Linwood & Linwood
[2023] FedCFamC1F 1142
•17 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Linwood & Linwood [2023] FedCFamC1F 1142
File number(s): MLC 10185 of 2020 Judgment of: BENNETT J Date of judgment: 17 August 2023 Catchwords: FAMILY LAW – CASE MANAGEMENT – where matter set down for hearing, mediation – directions for trial – need for proportionality Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 17 August 2023 Place: Melbourne (via MS Teams) Counsel for the Applicant: Mr Duckett Solicitor for the Applicant: Parminder Sandhu Solicitors Solicitor for the Respondent: Ms Siskovic of Intouch Legal Centre ORDERS
MLC 10185 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LINWOOD
ApplicantAND: MS LINWOOD
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
17 AUGUST 2023
UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 applies to any cross-examination occurring in the proceedings on or after 11 September 2019;
And further noting that the parties have been advised by the court:
(a)that pursuant to those requirements, neither parent may cross-examine the other parent personally;
(b)that pursuant to those requirements, any cross-examination of either parent may only be conducted by a legal practitioner acting on behalf of the other party;
(c)as to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d)that a copy of these orders will be provided by the court to Victoria Legal Aid which administers the said scheme.
THE COURT ORDERS THAT:
2.The requirements of s 102NA (2) of the Family Law Act 1975 will apply to this proceedings NOTING THAT the mother has already been allocated a lawyer under the provisions.
3.The father make application to Victoria Legal Aid for funding pursuant to s 102NA (2) for the final hearing of this matter and the father forthwith advise Victoria Legal Aid of his practitioner of choice who is willing and eligible to take legal aid work.
4.That this matter be fixed for final hearing before me on 8 April 2024 at 10.00 am estimated to take 4 to 5 days (“the final hearing”).
5.That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born 2018 (“the child”) be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to arrange for subpoeana to issue to the following:
(a)Ms C, psychologist, in relation to the patient X born 2018 and/or the mother Ms Linwood born 1987;
(b)Dr B, psychologist,;
(c)D Medical Centre in relation to the treatment of X born 2018 and/or the mother Ms Linwood born 1987;
for production of all documents and things in relation to their consultation(s).
6.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
7.That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.
8.Until further order, the mother be and is hereby restrained from causing, permitting or suffering the child X to be taken to or assessed by a psychologist, social scientist or like health professional without the prior written consent of the father.
9.The parties and their practitioners on the record, or counsel briefed to appear, attend a two-part conciliation conference in person at the Melbourne Registry of the Court with a Judicial Registrar as follows:
(a)On Thursday 21 September at 9.00 am; and
(b)on Wednesday 27 September 2023 at 9.00 am;
for the purpose of making a genuine effort to reach agreement on matters in issue between them and, in the absence of being able to resolve all of the matters, to identify what issues remain unresolved and to isolate the evidence relevant to those issues.
10.That my Associate inform the parties by email of what arrangements have been made in relation to mediation.
11.Within 7 days each party inform the other by their respective legal practitioner of any documents and things of which that party requires discovery of and within 7 days of receiving such request the party to whom the request is directed comply.
12.There be liberty to apply reserved to each party and to the independent children’s lawyer in relation to the readiness of this matter for the conciliation conference or further alternative dispute resolution event and the final hearing. The parties exercise this liberty to apply by the independent children’s lawyer contacting my Associate – email ...@... - if the matter relates to parenting or one of the two parties contacting my Associate on behalf of both the mother and father in relation to property related matters which require court time.
13.Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared. For that purpose, the parties and child X born 2018 attend upon a Child Court Expert nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. Such report to be commenced not before 1 November 2023 and be released by not later than 20 December 2023 AND IT IS NOTED THAT an earlier Child Impact Report has been prepared by Court Child Expert Ms E AND IT IS REQUESTED THAT the Director of Court Child Services give consideration to Court Child Expert Ms E preparing the Family Report.
14.Not later than 4.00 pm on 24 August 2023 the parties provide their contact telephone numbers and email addresses to ...@....
15.The family report deal with the following matters:-
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;
(b)the matters set out in s60CC of the Family Law Act;
(c)an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;
(d)an observation of each of the parties with the children (unless it appears to the Court Child Expert that such an observation taking place is not in the immediate best interests of the children);
(e)recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible.
