Khan v Minister for Immigration and Ethnic Affairs
[1987] FCA 713
•19 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shamon & Shamon (No. 2) [2022] FedCFamC1F 358
File number(s): SYC 2375 of 2021 Judgment of: CHRISTIE J Date of judgment: 19 May 2022 Catchwords: FAMILY LAW – INTERLOCUTORY PROCEEDINGS - RECOVERY ORDER – Where final orders provided that the children live with the mother and spend time with the father – Where the mother retained the children – Where the mother gives evidence of family violence – Where the evidence is untested – Where findings at an interlocutory hearing are not possible -Where the children are of an age where they are able to express their views and those views are to be given appropriate weight – Application for recovery order is dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 67U Cases cited: Bondelmonte & Bondelmonte [2017] 259 CLR 662
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713
Marvel & Marvel (No. 2) (2010) 240 FLR 367
Division: Division 1 First Instance Number of paragraphs: 63 Date of hearing: 18 May 2022 Place: Sydney Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Barkus Doolan Counsel for the Respondent: Mr Harper Solicitor for the Respondent: LawBridge Lawyers & Consultants ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHAMON
Applicant
AND: MS SHAMON
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
19 MAY 2022
THE COURT ORDERS THAT:
1.The application for a recovery order filed by Mr Shamon (“the father”) is dismissed.
2.Orders 2, 3, 4, 6, 7, 9, 10 and 23 of the orders made 9 September 2021 are suspended.
3.Within seven days of the date of these orders Ms Shamon (“the mother”) and the father (“the parents”) are to do all acts and things and sign all documents necessary to register for supervised time with an agency (“the supervised contact agency”) agreed between them in writing and, failing agreement, as nominated by the Independent Children’s Lawyer (“the ICL”).
4.Subject to Order 5 below, X (born 2007), Y (born 2010) and Z (born 2018) (“the children”) have supervised contact with the father for two hours each week on dates and times nominated by the supervised contact agency.
5.The attendance of X and/or Y for time in accordance with Order 4 above shall be subject to their views.
6.The ICL have liberty to relist the matter to consider a further interim hearing if documentation produced on subpoena suggests to the ICL such a relisting would be in the interests of the children.
7.This matter is listed before me for determination of the Application for Review filed 19 April 2022 and for case management in respect of the applications for final relief at 10.00 am on 3 June 2022.
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 Shamon & Shamon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for a recovery order in respect of the children X (born 2007), Y (born 2010) and Z (born 2018) (“the children”).
Mr Shamon (“the father”) seeks orders by way of an Application in a Proceeding filed 6 May 2022.
Ms Shamon (“the mother”) filed a Response on 16 May 2022 asking that the father’s application be dismissed.
The father initially sought that the children’s time with the mother be suspended and that they reside with him. Through his counsel at the hearing he said, without concession as to the matters of concern he articulates, that he was seeking a return to the regime set out in the orders of 9 September 2021 (“the interim parenting orders”) and a period of “make up” time the weekend commencing 20 May to 23 May 2022.
The mother sought the suspension of the father’s time pending further hearing.
An Independent Children’s Lawyer (“the ICL”) was appointed by order dated 6 May 2022 but (unsurprisingly given the short passage of time) there was no ICL yet in the role when the matter was listed for interim hearing. No party applied to adjourn the hearing to await the ICL.
BACKGROUND
The mother and father (“the parents”) married in 2004 and separated on 30 June 2020.
There are three children of the relationship.
On 25 February 2022 an Apprehended Domestic Violence Order (“the final ADVO”) for the protection of the mother from the father was made in the Local Court at Suburb K. On that day the father was found guilty of one count of contravention of an Interim Apprehended Domestic Violence Order (no conviction recorded) and the final ADVO was issued.
On 9 September 2021 a Senior Judicial Registrar made the interim parenting orders at an interim defended hearing. Those orders provide in part:
LIVING ARRANGEMENTS
1.The children live with the Mother.
School Term
2. Commencing from the first Friday following the date of these Orders, unless otherwise agreed between the parties in writing, the children shall spend time with the Father as follows:
2.1. Each Tuesday from the commencement of school (or 8.30am should the children not attend school that day) to the commencement of school on Wednesday (or 8.30am should the children not attend school that day), and each week thereafter;
2.2. Each alternate Friday from the conclusion of school (or 3.30pm should the children not attend school that day) to the commencement of school on Monday (or 8.30am should the children not attend school that day), and each alternate weekend thereafter;
2.3. Each other alternate Wednesday from the conclusion of school (or 3.30pm should the children not attend school that day) to 7.30pm, and each other alternate week thereafter.
