Hir and Rod

[2017] FamCA 353

FAMILY COURT OF AUSTRALIA

HIR & ROD [2017] FamCA 353

FAMILY LAW – CHILDREN - Child related proceedings

Family Law Act 1975 – s 69ZN

APPLICANT: Ms Hir

RESPONDENT: Mr Rod

FILE NUMBER: SYC 6904 of 2013

DATE DELIVERED: 27 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 27 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Beck

SOLICITOR FOR THE APPLICANT: Lawyers Central

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Tiyce & Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Neville

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

Orders

1. The application sought for me to interview the children is refused and dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6904 of 2013

Ms Hir

Applicant

And

Mr Rod

Respondent

REASONS FOR JUDGMENT

1. Application has been made for me to interview the two children the subject of the proceedings in order to ascertain their true wishes and also to assess the veracity of their complaints, which I take to include a complaint on the part of B of violence on the part of the father, and a compliant on the part of C of sexualised conduct on the part of the father, and also to assess the extent to which those complaints have been affected by the maternal family and further, why each child has expressed a concern about being judged and whether that corresponds to the complaints being made being untrue, or a concern about judgement on C’s part in respect of cyber bullying. 

2. The mechanism that I have been asked to use is to conduct an interview myself, together with a Family Consultant either in Chambers or in the Family Consultant’s facilities. 

3. The application is opposed by counsel for the Independent Children’s Lawyer and by the mother. 

4. The final part of the mechanism that is urged upon me to take is to then have the Family Consultant prepare a memorandum for the parties and presumably have the Family Consultant made available for cross-examination in respect of that memorandum. 

5. One of the particular matters relied upon by the father in seeking such a course of action is an alleged inadequacy on the part of the Single Expert’s report. The Independent Children’s Lawyer has directed me to s 69ZN of the Family Law Act 1975 which contains the principles that I am to apply in conducting child related proceedings.  I accept that of those principles the one most salient to determining whether or not to undertake this proposed course of action is the first principle which states 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.  If I were to determine to interview the children that would directly expose them to the Court conduct of these proceedings even if it was not to occur in the Courtroom.  It would involve bringing the children into the Court building and involving them directly in the conflict between the parties, even if the parties were to be absent. 

6. It has not been demonstrated to me that it would be helpful to the children to expose them to the Court proceedings in that manner.  At face value, it appears to me that such a course of conduct would heighten the impact of the proceedings upon the children.  The particular issues sought to be resolved by using this mechanism concerns primarily the views that might be expressed by the children (of course noting that I, like anybody else am unable to compel the children to express views) but also for a broad ranging assessment of the various complaints that are said to have been made by the children.  I note that no special skills have been identified on my part that would enable me to undertake an interview with the children, particularly where it is common between the parties that as of about the time of the commencement of the proceedings the children suffered from a degree of mutism.  The father at present, probably as a result of not being able to spend time with the children since that time, is unable to say whether or not they still suffer from the mutism.  The descriptions of the mutism appear to indicate that the children are likely to communicate more freely with those people who are closest to them.  These are not children who I have ever met or have had dealings with.  I would appear to them as a stranger. 

7. In these current proceedings there are a number of sources of evidence as to assertions that have been variously made by the children.  There are a number of persons who it appears would be able to give evidence about assertions made by the children or as to their views that they hold about the parents.  These include both the mother and the father.  There has been an interview conducted by Dr D, also by Associate Professor E.  There appears to be material likely to be available from the subpoenaed material and I note that one of the brothers of the children is to give evidence in the proceedings.  Each of these persons in giving their evidence may be subjected to critique and in the large part also cross-examination, although I note that whoever has provided material for the school or who took part in the JIRT interview or Dr D will not be available for cross-examination but to the extent that material that they have produced is available may be subjected to critique.

8. To undertake the procedure that has been suggested to me appears to me to hinder the critique process, particularly with the process of calling the Family Consultant to give evidence under circumstances where I would have interviewed the children.  It appears to me that such a process holds little prospect for the resolution of the issues that are at large in these proceedings and most importantly at face value appears to me to likely impact heavily upon the children in terms of involving them in the proceedings.  As such, I decline to interview the children in the manner requested. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 February 2017.

Associate: 

Date: