not a scheduled weekend for the father.
August 2007 Paternal grandfather phones mother three times regarding times father to spend with children. He gets no response.
Father sees Mr Huggins (solicitor)
August 2007 Mother makes arrangements for father to see children. Paternal grandparents to pick up children 17 August.
August 2007 Phone calls to and from paternal grandparents and mother re spend time with children. Allows grandparents to see children at (omitted) Visitors Centre after discussions with the police.
August 2007 Mother withdraws children from school – no forwarding address left.
August 2007 Father receives call from Assistant Principal who said that the mother had withdrawn children from school.
August 2007 Mother telephones Assistant Principal of (omitted) College requesting school records of children for enrolment in (omitted) Primary School.
September 2007 9pm - Father receives call from mother (7.00pm WA time). Spoke for 2 hours. Father speaks with children for short time. The father said to the mother “you have taken the children away from me”. The mother said “it was not a permanent decision and that I had come to my mother for support following the stress caused by your threats and the hounding by your parents. You are welcome to come to (omitted) to see them”.
September 2007 Father speaks with mother and children. Mother admitted that she received letter from (omitted).
September 2007 Mother and Father have a conversation in which they discussed Father going to (omitted) for 1 week. They made arrangements for him to spend time with the children at Christmas.
Orders of Magistrate Marron Recovery Order and that the children live with the father.
September 2007 Mother receives telephone voice message for her to call the Federal Police. She is informed that the father had obtained a recovery order for the children and the children have removed whilst at school in (omitted) and given to the father who brings them back from (omitted).
October 2007 Mother flies from (omitted) and arrived at Melbourne at (omitted) October 2007. Mother catches train to (omitted). October 2007 Mother goes home to find children’s birth certificates, photos, personal journals and letters from father. The items were no longer there. Mother reports this to the police.
11 October 2007 Mother attends FCA Albury – adjourned til 10 December 2007 and Independent Children's Lawyer appointed.
23 October 2007 Mother’s solicitors write to father requesting time with the children. (No response received).
14 November 2007 Mother successfully sought a 3 month extension on Intervention Order.
22 November 2007 Mother’s solicitor again writes to father. (no response) – Mother seeks application in a case (filed 26 November 2007).
6 December 2007 Interim Consent Orders made, providing for children to be returned to mother at conclusion of Term 4, and for children to spend alternate weekends with father.
February 2008 Intervention Order expires.
11 February 2008 Orders of Federal Magistrate Henderson – Independent Children's Lawyer discharged, listed for final hearing on 15 May 2008, family report to be prepared.
Feb-May Father and mother agree on some different arrangements for the children in addition to those contained in the 11 Feb orders, i.e. swapping the days and times for phone calls, different changeover times
13 May 2008 Orders of Federal Magistrate Henderson – Trial date of 15 May 2008 vacated, Independent Children's Lawyer reappointed, listed for Final Hearing on 16 and 17 October 2007, mention on 17 June 2008.
17 June 2008 Orders of Federal Magistrate Henderson – Dr E be appointed as single expert to report on mothers and fathers mental health.
January 2012 X runs away from the mother's house. X went to the paternal grandparents. January 2012 X alleges she has been sexually assaulted by Mr L. February 2012 X advises the mother that Mr L had touched her but only accidently and it occurred once before Christmas when they were scruffing on the couch. Mother takes her to the Police following day. Mother says X alleged that a girlfriend had touched her inappropriately when she was sleeping over at her father's. Mother says Y also indicated that this girlfriend had tried to kiss her and X and that she had been humping them both. March 2012 X ran away from school. She was collected by her father. At around this time it is alleged by the mother that the father took the children to the (omitted) Police reporting a motor bike had been stolen by her.
Mother alleges father told X that the mother had wanted to terminate the pregnancy. X remains in father's care.April 2012 The girls return to the mother's care for the school holidays. X tells mother she wishes to spend week about. 30 November 2012 Orders made by consent. X lived with each parent each alternate week from after school Monday to before school the following Monday and Y lives with her mother. Time with Orders made for Christmas and school holidays with respect to X. With respect to Y she spent each alternate weekend with her father. June 2013 X stayed home from school sick whilst in her mother's care. Father attended at home to collect X after school hours. It appears mother was not home but a heated discussion took place between X and her father. That was probably witnessed by her mother. June 2013 X sent a message on her Ipad to her mother saying that she had arranged with her father to remain in the mother's care and requesting that the mother organise for her maternal grandmother to collect her. Maternal grandmother attended at school and the father also attended. Mother also attended at school. An incident occurred in the school park in relation to X and Mr Gomes. Application taken out by Ms Duffy. Police called. X went with the father. Mother alleges that that evening X telephoned and said her father had grabbed her by the throat and verbally abused her for refusing to return to his care. June 2013 Mother contacts X's counsellor, Ms T at (omitted) Community Health and she sees X at school. Later that day Ms T called the mother and advises her that she has contacted the Child Protection Services in relation to details X had disclosed in relation to her father. Ms T says X told her that her father had pinned her over the kitchen bench with his body, holding her by the throat and had threatened her saying that she would never be allowed to return to the mother's care. Mother says Child Protection said that they weren't going to interview X as if she didn't disclose they would have to inform the father potentially putting at greater risk. They said as she was the protective parent they would be closing the case (see mother's affidavit paragraph 14 sworn 15 Aug 2013). June 2013 Mother removes X half an hour before school concludes so that the father was unable to have both girls as per the Parenting Order. Father goes to the mother's home seeking the children. Mother says an incident occurred when she declined him access to the children and he threatened her. 21 June 2013 Mother applied for an AVO. Order granted until 3 July 2013. At that time Undertakings were given and presumably no Order made. Mother makes a Report to the Police in relation to X's alleged assault but says X too scared to go ahead with it. Mother takes the children away to (omitted) for the first week of the school holidays. The second week of the school holidays she decides that the kids can go with her mother away somewhere unspecified. 8 July 2013 Father filed a Contravention Application. July 2013 Mother meets the father at McDonalds with the girls. Mother says an argument developed between Mr Gomes and X in which he was abusive towards her. Term 3, 2013 Mother meets with each girl in the school grounds before the end of the school day. July/August 2013 Father forms a relationship with Ms C. Mother had a relationship with a former partner, Mr L. They didn't live together although they were seriously considering it. August 2013 Further incident at school when father attends with his father Mr B, his partner's son and his girlfriend to collect X. Mother says X refused to leave with him. Mother alleges father abusive to her and to X. 30 August 2013 CDC Memorandum recommending the father, X and Y attend family counselling at (omitted) Community Health in (omitted). 