School Holidays
3. Notwithstanding anything else contained in these Orders, the children shall spend time with each parent for 50 per cent of the children’s school holiday periods, as agreed between the parties in writing but failing agreement, as follows:
3.1. With the Mother for the first half of each period in odd numbered years and in the second half of each even numbered year; and
3.2. With the Father for the first half of each period in even numbered years and in the second half of each odd numbered year.
The children spent time with the parents in accordance with the interim parenting orders save and except that on 29 April 2022, when the children were due to spend time with the father in accordance, the mother retained the children and has not, after that date, facilitated the father’s time provided in the interim parenting orders.
The mother relies on affidavit material which, she says, has been compiled from diary entries said by her to be taken contemporaneously in the period between the making of the interim parenting orders in September 2021 and the filing of her affidavit. In her affidavit the mother sets out a number of conversations she has had with the children when they have returned from spending time with their father. These are interim proceedings and I am unable to make a finding as to what occurred where the evidence is contested. Suffice it to say that, if what the mother has set out in her affidavit is found ultimately to be accurate, the father’s interactions with the children have placed them in an intolerable situation.
The mother sets out several examples but one which is characteristic is as follows. She says, that on 2 March 2022 when collecting the children from school, Y crying said to her words to the following effect:
[Mr Shamon] [the father] said I was a slut and thief like you. He said I was a slut because we had a sleepover at [Ms LL’s] house with you, and he called me a thief because I accidently brought a top from his house when I came home to you that he had bought me. Please don’t send a letter to [Mr Shamon’s] lawyers about it, he’ll just get more angry when he finds out that I told you.
On 10 April 2022 the father alleges that X said to him “I saw a picture of [WW] on the internet holding a gun”. The father’s affidavit material says that WW is X’s younger cousin on the mother’s side. The father sets out in his affidavit that, arising out of that conversation, X told him that she, her other siblings and her mother had been spending time with Mr MM and Mr NN. The interim parenting orders contained an injunction to the following effect:
11.4. The Mother do all acts and things necessary and take all reasonable steps to ensure the children are not left unsupervised in the presence of [Mr NN] and [Mr MM].
I pause to observe that that order is not breached by the children visiting those people.
X is alleged to have said to her father “…mum told me not to tell you and to lie to you if you asked”. In response to that, the father said that he asked X: “well is your mother with you when you are [at] their house?” to which he said X replied “not all the time, I spend a lot of time in the garage and sometimes [Mr MM] comes and sits with me”. The father then said the conversation continued and X is alleged to have said to him that her mother had instructed her to go through the father’s phone and report back to her and that “Mum calls you a dog and says that your family are scum”. The father says he then spoke to his daughter Y who he says reaffirmed the comments made by X. The father says he then reprimanded both children saying “I am disappointed that you have both lied to me and gone through my personal belongings”. The father says he was upset and agrees he raised his voice but denies pulling X by the hair or dragging her out of bed, as the mother asserts the children reported to her. It is plain that the children were upset that evening in the father’s care on both party’s account.
The mother in her affidavit material disputes the father’s account of the events of 10 April 2022. She says that during her scheduled video call with the children between 5.00 pm and 6.00 pm, X’s eyes appeared swollen and the mother was concerned she had been crying and asked her about it. The mother says that X responded by placing an index finger on her mouth asking the mother to be quiet, but whispered to her “get me out of here Mum, please get me out of here”. The mother says that at 8.19 pm on 10 April 2022, she sent a text message to the father requesting to speak with X but did not receive a response until the text message he sent her at 11.40 pm that night, accusing her of teaching the children to lie to him. The mother says that the children may well not tell the father the whole truth about spending time with her family but not because she has instructed them to lie to the father but rather because they are afraid that, if the father were to become aware they had spent time with the mother’s family members, this would displease their father.
The mother says that on 11 April 2022 X said to her words to the effect “…promise me that you won’t send me back to [Mr Shamon] once I come back to you. I miss you so much, I need a hug”.
