Nassou & Rassach
[2023] FedCFamC1F 812
•14 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nassou & Rassach [2023] FedCFamC1F 812
File number(s): ADC 434 of 2020 Judgment of: KARI J Date of judgment: 14 September 2023 Catchwords: FAMILY LAW – CHILDREN - Ex tempore reasons – Where the father filed an Application in a Proceeding to resume supervised time spending with the children – Where the proposed professional supervisor has consented to being involved in reunification therapy and not supervision of time spending – Where the father seeks to file an Amended Application in a Proceeding – Where an oral application for an adjournment is made on behalf of the father – Where the application for an adjournment is opposed by the mother and the Independent Children’s Lawyer – Application dismissed Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 14 September 2023 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Purdie Wood Legal Pty Ltd Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Ryder Family Law Counsel for the Independent Children's Lawyer: Ms Lee Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 434 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RASSACH
Applicant
AND: MS NASSOU
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.That the Application in a Proceeding filed on 25 July 2023 be dismissed.
2.That the Response to the Application in a Proceeding filed on 30 August 2023 be dismissed.
3.That the proceedings be referred back to the pool of matters awaiting trial.
4.That the costs of the Applicant Mother arising in relation to the Application in a Proceeding filed on 25 July 2023 and her Response filed on 30 August 2023 be reserved.
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 Nassou & Rassach has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
This matter comes before me today in relation to the parenting arrangements for the parties’ two children, X born 2016, and Y born 2019.
The application before the court is an Application in a Proceeding filed by the father on 25 July 2023. By that application the father essentially seeks orders to recommence supervised time spending with the children. I use the word “recommence” spending time with the children because there were previously orders made for the father to spend time with the children, but those orders were suspended by her Honour Judge Kelly on 14 December 2021. I do not have the benefit of any reasons given by her Honour that day and so it is unclear to me exactly why that decision was taken. That is not a criticism of her Honour, I make that clear, but I make the point because the parties themselves appear to be in dispute as to why her Honour suspended the orders that day. Whatever the case may be, however, the reality is that there has been no time spending between the children and the father since that time.
Ms B prepared an updated family report – that report is dated 15 May 2023 and is available and annexed to an affidavit filed by the Independent Children’s Lawyer on 17 May 2023. During their appointments with Ms B, each of the parents gave different views as to why there had not been any agitation of the children’s time spending with the father since December 2021. I do not propose to delve into the matters that are not agreed between the parties any further.
The father’s Application in a Proceeding filed on 25 July 2023, however, is not one that is presently pressed by him today. Rather, an oral application has been made for the Application in a Proceeding to be adjourned for a period of no less than two months to a date convenient to the court. The father’s counsel has foreshadowed to the court today that it is likely that the father will amend the application to seek a different form of orders and possibly rather than a regime for supervised time spending, a regime for reunification therapy.
In relation to the decision by the father not to pursue his Application in a Proceeding, to be fair to him, his counsel was required by me to take further instructions early in the hearing as a result of comments that fell from me at the commencement of the matter. The comments that fell from me were to raise concerns as to whether the person nominated by the father in his Application in a Proceeding filed on 25 July 2023 to supervise any time spending between he and the children, a Psychologist (Ms C), had agreed to undertaking that course of action.
What became clear from the exchange between myself and the father’s counsel is, that at the very minimum, there was some confusion by Ms C as to what was being asked of her, but what was patently clear to me is that Ms C appeared to be agreeing to being involved in a process of reunification therapy rather than supervision as proposed in the application filed by the father.
Having raised those concerns with the father’s counsel, in particular that I was not prepared to make an order for supervision by a professional unless they had agreed to doing so, the matter was stood down to enable the father’s counsel to take instructions. Having given counsel that opportunity to take instructions, the matter resumed and the oral adjournment application was made.
The application for an adjournment is opposed by both counsel for the mother and counsel for the Independent Children’s Lawyer. The Independent Children’s Lawyer has made submissions to the court today based on the information presently available to the court in particular, the two reports of Ms B, the first dated 11 June 2021 and the second dated 15 May 2023. The position of the Independent Children’s Lawyer is that there is presently no information before the court which would lead the Independent Children’s Lawyer to support either a reintroduction of supervised time spending at this juncture between the children and the father, or reunification therapy between the children and the father at this stage if, indeed, that is the application that is ultimately to be made by the father.
The mother’s position at this juncture appears to be that there should not be any time spending between the children and the father, and that she should have their sole parental responsibility and that they should continue to live with her.
In her most recent report Ms B recommends that, at least in the short to medium term, there is to be no face-to-face time spending between either of the children and the father.
