Gin and Hing

[2014] FamCA 41

FAMILY COURT OF AUSTRALIA

GIN & HING [2014] FamCA 41

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Gin

RESPONDENT: Ms Hing

INDEPENDENT CHILDREN’S LAWYER: Sue Macgregor

FILE NUMBER: MLC 4528 of 2010

DATE DELIVERED: 5 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John SC with Ms Rivers

SOLICITOR FOR THE APPLICANT: Tollhurst Druce & Emmerson

COUNSEL FOR THE RESPONDENT: Mr Dixon SC with Ms Paterson

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

Orders

1. That all extant applications be adjourned for mention before Johns J at 9.30am on 11 July 2014.

2. Certify for counsel including Senior Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4528 of 2010

Mr Gin

Applicant

And

Ms Hing

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This matter was listed before me as the first day of a final hearing of the parties’ competing parenting applications in relation to the child R born in March 2010 (“the child”). 

2. The child is the only child of the applicant husband, Mr Gin born in 1980 (now aged 33 years) and the respondent wife, Ms Hing born in 1982 (now aged 31 years). 

3. The parties commenced their relationship in or about February 2009 and married in October 2009.  Separation occurred in April 2010, when the child was aged approximately six weeks.

4. The proceedings have a long history in this Court.  The husband’s first Initiating Application was filed in May 2010.  That application was finalised by orders made by consent by Justice Cronin on 27 July 2012.  In summary, those orders provided that the child live with the wife and that she spend time with the husband for gradually increasing periods, culminating in one night per week and each Tuesday.  Further, those orders provided at paragraph 7 as follows:

   That the parties continue to attend parental counselling (with Ms [C]) in accordance with [Ms N’s] recommendations for monitoring the parenting plan with a view of increasing the husband’s time with the child.

5. Within months of those orders being made, issues arose between the parties.  The husband alleges that the wife was engaging in conduct designed to alienate him from the child.  The wife alleges that the husband was denigrating her and her family and undermining her parenting role. 

6. In or about April 2013 the wife, through her lawyers, informed the husband she wished to live with the child in China for a period of 12 months, commencing in 2014. 

7. The husband commenced these proceedings in June 2013 seeking orders that the child live with him.  The wife responded, seeking orders that she be permitted to relocate to China with the child for a period of 12 months. 

8. Subsequently in or about October 2013, the wife amended her position and abandoned her application to relocate.  She now seeks orders that the child live with her and spend time with the husband for five nights per fortnight.  The husband’s application for final orders seeks that the child live with him and that she spend five nights per fortnight with the wife. 

9. In anticipation of the hearing, the parties attended upon the single expert, Ms N, psychologist.  Ms N has prepared two reports in relation to these parties, the first in September 2010 (which was in relation to the first set of proceedings before the Court) and the second, dated 23 September 2013, which is annexed to her affidavit affirmed 25 September 2013, filed in anticipation of this final hearing (“the Second Report”).

10. At the time the Second Report was prepared, the wife’s application to relocate to China was on foot.  Hence much of the discussion in the Second Report focussed on that issue. 

11. At the commencement of the hearing, counsel for the Independent Children’s Lawyer indicated that her instructor had had some discussion with Ms N in relation to the wife’s amended position.  Quite properly, having regard to the Family Law Rules with respect to communicating with single experts, neither the husband nor the wife’s legal representatives had had any communication with Ms N regarding those matters.

12. At the commencement of the hearing, each of the parties sought the opportunity to have a telephone conference with Ms N to ascertain her views in light of the wife’s amended position.  Accordingly, I stood the matter down to enable those discussions to occur. 

13. At the conclusion of the telephone conference with Ms N, counsel for the Independent Children’s Lawyer made an oral application to adjourn the final hearing.  She submitted that based on the recommendations of Ms N, the Independent Children’s Lawyer had revised her proposed orders.  Based on the recommendations of Ms N as communicated to the legal practitioners during the telephone conference, the Independent Children’s Lawyer sought orders that:-

