Malouf & Tuma (No 2)
[2024] FedCFamC2F 177
•31 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Malouf & Tuma (No 2) [2024] FedCFamC2F 177
File number(s): HBC 187 of 2023 Judgment of: JUDGE DICKSON Date of judgment: 31 January 2024 Catchwords: FAMILY LAW – PARENTING – Interim hearing – section 69ZL ex tempore reasons – Final orders made at Trial in 2018 – Previous findings of family violence against the husband – No time ordered – Father has issued new parenting proceedings – Orders made for Specific Issues Report – Father seeks to specify Court Child Expert to undertake the Report – Father alleges potential bias by Court Child Expert nominated by the Court due to professional training – Litigants not to dictate to the Court who shall be Court Child Expert for the purposes of Reports. Legislation: Family Law Act 1975 (Cth) ss 11D, 62G, 69ZL, 69ZW, 117. Cases cited: Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
Goode & Goode (2006) FLC 93-286
Johnson & Johnson (2000) 201 CLR 488
Rice & Asplund (1979) FLC 90-725
Vale & Vale [2016] FamCA 307
Division: Division 2 Family Law Number of paragraphs: 73 Date of hearing: 31 January 2024 Place: Adelaide Applicant: Self-represented Solicitor for the Respondent: BK Legal Solicitor for the Independent Children's Lawyer: Adelta Legal ORDERS
HBC 187 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MALOUF
Applicant
AND: MS TUMA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
31 JANUARY 2024
THE COURT ORDERS THAT:
1.To give effect to paragraphs 5, 6, 7 and 8 of the orders made on 8 August 2023 and paragraph 1 of the orders made on 27 October 2023, Court Child Expert Ms B shall undertake the said Specific Issues Report and interviews.
2.The said Specific Issues Report shall be released to the parties and the Independent
Children’s Lawyer if possible by 31 May 2024.
3.The father’s Application in a Proceeding filed on 6 December 2023 and the mother’s Response filed 12 January 2024 are hereby dismissed.
4.Any Subpoena filed by either the mother of the father is directed to be made specially returnable before Judge Dickson and is not to be considered by a Judicial Registrar of the Court.
5.Within twenty (28) days the father do file and serve a Financial Statement.
6.The application for costs of the mother in the sum of $900 (GST inclusive) and the
application for costs of the Independent Children’s Lawyer in the sum of $900 (GST
inclusive) be adjourned for consideration to 24 July 2024 at 9:30am (City N time).
7.The parties Final Orders Applications be listed for directions only on 24 July 2024 at
9:30am (City N time) such hearing to take place in open Court on a face-to-face basis but with leave granted to the father to appear by way of Microsoft Teams.
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 tempore reasons settled from transcript)JUDGE DICKSON:
INTRODUCTION
These short form Reasons for Judgment pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) were delivered orally following the defended hearing between the parties concerned. These Reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
The Reasons are also provided having regard to the Full Court decision of Goode & Goode[1] as to the legislative pathway applicable to parenting cases on an interim basis and which guides the Court in making orders that are ultimately in the best interests of children.
[1] Goode v Goode (2006) FLC 93-286.
The proceedings listed today concern an interim application filed by the Applicant Father, Mr Malouf (‘the father’), seeking to specify or oppose a Court Child Expert employed by the Court to undertake a Specific Issues Report. The father seeks specifically that the person appointed by the Court to undertake the Specific Issues Report be identified as a psychologist or a psychiatrist. There is a second order sought by the father, namely, that he be permitted to issue a subpoena to the C Hospital for the hospital records in relation to the Respondent Mother, Ms Tuma (‘the mother’).
The application is opposed by the mother and the Independent Children's Lawyer. The mother has sought, in her documents, an order which would permit the father to file a subpoena directed to the D Authority. That application is supported by the Independent Children's Lawyer and by the father.
For the within Reasons, the Court proposes to dismiss the parties’ competing interim applications and make orders that the Court considers are in the best interests of the children.
BACKGROUND
The father is 50 years of age, and the mother is 43 years of age. The parties have three children, namely X born in 2009, now aged 14 years, Y born in 2010, now aged 13 years, and Z born in 2013, now aged 10 years.
