Malak and Mairie (No 2)

[2015] FamCA 1224

FAMILY COURT OF AUSTRALIA

MALAK & MAIRIE (NO. 2) [2015] FamCA 1224

FAMILY LAW – CHILDREN – interim orders – where the father seeks an order that the children be interviewed by the family consultant to ascertain their views, wishes and perceptions of their relationship with their mother and their father – where the Court does not consider it to be in the best interests of the children to accede to the father’s application – where the father’s application is dismissed – where the Court provides an outline of the principles upon which the proceedings will be conducted.

Family Law Act 1975 (Cth) s 60CC, 62G, 69ZN, 69ZQ, 69ZR, 69ZT

Family Law Rules 2004 (Cth) r 15.13

Re F: Litigants in Person Guidelines (2001) FLC 93-072

APPLICANT:	Mr Malak
RESPONDENT:	Ms Mairie

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 2355 of 2010

DATE DELIVERED: 28 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Berman J

HEARING DATE: 28 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

COUNSEL FOR THE RESPONDENT: Litigant in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. I dismiss the oral application of the father for the children C born … 2000, D and E both born … 2004 to be subject of assessment and personal contact with the family consultant in order to ascertain their views, wishes and perceptions of their relationship with their mother and their father.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2355  of 2010

Mr Malak

Applicant

And

Ms Mairie

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today upon the Initiating Application of the father filed on 4 June 2014.  The application relates to parenting orders that are sought by the father as set out in that application which essentially involve parenting issues in respect of the three children, C, born in 2000, and D and E, both born in 2004 (“the children”).

2. The applicant father is unrepresented.  The respondent mother is unrepresented.  The Independent Children’s Lawyer (“ICL”), appointed pursuant to orders of this Court is represented by counsel namely, Ms Harris. 

3. The matter has had a long and significant history, but it comes before me following an order made by Bennett J on 30 April 2015.  In that order her Honour fixed the matter for a final hearing on 20 May 2015, but as I understand her Honour’s directions, the parties and the ICL were generally advised that the matter would remain in my list in what is known as a rolling list and would be reached, hopefully, as other matters are heard and determined or are resolved.  As matters have transpired, that has occurred and this matter now comes before me today for final hearing.

4. I note the matters raised in her Honour’s order of 30 April 2015 which seek to put in place appropriate arrangements to ensure that the matter is in all the circumstances ready.  In particular, her Honour ordered that the parties file a case outline document and a list of documents to be relied upon and there are orders made by way of the filing of affidavits. 

5. There is a family consultant involved in the proceedings being Ms U. Her involvement culminates in a family assessment report or, indeed, a report prepared pursuant to section 62G(2) of the Act, dated and published on 18 March 2015.

6. Ms U has made contact with the Court and has advised of her availability, limited only to this afternoon.  One of the issues that would have needed to be dealt with by way of preliminary consideration is obviously whether it is appropriate for Ms U’s evidence to be given by way of interposition in terms of the evidence that may or may not be concluded from each of the parties.  But that is a matter that is to be considered and I will hear and determine any issue in respect of it.

7. A preliminary issue has arisen which, depending on how it is resolved, may well require the trial to be adjourned to enable, if successful, an application by the father that Ms U interview the children and, presumably, either produce a further or addendum report or be able to give that evidence orally on the next occasion if the father’s application is successful.

8. It is sought that the three children be interviewed by the family consultant Ms U, in circumstances where in relation to the preparation of the report, the children were not involved in that assessment process.  There is some history to the father’s application.  The order of the Honourable Justice Bennett of 30 April 2015 makes mention of the father’s oral application in the following terms:

   The oral application of the father for the family consultant to interview the children:  [C], born … 2000;  [E], born … 2004;  and [D], born … 2004, prior to the commencement of the final hearing be and is hereby dismissed.  For the avoidance of doubt, this does not preclude the father from applying to the learned trial judge for the children to be interviewed by the family consultant.

9. The matter is further reinforced by a notation A in her Honour’s order that indicates clearly it is the intent of the father to pursue his application requiring the family consultant to interview the children.

10. Whilst as a matter of technicality, I consider that the application has probably been heard and determined by her Honour with finality in circumstances where there is no new or material or other fact or issue that has arisen, the unusual circumstances of this case I think require that I give appropriate consideration afresh to the application of the father. 