30 August 2013 Orders made whereby Y and X live with Ms Duffy and spend time with the father each alternate weekend. September 2013 The father provided with mobile details for X. September 2013 Father attends at mother's residence as agreed to sign a holiday agreement for him to take the girls to (omitted). Mother says both girls refuse to come outside. Mother says father verbally abuse towards her. The girls go on holidays but mother says arrive home unhappy. August to September 2013 Mother attends "whatever" parenting course. October 2013 Father agrees to a change his scheduled weekend as the children are attending (omitted) scout camp but requires there be make up time. October 2013 Mother agrees to father taking the children out for his mother's birthday. Says that father was verbally abusive to her when he collected the girls and that when they returned they said that he had had a go at them to change X's allegations with respect to him, alleging that he was on high watch at work and he may lose his job. December 2013 Both girls indicate that there is increasing tension between Mr Gomes and Ms C. December 2013 to April 2014 Girls continue to make comment about the deterioration in Mr Gomes and Ms C's relationship and their arguments – sometimes hitting each other. 20 January 2014 Family Report interviews. February 2014 Mr L moves in with the mother. March 2014 Mother receives a phone call from the school regarding an incident with Mr Gomes assaulting X while camping. DHS contact the mother and tell her that the father is not to have any time with the children until they have investigated. She collects the children from school. Mother alleges father present when she comes to school. He was taking photos of her and the children. 26 March 2014 X and Y interviewed by Child Protection Unit Dept of Human Services and disclosed physical and emotional harm had occurred by Mr Gomes which was found to be substantiated. Father denies all allegations. Letter dated 12 May 2014 from Child Protection Unit Dept of Human Services confirming emotional, psychological, accumulative harm and risk of harm was substantiated inflicted by Mr Gomes. Both authors recommend X and Y be given a choice about their time and telephone communication with the father. 27 March 2014 Orders made that X and Y live with the mother and spend time with father from 9.00am til 5.30pm each alternate Sunday and that the father is to initiate telephone calls each Monday and Friday to X's mobile and the children be permitted to call him whenever they chose. Orders made by Judge Stewart:
a) That the father have telephone time with the children on each Monday and Friday between 6.00pm – 7.00pm with the father to initiate the call to X's mobile telephone, the mother to ensure that the children are available to take the call and that the telephone is charged and operational.
b) That the children be permitted to call the father whenever they choose.
c) During any periods of telephone communication, the children be afforded sufficient privacy to conduct the call.
Orders made by Judge Stewart that the children spend time with the father from 9.00am – 7.30pm on specified days and then each alternate Sunday thereafter with the mother to deliver the children and the father to return them.
Orders made that the children attend family counselling at (omitted) Community Health in (omitted) and (omitted) if recommended by the said service providers.
Non denigration orders and orders not to discuss the proceedings with the children.March 2014 Mother says girls came in apparently happy but then say they were not happy at their father's just happy to be home. April 2014 Mother at work when children to be returned and she receives text message from Mr L saying children returned but they witnessed a family violence incident allegedly perpetrated by the father to Ms C. Father denies he was responsible for physical family violence and says he and Ms C were equally responsible for verbal family violence incidents that occurred that day. They subsequently separated. May 2014 Mother alleges father turned up at residence to see the children and she told him to leave but he was aggressive and verbally abusive to her. June 2014 Second Family Report interview. Between April and September 2014 the children spent no time with the father other than their meeting with him for the Family Report 11 August 2014 Orders made that the father and the children attend (omitted) Community Health with a view to family counselling occurring. The matter listed for 16 and 17 March 2015. Specific reference is made to the Orders of 27 March 2014 remaining on foot. The first two Sundays after the Orders mother does not facilitate the children's time with the father pending legal advice.
Thereafter she says that when the children actually go, they go at 9.00am. She says that they have continually argued with her not to go and that both continue to come home from their father's out of sorts, angry about their father doing 'guilt trips', having physically manhandled them, verbal altercations with Y requesting to be taken home and alleging their father is blaming towards them.August 2014 Children with their father. Mother alleges he discussed the proceedings with them. September 2014 Mother alleges that she had an argument with the girls about them spending time with their father on Father's Day with her insisting they do it and them insisting they do not. December 2014 Mother and Father unable to reach agreement about holiday arrangements other than the time stated in the Orders. Mother says the girls reluctant to spend time with him overnight, even for Christmas. 24 – 26 December 2014 The girls spend time with their father and his family. Mother alleges both unhappy upon return and that they had been subjected to a 'family conference' and harassed about taking their lies back and told that they were killing their father with all this nonsense. January 2015 Mother and Mr L separate. February 2015 Father provided with a copy of the "(omitted) Show" rehearsal times. It was agreed to change the time with the children to the 22 February. This was Founder's Day. Father wanted the children to stay overnight the night before. The children declined to do so. They were happy for him to take them to Founder's Day activities but father declines as he thought it did not give him sufficient quality time with the children. February 2015 Notwithstanding that it seems the father didn't want the children, the mother takes them to the father's at 8.55am. He tells the girls he didn't think they were coming that day. The girls returned saying that he was cranky and nasty all day. March 2015 Father alleges X and Y arrived to spend time with him tired, cranky, moody and extremely rude. A family conference was called to, "Try to make both girls realise how badly their behaviour is affecting him, his parents and themselves". 16 March 2015 Case commenced in the Federal Circuit Court but adjourned. Father alleges he spoke to X as per Court Orders but Y unavailable as she does not have a working phone March 2015 Mother informed that X had fainted at a "(omitted) Show" rehearsal. An ambulance had been called. Mother contacts father to advise him of the situation. X discharged but prescribed an anti-biotic. Mother says she took the anti-biotic before she went to bed. X wakes during the night and vomited. X found to have a low blood sugar count and a kidney infection and prescribed anti-biotics. Father believes X's fainting was as a result of her not being provided either food or appropriate food. Father alleges X regularly faints but only when she is in her mother's care. Father believes mother regularly does not provide food or appropriate food for X. March 2015 Mother takes X to the hospital to visit Mr L. She went to Outpatients. X was admitted. Mother informs the father. She requested that he not have him and his whole family turn up at once. Father turns up at the hospital with both his parents.