The parties were married in 2008.
In 2008, the parties moved to Australia from Country E under the father’s student visa. In 2015, the parties obtained protection visas due to the civil war in Country E.
On 29 July 2017, the parties separated after the mother left the parties’ joint residence in Western Australia with the three children.
On 1 August 2017, the father commenced proceedings for parenting orders. On 8 November 2017, the mother filed her Response to Initiating Application.
Between 17 and 20 December 2018, a Trial took place before a Judge. Each of the parties were represented at the Trial, including the children, who were represented by an Independent Children's Lawyer. On 18 January 2019, final Judgment was delivered by a Judge.[2] The final orders made by the Court, which remain in full force and effect, are, inter alia, as follows:
1.That the wife have sole parental responsibility for the children;
2.That the children live with the wife;
3.That there be no orders for the children to spend time with or communicate with the husband;
4.That the parties and their servants and/or agents be restrained by way of injunction from removing or attempting to remove or causing or permitting the removal of the children or any of them from the Commonwealth of Australia;
5.An airport watchlist order was ordered indefinitely until the children each attain, in effect, the age of 18 years; and
6.All applications were otherwise dismissed.
[2] See Malouf & Tuma [2019].
The Judgment is extensive and well considered. The Judgment was not appealed by either party. The Judgment contains a number of findings. For the purposes of these Reasons and relating to the issues that I am being asked to determine today, I refer to the findings made by a Judge, as follows:
[116] The evidence adduced by the Respondent is insufficient to allow a finding that there is an unacceptable level of risk that the Applicant plans to murder her or have an agent do so on his behalf. There is insufficient evidence to establish that the Applicant’s Muslim and [Country E] characteristics mean that he poses a greater risk of harm to the Respondent then if he was a man of non-Muslim and non-[Country E] background. The focus needs to be more upon the particular individual concerned in a particular case, rather that the religion he practices or the part of the world in which he is born.
[117] The evidence establishes that the Applicant has committed acts of family violence against the Respondent and the children and that they have been traumatised as a result thereof and remain traumatised. Although the Respondent honestly believes that the Applicant intends to kill her, and it is true that the murder of a woman is often preceded by non-lethal acts of violence against her by her killer, it is difficult to see a basis for concluding that the Applicant is more likely to intend murder than any of the many other family violence perpetrators who come before the Courts exercising family law jurisdictions.
[118] There is also insufficient evidence to establish that the Applicant has any links to any [crime] organisation or that his service in [Country E] many years ago, which involved him bearing arms, creates any additional risk that the Respondent will be the subject of an “honour killing”. Similarly, the evidence that the Applicant views speeches on [social media] made by various [preachers] does not prove that he is radicalised or that he practices any extreme forms of Islam. The Applicant views these speeches as part of what he described as the usual practice of Islam, in much the same way as, say, practicing Christians will listen to sermons from priests or other religious leaders.
…
[190] The single expert is clear that the children have been traumatised by the actions of the Applicant and that they require and are receiving counselling to help them to heal. To abruptly re-introduce the Applicant directly into the lives of the children would be to risk the children regressing to the psychological place from which they have departed. The single expert, quite properly, expressed reservations about the morality of any Court simply “trialling” a set of arrangements for children in the hope that no further damage is done to them and their mother.
…
[192] The Respondent’s fears of the Applicant are genuinely held. The evidence indicates that the impact upon the Respondent of the making of orders of the type proposed by the Applicant would be highly negative and likely to impact negatively on her capacity to meet all of the needs of the children, including their emotional needs. That outcome could not possibly serve to advance the best interests of the children.[3]
[3] Malouf & Tuma [2019] [116]-[118], [190], [192].
Furthermore, a Judge made the following comments in paragraph 195 of the Judgment:
Parenting orders are never final in the sense that some financial orders are final. If circumstances change, that is, if there is a genuine change in the mindset of the applicant, then it is open to the applicant to apply in the future for orders providing for the children to spend time with him. However, as the single expert points out at paragraph 156 of his report, unfortunately, the applicant is not a good candidate for change.[4]
[4] Malouf & Tuma [2019] [195].