16.For the avoidance of doubt the Child Court Expert be and is hereby authorized to have reference to:-
(a)all documents filed in these proceedings;
(b)any documents produced on subpoenae and released for inspection by all parties;
(c)any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;
(d)any documents or things referred to in this Order.
17.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any independent children’s lawyer in the proceedings.
18.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
19.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
20.The independent children’s lawyer facilitate such conference (including a conference by telephone) between the said expert witnesses as he/she considers appropriate and in respect of which he/she provides the other parties with prior written notice.
21.Until further order, notwithstanding any other order to the contrary, the parties and any independent children’s lawyer be at liberty to provide any mediator or expert with a copy of all relevant expert reports in this matter including, but not limited to, family reports and parent and children’s issues assessments.
22.Pursuant to Sections 65DA(2) and 62B the particulars and 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.
IT IS DIRECTED:
23.That my reasons for decision be transcribed and, when settled, placed on the Court file and a copy provided to the parties.
AND IT IS NOTED:
A.That each of the husband and the wife were each assisted at today’s hearing by an interpreter in the F language.
B.That any party requiring the assistance of an interpreter is to arrange same by email to ...@... in sufficient time for each court hearing.
C.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
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 pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex-temporeBENNETT J:
This matter comes before me as a first day of hearing, it having been transferred to Division 1 at the final point of hearing in Division 2, then estimated to take three days. The matter deals with both parenting issues, which concern X, the parties’ daughter, born 2018 and about to turn five years of age. The financial aspect of the matter appears to be confined to an alteration of property interests.
The father is 43 years old, and the mother is 35 years old. Both were born in Country G. It is an arranged marriage and they met on one occasion before they married, in Country G, in early 2016. The father was living in Australia at the time of the marriage, having arrived here in approximately 2009. Following marriage, the parties obtained a partner’s visa, which enabled the mother to enter Australia. She entered Australia and the parties commenced cohabitation in early 2017, 11 months after their marriage. The parties bought a house and land package, either in their joint names or in the husband’s name. There were a number of financial transactions associated with that. The one child of the marriage, X, was born 2018. The parties separated on 17 August 2019. They have not resided together since. The parties have mutual final intervention orders against each other, which are due to expire in late 2027.
X is in apparently good physical health. The mother alleges that the child suffers from anxiety, principally related to spending time with the father. From all that I have heard today, it may well be that the mother is the anxious party, and that any anxiety is transmitted to the child.
The matter has, unfortunately, a long litigation history, in which the parties have been through very many expensive court events and processes but have succeeded only in making the matter probably more complex than it needs to be. By my count, this is the twelfth court event attended by the parties, not including any mediations or dispute resolution conferences. The matter was assessed for compliance and readiness by Chief Justice Alstergren over a year ago on the 22 February 2022 and was to be heard for final hearing by Judge Harland on 27 April 2023. The matter was unable to proceed on that occasion as the interpreter booked for the mother indicated she was unable to carry out her obligation to interpret the proceedings and the court was not able to obtain a replacement interpreter in the short time frame. It was adjourned to 30 August 2023, again before Judge Harland. The matter was transferred from Division 2 to Division 1 on 21 July 2023 after the parties submitted their trial plan which anticipated ten witnesses were expected to be called, seven of which require an interpreter.
There is a Department of Health and Human Services response to a section 67Z order, dated early 2021. That is common to the parties and the Department were of the view that no involvement by the Department was necessary. The parties underwent a child-inclusive conference with a family consultant on 16 November 2021. It was considered that the issues in relation to – the circumstances of X are described in the Child Inclusive Conference Memorandum to Court dated 22 November 2021 at [20]-[22] as follows:
[X] […] was not interviewed due to her age and stage of development. [X] attends [H Child Care Centre] each Wednesday and Thursday between 9:30am and 4:30pm. [Ms Linwood] stated she is currently working on a casual basis as [an] Educator and when she attends her employment, [X] is placed into childcare […]. She stated that she attends [a religious site] with [X] daily.