To that extent the mother is asserting on oath that those are the views of the child X. I am not in a position to make a finding as to whether or not those represent X’s views. The fact that I am not in a position to make a finding does not mean that I have to discount entirely the affidavit evidence sworn by the mother. The mother says that when the children returned to her on 18 April 2022 they reiterated that they did not want to return to their father and gave her further details about what they said had occurred on 10 April 2022. In the mother’s affidavit she sets out X’s account as follows:
[Mr Shamon] got so angry when he found out that we had dinner with [Ms LL] and her kids. I was having a nap in my room because I was fasting and [Mr Shamon] came in yelling and screaming ‘Get up! Get up! You think you can fucking lie to me’. He grabbed me from my hair from the top of my head close to my scalp and he lifted me up out of bed by my hair. When I touch my head now, it still hurts. [Z] was watching tv but started crying when she heard all the yelling and screaming from [Mr Shamon] and she came into my room.
[Mr Shamon] was so angry, he punched 4 holes in my bedroom wall. Afterwards, he was more focussed on repairing the holes he had punched in the wall to hide what he had done than to make sure we were ok. He took my phone away.
The mother took X to Dr DD, General Practitioner, on 20 April 2022. During that appointment, X spoke to Dr DD about the events that took place on 10 April 2022. Dr DD provided the mother with a report following the consultation which the mother annexed to her affidavit. Dr DD’s letter dated 28 April 2022 reads as follows:
[X’s] mother has requested a brief letter outlining her recent visit.
[X] presented to see me on the 20th of April 2022 with her mother. Her symptoms at the time were a sore scalp, feeling highly anxious and fearful. She stated she was staying with her father who became angry and she told me she felt acutely anxious and fearful of him. I examined her and she had a tender occiput and scalp and seemed slightly withdrawn and nervous but willing to converse with me. She was encouraged to see her psychologist for further assist.
(As per the original)
The mother’s affidavit material asserts that the children were concerned the father would attend at their school as he has done since she retained them. The children refused to attend school on 29 April and 4 May 2022. The mother says that on or about 25 April 2022 she read hand written notes made by her daughter X in a diary, a photocopy of which she attached to her affidavit. Those notes read in part:
Behind the scenes he [the father] would call mum slut, prostitute, that she sleeps with my uncle. He would tell us these things and [Y] didn’t even know what the words meant.
He forbade us from talking to half of mums family although we didn’t want too. Recently he found out I didn’t tell him about talking to [Ms LL]. He punched holes into my walls and pulled me out of bed screaming his head off. I got a bump on my head cause he pulled by hair really hard.
His constant harsh behaviour has given me anxiety and panic attacks. The panic attacks were his fault but he wanted me to say they were my mums so he doesn’t get in trouble.
He doesn’t let me take any clothes to my mum that he bought including under garments.
I no longer feel safe at his place because when they found out about the third dot point [the hair pulling] they laughed and didn’t care. This scares me that if something worse happens there is no one to help me.
He is refusing to pay my fees although I know he can and I expressed greatly that I want to continue at the same school.
(As per the original)
I am not in a position to ascertain whether or not these hand written notes represent an accurate portrait of the views of X however I must take into account the possibility that they do. The two most concerning aspects of the notes are the father’s denigration of the children’s mother to the children and the father’s use of physical force in disagreements with them. Both of those things place the children at risk of both physical and psychological harm. The Court is required to give significant weight to the protection of the children from this type of harm: s 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”).
X and Y both attend psychologists. X’s psychologist Mr OO indicated to the mother that he was not permitted to provide a report. A psychologist Ms PP who has seen both Y and X has provided a report, a copy of which is annexed to the mother’s affidavit. That report reads in part:
Ms [X] stated that she cares and loves her father, but at the same time feels deeply hurt, betrayed, angry and fearful of his actions. Ms [X] reported: depressed mood, worried about her father’s intimidation towards her mother and her family, feeling irritable and angry towards her father, constantly worried about the next time her father will harass her at school and concentration issues at school. Ms [X] reported that her concentration has been significantly impacted due to the current stressors around her parents’ divorce and her father trying to pressure her to live with him.
