Lou & Wong
[2021] FedCFamC1F 99
•27 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Lou & Wong [2021] FedCFamC1F 99
File number(s): MLC 11644 of 2016 Judgment of: WILSON J Date of judgment: 27 September 2021 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDUCIAL REGISTRAR’S ORDERS – consent on all issues but the identity of the therapeutic family counsellor – orders made. Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 27 September 2021 Place: Melbourne Solicitor for the Applicant: Applicant in person Solicitor for the Respondent: Respondent in person Counsel for the Independent Children’s Lawyer: Mr P. Harrison Solicitor for the Independent Children’s Lawyer: Autumn Legal ORDERS
MLC 11644 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LOU
Applicant
AND: MS WONG
Respondent
AND INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILSON J
DATE OF ORDER:
27 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Paragraph four of the orders made by the senior judicial registrar on 1 September 2021 is varied to substitute the name Ms G with Ms H.
2.By 2:15pm on 27 September 2021 the independent children’s lawyer must provide a minute to embed into paragraph four of the orders made on 1 September 2021 subparagraphs that make specific stipulations as to time, events and the minutiae of the attendance of all requisite parties upon Ms H.
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 pseudonyms Lou &Wong is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
Today is the return of a review application brought in respect of the orders of the senior judicial registrar made on 1 September 2021. A wide array of matters were before me but ultimately after debate very sensibly engaged in by Mr Lou who represents himself, and Ms Wong who likewise is unrepresented but advancing her own interests and by Mr Harrison of counsel for the ICL, considerable progress was made to refine the issues so that one matter only fell for determination, all other matters being the subject of agreement.
Paragraph 4 of the orders of the senior judicial registrar require the children and the father to attend upon Ms G at the cost of the father for the purposes of therapeutic counselling to improve the relationship between them, and that the mother should facilitate such attendance.
Despite agreement on many things today, the parties were at daggers drawn in respect of the identity of the person to provide therapeutic counselling.
Three counsellors were proposed for therapeutic counselling to accord with paragraph 4 of the senior registrar’s order. The first was Ms G, as the senior judicial registrar first postulated. Mr Harrison very kindly investigated the availability of Ms G and found that while she could immediately undertake an intake with a view to commencing her work on a date in early October, her work would come to an end in the month of November rendering the utility of her services of dubious nature, having regard to the fact that the trial of this proceeding is currently fixed for 16 November 2021.
It is in the interests of all parties to have up-to-date information after therapeutic counselling for as long as can be conducted between now and the trial date.
Mr Harrison suggested the availability of Ms H, a consultant well-known in this Court. Apparently, her availability becomes manifest in the second half of October, and she offers terms that include a more user-friendly attitude towards payment.
The third option was propounded by Mr Lou and, with some determination, namely Dr F, a person who has already assumed significance in this case. Mr Lou told me that Dr F is available immediately and would offer her services to accord with the timetable that has this case proceeding to trial on 16 November.
Ms Wong told me that Dr F is not a professional appealing to Ms Wong.
Ms Wong told me that the children will not engage with Dr F and, on that basis alone, would render the purpose of paragraph 4 of the senior registrar’s orders otiose.
In other words, there would be little point in my making an order for the children to attend upon Dr F if they simply will not attend.
One might be cynical and accede to the suggestion of Mr Lou to the effect that the children are coached and that they are under the influence of the mother towards the father. That is a matter about which I express no view, and it will fall squarely for the determination of the learned trial judge when this case gets to trial.
It seems to me that the most important issue in this case is to get the children before a person in accordance with paragraph 4 of the senior registrar’s order who can provide the necessary guidance to the Court when the case comes to trial.
Ms H is a person well-known to this Court who is independent and unattached to any interests in this litigation. She is well-known for providing sophisticated, very well informed, very learned and detailed evidence for use in cases that routinely come to this Court in respect of parenting matters. I have no doubt whatsoever that Ms H is more than up to the task of providing the necessary services that are called upon in this case.
In saying that, I say nothing to take away from the ability of Dr F except to say that the children have expressed an unwillingness to attend before that doctor.
In those circumstances, a timing imperative presents itself and one which serves a secondary purpose, namely getting this case to trial in circumstances where the case has been on foot since 2016, a lamentable and embarrassing statistic for the purposes of this Court. This case has been around long enough for it to be tried to completion. The time has arrived, the date is fixed, steps must be put in train to enable the case to be tried if for no other reason than to promote the best interests of the children and to extricate the parties from the litigation vortex. They have lived this litigation long enough. The time has come for them to extricate themselves from it.
Counsel for the independent children’s lawyer expressed his views about the way in which the parties are engaging in this litigation. I recognise that litigation in this Court is traumatic at the best of times. That said, the parties must conduct themselves in a way, especially when they are unrepresented, to put aside their war and to promote the best interests of their children. The legislation that guides every judge of this Court is premised in parenting matters on the best interests of the children. Obdurate, difficult and implacable behaviour by parents goes nowhere to promoting those interests.
If the parties continue to engage in behaviour that does anything but promote the best interests of the children, they are at substantial risk of a costs order being made against them under s 117(2A) of the Family Law Act. Conduct of the parties is very relevant in the conduct of this litigation, and it will be entirely open to the trial judge in this case to make an order visiting costs upon a party for behaviour which is immovable, implacable, difficult and obdurate. A party who engages in obfuscation, delay, belligerence and in any similar behaviour that does otherwise than promote the best interests of the children and getting this case to trial is at risk of a costs order.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Dated: 1 October 2021
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