On 4 December 2019, the father recommenced proceedings in Tasmania by way of Initiating Application seeking a Commonwealth Information Order for the whereabouts of the mother and the children and sought orders for time spending with the children.
On 16 April 2020, Judge Baker made the following orders and notations inter alia that:
1. The father’s Application filed 4 December 2019 be dismissed, noting:
a) Insufficient evidence to persuade the court to make the Commonwealth information order; and
b) That the father needed to provide further evidence.
In 2022, the father obtained permanent residency in Australia. It is also my understanding that the mother is also now a permanent resident of Australia.
On 1 March 2023, the father recommenced proceedings again by way of an Initiating Application in City F, seeking a Commonwealth Information Order, an order for equal shared parental responsibility and time spending with the subject children.
The application proceeded before a Judicial Registrar of the Court on several occasions, before it was heard by Judge Taglieri for determination on 5 May 2023.
On that occasion, the father appeared in person and there was no appearance by or on behalf of the mother. This is not surprising, given that the father was seeking a Commonwealth Location Order and had not yet been able to effect service of his Initiating Application and Court documents on the mother.
Submissions occurred before Judge Taglieri on 5 May 2023, and the Court record confirms that Judgment in relation to the father’s Application in a Proceeding filed 1 March 2023 was reserved to a date to be fixed.
On 27 June 2023, Judge Taglieri delivered a Judgment in relation to the argument which occurred on 5 May 2023. The result was that Her Honour was satisfied to make the order for the Commonwealth Information Order as sought by the father, together with orders pursuant to section 69ZW of the Act to the Tasmanian Police and the Department for Child Protection, in relation to the subject children.
In her Reasons for Judgment, Judge Taglieri refers to the previous decision of a Judge dated 18 January 2019 and the Court confirmed that:
For the purpose of determining whether the location order should be made, the father read into evidence his affidavits filed on 1 March 2023 which annexes various documents outlining steps that he had taken to address the family violence finding made in 2019, and sought to re-establish a relationship with his children.
The Judgment delivered by the Court is self-evident and I do not propose to re-read into my reasons what is already a matter of record.
I do note, however, on page 5 of Her Honour’s decision, under the heading ‘Post-Hearing Development’, the following:
Shortly prior to delivery of the Judgment, the father had filed an application in proceeding on 20 June, seeking to reopen his case for a location order, based on events subsequent to the hearing.
The father affirmed that, [in] 2023, he had received an international phone call from the mother’s siblings which alleged various things in relation to the mother’s health.
It was Her Honour’s view, having heard the further evidence, that:
The seriousness of this information and the prospect of the children being at risk of harm from neglect warrants conducting the hearing of the application in the proceedings on the papers, due to there being urgency. In my view, I have determined in chambers on the papers that leave should be given to the father to reopen his case on the location order.
Under the heading ‘Evaluation’, Her Honour accepted on the papers that the father had taken steps to address his understanding of parenting, and in particular, appropriate interactions with the children. Her Honour notes in paragraph 28, however, that the evidence also left her with an element of doubt about the father’s genuine appreciation of how his behaviours as described in the 2019 Judgment have impacted on the children’s physical and emotional wellbeing and their attitude to him.
Further, in paragraph 29, Her Honour opined that she was similarly left with some doubt as to whether the father had a true appreciation and acceptance of the Court’s findings about the impact of his behaviours on the mother and the children, such that they were physically assaulted and felt controlled and coerced.
In paragraph 31, Her Honour noted that she had intended to defer a determination about whether to make a location order until receiving an expert opinion from a suitably qualified single expert appointed by the Court. However, in light of the additional evidence which she referred to in her Reasons and which I have outlined herein, the information persuaded Her Honour that she should make the location order as sought by the father.
Accordingly, on 27 June 2023 (but amended pursuant to the slip rule on 29 June 2023) orders were made for a location order as sought by the father, and for the L Authority, M Authority, to provide information in relation to the whereabouts of the mother and the children.
The matter next came before Judge Taglieri on 3 August 2023. It is clear from a reading of the notations to that order that the father appeared in person, and there was no appearance by or on behalf of the mother.
