Harshani & Darnith (No 2)
[2022] FedCFamC1F 590
Federal Circuit and Family Court of Australia
(DIVISION 1)
Harshani & Darnith (No 2) [2022] FedCFamC1F 590
File number(s): MLC 1556 of 2010 Judgment of: SMITH J Date of judgment: 18 August 2022 Catchwords: FAMILY LAW – PARENTING – application for review – dismiss application – of Court’s own motion appoint ICL. Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 22 July 2022 Place: Newcastle by Microsoft Teams Solicitor for the Applicant: The Applicant was Self-Represented Solicitor for the Respondent: The Respondent was Self-Represented ORDERS
MLC 1556 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HARSHANI
Applicant
AND: MS DARNITH
Respondent
order made by:
SMITH J
DATE OF ORDER:
18 August 2022
THE COURT ORDERS THAT:
1.Dismiss the Application for Review filed 19 April 2022.
2.Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the Child X born 2008.
3.The Legal Aid Commission of Victoria is requested to make arrangements as soon as possible for appropriate representation for the child.
4.The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of Victoria of this order forthwith.
5.Each party make available to the Legal Aid Commission of Victoria forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
6.The parties facilitate the attendance upon the representative of the child at times and dates requested by that representative.
7.Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they deem necessary.
8.Leave is granted to any Independent Children’s Lawyer appearing in these proceedings to photocopy subpoena documents on the basis of the usual undertaking.
9.Liberty is granted to the Independent Children’s Lawyer to approach the Court in Chambers relist the matter on short notice if the Independent Children’s Lawyer considers it necessary.
AND THE COURT NOTES THAT:
A.Where a party is granted leave to review or photocopy subpoena documents the exercise of that leave is conditional on their giving the usual undertaking. The usual undertaking includes an undertaking to the Court to keep confidential and to not disclose to other person (other than a legal practitioner retained in the proceedings) any of the information or knowledge acquired by reason of the review of the subpoenaed material. It also includes an undertaking not to show or distribute or publish any document or party of any document copied from the subpoenaed material. Any person who inspects or photocopy documents is taken to have given the usual undertaking without having to sign any further document. A person who breaches the undertaking has committed a serious contempt of Court punishable by imprisonment.
B.The provisions of s 121 of the Family Law Act “Restriction on publication of court proceedings” also applies to information obtained on subpoena. A person who publishes such information commits a criminal offence punishable by imprisonment for a period of up to 1 year.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Harshani & Darnith is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Smith J
This Application for Review brought by the Applicant father, who is self-represented, came on before me for Hearing on 22 July 2022. The Respondent mother, who is also self-represented, appeared with the assistance of an interpreter.
The matter has a long history which, fortunately given the manner in which the hearing was conducted, it is not necessary to traverse to deal with the Application for Review.
The father provided a Court book of 63 pages, which was marked for identification 1 [MFI 1] and which contained the materials relied upon in the hearing.
The mother provided a Court book of 180 pages, which was marked for identification 2 [MFI 2] and which contained the materials relied upon in the hearing.
The entire MFI’s were not admitted, and only the material referred to and permitted to be relied upon was admitted or read in the hearing.
Fortunately, as the matter largely resolved by consent or concession, the majority of the material was not required to be dealt with.
The father relied upon his written submissions [MFI 1 at pg 3]. He provided for the Court’s assistance copies of certain orders made in the proceedings, and in particular a copy of the Final Order of 25 July 2016 [MFI 1 at pg 22] which ordered in respect of the child the subject of the proceedings, Child X born 2008 (now 13), that the child should live with the mother, with the mother having sole parental responsibility, and spending time with the father at certain times. Order 11 of those orders stated [1.26.11]:
11. Each of the father and mother be and are hereby restrained from instituting any further proceedings without first having filed an application in a case (such application not be served upon the other party) seeking leave to institute proceedings together with an affidavit setting out:
(a) the occasions on which the applicant has previously sought leave; and
(b) disclosing all relevant facts about the application whether supporting or adverse to the application which are known to the applicant.
The father also provided [MFI 1 at pg 29] a copy of the orders of 10 September 2019 making a variation to the changeover location, and the orders of 27 January 2022 [MF1 1 at pg 31] permitting him to file his Application in a Proceeding filed 30 December 2021 pursuant to order 11 of the Final Orders, and ordering a Child Impact Report.