Mother alleges both the grandparents were blaming towards her for X's condition. Both the father and his mother questioned her about where Y was and who was taking care of her.Y comes to the hospital to see her mother to get a permission slip signed. Mother leaves the hospital to see Y. She says the father walked out of the hospital with her. She says that Y went over to her father and gave him a hug.
X advised her mother later that evening after father and grandparents left that her father had tried to go through her phone and that he was annoyed when she wouldn't enter a passcode for him. She said other than that it had not been too bad.Father says he and his mother visit X in the hospital, mother present. Incident develops when father asks where Y was and who was taking care of her? Mother refuses to tell him, his mother then decides to try and get an answer from the mother and father alleges that mother became red in face, clenched her fists as if she would his mother and spat out, it was none of his mother's business. First mention of Y in the affidavit other than in relation to her failure to answer his phone calls as she does not have a working phone. Father says he checked X's phone with her permission to check that she had the correct numbers for his parents and she didn't. Father alleges he ran into mother and Y outside the (omitted) Hospital and mother was arranging for her friend Mr M to take Y to Scouts. He says he was not allowed to speak to Y. March 2015 X still in hospital and father visits. Says he is able to stay longer because Ms R present. Mother sends him a text saying X will be discharged when her temperature remains stable. March 2015 X released from hospital. Mother advises the father in a telephone call that there was to be a follow up appointment when X had finished the anti-biotics, that she had been provided with a medical certificate giving her a week off school and that the children attended (omitted) Medical Clinic. Mother says "(omitted) Show" rehearsals that day and she had arranged with father that the girls would spend time with him on Easter Sunday and then the following Sunday. March 2015 Father says he received a text from X stating that she thinks one of the reasons for her fainting is not eating and drinking regularly. X is discharged. She is collected by the maternal grandmother. Father not informed. Father says mother refuses to give him details of X's GP. (omitted) Hospital discharge summary attached to his affidavit shows a reference to Dr C at (omitted). It also refers to X possibly having coeliac screen and noted that her diet was exclusive of iron rich foods and recommended an FE study and the continuation of anti-biotics. Clinical notes show that on 17 March 2015, X had a banana smoothie at breakfast and only a sip of water all day. It refers to one previous fainting episode in similar circumstances. She improved with oral hydration. Her blood pressure improved with oral fluids. Her urinalysis suggests of a UTI. Discharged and told to refer to her GP for follow up in two days. March 2015 Father telephoned girls. Neither girl answered. Continues to press for overnight by texting mother. March 2015 Father discovers that the school has sent home photos he had ordered and paid for home with Y. He had not been notified by either Y or the mother. Discovered that X not at school and had been absent all week. Alleges mother did not have a Doctor's Certificate. He rings the mother seeking information about X. He complains that X is with her maternal grandmother and not the paternal grandmother. He asks about the girls spending overnight next weekend. No time with the children over the school holidays. March 2015 The children do not spend time with the father because it is again show practice. Father says he has not been provided with an alternate time for him to spend time with the girls. March 2015 He telephones. X is curt and rude and hangs up. Y is not available. X sends him a nasty text. April 2015 (Easter Sunday) Mother says Mother says the children returned late. Mother contacted the Police when the children had not been returned. Children returned at 8.40pm. Mother says when the children returned they were very distraught and upset. She says X informed her that the father had become nasty towards her after her trying to make arrangements not to spend Sunday (omitted) with the father. ((omitted) is X's birthday). It was a day she was supposed to spend in his care in accordance with the Court Orders. She wanted to have a party over the weekend. Mother says X initiated the attempts to negotiate with the father and had written up a proposal herself without any input from the mother.
Mother says the girls told her that they began driving home at about 8.00pm but pulled up a few blocks short of the house. The father tried to get X's mobile phone from her. X had removed her seatbelt and attempted to get out of the car and that the father had locked the car doors, did an abrupt U-turn and took off driving, "like a complete maniac, like he was trying to kill us." X said that she was bouncing around in the front of the car. The mother says that the girls said the father did not stop until he got near (omitted). Mother said that Y was hysterical when she came back in to the house, and X was very upset and used bad language directed at her father. Both said never to be forced to see him again. They have not seen him since that date.April 2015 (Easter Sunday) Father says X and Y spend time with him. He says that Ms Duffy has failed to advise him they are coming and that his car is out of sight and she still drops off the children, even though he may not be there. X and Y are moody and stand offish and are very hard to get on with.
He acknowledges concerns about what may be manufactured by Ms Duffy, Ms R, X and/or Y if he is alone with them so he rings a male friend and they go to the cinema. After this his male friend's mother invites them to stay for dinner which causes them to run a little late. Y when she realises they will be late starts chanting "there are orders you know". She becomes extremely rude. He believes Ms Duffy and/or Ms R have been schooling and instructing her. Y’s behaviour deteriorates. X remains quiet. At 7:36pm, six minutes after the return time Ms Duffy starts sending texts which he ignores. He says that Ms Duffy tried to contact X but apparently X's phone was on silent. He says if either X or Y had felt the need to contact Ms Duffy they could have done so. He says neither child in any danger whatsoever nor was their safety compromised in any way. Does not say what time the children actually get home. Says during this Sunday X revealed she had fainted "at least 20 times" since she started high school, while in Ms Duffy’s care and also informed him that Ms Duffy had told her not to have any sugar in her diet. Father says Ms Duffy is always coming up with fad ideas about what X should or should not eat including that she may be lactose intolerant and possibly have Coeliac Disease.April 2015
Father says he bumps into Ms Duffy and amongst other things he asks whether he can have the children that night to attend a birthday celebration for his father. He had previously sent a text message about this. She says she will let him know later that day – backwards and forwards it goes. She says the girls are not available. He is extremely disappointed. He tries to ring X who does not answer.
April 2015 Mother says father goes to mother's work and sees her there. Leaves when requested to do so. He was seeking that the girls spend time with him that evening for his father's birthday.