It is not evident to me, from looking at the Court file, as to whether or not the mother had been served, or indeed, how much notice had been provided to the mother when the hearing took place on 3 August 2023. This is because there is no Affidavit of Service on file. It is understood that the proceedings and the orders of the Court would have been made available to the mother by the Court, and not the father, particularly given the history of this matter.
I am, therefore, unable to have any clear understanding as to why it was that the mother did not appear on 3 August 2023. However, it is evident, from Her Honour’s orders, that the hearing proceeded and, indeed, an order was made by the Court specifically that the mother attend Court on the next occasion and a comment made that her failure to do so would be considered an affront to the authority of the Court and the administration of justice.
The mother was directed to file answering documents and, in the absence of answering documents, the Court determined to make orders pursuant to section 62G of the Act for a Specific Issues Report, and for the children to be appointed by an Independent Children's Lawyer.
On 6 September 2023, the Independent Children’s Lawyer and the mother’s solicitor appeared. Orders were made for the father’s interim applications for time spending to be dismissed, and the proceedings were transferred to the City N Registry of the Court given the location of the mother and the children. Procedural orders were made for the appointment of an Independent Children’s Lawyer and the proceedings were then transferred to the City N Registry.
On 27 October 2023, the proceedings came before me for management on the first occasion. The father was noted as having filed an affidavit without leave on 20 October 2023. The proceedings were adjourned to 18 March 2024 to await the Specific Issues Report which had been ordered on 3 August 2023 and a further order made for the parties to then attend at a Family Dispute Resolution Conference. The Court acceded to the father’s oral application to be interviewed for the Specific Issues Report which I determined should be at the discretion of the Court Child Expert (‘CCE’). The orders in effect of 27 October 2023 were to recalibrate the matter now that the proceedings had been transferred to City N.
Unfortunately, the matter has not had a smooth passage since being transferred to City N. After the order for the Specific Issues Report was reconfirmed and appointments made with CCE Mr G, the father, on 6 December 2023, filed an Application in a Proceeding. He sought that the Court appoint a registered psychologist or psychiatrist and sought to issue a subpoena for the mother’s medical records held by the C Hospital.
As a consequence of the father’s Application in a Proceeding and the need for that application to be heard and determined by the Court before appointments took place, it resulted in the appointments which had been scheduled by the Court for 22 January 2024 being vacated. I made an order on 14 December staying all orders in relation to the preparation and publication of the Specific Issues Report during the period of the adjournment. The matter was then managed judicially towards an interim hearing which has taken place today.
DOCUMENTS RELIED UPON
The father has filed an Outline of Case Document (Interim Hearing) on 29 January 2024, which sets out at ‘Part B’ that he relies upon the following documents:
(1)Decision dated 2019 (as attached to the Initiating Application filed 19 April 2023);
(2)Orders dated 2019 (as attached to the Initiating Application filed 19 April 2023);
(3)Affidavit of Father filed 20 October 2023;
(4)Application in a Proceeding filed by the father on 1 December 2023;
(5)Affidavit of Father filed 1 December 2023;
(6)Application for Final Orders filed by the father on 1 March 2023;
(7)Orders made by Judge Taglieri 3 August 2023; and
(8)Affidavit of Father filed 1 March 2023.
The mother has filed an Outline of Case Document (Interim Hearing) on 25 January 2024, which sets out at ‘Part B’ that she relies upon the following documents:
(1)Decision dated 2019 (as attached to the Initiating Application filed 19 April 2023);
(2)Orders dated 2019 (as attached to the Initiating Application filed 19 April 2023);
(3)Response to an Application in a Proceeding filed by the mother on 12 January 2024;
(4)Affidavit of Mother filed 31 August 2023;
(5)Affidavit of the Mother filed 15 December 2023;
(6)Affidavit of Mother filed 12 January 2024;
(7)Order of the Court with Department of Child Protection section 69ZW Report Response attached dated 6 September 2023;
(8)Tasmanian Police Information provided to the Court including the redacted Affidavit of the Mother filed 29 June 2023; and
(9)Affidavit of the Father and attachments (“not for the truth of any assertion but to highlight inconsistencies and that no weight can be placed upon any part of it”) filed 20 October 2023.