11. It is important in all cases but in particular in this case where the parties are self-represented litigants that there not be undue reliance upon legal technicality but rather the Court focuses on the matters that are important, namely that there is sufficient and proper evidence that would see the interests of the children being properly served and that a parenting order being made which satisfies the obligations under Part VII of the Act.

12. The orders that the father seeks are orders of communication with the children.  They are also orders that would see information and advice in respect of the children being provided to the father, but also orders are sought that other members of the father’s family are at liberty to communicate with the children.  It is demonstrable that there is no attendance as a party to these proceedings by those that are sought by the father to have an ongoing involvement arising from orders that are being sought by him.

13. For her part, the mother’s position is clear and the orders that she seeks are simple.  She seeks that the Initiating Application of the father be dismissed and while she says that is on the basis that these matters have been dealt with in previous proceedings and are not new matters, whilst that may be an issue that I will deal with as a preliminary matter shortly, nonetheless the essence of the mother’s response is to seek the dismissal and by necessary implication, to rail against any order that the Court might make in respect of the father’s application which would see some contact or communication occurring between the father and the children.

14. The ICL opposes the father’s application.  The issue therefore is well joined.  It is true that the family consultant did not involve the children in the assessment process culminating in the report.  It is also the case that it was not to be considered an error or an omission but rather the family consultant had determined that it was not in the children’s interests that they be a part of the process.

15. If it had been an error or an omission, that would have clearly provided some substance and weight to the matters raised by the father, at least in the sense that there would have needed to be an explanation as to why that process, conceded by counsel for the ICL as being a not uncommon process in the preparation of family assessments, did not occur.  But in this case it did not occur for a reason and upon a well-considered, at least as far as the ICL is concerned, a well-considered basis.

16. The father relies upon s 60CC of the Act. It is appropriate that he does so, and in many respects it is a matter of importance to understand that the father is aware of the provisions of Part VII of the Act notwithstanding he is a self-represented litigant. I do not propose to go through the matters in respect of Part VII of the Act. They are matters obviously relevant for the proceedings and a determination of the proceedings, but they are not relevant matters at this stage in terms of the application sought to be ventilated by the father.

1. In looking at s 60CC(3)(a), which is I think the prime and significant focus of the father fundamental to his application, namely the views of the children, it should not be ignored that there are other considerations set out in s 60CC but, in particular, the primary considerations. Whilst it is early in these proceedings, I would expect and apprehend that the issues in this case will be issues no different to other cases. Namely it will be a tension and a contest between s 60CC(2)(a), namely the benefits to a child or children of having a meaningful relationship with both of the child’s parents and s 60CC(2)(b):-

   The need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

2. So that there is no misunderstanding in terms of the intention of Parliament as to how that tension should be resolved, section 60CC(2A) require that:

   In applying the considerations as set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b)

   namely the need to protect the children from physical or psychological harm.

3. The issue in this case is that the mother says any contact or communication or, indeed, anything that brings the father to the focus of the children is not in their interests and has the potential for significant psychological harm.  That view appears to be supported by the ICL. 

4. The additional consideration focused upon by the father does, indeed, relate to the views of a child or children, but it is important to read the words of s 60CC(3)(a) where the consideration is based upon any views expressed by the child, not a requirement that there be views expressed by a child or children. Each case is different. Each case must be considered as to whether in the circumstances of the case, the Court will or will not be assisted by either the evidence that is presently before the Court or, indeed, will be assisted by the need to obtain further or other evidence.

5. It would seem to me to be a self-fulfilling prophesy that to require the children to undergo an assessment could in fact have the effect of producing the mischief and the harm to the children that the mother, the ICL and, importantly for the purposes of this issue, the family consultant considers might be the result of that process.

6. At present there are no views in terms of a direct expression to the family consultant, but the children’s views do have some expression as a result of those matters the mother has related.  That is not to suggest that the father’s apprehension about that process may or may not ultimately be well-founded.  That, of course, is a matter for me to determine in the sense that in all cases under the Act and under Part VII of the Act the hearsay evidence of children is always admissible.  The issue is the weight that is to be given to that.

7. There are no views of the children directly put, as I have indicated, and it may well be the case that as the evidence unfolds I am persuaded that, even if the children’s views were available to me, they would be irrelevant.  It may be that having heard the evidence, I consider that I am left at the end of the proceedings with a vacuum which can only be assisted potentially by an assessment involving the children.