Texts occur all afternoon. Mother says that if Mr Gomes' father had texted her it could have been arranged easily.April 2015 The girls do not come to spend time with him. April 2015 Father says in a conversation with X he questions her about where she has been and she explodes. April 2015 Father attends (omitted) College with an appointment with the Assistant Principal. His mother Ms D attends. Father questions the Assistant Principal Ms M about discrepancies in attendance records. Which show X was at school when she was actually in (omitted). Ms M informs father that there is no record of X attending the sick bay for anything. Ms M gives an undertaking that he will be contacted should they have any concerns. Father requests to speak to Ms B the School Counsellor but told that will only happen if Ms B thinks it to be necessary. Ms D indicates to Ms M that school only getting one side of the story and she believes it necessary that they are able to speak to Ms B. April 2015 Father says he was visiting a colleague who lives close to the mother (she was not home). Mr L's car outside mother's home. April 2015 Father believes he should have the girls this Sunday because he did not have them the previous Sunday. In a text Ms Duffy acknowledges that it was his day the previous Sunday and therefore he should have the next Sunday which is (omitted) 2015. (omitted) 2015 The girls to do not come, it is X's birthday. Father upset. 7 May 2015 Mother has a discussion with a Child Protection Officer and agrees to attend a program through Child First on emotional coaching.
The chronology is particularly significant in that it is produced by an objective third-party representing the interests of these young people and it clearly focuses upon matters that are relevant to these young people and their welfare. The chronology is also somewhat mutualised and avoids engaging in controversy as far as possible. Thus, that chronology, as set out above, is adopted by me.
History of Proceedings
I propose to deal with four issues in these reasons. I will make the discussion of issues and the determination of the Passport issue as brief as possible for the benefit of the parties, if nothing else. The conclusion of these proceedings has been reached on the afternoon of what is, in effect, the third day of trial.
The parties have had a significant ordeal in reaching this point and a conclusion of the matter. That ordeal is all the more significant in that the parties have been litigating, relatively continuously, since the first Application that was filed in the Magistrates Court at Wangaratta in mid-2007.
Those proceedings were transferred to this Court and the parties have been engaged since then in three separate and distinct sets of litigation, although each set of proceedings has involved numerous Applications.
One would hope, particularly having regard to the ages of these young people, that no further litigation will be engaged in by these parties. It most assuredly would be destructive of the very little and fragile cooperation and trust that exists between the parties and more importantly, further destructive of the will and spirit of these young people.
Objection to production of material
The Independent Children’s Lawyer caused a number of subpoenas to be issued between the adjournment of the proceedings in March 2015 and the present. One of those subpoenas was addressed to the school attended by these young people.
An objection to that subpoena was lodged by or on behalf of the Department of Education and Training.
The subpoena, by its terms had sought the production of:
All documents and records including but not limited to enrolment forms, attendance records, reports, communication books, educational and behavioural issues, counselling notes including attendance records and notes made by the Wellbeing Officer, School Counsellor and Chaplain, file notes and memoranda, correspondence with parents and any other documents held by you from the school’s Wellbeing Officer, School Counsellor and chaplain in relation to [each of the children].
Objection was taken to production of material on a number of bases. The primary objection was a “public interest concern” regarding interference in the therapeutic relationship between these two young women and those with whom they had engaged through the school.
Material was produced by the Department of Education and Training, although as a consequence of the objection being lodged, inspection did not occur until the objection had been dealt with, i.e. yesterday.
The objection stated:
Part of the documents contain information that will identify the persons who made reports under the Children Youth and Families Act and/or information that is likely to lead to the identification of the persons who made those reports.
That issue was addressed consensually as between the Independent Children’s Lawyer and Counsel for the Department, appropriately so, through redaction of those details.
The balance of the objection was on the following basis:
Disclosure of parts of the documents are contrary to the public interest for the following reasons:
(a) It would deteriorate the relationship between the children and the counselling and welfare staff at the college.
(b) It would adversely impact on the children’s relationship with other counsellors and like professionals.
(c) It would adversely affect the likelihood of these children and other children confiding in counsellors and welfare staff at the college and seeking necessary support and assistance.
In dealing with and determining that objection I have had the benefit of submissions by Counsel appearing on behalf the Department together with submissions by Counsel for the Independent Children’s Lawyer.
Mr Gomes did not seek to be heard with respect to the objection, although he sought access to the material.
Ms Duffy opposed inspection and adding the additional ground of “privacy” being the asserted right by these two young people to privacy and privacy of that which passes between them and the school counsellor or chaplain.
I will deal with each of those matters as briefly as possible. In doing so I incorporate, herein, the relevant portions of my earlier decision on like issues in Cooper & Cooper [2012] FMCAfam 789 and Kirby & Kirby [2014] FCCA 2332. Specifically, with respect to Cooper & Cooper, I incorporate paragraph 91, paragraphs 117 to 139 inclusive and 141 to 146 inclusive. I note that this incorporates significant portions of an earlier decision in Jermyn & Carling [2012] FMCAfam 814:
91. “Further with respect to issues of due process I am particularly guided by the erudite and comprehensive consideration of same undertaken by the Full Bench of the Federal Court in Minister for Immigration and Citizenship v Maman [2012] FCAFC 13. Their Honours, commencing at paragraph 30, consider, in the context of expert evidence, relevant principles of procedural fairness (otherwise initially referred to in the English legal process and as continues to be referred to in North American jurisprudence as “due process”). Their Honours therein espouse a number of principles with respect to procedural fairness including:
… there are no universal rules as to the content of the rules of natural justice applicable to all factual or statutory situations: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 (paragraph 31).
…a further general principle is that procedural fairness generally requires the disclosure of relevant adverse information that is “credible, relevant and significant”: Kioa v West [1985] HCA 81 (paragraph 32).
there are limitations upon the duty to disclose information which is “credible, relevant and significant” (paragraph 33).
But the mere fact that a document may contain confidential information does not dictate that it not be disclosed, either in whole or in part. And the opposition of an opposing party to the disclosure of personal but confidential information does not of itself operate so as to preclude disclosure (cf. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 (paragraph 34).
Even where there may be substantial reasons in favour of preserving the confidentiality of information, the rules of procedural fairness may require disclosure of adverse information… Canterbury Building Society Ltd v Baker [1979] 2 NSWLR 265 (paragraph 35).
There remain, however, no universal rules as to whether the confidential information itself need be disclosed in its entirety or whether some lesser disclosure may suffice: Ansell v Wells [1982] FCA 186 (paragraph 36).
..an adequate “opportunity” to be heard may be satisfied in some cases if the gist of any adverse information is disclosed without the entire text or document in which that information is contained necessarily also being disclosed…Plaintiff M61/2010E v Commonwealth [2010] HCA 41(paragraph 37).
…if information is “credible, relevant and significant”, it may not be a sufficient compliance with the requirement of procedural fairness for a decision-maker to assert that he has placed such information to one side or given it no weight: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72… and Kioa v West [1985] HCA 81 (paragraph 43).
.. a breach of the requirements of procedural fairness may deny effectiveness to a step in a decision-making process (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11) (paragraph 44).
