Duong and Keeley

[2020] FCCA 2574

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUONG & KEELEY [2020] FCCA 2574

Catchwords:
FAMILY LAW – Parenting – concerning two children aged six and four – application by father for gradual increase in children’s time spent with him – mother opposes the children spending any time with the father – where allegation regarding the father’s psychiatric health – where the parties indicate the matter may take longer than four days – transfer to Family Court.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR DUONG

Respondent: MS KEELEY

File Number: ADC 834 of 2019

Judgment of: Judge Young

Hearing date: 27 August 2020

Date of Last Submission: 27 August 2020

Delivered at: Darwin

Delivered on: 27 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Ross

Solicitors for the Applicant: Belperio Clark Lawyers

Counsel for the Respondent: Mr Bowler

Solicitors for the Respondent: SE Lawyers

ORDERS

UPON NOTING

A.That counsel advised the court that this matter is likely to take more than four days at trial

THE COURT ORDERS:

1. That these proceedings be transferred to the Family Court of Australia, Adelaide Registry to be listed on a date to be advised to the parties by that Court.

IT IS NOTED that publication of this judgment under the pseudonym Duong & Keeley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 834 of 2019

MR DUONG

Applicant

And

MS KEELEY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case concerning two children aged six and four.  The father’s proposal, at least in the interim, is for a gradual increase in the children’s time with him, building up to overnight time over the course of a year.  The mother’s position is that she opposes the children spending any time with the father.  She does so on the basis of some concern held by her, I think arising particularly from psychiatric evidence.  There is some evidence from a Dr B, a psychiatrist who is presently counselling the children, but has at other times been consulted by the father. 

3. In a report from Dr B he raised some concerns, I think, about the father’s childhood experiences.  There is an allegation that the father had bitten one of the children.  So this case will depend very significantly on, I suspect, findings about the father’s psychiatric health and the long-term safety of the children.  That is certainly how the mother frames the case.  The father frames the case differently and says that having regard to other psychiatric evidence, particularly from Dr C, a psychiatrist he has consulted, there is no risk of harm, or certainly, no unacceptable risk of harm to the children. 

4. I have asked counsel to give me a list of their witnesses they expect to be called.  From the mother, she will give evidence herself, she will call the psychiatrist Dr B who has counselled the children and is counselling the children and who has been consulted by the father.  It is proposed, according to Mr Bowler, to deliver summons to the children’s contact centre in relation to the notes of six supervised sessions that have taken place.  Whether or not there would be one or more witnesses or, indeed, any witnesses from the contact service, is probably a matter that is not yet clear.

5. From the father’s point of view, there will be evidence from him, evidence from his treating psychiatrist Dr C and also a treating psychologist Ms D.  Ms Ross, for the father, did not mention any other expert witnesses.  It appears to me this is a case where a family report would also be very important and probably a consideration and consideration would have to be given to the appointment of an ICL, but that is not likely to extend the length of trial. 

6. Both parties agreed that the matter was likely to take more than four days, or rather, Mr Bowler said it was likely to take more than four days.  Ms Ross said it may very well take more than four days.  In my view, the matter is likely to take more than four days and having regard to the protocol between this Court and the Family Court I propose to transfer the matter to the Family Court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 11 September 2020