The Independent Children’s Lawyer filed an Outline of Case Document (Interim Hearing) on 30 January 2024, which sets out at ‘Part B’ that they rely upon the following documents:
(1)Decision dated 2019 (as attached to the Initiating Application filed 19 April 2023);
(2)Orders 2019 (as attached to the Initiating Application filed 19 April 2023);
(3)Application in a Proceeding filed by the Father on 6 December 2023;
(4)Affidavit of the Father filed 6 December 2023;
(5)Response to Application in a Proceeding filed by the Mother on 12 January 2024;
(6)Affidavit of the Mother filed 15 December 2023; and
(7)Affidavit of the Mother filed 12 January 2024.
The Court records that many of the documents sought to be relied upon by the parties at this hearing in fact exceed the sorts of evidence that might be considered by the Court given the narrow scope of the argument which has taken place today. However, in circumstances where the Court wishes to afford each of the parties a full opportunity to be heard, the Court has considered that material in reaching the ultimate decision that it does this day. I also take on board that the father is unrepresented and may be unfamiliar with the evidence that might be considered relevant for an argument of this kind.
ORDERS SOUGHT
The father seeks that the appointed CCE for the Specific Issues Report is a registered psychologist or psychiatrist. He nominates three professionals in his affidavit. One of those persons is a social worker. Further, the father seeks that a subpoena be issued to the C Hospital for the mother’s hospital records and any diagnoses she was given.
The mother seeks orders as follows that:
(1)The father’s Application in a Proceeding filed 1 December 2023 be dismissed;
(2)Costs;
(3)The Court place no weight on any annexures annexed or attached to the father’s affidavit filed 20 October 2023;
(4)The father obtain leave of the Court to file any further affidavit; and
(5)Any affidavit signed overseas that is intended to be relied upon by the applicant be the subject to production of the original signed affidavit, and the mother promoted an affidavit for the father to issue a subpoena to the D Authority in relation to his assertion which underpin the evidence given to Judge Taglieri for the location order regarding a conversation he was said to have had with an officer of the D Authority concerning the enrolment and attendance of the child Z at school.
The Independent Children’s Lawyer sought orders that:
(1)The Application in a Proceeding filed by the father on 6 December be dismissed;
(2)The Independent Children’s Lawyer joined in consenting to the father having leave to issue a subpoena to the D Authority; and
(3)Costs.
LEGAL PRINCIPLES
The Court must be guided always in decisions pertaining to children to their best interests, and I have already recorded for the purposes of these reasons that I intend to follow the pathway as set out in Goode & Goode[5] in directing my attention to the relevant considerations in making orders that I consider to be in the best interests of the children.
[5] Goode v Goode (2006) FLC 93-286.
The application that is filed by the father in relation to the appointment of a registered psychologist or psychiatrist is akin to the sorts of applications that the Court might more normally hear relating to applications for the disqualification of Independent Children’s Lawyer or, at its extreme, an application for a judicial officer to be recused on the grounds of apprehended bias.
In this case, the father’s affidavit sets out that he opposes the CCE who had been nominated by the Court to undertake the interviews of the children for two reasons:
(1)That he fears that she may have a bias in favour of women where it concerns domestic violence matters; and
(2)That he believes that she is not suitably qualified to investigate the Court-ordered issues with the nuance and sensitivity that they require.
The father’s affidavit goes on to refer to various articles which have been published by the CCE with respect to her professional involvement with women and children and issues concerning family violence. It is those matters which give rise to a concern by the father that the CCE will approach her professional duties and responsibilities with some form of apprehended bias in favour of women and children who have been subjected to family violence.
In this case, the Independent Children’s Lawyer rightly points out that there have been findings made in relation to the mother and children being the victims of family violence. Those issues are non-controversial. They were not subject to appeal. The orders of the Court reflect the findings made and are a matter of record.
Secondly, the father opposes the CCE because she is a social worker. It is his submission that her qualifications are not sufficient to enable her to undertake this task. The father puts forward three alternative experts, as follows:
(1)Ms H, who is an accredited mental health social worker;
(2)Dr J, who has a professional doctorate, published work in the journal of applied neuropsychology, and has 20 years’ experience working with children, adolescents, and adults; and,
(3)Ms K, a clinical psychologist who is said to be an experienced Family Consultant with a postgraduate certificate in advanced forensic interviewing, and he refers further to her broad experience in this area.
