Joslyne & Carrel (No 3)
[2023] FedCFamC1F 1056
•11 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Joslyne & Carrel (No 3) [2023] FedCFamC1F 1056
File number: BRC 10297 of 2021 Judgment of: REES J Date of judgment: 11 December 2023 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the substantive proceedings are part heard – Where interim parenting orders were not intended to be sustained over an extended period of time – Where the mother seeks to limit the time spent between the father and the child – Where the father seeks orders for overnight time – Where the child will commence schooling – Application to discharge the Family Report writer Cases cited: Bass & Bass (2008) FLC 93-366 Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 8 December 2023 Counsel for the Applicant: Ms Jardine Solicitor for the Applicant: ASD Family Legal Counsel for the Respondent: Ms Eviston Solicitor for the Respondent: Freedom Law Solicitor for the Independent Children's Lawyer: Gary Rolfe Solicitors Independent Children's Lawyer: Ms Wardle ORDERS
BRC 10297 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JOSLYNE
Applicant
AND: MR CARREL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS:
1.That the application to discharge the Family Report writer is dismissed.
2.That Order 7 made on 30 August 2023 be discharged and, in lieu thereof, the following order is made.
3.That, pending further order, the child X born 2018 spend time with the father on Saturday 16 December 2023, Sunday 24 December 2023 and thereafter each alternate Saturday, from 9am until 5pm.
4.That Order 3 made on 30 August 2023 is varied in accordance with the above order.
5.That pursuant to Sections 65DA(2) and 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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 a Joslyne & Carrel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Ms Joslyne (“the mother”) and Mr Carrel (“the father”) are engaged in defended parenting proceedings concerning their son, X born in 2018, which are presently part heard before a judge of this Court.
The substantive proceedings were to commence on 21 August 2023 but had to be adjourned after the first day because the father’s application changed significantly. The hearing was to recommence on 22 November 2023 but had to be adjourned again because of issues relating to the mother’s health.
The substantive hearing is to resume on 1 March 2024 and thus the competing interim applications before me cover a limited period of about three months.
The current parenting orders are those made on 30 August 2023 which provide for the child to spend time with the father, supervised by the paternal grandfather, each alternate Tuesday commencing at 11.30am, initially, on three occasions, for three hours, with the time increasing by an hour on each subsequent occasion.
By an Application in a Proceeding filed on 30 October 2023, the mother seeks, relevantly, to limit the time the child spends with the father to five hours per fortnight and for the time to be supervised by a person other than the paternal grandfather. In addition, she seeks an order that,
… an alternate Family Report writer be appointed in the matter by Legal Aid and that the alternate Family Report writer be granted leave to inspect all documents filed in the matter.
There is also an issue about the school at which X is to be enrolled in 2024 which will be the school appropriate to where he lives. There is no evidence upon which a determination can be made about that issue.
The father, by his Response filed 15 November 2023, sought an order that the child live with him or, in the alternate, that the child live with the mother and spend alternate weekends with him. At the hearing before me, he did not press the change of residence application. He seeks orders restraining the mother from engaging a security guard, police officer or her partner to conduct the handover; electronic communication between himself and the child; Christmas contact and orders in relation to the communication between the parents.
No submissions were addressed to the applications about communication and I will deal only with the application to discharge the report writer and the time that X will spend with his father pending the resumption of the trial.
DISCHARGE OF THE FAMILY REPORT WRITER
It is convenient to deal firstly with the mother’s application to discharge the report writer.
The Family Report writer (“the Reporter”) has prepared two reports, the first dated 21 October 2022 and the second dated 8 August 2023.
In Bass & Bass (2008) FLC 93-366 ("Bass") the Full Court dealt with an application to discharge a single expert, stating:
48.Notwithstanding the important issues raised in the submissions of senior counsel for the father, we are not persuaded that we should grant leave to appeal in this case. As we indicated during the hearing before us, we consider that both the application made to Steele J, and thus the application for leave to appeal, have what can best be described as a premature quality. We take this view for two main reasons.
49.First, Division 15.5.6 of Part 15.5 [of the Family Law Rules 2004 (Cth)] provides a procedure for clarifying matters contained in a report prepared by a single expert witness. It was confirmed before us that that procedure had not so far been employed in this case. While we acknowledge that procedure may only be of limited assistance to the father given the nature of his complaints, we are nevertheless, of the opinion that that procedure ought to have been attempted before the application was made to Steele J, or to this Court.
50.Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings, as indeed was recognised by Steele J. Following such cross-examination, all or parts of the expert's report may be rejected or given only limited weight by the trial Judge. It is not particularly unusual, in our combined experience, for trial Judges not to accept, or to only give limited weight to, the opinion of a single expert in a children's case.