The mother’s affidavit material and the report from the psychologist suggests that the stress and distress experience by X has impacted upon her performance at school. The psychologist administered a Depression Anxiety Stress Scale (“DASS 21”) assessment on 3 March 2021, the results of which were that X was considered to be suffering from moderate depression, extremely severe anxiety and extremely severe stress. The report also dealt with Y and her DASS 21 scores assessed her depression as mild, her anxiety as severe and her stress as severe. The report records the following:
[Y] reported an instance around five months ago where her father asked her if she had been to her aunt’s home. Upon answering yes, [Y] reported her father grabbed her tightly and hit her across the arm very hard. [Y] stated she was feeling so afraid that she decided to never visit her aunt again. Both [Y] and [X] reported that their father threatens them to not visit their aunt and her family. They feel intimidated by him so have reduced visiting their aunt.
Both [X] and [Y] have reported seeing their father walking outside around their new residence. They have spotted him sitting near the main road staring into their house at least five times in the past few months.
(As per the original)
The psychologist reported concerns about pressure being placed on the children by the father to their school, School QQ. The school acting upon the report of the psychologist spoke to the father and the Deputy Principal reported back to the psychologist that, when the report was raised with the father, he verbally attacked the school staff. This is not the first occasion on which the psychologist records that the father has attacked the school staff.
The mother’s affidavit describes a chance encounter between herself, X, Z, and the father in Suburb K on 11 May 2022. X became anxious and wanted to leave and the father approached the mother asking her if she could intervene and get X to speak to him, at which time the mother says that she told the father that she was not stopping X from talking to him. She reports that the father said “wait, don’t leave. Tell me how to fix this”. Following that meeting, X sent her father a message through Google Hangouts which read as follows:
[Mr Shamon] this is a one time thing that I am texting u thro this chat, I don’t think u seem to understand u r the reason I have not come home lately, I have cut u off for my mental health and in the hopes that u can put ur own reasons aside and just be a good father but I just feel u don’t care, I’m not an idiot u talk talk talk but I see things u do that just prove me and my sisters r not ur number one priority, I’m also not a baby I chose to not see u all on my own, so u need to give us some space for now! U have been creating countless adversities for me that not even an adult would be able to handle what I have handled and yet I did, I did handle it, in fact it made me strong and I will no longer take anything less than what I deserve. U should know I don’t care about the material stuff I tried to buy me but all I wanted was a caring father. And it breaks me watching what u have done to [Y], I don’t see it but I do I love her more than anything and she has lost herself in order to please u. If u feel u can’t put ur pride aside for me than fine, I think I’m used to the disappointment now, but I do believe u r capable of love. From [X].
(As per the original)
The father responded (appropriately) to this message. It seems apparent that there was no further correspondence from X.
THE LAW
Section 67U of the Act gives me the power to make a recovery order.
It is a wide discretion characterised by the words “such recovery order as it [the Court] thinks proper”.
It is appropriate to have regard to the existence of a recent order, any changed circumstances and any evidence touching on the children’s best interests.
All parties seek to change the existing parenting orders. In considering that application I must apply the best interests principle: s 60CA of the Act. I must balance any risk to the children in the proposals of either parent, against the children’s right to know and be cared for by each of them. I must give precedence to protecting the children from physical or psychological harm, from being exposed to abuse, neglect or family violence: s 60CC of the Act.
These are interim proceedings and I need to consider the fact that the evidence is untested. It will be necessary to place significant weight on the available objective evidence.
CONSIDERATION
The father’s submissions place emphasis on the fact that there are existing orders which the mother has unilaterally suspended by retaining the children contrary to the terms of those orders. The suspension of time, it is said, is psychologically injurious to the children.
The father’s original position was a request to the Federal Circuit and Family Court of Australia (Division 1) (“the Court”) to suspend the mother’s time with the children. That approach failed to appreciate the relationship between the mother and the children, Z’s age or the current position said to have been taken by his daughter X. The father’s counsel obtained instructions during the hearing and confirmed that the father would, without conceding the risk factors he had raised were not appropriately raised, seek in the alternative a return to the time provided for in the interim parenting orders.
The father submitted that the additional considerations do not loom large in this case. I do not accept that submission.