    1.   The final hearing be adjourned to a date in October 2014.

    2.   That forthwith the child commence spending time with the husband for five nights per fortnight.

    3.   The parties continue to participate in parental counselling with Ms C.

    4.   That Ms N reassess the parties prior to the adjourned hearing.

14. Counsel for the Independent Children’s Lawyer submitted that such an adjournment was necessary in order to provide the child with an opportunity to spend substantial and significant time with the husband and to enable a reassessment of the child after an appropriate period of time had elapsed. Further, counsel for the Independent Children’s Lawyer indicated that it was Ms N’s recommendation that there be some opportunity for the child to spend significant and substantial time with the husband before the Court considers any application to change the child’s current living arrangements.  Finally, counsel for the Independent Children’s Lawyer submitted that it was appropriate that the parties should continue their counselling with Ms C and be provided with an opportunity to resolve the dispute in that setting before embarking on a contested hearing.  In support of that submission she relied upon the history of this matter which indicates that during the previous proceedings and since, the parties have successfully engaged with Ms C to resolve parenting issues. 

15. The application for an adjournment was supported by the husband provided that the parties continue to engage with Ms C for counselling and assistance.

16. The wife opposed the Independent Children’s Lawyer’s application.  In support of her position, it was submitted that these proceedings have been on foot since 2010 and consequently it is in the child’s best interests that the parties achieve finality.  Senior counsel for the wife also pointed to the significant costs incurred by each of the parties in preparing this matter for final hearing. 

17. It is regrettable that this application has been made on the first day of the hearing.  Given the parties’ stated positions as at December 2013 when the matter was last before me, these issues were well known to all parties at that time.  Ideally, the joint conference with the single expert (or a supplementary report from her) should have occurred or been obtained well prior to the first day of the hearing so that her position and any recommendations were known to all parties.  Had that occurred no doubt substantial costs could have been saved.   

18. The relevant principles in relation to parenting and interim proceedings are well settled by the Full Court in the decision of Goode and Goode (2006) FLC 93-286.

19. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I regard the best interests of the child as the paramount consideration.

20. Section 60CC of the Act outlines the primary and additional considerations that I must take into account in determining the child’s best interests.

21. Whilst there is much force in the submission of senior counsel for the wife in relation to the need for finality of the proceedings for the child, I am satisfied that having regard to the nature of the issues in this case that it is appropriate to adjourn the hearing.  In accordance with Ms N’s recommendations (as communicated by counsel for the Independent Children’s Lawyer) such an adjournment will provide the child with the opportunity of spending significant and substantial time with the husband on an interim basis and in a setting where there can be an evaluation of her response to that increased time.  It will also provide an opportunity to further assess the husband’s allegations of parental alienation.  Such evidence is likely to greatly assist a determination of the child’s future living arrangements.  I am satisfied that the provision of such evidence is likely to ensure that any future final orders made are least likely to lead to the institution of further proceedings.

22. The allegations raised by the husband are serious.  He alleges ongoing and unrelenting conduct by the wife and members of her family which seeks to alienate the child from the husband.  The wife denies those allegations.  Notwithstanding those denials, there are features of her presentation, as reported by Ms N in the Second Report, which are concerning.  For example, at page 12 of that report Ms N notes that the wife:-

    appears to hold very strong beliefs that [the child’s] experiences with her father are negative ones.  [The wife] impressed as oblivious as to how such beliefs might impact on her daughter and how her attitudes and behaviour are likely to contribute to the hostile dynamic in the parent relationship. 

23. Further, at page 13 of the Second Report Ms N observes that:

    It was my strong impression that [the wife] would like nothing better than to remove [the husband] from her life and that she has little appreciation of the importance of [the child’s] relationship with her father.

24. As I am making a determination on an interim basis, where the evidence is untested, I am not in a position to make a finding as to the allegations made by the husband. 

25. Nonetheless in light of the concerns identified by Ms N in the Second Report and the recommendations communicated by her to the Independent Children’s Lawyer this day, I am satisfied that it is in the child’s best interests to adjourn the matter to enable the child to spend significant and substantial time with the husband and to facilitate a further assessment of the child after an appropriate period of time has elapsed.  Such an adjournment will also provide the parties with a further opportunity to engage in the parental counselling process with Ms C. 

26. I otherwise note that in addition to the orders I will make regarding the adjournment, the parties are seeking orders by consent in relation to interim parenting arrangements pending the adjourned hearing. 

27. Accordingly, I will make orders in the following terms:

    1.   That all extant applications be adjourned for mention before Johns J at 9.30am on 11 July 2014.

    2.   Certify for counsel including senior counsel.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 5 February 2014.

Associate: 

Date:  5 February 2014