8. It seems that I am obliged, as I will explain shortly, that these proceedings must, by their very nature, be child-focused. As I will explain to the parties and counsel, the principles under the Act in respect of the conduct of parenting proceedings pursuant to s 69ZN of the Act require me to adopt a cautious and child-focused approach. To accede to the father’s application in circumstances where the very order he seeks may have the mischief and detrimental impact upon the children that the mother fears, that the ICL considers is possible and that the family consultant in not seeking to involve the children is potentially, I think, inappropriate and self-evident.

9. It is also not lost on me that the chronology in this case is unusual.  I take into account the age of the children and I take into account that there has been an extensive and long period since the children have had any contact with the father.  At this stage that clearly is an extended and long period.

10. They are all matters which would impact upon what relevance and what weight I could or would be likely to give to the wishes or any views expressed by the children were they to be interviewed. 

11. All things under Part VII require a balance, but that balance must always be biased towards the paramount consideration of the best interests of the children, and I am obliged to err on the side of caution and I will do so.

12. For those reasons, the father’s application for the children to be interviewed by the family consultant with the necessary result of these proceedings being adjourned is refused, and I dismiss his oral application.

13. It is, of course, entirely possible that as a result of the evidence I will hear it may be that a different position will present itself, but at this stage I do not consider that it would be in the interests of the children specifically to accede to the father’s application.  Also, I do not consider that in any way the father’s application or position on the topic is prejudiced because he will have the opportunity to cross-examine the family consultant about those matters and it may be that as a result of that cross-examination there will be a further opportunity for the father to bring a fresh application in that regard.

14. Accordingly, the only order I make is that I dismiss and decline the oral application of the father for the children to be the subject of assessment and personal contact with the family consultant in order to ascertain their views, wishes and perceptions of their relationship with their mother and their father.

15. At the commencement of these proceedings, the father has made an application seeking that the children be interviewed by the family consultant.  That application has been heard, determined and dismissed.  The matter is now ready to proceed with proper formality, but before that occurs it is, I think, important to remind the parties and also counsel for the ICL the principles upon which these proceedings are to be conducted.

16. Those principles are set out in section 69ZN of the Act, and since I have made reference to them, I think it is important at least that I indicate what those principles are.

17. The first principle is 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.  It can be readily seen from that first principle the resonance that it has in respect of that which has already passed, namely, the dealing and determination of the father’s application in respect of the children.

18. The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings, and that, I think, is self-evident.  However, more will be said of that shortly.

19. The third principle is that the proceedings are to be conducted in a way that will safeguard the child concerned from being subjected to or exposed to abuse, neglect or family violence and be the parties to the proceedings against family violence.

20. Those terms are broad, and it is my view that Parliament intended the expressions “abuse”, “neglect” or “family violence” to be determined broadly.  There is, of course, in the Act assistance in the definition section as to that which constitutes “family violence” but I think it is fair to say that, whilst not specifically mentioned, the issue of psychological harm is a matter that is implicit and inherent in concepts of the children being subjected to or exposed to abuse, neglect or family violence.

21. The fourth principle is that the proceedings are to be conducted as far as possible in a way that will promote cooperative and child-focussed parenting by the parties.  I suspect, without pre-judging or pre-empting that which I will hear over the next few days, it is unlikely the fourth principle is a matter that will be prominent.

22. The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible,  and that fifth principle is important in the sense of the manner in which these proceedings are being conducted, namely, by way of a video link in terms of the appearance by the father from a prison complex, and it may well be, depending upon how we progress today and tomorrow, that these proceedings may well be adjourned part-heard and will need to be resolved by way of further video link that will this time involve not just the father but, potentially, the mother, counsel for the ICL and me, understanding, as the parties do, that this is not my registry and that my home registry is in Adelaide.

23. I can tell the parties and counsel for the ICL that if these proceedings don’t conclude I will try and make arrangements for them to conclude next week but, again, by way of video link.  I will hear submissions on that as the matter progresses.

24. The second issue that it involves matters of delay, or potential to avoid delay, and formality is the need to hear from the family consultant at 2.15 this afternoon.