Relevant to this Review is the opinion produced by the Court Child Expert
The father also relied upon his Amended Application in a Proceeding, on which he moves, filed on 10 February 2022, the orders of the Senior Judicial Registrar of 8 April 2022, and his Application for Review filed 19 April 2022.
The mother relied upon her written submissions [MFI 2 at page 3]. She opposed the Application for Review. Her position is summarised in the opening to her written submissions where she said 2.3:
1. I strongly object to the Applicant’s review application and the affidavit filed on 19 April 2022 and request from the Honourable Court to dismiss the Applicant father’s review application.
The mother confirmed in oral that submissions she maintained this position. She said she supported the Senior Judicial Registrar’s orders as they were based on the Child Impact Report.
Child Impact Report
Pursuant to the orders of 27 January 2022 the parties attended on a Court Child Expert (Court Child Expert) (the expert) for the purposes of a Child Impact Report (Child Impact Report) which was dated 7 April 2022 and which was before the Senior Judicial Registrar.
The Child Court Expert (‘the expert’) noted that the matter had [5] “been in and out of the Court since 2010”. The relationship as described is one of long term high conflict. Each party alleges family violence against the other. The father alleges, in effect, that the mother has alienated the child from and turned the child against him.
The expert interviewed the parents remotely and the child in person. At the time of the interviews the child was spending time with the father each week on Friday from after school until 6.30pm.
The matter has been complicated by the fact that the father [6] had travelled to Country B in March 2020, but he says due to COVID-19 was there until April 2021.
The child told the expert that he [8] “sees his mother as good emotional support and that he valued her efforts to support his academic progress and provide for him financially” and that [9] “In contrast, Child X held the view that his father has not prioritised him for many years and played a limited role in his education and extracurricular activities prior to him residing in Country B” and [13] “advised in a matter of fact way that he has never had a close relationship with his father.”
The expert said of the child, amongst other things, that:
[15]. [Child X] is 13 years old and navigating the complexity of parental disputes, prolonged court proceedings, transitioning to secondary school, physical changes during puberty, increased academic expectations and changing social experiences. [Child X] is of an age where he is developing increased independence and placing value on social networks, over family. He is forming his self-identity with increased logic and reasoning skills. It is not uncommon for children to experience resist and refuse behaviours at his developmental stage, especially in high conflict parenting dynamics. It is expected for [Child X] at his age, to question the adults around him and form his own views. This is likely not to be well received from his father. [Child X] is seeking to be heard and have some level of control over his parenting arrangements. His resistance to entering his father’s home at this time appears to be his only source of control over his situation. He requires his resistance to be met with supporting and nurturing responses by his father and stepmother, which according to his narrative does not appear to be provided to him.
The expert considered the parental dynamic and said that [25]:
25. Unless substantial changes occur, this parenting dynamic is likely to continue to place pressure on [Child X’s] emotional wellbeing. At this time, [Child X] appears to be progressing well academically and socially. Prolonged litigation and involvement in parental disputes is likely to pose serious threat to his opportunity to maintain a sense of security and opportunity to thrive in his developmental trajectory.
Under the heading “Key considerations and opportunities for resolution” the expert said at [26]-[31]:
26. Given the disputed facts in this matter, it is unlikely that the parents will find resolution within a DRC-P. Both parents alleged that the other is attempting to influence [Child X] via denigrating of the other and discussing the parenting matters. The Court may benefit from making findings with regard this, including the contravention allegations.
27. Regardless of which parents account is accepted by the Court, the lived experience for [Child X] is of substantial burden, due to awareness of parenting matters and concern that he will be taken from his mother, who he views as a supportive primary carer. [Child X] presented as reluctantly compliant with spend time with his father, in fear that there will be consequences for her mother if he does not. [Child X] having the opportunity to re-establish and heal the relationship with his father is likely to have many benefits long-term. Yet, based on [Child X’s] compelling narrative, the relationship with his father will likely need to improve substantially before [Child X] sees benefit in spending time with him.
28. It is unclear as to whether [Mr Harshani] will accept [Child X’s] lived experience and views. Writer holds concern that ongoing spend time under these conditions will be further detrimental to [Child X’s] emotional well-being. [Child X] requires his parents to shield him from their disputes and provide him with the opportunity to place his focus on his academic progress and social networks, which is important to [Child X].
