Malouf & Malouf

[2021] FamCA 460

FAMILY COURT OF AUSTRALIA

Malouf & Malouf [2021] FamCA 460

File number(s):	PAC 620 of 2019
Judgment of:	GILL J
Date of judgment:	28 June 2021
Catchwords:	FAMILY LAW – CHILDREN – consent terms – parties to engage a  family therapist – preparation of family report – release of children’s medical information – information from children’s school and extra-curricular activities
Legislation:	Family Law Act 1975 (Cth) - s 62G(2)
Number of paragraphs:	7
Date of hearing:	28 June 2021
Place:	Canberra
Solicitor for the Applicant:	Self-representing
Solicitor for the Respondent:	Jacqueline Gore & Associates
Solicitor for the Independent Children's Lawyer:	Christina Lam & Associates

ORDERS

PAC 620 of 2019

BETWEEN:

MR MALOUF

Applicant

AND:

MS MALOUF

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	28 JUNE 2021

THE COURT ORDERS, BY CONSENT UNTIL FURTHER ORDER:

1.That parties and each of them shall forthwith and within seven (7) days contact B Services at (02) … City C for purposes of engaging Dr D for family therapy and subject to assessment of suitability, each parent shall then:

(a)Ensure that the child attends and participates in therapy on such times, dates and places as may be advised; and

(b)Equally pay such fees as may be charged.

2.The father’s time with the children shall be guided by the recommendations of the family therapist and if it is agreed between the parties.

3.That the mother and the father shall each authorise any medical practitioners that the children may attend to release all information regarding any treatment to the other parent.

4.The mother and father are authorised to receive all information relating to the children from the children’s school or extra-curricular activities ordinarily available to parents.  

IT IS FURTHER ORDERED THAT:

5.Pursuant to s 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

(a)The benefit to the children of having a meaningful relationship with both of the children’s parents;

(b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the children may be exposed to and the impact both in the short term and long term in the event that the child is exposed to abuse, neglect or family violence;

(c)The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

(i)Either of the children’s parents;

(ii)Any other child or other person (including a grandparent or other relative of the child including a sibling or step-sibling) with whom the children has/have been living; and

Including an assessment of the nature of the children’s present and prospective attachments in terms of the orders sought by each of the parties;

(d)The capacity of:

(i)Each of the children’s parents; and

(ii)Any other person (including any grandparent or other relative of the children)

to provide for the needs of the children, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability, mental disability or risk of abuse;

(e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Family Consultant thinks are relevant;

(f)The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents;

(g)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children;

(h)Any other fact or circumstance that in the opinion of the Family Consultant is relevant.

6.The Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

7.I grant the parties liberty to relist the matter before the Court following the release of the family report, or should the family therapy indicate that further orders are required to enable the parties to do so.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. These are proceedings in which it is uncontroversial that the children the subject of the proceedings X, who is almost 14, Y, who is almost 10, and Z, who is almost 7, have spent no time with the father for a number of years.  In that context, the parties with the assistance of the Independent Children's Lawyer prepared a minute of consent terms which is marked as exhibit C1.  Those consent terms applied for the three children to engage in family therapy with a therapist agreed to by the parties, with such therapy then to guide, subject to the agreement of the parties, any further time that the father might spend with the children.

2. The parties also agreed to a number of other orders being made providing for the provision of information about the children to the father from medical practitioners and schools, and for regular telephone time to occur between the father and the children. 

3. Typically, the agreement of the parties to such matters would weigh heavily in favour of making such orders as being in the best interest of the children.  In this case, however, there is a history of serious allegations of violence made against the father, being violence alleged to be perpetrated against various children, against the mother, and against other persons that the mother asserts are indicative of a risk of exposure of the children directly to violence and indirectly to violence and, she also alleges, exposure to sexual abuse. 

4. These allegations are not allegations which are able be resolved during the interim proceedings but occur in the further context with the mother asserts that previous occasions of supervised time for the children have resulted in extreme distress for the children to the extent that the mother was unable to cause them to attend.  Again, these are controversial matters and will require resolution at a final hearing.

5. It may be observed that some limited concessions have been made by the father in respect of allegations made by the mother, the significance of such will require further assessment at a final hearing of the matter.  However, on balance, under circumstances where interim orders are to be made in the best interests of the children, where the Court has limited material before it, in particular limited material from the father, where there are concerning allegations and commentary on the allegations made in the family report, where there are further concerning allegations disclosed by the mother in her previous affidavit prepared in these proceedings and where amongst the considerations that the Court is to have regard to in making orders, the consideration that has primacy is the protection of the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence and in the context where there is a risk of traumatising of the children given the history that is alleged, although as yet unproven, I am not satisfied that it is in the children's best interests despite the previous agreement of the parties that there be an order for telephone time.

6. The parents have each modified their agreement to the proposed terms such that they are agreed for the children to attend for family therapy, even without telephone time taking place, on the basis that family therapy would be that the precursor for the return of the matter before the Court following a further family report being prepared, such family report being able to supplement the report prepared in February of this year, but supplemented under circumstances where family therapy will then have taken place.  Although it is undesirable to have a series of different reports prepared in proceedings, in these proceedings it is in the interests of the children that such a course of action take place. 

7. Under those circumstances, by consent, I make orders 1, 2, 4 and 5 of exhibit C1. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       28 June 2021