Nambisan & Nambisan (No 2)
[2022] FedCFamC1F 985
Federal Circuit and Family Court of Australia
(DIVISION 1)
Nambisan & Nambisan (No 2) [2022] FedCFamC1F 985
File number(s): BRC 7618 of 2021 Judgment of: JOHNS J Date of judgment: 25 November 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – listing for final hearing – s 102NA – where the mother is self-represented – where there are serious allegations of family violence – where there is a current Final Family Violence Intervention Order in place – where the father has filed a number of interim applications – where the father has had no time with the children – where there is an urgency to finalise proceedings – where the father has elected to discontinue contempt and contravention applications – where the matter is listed for final hearing in June 2023 Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 25 November 2022 Place: Melbourne Counsel for the Applicant: Mr Eidelson Solicitor for the Applicant: Saundh Singh & Smith Lawyers The Respondent: In Person (Self-Represented Litigant) Counsel for the Independent Children's Lawyer: Ms Crotty Solicitor for the Independent Children's Lawyer: Legal Aid NSW Albury ORDERS
BRC 7618 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NAMBISAN
Applicant
AND: MS NAMBISAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JOHNS J
DATE OF ORDER:
25 NOVEMBER 2022
THE COURT ORDERS:
1.That the husband have leave to withdraw his Application – Contempt filed 26 April 2022 and his Application – Contravention filed 28 April 2022.
2.That all applications for final orders be adjourned for hearing before Justice Johns on 13 June 2023 at 10.00am as a five-day matter and that the evidence in chief of all witnesses be given by affidavit.
3.That the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings.
4.That by 4.00pm on 6 February 2023 the applicant file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought; and
(b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon from previous hearings cannot be relied upon as evidence in chief)
5.That the applicant pay all setting down and trial fees by 4.00pm on 6 February 2023.
6.That by 4.00pm on 6 March 2023 the respondent file and serve upon all other parties:
(a)an amended response setting out with precision what orders are being sought; and
(b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
7.That by 4.00pm on 20 March 2023 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.
8.That by 4.00pm on 31 May 2023 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.
9.Leave is granted to the parties and the Independent Children’s Lawyer to file a report in relation to the issues in dispute attached to an affidavit in accordance with the dates identified in paragraph 4, 6 and 8 from any treating doctor, psychologist or therapist; contact centre staff member, professional supervisor, childcare worker or teacher.
10.That no party file any further material other than as provided by these orders without leave of the Court.
11.That pursuant to Division 7.1.2 of the Federal Circuity and Family Court of Australia (Family Law) Rules 2021 Dr C or another expert of D Lawyers’ office or in the alternative, Dr E of F Consulting, as agreed between the parties in writing and failing agreement as appointed by the Independent Children’s Lawyer (“the single Expert”), be appointed as a Single Expert Witness to inquire into the report upon matters pertaining to the welfare of the children:
(a)X born in 2007;
(b)Y born in 2011; and
(c)Z born in 2012
Collectively (“the children”)
12.That the parents shall:
(a)Attend all appointments made by the Single Expert;
(b)Ensure the attendance of the children at such times and dates as directed, including attendance in person if so directed by the Single Expert;
(c)Comply with all reasonable directions and requests made by the Single Expert to assist her in the preparation of the Report.
(d)Do all things to ensure the attendance of and any other person/s who live in the same household as the parents, should the Single Expert request to interview said persons.
(e)That in preparing the Report, the Single Expert be requested to consider the following matters:
(i)The benefit of the children having a meaningful relationship with both parents.
(ii)Whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence in the care of either parent;
(iii)The capacity of each parent to identify and meet the child’s needs both in the short term and long term;
A.In the event short- and long-term support are required to assist one or both parents to meet the child’s needs, an assessment as to the nature and extent of assistance required; and
B.Recommendations as to any professionals;
(iv)The relationship between the children and each other and with each of their parents and any other relevant person;
(v)The likely effect of any change in the child’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
(vi)The practical difficulty and expense of the children spending time with and communicating with either parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(vii)The capacity of each of the child’s parents and any other significant person to provide for the needs of the children including their emotional and intellectual needs;
(viii)The impact of any family violence involving the child or a member of the children’s family;
(ix)The desirability and likely effect of each parent’s proposal for parenting arrangements;
(x)Any recommendation as to the live with and spend time with arrangements which may be appropriate;
(xi)Any other matter the Single Expert considers relevant, including conducting a psychological assessment of both parents if the Single Expert deems it suitable to do so;
(xii)Conducting assessment and observations of therapists and the children in person.
13.That the husband and the wife attend upon Dr G or such other psychiatrist as nominated by the ICL for the purpose of a psychiatric assessment.
14.That the Single Expert be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.
15.That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.
16.That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.
17.Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:
(a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and
(b)The party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.
18.That the practitioners for the parties file and serve electronically to …@... by 4.00pm on 6 June 2023 the following:
(a)a concise set of orders to be sought if different from those already filed;
(b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon; and
(c)a bullet-point summary of argument in relation to the issues in dispute.
19.That upon the release of the reports of the Family Report Writer and Dr G, the parties engage in a private mediation, the mediator to be nominated by the ICL.
20.That the husband pay the costs of the Family Report Writer, Dr G and the Mediator’s costs at first instance and the question of the wife’s contributions thereto be reserved to the final hearing.