51.It would, of course, remain open to the ultimate trial Judge to adjourn the trial for the purpose of obtaining another expert report, if he or she considered that the matter could not be satisfactorily determined without such assistance. We appreciate that such a course, if it had ultimately to be adopted, would have disadvantages to all involved in the case. But in our view, those disadvantages would be outweighed by the disadvantages of permitting a second expert to be engaged whenever a party to parenting proceedings is the subject of an adverse single expert report (as the father has been in this case). In this regard it must be remembered that for an expert to be able to give satisfactory evidence in relation to arrangements for child, it is generally necessary for the expert to have conducted an interview with the child – a procedure which should be sparingly employed (as was, in effect, submitted by the Independent Children's Lawyer).
The gravamen of the mother’s complaints about the Reporter are set out in her affidavit sworn 30 October 2023 and are summarised as follows:
(a)That the Reporter was conducting interviews and preparing a report in a matter in which the mother had professional involvement, in the same week as it was proposed that the Reporter would be cross-examined in the substantive proceedings. The mother does not suggest that she met with the Reporter in relation to the preparation of that report and, other than that the Reporter would have been aware that the mother was professionally involved, she does not explain why a conflict of interest arose such that the Reporter should not conduct a report in this matter.
(b)In submissions, counsel for the mother referred to an earlier matter in which the mother was professionally involved where a report was prepared by this Reporter in October 2021. Again, other than to suggest that the Reporter may have formed an adverse view of the mother and that adverse view would affect the Reporter’s view of the party in that matter, a submission entirely without any evidentiary foundation, I do not understand how it is asserted that a conflict of interest arises such as to prevent the Reporter continuing to give evidence in these proceedings.
(c)I do not accept that there is any conflict of interest.
(d)The second complaint is that information that the mother conveyed to the Reporter was not included in the report. Since the mother does not identify the information which she says was omitted from the report, it is not possible to determine whether that information was either credible or relevant. In any event, that can be a matter for cross‑examination of the expert in the resumed hearing.
(e)The third complaint is that the reporter has misquoted the mother. That is a matter for cross-examination.
(f)There are a number of other matters raised by the mother which are properly matters for cross-examination.
This matter commenced in 2021 and the final hearing has commenced. It has been allocated days in March 2024 to complete the hearing. A discharge of the Reporter and orders for the preparation of a further report by another expert would have the effect that the child would have to be interviewed again and the hearing scheduled for March 2024 would inevitably be further delayed.
The preferred course in relation to the evidence of the Reporter is that it be tested in cross‑examination so that it can be given appropriate weight or, if appropriate, rejected.
THE COMPETING PARENTING APPLICATIONS
The child is to start school in 2024 and the existing orders, which provide for contact on alternate Tuesdays, need to be revisited.
Further, those orders made on 30 August 2023 were only intended to cover the period until November 2022 and the increase in time by one hour after each visit is obviously not intended to be sustained.
The effect of the August orders is that the child spent six hours with the father on 21 November 2023.
What orders then should be made about X’s time with the father between now and 1 March 2024?
The mother wants X’s time with the father to be supervised but she does not want the paternal grandfather to be the supervisor. However, she proposes no alternate supervisor and there is no evidence that any other person is available to supervise.
The father wants the time to be unsupervised because the travel is onerous for his father who has to travel for more than an hour and a half from his home.
The issue of supervision will be determined in the substantive hearing. In the meantime, although I accept that the paternal grandfather is inconvenienced, supervision will continue. For that reason alone, it is impracticable to introduce overnight time. However, I accept the submission of counsel for the Independent Children’s Lawyer that the time needs to be extended but this needs to be done carefully and conservatively.
The mother’s evidence about the asserted behaviour of the paternal grandfather at changeover is disputed by the paternal grandfather. The mother was not present. The security guard who was present has not sworn an affidavit. At its highest, the evidence which the mother seeks to adduce does not indicate that the paternal grandfather has done anything to put X at risk or that he has not been vigilant in his role as supervisor. I am not satisfied that anything that has happened at changeover establishes that the paternal grandfather is not an appropriate supervisor.
Counsel for the mother told the Court that the mother no longer uses a security guard to assist in changeover. The father’s counsel told the Court that a security guard was present at the last changeover. I do not propose to make an order restraining the mother from having a security guard present at changeover because her counsel has told me that she has ceased to do so. It appears not to be disputed that, during the substantive hearing, the presiding judge said that the use of a security guard on changeover was inappropriate. No doubt the issue will be ventilated when the cross-examination of the mother resumes.
I propose to make orders that will extend the period of contact to a full day from 9am until 5pm. Neither parent expressed a preference for Saturday or Sunday and I will order that the contact occur on Saturday so that, if X is tired after a full day with his father, he will have a day to rest before school starts on Monday.
The next period of contact was scheduled to take place on 5 December 2023. If the contact is moved to occur on Saturday, the next contact will occur on 16 December 2023. The father seeks some time during the Christmas period and it is appropriate that there be a further occasion of contact on Sunday 24 December 2023. Thereafter, until the disposition of the substantive proceedings, the contact will occur fortnightly, commencing at 9am and concluding at 5pm but otherwise in accordance with the orders made on 30 August 2023.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 11 December 2023
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