Section 60CC(3)(a) of the Act requires the Court to consider:
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
In this case there was evidence in respect of the views of the parties’ children X and Y. X is 14 years old. While I accept that these are interim proceedings that does not permit the Court to ignore untested evidence. In this case the evidence in respect of X’s views is to be found in a number of different places: in the mother’s affidavit, in Dr DD’s letter of 28 April 2022, in Ms PP’s report dated 18 May 2021, in her undated diary entries and in the message said to have been sent to her father on 11 May 2022.
In considering the untested evidence I am conscious of the principles set out in Marvel & Marvel (No. 2) (2010) 240 FLR 367 [120] – [121].
I accept the submission on behalf of the father that Dr DD’s letter does not contain a direct “disclosure” of abuse of X by the father. However, it does contain the phrase X “told me she felt acutely anxious and fearful of him [the father]”. That speaks powerfully against reinstitution of time as sought by the father.
As set out by the High Court of Australia in Bondelmonte & Bondelmonte [2017] 259 CLR 662 (“Bondelmonte”). It is necessary to understand the:
35. …importance [of expressed views] in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
X’s age is such that her views would, absent other evidence, have to be given significant weight. I am obliged to give the evidence about views “proper genuine and realistic consideration”: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713 as cited in Bondelmonte at [29].
Against this, the father submits that the Court should accord little or no weight to these views as inferentially they are a product of the mother’s influence and the very psychological harm the father says warrant the suspension of the mother’s time.
On the basis of the material before me at this interim hearing I am able to comfortably conclude that an older child has expressed views which are inconsistent with spending time (or unsupervised time) with a parent. It remains in due course to determine with greater precision how those views have been brought about. I consequently accord them proper weight.
There is also independent evidence in respect of Y’s views. Y is 11 years old. Y’s psychologist, Ms PP, records the child as having reported “some days low, depressed mood, worried and teary about her parents’ divorce, feeling scared of her father because he has threatened her, angry that her father tries to stop them from seeing her maternal aunt and feeling sorry for her mother and the abuse she suffered from him”.
It is necessary to take those expressed views seriously when the psychologist’s assessment is that the child is experiencing mild depression, severe anxiety and severe stress. The Court is obliged to consider whether or not the existing orders are contributing to that circumstance.
The father contended before me that he did not pose an unacceptable risk to the children but the mother did. His counsel drew to my attention the evidence set out at paragraphs [19] and [20] of his affidavit which details the father’s concerns about the children being at risk if in the care of the mother’s family. It was submitted that those concerns remain and have been exacerbated by the children reporting to him that they have spent time with the mother’s family and in particular, as outlined above, the father says that X reported “I spend a lot of time in the garage and sometimes [Mr MM] comes and sits with me”.
By itself, taken at its highest, it does not confirm that the mother has not done all acts and things and taken all reasonable necessary steps to ensure the children are not left unsupervised in the presence of Mr MM. It may suggest that X has spent time with Mr MM in the garage of premises attended by X and the mother.
There is no evidence of any incident since the making of the interim parenting orders which suggests that the children’s contact with the mother’s family has exposed the children to harm or risk of harm.
The mother’s material suggests two incidents occurred on 10 April 2022 which are indicative that the children have been exposed to family violence. The first is the allegation that X reported to her mother: the father “grabbed me from my hair from the top of my head close to my scalp and he lifted me up out of bed by my hair” and secondly the allegation in the mother’s affidavit that X told her the father was so angry “he punched 4 holes in my bedroom wall”. The father agrees he was upset that night but this was due to X reporting to him that the mother had requested the children check the father’s phone and by being told that the mother had called the father’s girlfriend a “home wrecker and a slut” and the father’s family “scum”. His text messages to the mother that night are consistent with the complaint about the phone and his concern that the children were being asked to lie to him.
The father denies pulling X by the hair. He denies punching holes in the wall. I cannot make a finding but equally cannot ignore the possibility these events occurred. If they occurred, they easily satisfy the definition of family violence and explain the mother’s actions. A court in interim proceedings must act cautiously and protectively until the evidence can be tested or further objective evidence is available.
I am concerned that the children are not attending school. The father attended at the school on 28 April 2022. I have evidence from the children’s psychologist that the children’s school have experienced the father as abusive on more than one occasion. The circumstance of the children not attending school is serious. Not only is school attendance compulsory but school should be a place where the children feel safe and supported and isolated from any conflict between their parents.