The Court queried the appropriateness of Ms H to undertake the report, given the father’s opposition to the CCE as a social worker and noting that Ms H is also a social worker. The father’s submission was that, because Ms H is an “accredited mental health social worker” and noting his concerns with respect to the mother’s alleged mental health, it is his view that she would be appropriate to undertake the report.
The mother and the Independent Children’s Lawyer oppose the father’s application and are content to abide the Court’s own arrangements for nominating the Court Child Expert.
EVALUATION
The publication on the Court website for the Court Child Experts fact sheet reads, as follows:
Court Child Experts are qualified psychologists or social workers who have specialist knowledge in child and family issues after separation and divorce.
Court Child Experts are employees of the Federal Circuit and Family Court of Australia and work in an area of the Court called the Court Children’s Services.
Court Child Experts hold a statutory appointment as a family consultant and an authorisation as a family counsellor. These appointments and authorisations are issued by the Court’s Chief Executive Officer.
Under their Family Consultant appointment, Court Child Experts conduct assessments and prepare reports that have been ordered by the Court. Under their family counsellor authorisation, Court Child Experts undertake other duties including:
a) providing advice about children in Court, and
b) conducting triage interviews as part of the Court’s Lighthouse project.
In a response to the serious nature of their statutory appointment and the work that they undertake on behalf of the Court, the Act provides that Court Child Experts are provided with the usual sorts of immunities that are otherwise afforded to judicial officers in the discharge of their professional duties.[6]
[6] Family Law Act 1975 (Cth) s 11D.
Ms G is a CCE employed by the Court. I, therefore, accept that she is a person that the Court considers appropriate to hold a statutory appointment as a CCE and is appropriately qualified to undertake the work that she is employed to do. I do not accept that her past professional and academic interest in matters relating to family violence preclude her as an expert who should undertake interviews of the children in this matter or indeed in any matter that comes before the Court. In my view, the CCE is imminently qualified to undertake the task that she had originally been asked to do.
The father asks the Court to accept that the CCE may approach her role with either actual or apprehended or perceived bias, identified as a principal in the cases of Johnson & Johnson,[7] and Ebner & Official Trustee in Bankruptcy.[8] The concept of apprehended bias as it relates to Independent Children’s Lawyers was considered by Forrest J in the decision of Vale & Vale.[9] As I have already said, the application filed by the father is not dissimilar to the applications with respect to the removal of an Independent Children’s Lawyer, and the comments which fell from the Court on that occasion are analogous here.
[7] Johnson & Johnson (2000) 201 CLR 488.
[8] Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337.
[9] Vale & Vale [2016] FamCA 307, [26]-[30].
In the case of Vale& Vale, the Court determined and opined as follows:
Like so many matters in this Court, it will ... be a matter of considering the evidence presented on each application for the discharge of an Independent Children’s Lawyer to determine if the evidence demonstrates sufficient lack of objectivity and professionalism on the part of the Independent Children’s Lawyer such as to justify his or her discharge. The mere appearance of partiality to a particular ... position will not necessarily suffice to warrant the Independent Children’s Lawyer’s removal.
Further, and perhaps indicative of this case, parents who are involved in litigation in this Court about their children need to understand that, as part of his or her role, the Independent Children’s Lawyer may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the Independent Children’s Lawyer is not acting in accordance with his or her duties in the case.
CONCLUSION
I do not consider on the available evidence that the father has established that the CCE lacks impartiality or alternatively that a fair-minded lay observer might reasonably apprehend that she lacks impartiality. I do not consider that the father has satisfied me on the available evidence that the CCE is a person who should not be appointed to undertake the role of interviewing the children and the parents for the purposes of the Specific Issues Report.
In addition, no evidence was put before the Court as to the availability or cost for either Ms H, Dr J or Ms K. Nor was there evidence with respect to whether or not Dr J or Ms K are Regulation 7 Family Consultants for the purposes of undertaking Specific Issue Reports. In those circumstances, even if I was minded to consider the father’s application (which I am not), his own case fails to establish to my satisfaction the sorts of matters that I would need to consider in determining whether or not an external Family Consultant should be appointed to undertake the task as so ordered.