Should the material be excluded on public policy bases?
117. In addressing this issue I have had regard to a number of authorities including:
a) Bauer & Steggall [2011] FMCAfam 728 (paragraphs 26 to 61 thereof);
b) Feinster & Feinster and Anor [2006] FamCA 232;
c) Benson & Hughes (1994) FLC 92-483;
d) Sankey & Whitlam (1978) 142 CLR 1;
e) Re Bell; Ex parte Lees (1980) 146 CLR 141;
f) Hutchings & Clarke (1993) FLC 92-373;
g) Duits & Duits 2006 CanLII 14407;
h) Mellish v Martinson 1993 CanLII 1825;
i) R v JT 2005 CanLII 51120; and
j) R v SLR 1991 CanLII 4532.
118. In addition to the above, and as these proceedings are dealt with in New South Wales, I have also had regard to the provisions of the NSW Evidence Act (which, by virtue, of the provisions of the Judiciary Act apply to this Court sitting in New South Wales).
119. The Australian authorities considered would suggest that no public interest privilege could be established in this case.
120. In Benson & Hughes His Honour Chisholm J undertook a most thorough and useful discussion of the topic. A number of passages from Honours reasons are of particular interest and assistance. His Honour first commenced by a consideration of the special nature of parenting proceedings and the specific evidential considerations that apply and referred to the High Court’s decision in Re Bell; Ex parte Lees:
…parents are not the only persons whose interests are to be considered as might be the case in property negotiations: "If the welfare of the child is the subject of the enquiry, there comes a point when it must override any privilege which either parent may possess as was the case in Re Bell; Ex parte Lees (1980) 146 CLR 141, per Gibbs J at 146.
121. His Honour also considered the Full Court’s decision in Hutchings & Clarke (1993) FLC 92-373 dealing with the admission of settlement negotiations (prior to the legislative privilege created by s.131 of the Evidence Act) in parenting proceedings and included the following:
the court should be reluctant to override the privilege of parties engaged in such discussions, but as stated earlier, protection of the welfare of the child is another public interest recognised [by the Family Law Act]...and declared to be the consideration…This means that the court must give priority to considerations of the welfare of the child in a situation where non-disclosure of the relevant evidence "might have the result that the child remained in conditions detrimental to his or her welfare" [emphasis added] in the words of Gibbs J cited earlier. This balancing in interests can only be performed on a case by case basis
122. Chisholm J also stated:
There is a general public interest in the proper administration of justice which is promoted by the principle that "all relevant evidence should be adduced to the court when it makes its decision" (Baker v Campbell (1983) 153 CLR 52 at 66 per Gibbs CJ).
However, there are recognised exceptions to this principle. One is legal professional privilege. There are also other reasons of public policy which require the exclusion of otherwise admissible evidence. A well-known example is D v National Society for the Prevention of Cruelty to Children [1978] AC 171, in which the House of Lords held that evidence could not be given of confidential information disclosing the identity of people who reported suspected child abuse to a child protection organisation, whose effectiveness depended on keeping secret the identity of those who made complaints of suspected child abuse. In that case Lord Hailsham said at 230 that "the categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop". Although the confidential nature of the communication is not a separate ground of privilege, it is an important factor in considering the claim of privilege: see per Lord Cross in Alfred Crompton Amusement Machines Ltd v Commissioner of Customs and Excise (No 2) [1974] AC 405, 433.
123. His Honour Justice Watts, in Feinster, conducted a thorough and erudite review of public interest decision (including Benson & Hughes above) and the following passages are illuminating:
Public interest immunity differs from privilege as it operates for the benefit of the public interest in general and does not protect private relationships or interests.
Australian courts have confirmed that the public interest immunity doctrine requires resolution of the tension between preventing the disclosure of material which may harm national or public interest and ensuring that justice is not frustrated in individual cases by the withholding of documents
124. Clearly, on that basis, public interest immunity would not and could not be attracted to the protection of otherwise confidential (or understood to be confidential) communications between a patient and a therapist or, as in this case, the child of the parties and a therapist (at least not in the absence of statutory exclusion as applies with ss.10D and 10E of the Family Law Act).
125. His Honour then turned to consider recognised categories of public interest immunity (referring to the matter of Sankey v Whitlam (1978) 142 CLR 1):
Sankey v Whitlam Gibbs ACJ at 39 affirmed that documents subject to a claim of public interest immunity may be divided into two categories, based on either the contents of an individual document or because they belong to a class of documents. A ‘contents’ claim is concerned about whether the release of particular information will be contrary to the public interest whilst a ‘class’ claim is premised on grounds that ‘vital organisations cannot operate if certain classes of communication are divulged, irrespective of the information contained in those communications’.[1] Importantly the balancing exercise must be performed for documents in both categories.
[1] A. Ligertwood, Australian Evidence (4th Ed), 2004, LexisNexis Butterworths, Sydney, at 385.
Claims for public interest immunity can also be broadly classified into those concerned with national security and those relating to some other national interest, though more recent decisions such as R v Young [1999] NSWCCA 166 suggest a preference to narrow claims to situations involving a governmental function. However it has also been said that the categories giving rise to public interest immunity are not closed and they may be extended by analogy with a known category of public interest exception: D v National Society for the Prevention of Cruelty to Children [1978] AC 171 (NSPCC) at 230.
126. His Honour also referred to and had reliance upon the decision of Royal Women’s Hospital v Medical Practitioners Board [2005] VSC 225 (Gillard J) wherein Justice Gillard held that “…the public interest in a proper investigation using all the evidence outweighed the public interest in the Hospital maintaining a confidential relationship with its patients”.
127. Justice Watts, within the specific context of the case before him, excluded material. However, His Honour was clear in stating:
the ordinary psychiatrist / patient relationship does not attract public interest immunity
128. Section 126B of the Evidence Act (NSW) provides for the exclusion of evidence of protected confidences and in the following terms:
(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:
(a) a protected confidence, or
(b) the contents of a document recording a protected confidence, or
(c) protected identity information.
(2) The court may give such a direction:
(a) on its own initiative, or
(b) on the application of the protected confider or confidant concerned (whether or not either is a party).
(3) The court must give such a direction if it is satisfied that:
(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and
(b) the nature and extent of the harm outweighs the desirability of the evidence being given.