21.That the Application in a Proceeding file 2 November 2022 be otherwise dismissed.
22.That the Response to an Application in a Proceeding filed 22 November 2022 be otherwise dismissed.
23.That the Initiating Application – Nullity filed 8 July 2022 be referred to the National Assessment Team for allocation to a judge other than the Hon. Justice Johns for final hearing, noted as a 1-day matter AND IT IS REQUESTED that if practicable it be listed for hearing prior to the final parenting hearing listed to commence 13 June 2023.
24.That the orders made 17 October 2022 be discharged and the hearing listed 3 February 2023 be vacated.
25.That the wife be and is hereby restrained from discussing these orders with the children, including but not limited to the order that the children attend for the preparation of a Family Report.
26.That by 4.00pm on 29 November 2022 the ICL conduct a tele-conference with the children to inform them of the orders made this day that they participate in the preparation of a Family Report.
27.That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.
AND THE COURT NOTES:-
A.That the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings;
B.That the parties have each been advised by the Court:-
a. That pursuant to those requirements, neither party may cross-examine the other party personally;
b. That pursuant to those requirements, any cross-examination of either party 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.
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 pseudonym Nambisan & Nambisan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
The matter comes before the Court today in relation to a range of issues, given the number of pending applications before the Court. Those applications include applications for a decree of Nullity, Application for Divorce, Application Contravention, Application Contempt, as well as both interim and final applications for parenting orders in respect of the parties’ three children: X, aged 15 years, Y, aged 11 years, and Z, aged 10 years.
There has been robust discussion between the bench, Counsel representing the husband and the ICL and the wife, who appears in person, in relation to the number of issues before the Court and as to how they could best be managed.
Sensibly, in my view, the father has sought leave to withdraw his applications for Contempt and Contravention, which were filed the 26th and 28th April 2022 respectively. He does that on the basis that he considers it appropriate that the primary issue, which is the future parenting arrangements for the children, be allowed to proceed at the earliest possible time which, given the work to be undertaken by the parties in preparing the matter, will be June 2023. I so granted leave for him to withdraw those applications.
With the disposal of those matters, the competing parenting applications are in a position to be listed for trial.
Application has been made by the father for psychiatric assessment of the parties by Dr G, who is a Psychiatrist well known to the Court. The basis for that application is that there are a range of allegations made by both parties against each other in relation to their conduct, both in these proceedings and in proceedings previously conducted in Country H.
The mother raises very serious allegations of family violence allegedly perpetrated by the father against the mother. The father raises significant concerns as to the mother’s motivations, whether she is committed to a course of parental alienation or whether there are other psychiatric issues at play that influence and impact on her decision-making and parenting conduct.
The father’s application for psychiatric assessment is one that is supported by the Independent Children's Lawyer. The mother opposes that application.
She submitted that this is not the first occasion upon which the husband has made allegations that she suffers from poor mental health. She submitted that those allegations were first raised by him in proceedings in Country H, which were conducted in 2018.
In my view, given the nature and extent of the allegations raised by each of the parties against the other, I am satisfied that I would likely be assisted in having an assessment of the parties’ psychiatric health and, further, that it would be appropriate that Dr G conduct that assessment.
The reality is, I have no evidence or information before me as to the parties’ functioning conducted by an independent expert. I am not privy to, nor do I have any of, the evidence that was ventilated in other proceedings and I note that those proceedings were conducted more than four years ago; it will be nearly five years by the time this matter comes on for trial. Accordingly, I am satisfied that it is appropriate that an order be made for the parties to both be psychiatrically assessed, and I will make orders to that effect.
The ICL also seeks orders that a Family Report be prepared by an independent expert, and she nominates Dr C, a Psychologist with availability to conduct such assessments in late March 2023. The father supports orders in those terms.
The mother opposes that application; she submits that it is not appropriate that such assessment be undertaken, given the number of interviews that the children have previously been exposed to. She is concerned that to undertake a further assessment would be a form of systems abuse.
When questioned as to how many times the children have been subjected to face to face interviews, the mother conceded that there had, in these proceedings, been only one such interview, which was conducted online.
Of significance, I note that the report writer who conducted that interview, Mr B, raised a number of concerns in his report dated 20 May 2022. It was his position that given his concerns as to the children’s presentation during interview, the children ought be interviewed in person and appropriate arrangements were made for that to occur. Unfortunately, the mother failed to present the children for those interviews as arranged.
The mother also submitted that the children had previously been interviewed by a Judge or Magistrate in the proceedings in Country H. She submitted that those interviews were undertaken in 2019 and 2020. Given that history, the mother submitted that the children ought not be exposed to another interview.
The difficulty with that submission is that I have no evidence before this Court as to what transpired in those proceedings.
In circumstances where there has been only one interview process conducted in these proceedings and where that process identified significant concerns in the children’s presentation such that it motivated the report writer to recommend that there be in person interviews of each of the children, I am satisfied that it is appropriate that there be orders for a Family Report. Further, I am satisfied that it is appropriate that the Family Report Writer be asked to consider whether or not it is appropriate that such interviews be conducted in person, and I will make appropriate orders to ensure that that occurs.
Given the allegations of family violence in these proceedings, and the existence of final family violence intervention orders against the father for the protection of the mother and the children, the provisions of section 102NA(2) of the Family Law Act 1975 (Cth) will apply to the final hearing.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 25 November 2022
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