25. Ordinarily, my practice would be that a family consultant would give his or her evidence at the conclusion of the evidence to be presented by each of the parties.  There is an obvious reason for that.  But, again, this case is difficult and different, and providing there is no prejudice caused to each of the parties in terms of their ability to appropriately cross‑examine the family consultant or, indeed, the ability for the family consultant to be recalled if other evidence that arises during the course of the proceedings and after her evidence has concluded should be put to her, that opportunity will exist. 

26. I can indicate to each of the parties that I am acutely aware of matters that might be considered prejudicial to either the father or the mother in respect of the presentation of the case, and whereas I intend to utilise the family consultant today in circumstances where she is not available tomorrow, I do so with the parties’ clearly understanding that if there is other evidence adduced during the trial that should properly be put to the family consultant, that opportunity will be afforded.  

27. In considering s 69ZN, it is important also to have regard to section 69ZQ of the Act, which is the provision that sets out the general duties and how I give effect, or how a Court gives effect, to the principles in s 69ZN. I do not propose to go through those sections. In essence, it is the general obligation on the Court to proceed as expeditiously as possible to decide which of the issues in the proceedings require a full investigation and which issues might be disposed of summarily and to go about my task with an eye to the proper administration of justice, fairness to the parties, and, indeed, significantly so where both parties are unrepresented or self‑represented, but also to be concerned about matters of abuse, neglect or family violence to the extent that the proceedings impact upon a child or children.

1. Importantly, s 69ZR is a section often overlooked. It is the section that gives me power to make an interim or other determination at any stage of the proceedings if I find that to do so will assist in the determination of the substantive dispute or will shorten the proceedings. Again, that power is to be exercised carefully and cautiously but not necessarily sparingly. It is an appropriate power, if an appropriate circumstance arises, that will have a real and beneficial impact on the proceedings always, as it must be understood, with a child focus on the child’s best interests.

2. Section 69ZT is a matter that needs to be given prominence, in my view, and that is a consideration as to whether or not the rules of evidence do or do not apply to the evidence and, if they do, to what part of the evidence and, if they don’t, do they not apply to all or only some of the evidence. It is a complicated section, but in a general sense – and this is perhaps doing the full extent of s 69ZT a disservice – its general intent is to ensure that the Court focuses on the needs of the children and an appropriate parenting outcome as opposed to focusing on what might be considered unnecessary technicality.

3. The practical effect of s 69ZT is to ensure that the Court receives, without significant opposition, evidence that would in the ordinary course be inadmissible and usually but not exclusively relating to matters of hearsay but also matters of previous convictions, judgments, sentencing remarks and other potential documents, providing they are an integral part of the case. That is not to say, however, that by dispensing with the rules of evidence, the proceedings are like an unguided missile and that we are to chase every rabbit down every burrow. That is not how they are to operate, and notwithstanding that a decision to apply s 69ZT, and thereby to exclude the rules of evidence, this will not prevent any material being considered inadmissible by me.

4. Clearly, there are rules of this Court, being rule 15.13 of the Family Law Rules 2004 (Cth), which give me the ability, notwithstanding the application of s 69ZT, to strike out material that I consider to be inadmissible, offensive or inappropriate. But the real nub of s 69ZT is that it is only to be dispensed with if the Court is satisfied that the circumstances are exceptional and that I have taken into account those matters as set out in s 69ZT(3)(b). That is, I think, a relatively high bar, and it is the position that I propose to adopt in this case that s 69ZT should apply, with the necessary corollary that the rules of evidence will not apply. It seems to me appropriate in this case.

5. The parties should not, however, think that as a result of the lack of application of the rules of evidence, it is an evidentiary free‑for‑all and that all evidence will necessarily have the same weight. The condition in respect of a determination that s 69ZT should apply is that s 69ZT(2) provides that the issue is one of weight, and it may be that evidence, such as hearsay evidence, that is admitted notwithstanding that it would ordinarily be inadmissible may either be given substantial weight because of the circumstances surrounding that evidence or, indeed, may be given little or no weight because the evidence surrounding it or the circumstances surrounding that evidence would suggest that the Court should not place heavy reliance upon it.

6. The parties are unrepresented, and that requires me to raise certain matters with each of them, but they can be raised, I think, collectively because of their respective positions.  The Court has certain obligations to self‑represented litigants.  I am uncertain whether the parties have been made aware from previous appearances before other judicial officers, particularly in respect of hearings relating to the preparation of this matter for trial – whether they have been told of the assistance, but, perhaps more importantly, the extent of the assistance, that I can give or that the Court can give a self‑represented litigant.