The father says that the Court would place weight on the fact that the mother has abided by the interim parenting orders notwithstanding the ongoing Local Court proceedings and she has not raised significant concerns by correspondence (save letters of December 2021 and March 2022 which counsel for the husband characterised as concerned with allegations of the father placing pressure on the children).
It is important to understand the content of that correspondence. The letter of 17 December 2021 alleges that the father did the following:
·Threatened to disown Y as his daughter if she attends the wedding [of the mother’s niece];
·Threatened not to pay for Y’s dental bills if she attended the wedding;
·Threatened to withdraw the children from their school if they attended the wedding;
·Threatened to “..send someone to the wedding…” who will ensure that the children did not attend the wedding.
I note page one of exhibit 1 suggests that the father booked an dental consultation for Y in March 2022.
As at 2 March 2022 the father’s lawyers had not responded to the matters raised in the letter from the mother’s solicitors dated 17 December 2021.
The father submitted that the fact that the mother filed an Amended Response on 28 February 2022 (after the making of the final ADVO) seeking that the children spend time with the father five days per fortnight, is inconsistent with the concerns she now voices. There is some strength in that submission. The Court must look at the conduct of the parents in acting protectively (or otherwise) in respect of their children in order to determine whether or not the concerns which they raise with the Court are ones which that party has themselves taken seriously. However, that is not the whole story. The Court has an independent duty to ensure its orders are in the best interests of children and from time to time that will mean acting in ways which are more protective than the parents.
Viewed cumulatively, there are concerns about the children being involved in the parental dispute. The allegations of the father’s antipathy towards the mother’s family being shared with the children, the making of the final ADVO, the fact of the Local Court having found one of the offences of contravention of ADVO proven, the father’s attendances upon the children’s school, the school’s concerns about the father having acted aggressively to staff, the events of 10 April 2022 as recounted by X, the evidence of the psychologist, the evidence of the children’s General Practitioner and the fact the children have not attended school on days their father was due to collect them, all speak strongly against continuation of the existing interim parenting orders until such time as an independent person can ascertain the children’s views and material from the school, NSW Police, the Department of Communities and Justice (if relevant) and the children’s doctors, is available.
I am concerned about an order which would have the effect of suspending the father’s time entirely as it may be that, at a final hearing when the evidence is able to be tested, the Court may find it in the interests of the children that they see or spend time with the father on a final basis. Disruption to the relationship by suspension of time may make it more difficult for the relationship to continue in due course. Z is young and suspension of time with the father may impact on her capacity to form a bond with her father.
I have concluded that rather than an order which provides that there be no time, it is appropriate that there be supervised time. That said, given the ages of X and Y, I must pay proper regard to their views. It may be that they elect to attend supervised time safe in the knowledge that the supervisor will ensure that there are no inappropriate discussions and they will be given the opportunity to see their father and enjoy his company without fear of anger or inappropriate questioning. But, it will be important that they do not feel that their attendance is required if it would cause them anxiety or stress.
I was informed by the parties that a single expert psychiatrist has been appointed (Dr RR) and interviews are scheduled for October 2022. The Court could have offered the parties interviews for a Child Impact Report around the same time. In circumstances where the appointments with the single expert are already organised, there is no utility in making an order for a Child Impact Report and I decline the application.
I accept the submissions on behalf of the mother that she has not acted as expeditiously as would have been desirable. Counsel who appeared on her behalf submitted that her approach in that regard may be a function of the history (ADVO’s and breaches). That may be the case, I cannot make a finding at this stage. However, the mother has now filed material which is supportive of the concerns which caused her to retain the children.
The ICL was appointed on 6 May 2022. Once the ICL has had the opportunity to consider the matter it may be that he or she believes it is appropriate to revisit these interim orders and he or she may do so by making contact by email with my associate (copied to the other parties) seeking the matter be relisted.
There is a live issue about whether a subpoena should issue for records of the children’s treating psychologist/s. I have not determined that matter and it would be appropriate to revisit that issue after the ICL has considered the material.
As I observed on 18 May 2022, these parties have been involved in multiple pieces of interlocutory litigation and of consequence they would benefit from the matter being more closely case managed. To that end the matter is listed before me at 10.00 am on 3 June 2022. On that day I will hear the Application for Review filed by the father, which is listed and make directions for the further conduct of the matter. It will be necessary for all the parties and their legal representatives to appear in person on that day.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 19 May 2022
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