(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:
(a) the probative value of the evidence in the proceeding,
(b) the importance of the evidence in the proceeding,
(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,
(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,
(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,
(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,
(g) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,
(h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person,
(i) the public interest in preserving the confidentiality of protected confidences,
(j) the public interest in preserving the confidentiality of protected identity information.
(5) The court must state its reasons for giving or refusing to give a direction under this section.
129. No analogous provision is contained within the Commonwealth Evidence Act (it being limited to legal professional privilege, journalist privilege, religious confession privilege and privilege from self-incrimination).
130. Section 126B of the NSW Evidence Act bares some passing resemblance to the Canadian authorities set out above (which in turn consider authorities from the House of Lords and United States Supreme Court) regarding what is generally referred to as a “public interest immunity”.
131. The concept of confidentiality in physician patient relationships is not new. In an excellent article “The Psychotherapist-Patient Privilege In The Family Court: An Exemplar Of Disharmony Between Social Policy Goals, Professional Ethics, And The Current State Of The Law”, by Deborah Paruch, published in Eliminating Unintended Bias National Association of Children’s Counsel Manual 2011, Ms Paruch discussed the development of such privilege and in the following terms:
Some two hundred years after the attorney-client privilege was first recognized in English common law, the English courts were called upon to address the physician-patient privilege in the 1776 bigamy trial of Elizabeth, the Duchess of Kingston.18 During her trial, the Duchess’s physician was called to the stand and asked whether the Duchess had told him of a prior marriage. The court refused to recognize a physician-patient privilege, stating:
If a surgeon was voluntarily to reveal these secrets, to be sure he would be guilty of a breach of honour, and of great indiscretion; but, to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatsoever
This decision is viewed as a critical turning point in the law of privilege because it was at this point that courts began to apply a utilitarian test to privileges, where the need for the evidence replaced ethics as the standard for recognition of privileges.
In the utilitarian approach, privileges are viewed as obstructions to the truth-finding process and as fostering a disregard for the fundamental principle that “the public . . . has a right to every man’s evidence.” Deane Wigmore identified four requirements necessary for the recognition of a privilege: (1) the communications must originate in a confidence that they will not be disclosed; (2) confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; (3) the relationship must be one that, in the opinion of the community, ought to be sedulously fostered; and (4) the injury to the relationship caused by the disclosure of the communications must be greater than the benefit gained for the correct disposal of litigation.22 The U.S. Supreme Court has adopted this approach to the recognition of privileges, stating that privileges should be utilized “‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth. (quoting Elkins v. United States, 364 U.S. 206, 234 (1960))
132. Each of the above Canadian authorities refers to and discusses and applies, within the Canadian experience, what are generally referred to as the “Wigmore criteria”. These, in turn, derive from a decision of the Superior Court of Canada in R v Gruenke (1991) CanLII 40. These principles are set out succinctly in paragraph 21 of the Superior Court of Justice decision in Duits in the following terms:
In a “case by case” privilege there is a prima facie assumption that the communications are not privileged and are therefore admissible. The four criteria are as follows:
a. The communications must originate in a confidence that they will not be disclosed...
b. The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
c. the relation must be one which in the opinion of the community ought to be sedulously fostered.
d. the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
133. In Duits the Superior Court also opined (paragraph 24):
The Supreme Court has effectively ruled that privilege should not be a bar to justice.
134. The above is given some meaning and explanation within the context of that decision by the Supreme Court of British Colombia’s decision in Mellish v Martinson. After repeating the Wigmore test (referred to above) and canvassing a number of authorities, Master Joyce also reflected upon the importance of a consideration of the relevance of evidence that would otherwise be admitted as an overriding consideration of the application of all other tests and criteria.
135. In R v SLR, Justice Gruchy considered an extensive list of authorities applying the same tests and circumstances in which same would arise (noting that such claims for privileges, consistent with Australian legislation in 1991, were not codified but remained part of the common law). This involved a consideration of the confidential relationship between:
a) a journalist and his source (AG v Mulholland; AG V Foster [1963] 2 QB 477; (1963) 1 All ER 767);
b) a doctor and patient (R v Pain 1 WLR 67);
c) a priest and penitent (Sykes v DPP [1962] AC 528; Cook v Carol (1945) 1 R 515);
d) probation officer and client (McTaggert v McTaggert [1948] P 94);
e) a clergyman and parishioner (Henly v Henly [1955] P 202);
f) marriage counsellor and parties (G v G [1964] 1 OR 361).
136. Their Honours also went on to consider the specific application of the Wigmore test in a number of other circumstances before turning to the House of Lords decision in D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589 and quoting the following:
The fact that information is being communicated by one person to another in person, however, is not of itself a sufficient ground for protecting from disclosure in a Court of law the nature of the information or the identity of the informant if either of these matters would assist the Court to ascertain facts which are relevant to an issue which it is adjudicating (Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioner (No 2)). The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant, a more important public interest is served by protecting the information or the identity of the informant from disclosure in a Court of law.
137. In R v JT, His Honour Senior Justice McCartney, again after an assessment and summation of the Wigmore principles, stated the following:
Thus in this particular case the critical question is found in the fourth part of the Wigmore test ie whether the interests served by protecting the documents from disclosure outweigh the interests of getting at the truth and disposing correctly of the litigation…The vital interest of society in protecting children from abuse must, in my view, be superior to the encouragement of patients to seek therapy from psychiatrists with the assurance that their confidential communications will be protected.
138. Whilst clearly there is no allegation of abuse raised in these proceedings (and thankfully so) there is some analogy to the circumstances described above. This is perhaps the crux of the matter in this circumstance.
139. In addition to the above I note and take some comfort from the comments of the Ontario Superior Court in R v RJS 45 CR (3rd) 161 which, again, considered the exclusion of evidence on the basis of public policy and which had considered the need to protect the children from abuses against the need to encourage confidentiality in family counselling. The Appeal Court, on that occasion, had stated:
However, in balancing benefit against injury the search for truth in the criminal process outweighs the need for family counselling at least in cases of suspected child abuse. The vital interests of society in protecting children from abuse must be superior to the encouragement of patients to seek therapy from psychiatrists with the assurance that their confidential communications will be protected…
141. In addition to the four elements of the Wigmore test to which I have had reference (which while non-binding I am satisfied are a useful checklist by which to address issues of public policy exclusion of evidence) I would add a fifth element being:
e. Whether there are other means by which the evidence can be obtained and made available which would be preferable to admission of evidence that the public interest might otherwise suggest the exclusion of.