29. [Mr Harshani] proposes that [Child X] reside with him, yet given [Child X’s] narrative this is unlikely to promote his emotional wellbeing and will likely be destabilising for him at a confusing time in his development. Any changes in [Child X’s] routines with regard residential parent, friendship group, school and extra-curricular activities, against his wishes is likely to impact on his emotional wellbeing, social development and academic progress. Further to this, given [Mr Harshani’s] strong negative views of [Ms Darnith] expressed at interview, it is unclear as to whether [Child X] would be supported to maintain a relationship with his mother if residing with his father.
30. If current spend time arrangements continue, it is likely that [Child X] will benefit most from one on one time with his father in a community setting. In this instance [Child X] will benefit from his father maintaining child focussed interactions and conversations.
31. It is likely that professional therapeutic support is the most appropriate pathway to seek to heal the relationship [Child X’s] relationship with his father, yet unclear if [Mr Harshani] or [Child X] will proactively engage with a therapeutic process.
Although untested, given the hostility between the parties and the inability to make any findings of fact on the numerous disputed issues on an interim basis, I am satisfied that the Child Impact Report is the most reliable evidence before me of the present circumstances and views of the child. I give significant weight to the opinion of the Court Child Expert expressed in the report.
Applications and orders
The Amended Application filed 10 February 2022 seeks 1.37 orders 3, 5, 6, 7, 8, 9 as follows:
3. The respondent mother, her servants and/or her agents forthwith return the child, [CHILD X] into fathers care for spending time with the applicant father pursuant to order 4 to 7 of the final orders dated 25 July 2016 (as amended on 10th September 2019) (Hereinafter "Final Orders").
5. The final orders dated 25 July 2016 (as amended on 10th September 2019) be enforced at the date of these orders.
6. Make-up time be ordered for the applicant father to spend time with [CHILD X] for all the lost time since March 2020 to the date of these orders.
7. Order 11 of the Final Orders be varied, and the applicant father be excused from seeking leave from the court to initiate proceeding against the respondent mother in the future.
8. Order to vary no 2 of the final orders dated 25 July 2016 to remove the sole parental responsibility for the child from the mother.
9. Any other orders that the honourable court deems fit.
The Amended Application came before a Senior Judicial Registrar who, on 8 April 2022, made the following orders and notations. After hearing the Senior Judicial Registrar made orders that:
1. The parties forthwith do all acts and things necessary to engage a family therapist to assist the parties in re-establishing time between the father and the child [Child X] born 2008 ("the child") pursuant to the final parenting orders in this matter dated 26 July 2016 as amended on 10 September 2019.
2. For the purposes of order 1 herein:
(a) the parties will give consideration to engaging [Ms T], family consultant, as the family therapist in the first instance and the father will pay all associated costs of the family therapy;
(b) In the event [Ms T] is unavailable, the parties will engage with a family therapist at the Family Relationship Centre in [Suburb U] or such other family therapist as agreed between the parties in writing;
(c) The parties will follow all reasonable directions of the family therapist including facilitating the attendance of the child upon the family therapist as directed by the family therapist; and
(d) The parties are at liberty to provide a copy of the Child Impact Report dated 7 April 2022 to the family therapist
3. The Father be at liberty to contact the child by telephone or on the mother's mobile to arrange one on one time and activities with the child in a community setting as agreed between the father and the child and the mother will facilitate the child's attendance at such time and activities.
4. The father's application in a case filed on 10 February 2022 is otherwise dismissed.
AND THE COURT NOTES:
A. The parties agreed in Court today not to file any further applications in this Court to enable the family therapy to take effect in a context where the child is not embroiled in his parents' litigation.
B. Pursuant to s.62B and s.65 DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these pa1ticulars are included in these Orders.
C. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (the Scheme) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F. If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
On 19 April 2022 the father filed an Application to Review these orders, in the following terms.
1.Under the slip rule:
• the applicant's address for service be amended to [V Street, Suburb W]
• the child's date of birth of the child be amended to ... 2008 in order 1 of the interim order.