According to [Ms Linwood], [X] has remained in her primary care since separation and had not spent any time with her father between August 2019 and August 2021 following Court Orders for spend time being made. [Ms Linwood] alleged during interview that [X’s] behaviour has changed since spending time with her father and she has been screaming following spend time and is telling her mother she does not want to see her father.
[X’s] emotional and psychological wellbeing may be placed at risk if she continues to be placed in the centre of the parental dispute. [X] did not see her father for two years and it is extremely unlikely she remembers her father and has made a decision she no longer wants to see him.
The issues in relation to X were described at [23]-[28] of the Memorandum as follows:
•The parties’ capacity to prioritise the child’s needs above their own and their conflict.
•The alleged family violence perpetrated by each against the other in the presence of the child.
•The effect on the child’s emotional and psychological wellbeing due to being exposed to considerable conflict between her parents.
•The parenting capacity of both parties.
•The possible influence of the child by her mother and the effect on the relationship between her and her father.
•The effect on the child’s emotional and psychological wellbeing due to inconsistent spend time with her father.
The agreements reached in relation to X’s care were outlined at [29]-[30] of the Memorandum:
•The parties have reached agreement that the child live with her mother and spend time with her father.
•The parties have reached agreement they communicate via text message in relation to the child.
Going forward, the family consultant, Ms L, made the following recommendations at [31]-[42]:
The child live with the mother.
In the interim, the child spend time with the father unsupervised as follows:
•Two hours three times per week on days and times suitable to both parties for a period of four weeks.
•After four weeks, time increase to three hours two times per week on days and at times suitable to both parties for a period of four weeks.
•After four weeks, time increase to one period of three hours and one day on the weekend during the time the mother is working. If the mother does not work on a weekend, spend time occur on one day of the weekend from 10am to 3pm.
Should spend time not occur then arrangements be made for X to spend make-up time with her father.
It is recommended that changeovers occur in a public place with video surveillance.
That both parties complete a Parenting Orders Program through [J Family Services], ph: […] and follow all referrals and recommendations of the program.
The mother consider participating in individual counselling with a Clinician in relation to family issues.
Both parties be authorised to obtain all information that parents are normally entitled to from the child’s daycare/childcare/kindergarten/school at their own request and expense.
That each parent shall keep the other parent informed of all serious medical and dental treatment that the child is required to undergo and authorise treating practitioners to communicate with the other parent.
That save in the case of an emergency, immediately upon making a medical or like appointment for the child, the mother inform the father by text message providing the appointment time and venue for that particular appointment, such notification to be made in advance of the appointment, to enable the father to participate in that consultation/appointment.
Consideration be given to this memorandum being released to all relevant professionals assisting the child and the parents such as the Parenting Orders Program.
That the parties consider communicating through text message or a parenting App such as “My Family Wizard” or “App Close”.
This dispute relates to the spend time between the child and her father therefore consideration be given to a referral for a Court based Alternative Dispute Resolution Conference with a view to creating an opportunity for the parties to resolve their differences.
I will not go through a history of the matter for the purpose of this case management event, but I do note that each party has filed an amended application or response, specifying the orders that they seek. The father’s further amended initiating application was filed 23 March 2023. In it, he seeks two pages of parenting orders, totalling 15 in number. The mother has filed an amended response, or what should be called a response to an amended initiating application, seeking alternative parenting orders, including an order for sole parental responsibility. She seeks approximately 20 orders, including liberty to take X out of Australia for the purpose of visiting her family in Country G.
In June 2022, Ms E, a court child expert / family consultant prepared a child impact report. It is an internally consistent report, which appears to contain valuable insights in relation to the family. Notably, the recommendations were as follows (at [23]):
Both parents are likely to benefit from professional support to develop strategies to support [X’s] emotional needs and transition between the parents:
•[X] will benefit from her parents completing a Parenting Orders Program, if not yet completed.
•[X] will benefit from [Ms Linwood] participating in individual counselling to support her own emotional transition to [X] spending unsupervised time with [Mr Linwood].
•[Mr Linwood] to consider engaging with a playgroup and/or attend a Tuning into Kids program to develop further parenting skills.
•If [X’s] tolerance to changeovers does not improve, and if reported indicators of stress such as sleep disturbances and emotional dysregulation continue she will benefit from a paediatrician assessment.