142. In these proceedings (and I note that it is an issue specific to this determination and is not intended to suggest, in any fashion, that a like determination would be made with respect to other facts and circumstances in any other case) I am satisfied that the evidence cannot reasonably be obtained or obtained expeditiously by any other means or, to the extent that it could be obtained, that this would occasion unnecessary delay, cost and inconvenience which would obviate against those means being utilised when the alternate means (being to admit this evidence notwithstanding the public policy issues raised) is available.
143. I have had particular reference to the determinations of the High Court regarding the benefit to parties of the resolutions of disputes in a prompt and timely fashion (see for example Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 at 849; [1993] HCA 47; 116 ALR 625 at 636; Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 153, 168; cf Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296).
144. I have also had reference to both the principles for the conduct of child related proceedings set out in s.69ZN of the legislation and the general duties and powers relating to evidence as set out in s.69ZX(1). In addition I am conscious that I should have regard to s.69ZV dealing with the admissibility of representations made by children and the manner in which such evidence might come before the Court.
145. With respect to each of the above I note that some support would be lent by same to the admission of Ms H’s evidence as it is, again, the best available evidence to address matters of significance to the child’s welfare which welfare must, pursuant to s.60CA, be the paramount consideration.
146. The principles for the conduct of child-related proceedings as set out in s.69ZN provide as follows:
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In dealing with the additional considerations:
Views
It is clear that these young people desire to be able to travel at some point in their lives and they are entitled to do so. It is their basic right as human beings. Their views support the issue of a Passport.
Nature of the children’s relationship with each parent and other persons, including grandparents and other relatives
The relationships these young people have with their parents are problematic. Certainly there is no common ground as to the present relationship these young people enjoy with either parent. Each suggests that the other has interfered in that relationship. Each suggests that there are deficiencies in the other’s relationship.
These young people’s relationship with each parent will not be impacted negatively or further impacted by the issue of a Passport.
The extent to which each parent has taken or failed to take the opportunity to participate in decision making, spend time or communicate with the children
Neither has.
The extent to which each parent has fulfilled, or failed to fulfil, their obligation to maintain the children
The evidence in this regard suggests that each is highly critical of the other in relation to their attitude towards either obtaining assessments for or making payments of Child Support. The right to be maintained is another right of the child enshrined in the International Convention on the Rights of the Child and thus an object of the Family Law Act 1975. The parents are each providing such support as they are required to.
The likely effect of change, including separation from either parent or other persons
If there were a live and realistic proposal that these young people would depart the Commonwealth of Australia and not return such as to completely terminate any relationship between the father and them, then that would have real meaning and importance. However, there is no such evidence.
These young people are also of an age and strength of character and demeanour whereby any attempt to remove them, whether from their present area or the country, without their agreement would likely fail. These are strong willed young women, all the more so, no doubt, as a consequence of the cauldron of conflict in which they have lived most of their lives. It has helped to form, if nothing else, the strength of their character, albeit that it has also been highly deleterious for them. However, I am not satisfied the effect of change would assist this determination.
Practical difficulty and expense
I incorporate section 65DAA, subsection (5).
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents live remarkably close at least physically. In all other respects they live very different lives and in almost different worlds. The parents’ capacity to implement an arrangement is not germane to this determination. Their capacity to cooperate and communicate and resolve difficulties is highly strained. A number of interventions have been attempted, all without success. Indeed, as time has gone on, matters have simply gotten worse.
That is perhaps to be expected as the parents have used litigation as their preferred dispute resolution mechanism when they have been unable to agree with each other.
Litigation is a most blunt instrument which causes and wreaks significant damage in trying to achieve an outcome. That damage is not deliberate but it is inevitable, impacting upon and eroding parental communication, entrenching poor communication skills and destroying any semblance of parental alliance and cooperation.
At this point the parents simply cannot agree. The impact of the Order sought on these young people would, I am satisfied, be beneficial. These young people have a right to travel should they have the opportunity to do so. It would strengthen the depth and meaning of their relationship with whichever parent they were able to travel and, in all probability, with each other. They have, after all, been the rock for each other throughout this period of time.
Practical difficulty and expense would support the mother’s position.
Capacity of each parent and other persons to provide for the children including their emotional and intellectual needs
I am not satisfied that this factor could have any great bearing.
Maturity, sex, lifestyle and background of the children
These young women are aged 15 and nearly 14. In a little under three years’ time X will be completely without the Court’s jurisdiction, and in only some 12 to 14 months thereafter so too will Y. The time period before these young people become adults, for all legal intents and purposes, is rapidly approaching.
What is perhaps regrettable for these parents, let alone these young people, is that so much of their childhood and the joy of experiencing it and it being the safe, secure and nurturing place that in modern society we expect it to be, has been lost.
These young women have a right as human beings to possess all of the accoutrement of citizenship, including a Passport. They have a right to travel. They have a right to depart from and return to the Commonwealth of Australia.
The maturity of these young persons and the background of conflict that they have endured for so many years and which will last with them until their grave is such, I am satisfied, as to almost irresistibly support the mother’s position.
These young people have rights which have been trampled upon for so long that this is one right which perhaps can be preserved and addressed.
Aboriginality
Neither parent is from an Aboriginal or Torres Strait Islander background, thus nor are the children.
The attitude to the children, and the responsibilities of parenthood, demonstrated by each of the parents
I am satisfied this is addressed above.
Family violence
Issues of family violence are raised. I do not propose to deal with them further. That is not to suggest that they are unimportant. It is, perhaps, the most important consideration the Court can ever engage with. However, it does not assist in the determination I must make on this occasion.
Family violence orders
There presently are none. There have been Orders in the past.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
I am satisfied that Ms Duffy’s case is made out to warrant an Order that these young people be able to obtain Passports.
There are two means by which the Application that is made by Ms Duffy can be addressed. The first option is to make an Order compelling each parent to sign documents. That would inevitably lead to further proceedings in the event that a document were not signed, or not signed expeditiously, as there is no other means of procuring the Passport other than through the signature of each parent with parental responsibility. The other means is to allocate to Ms Duffy parental responsibility for obtaining and holding the Passports until they reach their majority.
I am satisfied that whilst an Order for sole parental responsibility as regards the issue of Passports is not a specific Order that is sought by Ms Duffy, and it is, to some extent and on its face at odds with the section 61C Order that the parents have consented to, the preferable course. It will avoid future proceedings as the only signature that will be required to obtain the Passport is that of Ms Duffy. Further, the effect of the section 61C Order – particularly with respect to Y who has been clear in her views as to what an Order for time as agreed will mean for her in the foreseeable future i.e., no time at all – is that these young people will be in the sole care of Ms Duffy, and accordingly the section 61C Order will, for all intents and purposes whilst they are in her care, vest her with sole parental responsibility.