2.For the purposes of order 1 (of the Interim Order dated 8 April 2022) herein:
(d) The parties are restrained from providing the copy of the Child Impact
Report dated 7 April 2022 to any family therapist;
3.The respondent mother is hereby ordered to undergo psychiatric assessment, once complete, the respondent mother is required to provide a copy of the psychiatric assessment report to the court and the applicant father. This psychiatric assessment is to be conducted prior to the commencement of family therapy between the father and child. The respondent mother to inform the court and the applicant father of all the other occupants living and associating with the child.
4.Orders C to F of the Interim Order dated 8 April 2022 are not relevant to this application, therefore must be excluded from these orders.
Oral argument and Submissions
The father was taken through his proposals and the Senior Judicial Registrars orders during oral argument and submissions.
The father said, in respect of the proposed recovery order sought at [3], that at the time he sought the recovery order he did not know what was happening with the child and he was not kept informed of the child’s location and so submitted the recovery order. However, as that is no longer the case the father advised that he no longer seeks a recovery. Order [3] is not pressed.
The father said that he sought enforcement of the orders of 25 July 2016, as amended, as set out at proposed order [5], because the child was brainwashed by the mother. He further said that family therapy is not required and advised that the orders for family therapy had not yet been given effect. However, he then said that as he had not seen the child for nearly 2 years, if the Court considered that a family therapist would assist and be appropriate, he would not object to the orders for family therapy.
I do consider, taking into account the opinion of the Court Child Expert in the CIC, that family therapy is appropriate.
Further, given the opinion of the Court Child Expert, I think that it is inappropriate to seek to re-institute the time with arrangements between the child and the father until that family therapy has been undertaken for a reasonable period of time. The father’s proposed order [5] is not therefore an appropriate order to make. Similarly, the father’s proposed order [6], which would compel time between the child and the father, is not an appropriate order to make.
In respect of proposed order [7], seeking the variation of order 11 of the final orders which is set out above and which requires leave for the filing of applications, the father pressed his application on the basis that the order is “very inconvenient” and on the basis that the issues that gave rise to the order occurred many years ago, and finally as he believed the order to be contrary to law. I do not consider order 11 of the final orders to be contrary to law. I was pointed to no authority to the contrary. Given the history of this litigation the final order 11 appears to be well founded and I would not be willing to vacate or vary that order on an interim basis.
In respect of proposed order [9], seeking the variation of order 2 of the final orders which granted sole parental responsibility to the mother. The father pressed that application on the basis that the mother was not a fit and proper person to have sole parental responsibility for the child. The material before me does not persuade me that this is an appropriate order to vary on an interim basis, particularly given the child lives with the mother and is reluctant to spend time with the father and where the parties have no apparent capacity to co-parent. The father’s proposed order [9] is not an appropriate order to make.
In terms of the issues raised in the Application for Review of the Senior Judicial Registrars orders, and whether the family therapist should have a copy of the Child Impact Report, the father said that while he did not believe the Court Child Expert was sufficiently independent, it was a matter for the Court.
I am satisfied that the Court Child Expert is entirely independent, in the relevant legal sense, from each of the parties and consider that it would be appropriate and useful for the appointed family therapist to have a copy of the Child Impact Report. The parties should comply promptly with the orders for Family Therapy.
The father did not appear to press in submission the further order sought, at [3] of the Review Application, which in any event was not a matter included in the Amended Application and was not dealt with by the Senior Judicial Registrar, and so was not before me for review. In any event, I note that on the material before me it is not an order I would make.
Accordingly, I dismiss the Application for Review and the Senior Judicial Registrars orders stand.
Independent Children’s Lawyer
I raised with the parties the issue of whether, given the child’s age and the issues in the proceedings, it would be appropriate to again appoint an Independent Children’s Lawyer. The mother submitted that she thought it was important that there be an ICL appointed. The father initially said it was redundant as he did not consider the previously appointed ICL had done anything useful.
The child is 13. The genuineness of his views are disputed in the context of alleged alienation. Neither party is legally represented. There are mutual allegations of historic family violence. The parental relationship is very high conflict and is impacting on the child. The litigation has been going, on and off, for over a decade. I am satisfied that it is appropriate and in the best interests of the child to appoint an Independent Children’s Lawyer to represent his interests, and accordingly, I make that order.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 18 August 2022
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