•If the matter continues, the Court may benefit from information from the medical practitioners treating [X]. It will be of benefit for both parents to have access to information and involvement in assessment or any treatment plans.
•Consideration be given to this report being released to all relevant professionals assisting X and the parents
I am informed today that each party has completed a parenting orders program. The mother says that she has sourced individual counselling to support her own emotional transition to X spending unsupervised time with Mr Linwood by seeing Dr B in January and February of 2023. She does not see Dr B on an ongoing basis. It is of concern to me that, without consultation with the father, or informing him, the mother has taken the child to a psychologist, Ms C.
The current parenting order is that made on 20 December 2021. Paragraph 1 is an order for that until further order, the father and the mother have equal shared responsibility of X. The mother’s practitioner cannot explain how the mother was given to believe it would be appropriate to have a child seen by a psychologist without discussing the matter with the father or notifying him of her proposal to do so and seeking his input. I am concerned that a psychologist or health professional would see a child without having been shown an order that the person who is bringing the child to the appointment either had sole parental responsibility to the exclusion of anyone else or did not require to see the father, or at least see a consent by him that the child be treated.
The father seeks more extensive spend time orders than he currently has, including overnight. The mother opposes any overnight time and says that there should not be overnight time until the child has reached an appropriate age.
When pressed, I was informed that the mother believes that the child should not have overnight time with the father until the child is at least nine years of age, and that is based on the mother’s perception that the child is anxious and particularly anxious about seeing the father.
I am at a loss to know how a matter of this nature could have come so far, and been through so many court events, and not have had any request made of Victoria Legal Aid for the appointment of an Independent Children’s Lawyer. In my view, there is much to be done by an Independent Children’s Lawyer in terms of reality-testing the parents’ respective positions, finding common ground, and identifying the issues that actually need to be determined by the Court. The first step for an Independent Children’s Lawyer will be to require production of documents from the medical professionals involved thus far by the mother.
The property matter seems to be similarly unwieldy. There is – in fact – modest equity in the house, two motor cars, some modest superannuation. Both parties allege payments were made during the marriage, either by them or on their behalf, that ought now be taken into account. In particular, the father alleges that in September 2019, he paid the mother some $57,000 by way of satisfying her entitlement to an alteration of property interests. The mother denies receiving any such payment. It is alleged by the mother that her parents in Country G paid $50,000 as an endowment for her, not in a lump sum but in a series of payments after the marriage, but the husband denies receiving any such moneys, to the extent that there are financial transactions that the mother says reflects the endowment payment. The father has an alternative explanation which has something to do with selling livestock or buying them in Country G.
The parties should be alive to the fact, and be advised, that it may be – in a final defended hearing of this matter, and after having heard all of the evidence, including evidence by the seven witnesses that they currently say are necessary, in addition to evidence by themselves – that the court is unable to make a finding as to whether or not certain moneys were paid, as alleged. If that is the case, that will lead the matter for a final alteration of property interests, regardless of the moneys that were allegedly paid. On the father’s side of the ledger there are also other payments that appear to be claimed in as much as he has taken the trouble to mention them in court documents. They include moneys for the wife’s visa, moneys to go to Country M when the wife was required to apply for a visa renewal from outside Australia, and the like. It is difficult to see where these payments come under section 79(4)(a), although they may be given some weight by virtue of section 75(2) of the Act.
Just as the Independent Children’s Lawyer needs to pull the parenting proceedings together for these parties, I have suggested that a mediator with a fairly forceful point of view needs to pull the property proceedings together for the parties before they spend even more money on very limited issues.
I have not been able to get precise arrangements for a court-provided mediation. In my view, it must be face-to-face and not conducted electronically. My associate will notify the parties by email of what arrangements can be made, and the parties have liberty to apply in the event that they want to return to court, to be further heard or require others acts or things done to make the matter ready for mediation.
It appears that, in the course of delivering these reasons, we do have some dates for mediation, so it will be an internal mediation and we will start with it being on the issue of property, although I will leave it up to the mediator to have discussions also in relation to parenting matters. The dates are 7 September 2023 at 9 am, for four hours, and 21 September 2023 at 9 am, for four hours. The parties will be required to be at court, as will their practitioners.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 4 April 2024
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