Accordingly, I am satisfied that this is the Order that is the Order that should be made (see Orders 3-5).
Costs
At the conclusion of the proceedings an Application for Costs is made by the Independent Children’s Lawyer seeking equal contribution by the parties towards costs incurred in the representation of the children’s best interests in the total sum of $9,574.86. That would equate to a payment by each party of $4,787.43.
In dealing with the Application I must address section 117 of the Family Law Act 1975.
Subsection (1) creates what is often referred to as the “general rule” being that each party shall bear his or her own costs.
The Independent Children’s Lawyer is not a party (see, for example, Bennet & Bennett (1991) FLC 92-191). Thus, the general rule does not bind them. However, the normal common law rule that costs follow the cause is also not apposite to the proceedings. It is not revived. Section 117 of the Act provides the total jurisdiction for the award of costs in proceedings under the Act. In any event, it would be difficult to ascertain what cause was advanced by the Independent Children’s Lawyer other than the children’s best interests, which, as a consequence of the paramountcy principle in section 60CA of the Act, would always, one would hope, be met.
Subsection (2) reserves a general discretion to the Court to make an Order for costs provided that the dual tests (see JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812) are met, being a justifying circumstance found established and the Court being satisfied that it is just and equitable to do so.
Lest there be any controversy as to the standing of the Independent Children’s Lawyer to make and prosecute such an Application it is addressed by subsection (3).
Subsection (5) precludes the Court from having any regard to the funding arrangements for the Legal Aid Commission seized with responsibility for appointing Independent Children’s Lawyers.
Subsection (4A) is not relevant in dealing with Applications for Costs involving welfare agencies.
Subsection (4) has some significance to this Application in that the Court is precluded from making an Order for costs in favour of an Independent Children’s Lawyer as against a party if either:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the Independent Children’s Lawyer.
If either of the above circumstances are found to subsist then “The court must then not make an order”. The subsection is framed in mandatory terms.
I propose to consider each of the factors in subsection (2A) being a prescriptive but non-exhaustive list of considerations.
Financial circumstances of each of the parties
Neither party is in paid employment at present. Neither is a person of any significant financial wealth. That is not a criticism. Their efforts have been engaged in parenting these young people and, regrettably, in engaging in active conflict and litigation with each other for some little time.
The financial circumstances of the parties, if costs were being sought inter-parties, would certainly preclude any realistic consideration of an Order for Costs, save on the basis of the most abhorrent behaviour. An Order would be financially crippling for each parent.
Whether any party is in receipt of legal aid
Neither is.
The conduct of the parties
The parties have conducted their litigation as expeditiously as they have been permitted to do within the confines of limited resources of the Court and the difficulties that arose on the last occasion with information which had not been commissioned or obtained.
The conduct of the parties would not support an Order for Costs. Whilst certainly the matter has resolved at a late stage – day three of the trial – the settlement is something to be congratulated rather than something to castigate the parties about.
The issues between these parents are profound, deep and long-lasting. Accordingly, the conduct of the matter, regrettably, has been necessary to enable each to feel that their position has been put.
Whether the proceedings were necessitated by the failure to comply with the previous order
That is certainly an allegation raised by Mr Gomes of Ms Duffy, suggesting that she has failed to comply with existing Orders. However, no findings have been made in that regard and at all times since the first return date Ms Duffy has agitated a defence of reasonable excuse to any such Application as might have been brought before the Court. Ms Duffy has taken prompt action to ensure that she has made Applications directed to vary the Order that she felt no longer represented the children’s needs and interests.
Clearly, the children’s voice, heard loudly and clearly by both parents and the Court, suggests that the Orders were, if not at the time the proceedings commenced certainly at the present, no longer appropriate.
Whether any party has been wholly unsuccessful
Sadly, both parties have been wholly unsuccessful, and more importantly, these young people have been wholly unsuccessful. These young people have been unsuccessful in enjoying their childhood as a place of safety and innocence. The parents have been unsuccessful in maintaining or developing any parental cooperation or alliance.
Leaving aside such esoteric interpretations of the section, as regards the conclusion of the proceedings and that which the parties and each of them have sought, neither could be appropriately described in the proceedings as “unsuccessful”.
Whether an offer in writing has been made
There is no evidence.
Justifying circumstance & justice and equity
As regards a justifying circumstance I would have some difficulty in finding one. Certainly significant cost has been incurred by the Legal Aid Commission but that is one of the very factors I must not consider (and the source of funding for the Commission I must disregard).
The provision of representation of children’s interests is a matter of great concern to the Court. Such representation is of such concern that unusual steps that have been taken in this matter, including an adjournment of the Court’s own motion and on a part-heard basis, notwithstanding the difficulties this has created for the management of the Court’s business this week. However, I am not satisfied that a justifying circumstance would arise purely from that.
In relation to justice and equity, I am conscious that each parent has, as it were, given as good as they got as regards their participation in parental discord and conflict.
It would not be just or equitable to impose a burden upon these parents on the basis that they have been unable to resolve their dispute at an earlier time.
Financial hardship
Fundamentally, I am satisfied that the parties and each of them would suffer severe financial hardship if required to bear a portion of the costs of the Independent Children’s Lawyer. Mr Gomes is not in paid employment. No doubt his commitments to these proceedings, at least over the last 12 months or so, would have rendered it difficult, if not impossible, for him to maintain employment leaving aside any other impediment.
Ms Duffy is not employed. She has the full-time care of these two young women who occupy significant amounts of her time, including in obtaining and assisting them engage with various therapeutic interventions, which are now rendered necessary by the last 8 years of conflict and litigation between the parents.
I am satisfied further that the financial hardship that Ms Duffy would suffer would be passed on almost directly to these young women, who would similarly feel disadvantaged through any resources of Ms Duffy’s household then being applied to meeting an Order for Costs instead of their upkeep.
In those circumstances, and whilst the Application is entirely appropriate, I am not satisfied that:
a)A justifying circumstance is made out;
b)Even if a justifying circumstance were found that it would be just and equitable; or
c)I could proceed to make an Order even if a justifying circumstance or justice and equity were established as it would create such financial hardship for the parties and each of them as to preclude the Court’s exercise of discretion.
I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 25 June 2015
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