Farley & Duke (No 2)
[2024] FedCFamC1F 765
•5 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Farley & Duke (No 2) [2024] FedCFamC1F 765
File number(s): PAC 6596 of 2020 Judgment of: HOGAN J Date of judgment: 5 November 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to adduce further evidence – Where the respondent sought to adduce evidence about a programme to reintroduce the child to the father if the Court concludes that this is in her best interests – Where the applicant opposed the Application – Where leave is granted to the respondent to adduce the evidence sought Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: First Instance Number of paragraphs: 12 Date of hearing: 5 November 2024 Place: Brisbane Solicitor for the Applicant: Mr Hamka, King & York Lawyers Counsel for the Respondent: Ms Smith of Counsel Solicitor for the Respondent: Mitchell Playford & Radburn (Now Trading as MPR Solicitors Pty Ltd) The Independent Children's Lawyer: Ms Berck, Berck Solicitors ORDERS
PAC 6596 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FARLEY
Applicant
AND: MR DUKE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
5 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The father has leave to adduce evidence from Ms E, F Family Services, at the final hearing of this matter.
2.By no later than noon on 6 November 2024: the father file and serve an affidavit by Ms E, F Family Services.
AND IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:
3.Pursuant to s 102PH(1) of the Family Law Act 1975 (Cth) the details of the addressee of the subpoena filed by the Independent Children’s Lawyer directed to the child’s school are suppressed.
AND IT IS ORDERED THAT:
4.For the purpose of the proceedings, service of the subpoena issued by the Independent Children’s Lawyer referred to in Order 3 above shall be effected by email and the Rules which otherwise relate to the manner by which service is to be effected are otherwise dispensed with.
5.The oral application made on behalf of the parties today for a suppression order of the details of the subpoena directed to the child’s school is adjourned to the first morning of the final hearing commencing on 25 November 2024.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Farley & Duke has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
I have today an application[1] brought on behalf of the father for leave to adduce evidence from Ms E, F Family Services in relation to, as I appreciate it at least, a program or process that she can offer in circumstances where orders are made for children who have not spent time with a parent for a not insignificant period of time and it is thought, in those children's best interests, that they resume spending time with that parent.
[1] Application in a Proceeding filed 28 October 2024 (sealed 30 October 2024).
This proceeding was previously listed for trial before me last year. On the first day of the trial, as has been submitted by Mr Hamka (who appears on behalf of the mother), the parties reached agreement as to some interim orders to be made; that was on 7 August of last year. Those interim orders involved the parties engaging with Dr G, a clinical psychologist, for the purpose of her attempting to facilitate what is termed "reunification therapy" between the child and the father.
Dr G has prepared a report as a consequence of her engagement with both parents and X.[2] Included within that report is a reference to the program offered by Ms E.
[2] Affidavit of Dr G sealed 3 July 2024, report dated 27 May 2024.
The submissions made by Ms Smith, who appears for the father, in essence, were that, absent the grant of leave to enable the father to adduce evidence from Ms E, the Court would not be in a position to assess – depending on the findings made, I emphasise – whether such a program is something that could be embarked upon in this particular case. Ms Smith submitted, in essence, as an overall submission, that I would be persuaded that it is necessary in the interests of justice to permit the father to adduce the evidence.
In opposing the application, Mr Hamka for the mother made, I think, all of the submissions that could reasonably be made in opposition to it. He emphasised the lateness of the application (noting that Dr G's report was released in about June of this year) and that the trial is listed to commence before me in the week commencing 25 November – so only about two and a bit weeks from now. He also made submissions, in essence, to the effect that it would have been preferable for the parties to embark upon a process of engaging Ms E as a single expert witness and noted that there are some concerns on the part of his client in relation to whether there has been compliance with the Rules and no doubt other matters that, perhaps, would be the subject of further submission should I be persuaded to grant the leave sought on behalf of the father.
I note Ms Smith's submission that the father has obtained a copy of a report from Ms E already and that an unsealed version of that has been provided to the mother's solicitors and to the Independent Children's Lawyer.
The Independent Children's Lawyer's position is that she does not object to the father's application; her brief submissions in that context were, in essence, that having the evidence from Ms E would enable the Court to determine (if various findings, I infer, are made prior to that) whether such a program would be something that would be regarded, in this case, as being in X's best interests.
Having regard to:
(a)the submissions made this morning; and
(b)the content of Dr G's report and her reference to Ms E offering a program; and
(c)the history of this proceeding; and
(d)Dr G's recounting of each parent's recitation to her of what has happened since the interim orders were made by consent in August of last year; and
(e)the content of the parties' affidavits prepared in compliance, generally, with the orders made to facilitate this matter being listed for its second trial commencing in November[3];
I am persuaded that the interests of justice are such as to persuade of the grant of leave to the father to adduce evidence from Ms E.
[3] Given that I have had the opportunity to peruse those for the purpose of this application this morning.
I note also, in particular, the submission (which I accept) that the parties have been provided with a copy of her report already. She will no doubt be made available to be cross-examined; the concerns to which Mr Hamka adverted in making submissions in opposition to the application will, no doubt, be the subject of her cross-examination and/or, perhaps, also the father when he is made available for cross-examination.
I consider that Ms E's evidence is likely, given the reference by Dr G to the existence of the program, to be such as to provide the Court with information about what that program is and what it entails and to enable me to consider, in the context of considering all of the evidence that I will have before me, those orders which are in X's best interests.
I am not persuaded that the fact that Ms E has not engaged with X means that her report would not provide relevant evidence.
For those short reasons delivered orally this morning, I intend to accede to the application.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 12 November 2024
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