7. In the Full Court decision of in Re F: Litigants in Person Guidelines (2001) FLC 93-072, the Full Court sets out the parameters of the assistance that a judicial officer can give a self‑represented litigant. I am not here to assist the parties in matters of legal advice. It would not be appropriate to do so, and the parties can be certain that I will not be doing so. It may be that in respect of the determination of an interim application, I need to resort to matters of law, but that is different to me giving legal advice to the mother or to the father.

8. I am, however, obliged to assist the parties in the proper presentation of their case procedurally. The parties are entitled to know how the proceedings will run. The parties are entitled to know the process of examination, cross‑examination and re‑examination. The parties are entitled to have an understanding of the order in which the business of the Court will be conducted, and to some extent, some of those matters explain why I have adopted perhaps the unusual and lengthy discourse in relation to the principles under section 69ZN and those subsequent sections that are required to be considered in order to understand the whole rather than each of the parts.

9. The proceedings have commenced with the Initiating Application of the father, and once I have finished my introductory remarks, the father will present his case.  Orders previously made required that the parties file a case outline document.  They have done that, and the parties can be satisfied that I have read and considered that document.  That is important.  It is particularly important in this case because these parties are self‑represented litigants, and what they say may be better or more clearly said in writing in circumstances where they have had an opportunity to better and maturely reflect upon their submissions than in the uncomfortable, difficult and perhaps unfamiliar circumstances of a courtroom and a court hearing. 

10. Each of the parties are to be commended by the clarity in which their respective case is presented in their case outline documents.  I can tell the parties that whilst, obviously, I have not prejudged or determined anything, I am acutely aware of that which each party says and the force in which they say it and the importance that they consider that should be attached to those matters. 

11. The father’s position is also amplified – and there is no criticism of him in this next remark – in the manner in which he has constructed his affidavit, and whilst, ordinarily, those matters of submission and opinion would be inadmissible – and they may very well be, and/or they will carry little weight, nonetheless, as part of his argument, I understand them, and I give the latitude to him that I bring to account what he says about his orders in all the places that he says it.  Clearly, circumstances in respect of the mother and her affidavit are perhaps not to the same degree as the father but, nonetheless, in a similar vein, and she will gain no less consideration by me than I give to the father.

12. The father is permitted in examination‑in‑chief to expand upon the information and evidence in his affidavit but only to the extent that matters raised in the mother’s affidavit and possibly in the report are necessary.  This is not a process whereby the father or the mother will be entitled to go back over the very long number of years that this matter has been before the Court in its various incantations.  This is a matter that is discrete and is raised as and from the application filed by the father.  There may be reference to other materials, but the parties should know that I have not trawled through the long years this matter has been in the Court.  I have not done that.  I have been careful to have consideration and view to only those documents that each of the parties seek to put before me and that I bring to account as part of their respective cases, and in that regard, the evidence is limited to relatively few documents.

13. Following the further evidence that the father might wish to put before the Court, it is then the opportunity of the mother to cross‑examine and/or ask questions of the father, followed by counsel for the ICL.  At the conclusion of that process, the father has the ability to adduce some further evidence by way of re‑examination, where it is necessary not simply because a question that he would answer has been truncated by another question put in cross‑examination but where he needs to give some further or more expansive evidence so that I can better understand the topic.  But once that process is over, understanding as I do that the father relies only upon his own evidence, the focus then turns to the mother’s case, and the process and procedure that will be adopted in respect of the presentation of the father’s case will be mirrored by the mother’s case.  And, finally, to the extent that it may be necessary, the ICL will present any further evidence if, indeed, it turns out that the family consultant may need to be recalled. 

14. At the conclusion of the evidence, I will then hear submissions from each of the parties by way of closing remarks.  In the circumstances of this case, and because the parties are self‑represented, the order of business in that regard will be the submissions of the ICL, followed by the submissions of the mother, followed by the submissions of the father.  In these proceedings, the father has the advantage of both putting his best foot forward in respect of the

commencement of the proceedings but also having the final remarks at the conclusion of the proceedings.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 28 May 2015.

Associate: 

Date:  30 March 2016