Further, the Court needs to make it clear to litigants in this Court that where internal reports are being prepared at no cost to the parties and where the Court will make arrangements for the person to undertake the report, the capacity and ability of litigants to dictate to the Court who should and who should not undertake the Reports as so ordered is, in my view, very limited indeed.
For those reasons, I propose to dismiss the father’s application that a single expert, being a registered psychologist or psychiatrist or, indeed, a person other than Ms G.
As a result of needing to determine and hear the father’s application before this matter moves forward, there are practical consequences. The first consequence is that the appointments which had been scheduled to take place in January 2024 can no longer occur. The allocated CCE is no longer available to undertake the interviews of the children, and so by default, the father succeeds in having a CCE other than Ms G undertake the interviews. I make it clear to the father that had Ms G been available to undertake those interviews, I would have had no hesitation in securing her appointment for the comments that I have already made in these reasons.
I will, therefore, appoint an alternate CCE to undertake the interviews as part of my Reasons.
The second result of the father’s application being filed is that there will now be a delay with those appointments taking place. That is an obvious reality of what has happened as a consequence of needing to hear and determine this application. It is unlikely, therefore, that the Report will be available until some time towards the end of May 2024. I therefore propose to adjourn the proceedings for directions to July of 2024.
Subpoena to C Hospital
I now turn to the second limb of the father’s application, that he be granted an opportunity to issue a subpoena to the C Hospital in relation to the mother’s records and diagnoses. That application is also opposed by the mother and the Independent Children's Lawyer.
I am not satisfied that at this juncture it is appropriate to permit either party to issue any subpoenas directed to any organisation or individual.
The orders for the Specific Issues Report were made in the absence of the mother. There are final orders in place that were made following the Trial. There are preliminary applications that may be made on behalf of the mother if such applications were pressed, and I am unclear as to whether or not that was even contemplated by the Court when orders were made on 27 June 2023.
I accept that a Judge made comments in the Judgment regarding a change of circumstances and that being a possibility for reopening of the proceedings. What the learned Judge was referring to in paragraph 195 of the Judgment, is known as the ‘Rule in Rice v Asplund.’[10] That application has not been made. It is unclear whether or not the mother will make that application. As I have remarked, ‘the train had left the station’ by the time the orders were made on 27 June 2023. The mother has not been afforded an opportunity to make an application for Rice v Asplund or Summary Dismissal. It may be that she does so upon the production of the Specific Issues Report.
[10] Rice & Asplund (1979) FLC 90-725.
There are a number of preliminary applications which may arise in a case such as this. I do not intend to widen the scope of dispute between the parties by permitting unnecessary subpoenas to issue. It is not in the best interests of the children for that to occur. This matter needs to be recalibrated so that the Specific Issues Report appointments can now take place, given that they were ordered by the Court as far back as 3 August 2023. I do not support the father having leave to issue a subpoena to D Authority. That also seems to suggest that the Court will condone a widening of the scope of dispute, and I await the production of the Specific Issues Report before determining how this matter is to proceed further through the litigation pathway.
I, therefore, decline the application of the father to issue a subpoena to the C Hospital. I further decline the orders sought by the mother as supported by the Independent Children's Lawyer for the father to issue a subpoena to the D Authority.
The Independent Children's Lawyer and the mother each seek costs fixed in the sum of $900 each in the event that the father’s application was unsuccessful. The application for costs is opposed by the father. The father sought costs in his own right should he be successful in the sum of $1,700.
In circumstances where I do not have a Financial Statement from the father setting out his financial circumstances, I consider it imprudent of me to determine the issue of costs without having more information from the father before me. Costs will be determined, ultimately, in accordance with section 117 of the Act. In making an order, I will be required to consider a number of matters, including the fact that the father has been wholly unsuccessful in relation to his application and, of course, his financial circumstances. The Court considers that a Financial Statement will be imperative to determining the application for costs at a later date.
For all of the above Reasons, the Court makes the orders set out at the commencement of this Judgment.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Dickson. Associate:
Dated: 31 January 2024
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