In the case of the child, X, Ms B recommends that after X turns eight the parties should engage in mediation to review X’s development and the father’s engagement with his therapeutic providers, with time to potentially resume on a slow and gradual basis. In relation to the child, Y, Ms B recommends that once Y was settled at school the parties should engage in mediation to consider the resumption of time on a slow basis. Additionally, Ms B recommends that the father actively seek and keep himself updated about the children’s progress, which - given the parties’ difficulties communicating, the engagement should be through the father’s own interactions with the children’s treating professionals. Ms B also recommends that the mother engage in therapeutic intervention to help her support the children’s relationship with their father. Finally, Ms B recommends, that should further evidence arise about either parents’ personal functioning impacting upon the care of the children, then the court may need to review the care arrangements.
As I indicated earlier, the position advanced by the Independent Children’s Lawyer finds its foundation in the recommendations made by Ms B.
In terms of the conduct of the litigation in a more general sense:
(a)The proceedings were commenced by the mother in Division 2 of the court, the Federal Circuit Court as it then was, on 3 February 2020.
(b)The proceedings were ultimately transferred to Division 1 of the court on 14 December 2021, being the same day that her Honour Judge Kelly determined it appropriate to suspend the children’s time spending with the father. The basis that her Honour considered it appropriate to refer the matter to Division 1 of the Court was identified in her Honour’s orders and was on the basis of the complexity of the medical evidence and, secondly, that the hearing would likely exceed five days.
(c)The matter then came before a Judicial Registrar of this court on 11 February 2022. On that occasion the Judicial Registrar noted that an updated Family Report would be required closer to the trial date, understanding that at that stage the proceedings included both parenting and financial issues. Orders were made on that occasion to progress the financial issues to a conciliation conference. Otherwise the matter was adjourned to 26 April 2022.
(d)At the hearing before a Judicial Registrar on 26 April 2022 orders were made to resolve the parties’ competing financial applications before the court, and those proceedings were otherwise dismissed.
(e)The matter next came before me in chambers on 11 July 2022. On that day I made an order adjourning the matter to 3 November 2022 for a first day hearing. The intention of the making of those orders was that at the first day hearing, the matter would be able to be allocated a trial date.
(f)The proceedings then came before me for that intended first day hearing on 3 November 2022. On that day I made orders that the proceedings be managed by me until further order. I also noted that there had been inquiries made at the father’s end for an updated report and that the report was to include recommendations about time spending between the children and the father. The first day hearing, was otherwise adjourned to 4 April 2023. I will pause to mention that there had been interlocutory applications and a contravention application earlier filed in the proceedings that were dismissed that day.
(g)The matter next came before me again on 10 February 2023. On that date the issue that had brought the court’s attention to the matter was an Application in a Proceeding filed by the father on 21 December 2022. That application had at its heart, again, an order sought by the father that he recommence spending supervised time with the children. The mother filed a response to that application on 8 February 2023 in which she sought that the application be dismissed.
(h)At the hearing on 10 February 2023 and as a consequence of the interlocutory applications that had been filed, I made orders adjourning the first day hearing to 25 May 2023. I otherwise made orders requiring the parties to attend a family dispute resolution conference on 1 May 2023 and I made orders for the mother to file some updated material from her psychologist together with particulars about those professionals that the children had attended upon. It does not appear that the Application in a Proceeding was otherwise dealt with on that occasion other than to refer the application to the first day hearing that was then listed to take place in May of 2023.
(i)The further adjourned first day hearing was to have taken place on 23 May 2023, but was adjourned to 26 May 2023 in circumstances where I was unable to hear the matter that day for personal reasons.
(j)At the hearing on 26 May 2023 I was advised two things, as recorded in the notations:
(i)Firstly, that the father would likely file an Application in a Proceeding; and
(ii)Secondly, that the parties agreed a time estimate of approximately eight days for trial.
(k)I made orders on 26 May 2023 listing the matter for a further hearing for setting of trial dates on a date to be fixed, and I otherwise dismissed the application in a proceeding previously filed by the father on 21 December 2022, and the response filed by the mother on 8 February 2023.
(l)The proceedings were then given a mention date before me on 3 August 2023, that order being made in chambers on 7 July 2023.
(m)Thereafter, the father filed the Application in a Proceeding presently before the court, and, as a result of the filing of that application, the hearing on 3 August 2023 was vacated and the matter was listed to a hearing on 8 September 2023. Unfortunately, the hearing on 8 September 2023 was unable to proceed because there had been significant electrical damage caused to the IT infrastructure of the court as a result of a rainstorm the previous day which meant that the hearing was unable to proceed. The matter was accordingly adjourned and listed before me today.
I give that long recent history of the matter because it informs my decision about the adjournment application that has been made today in relation to the Application in a Proceeding filed on 25 July 2023.
In light of that history, it is my considered view, that I do not intend to accede to the application for an adjournment. It may be that the father wishes to file a fresh application with an affidavit in support targeted to any new orders that he pursues, but the reality is now that there have been two Applications in a Proceeding filed by the father in which he has sought supervised time spending which, at least on this occasion, I understand the father is not pursuing at this stage.
While I accept that the father may find my refusal to adjourn the application confronting, I make it clear to him that it is not in any way a reflection of my views or attitude to any application he may make for time spending between he and the children pending trial. -.
I have raised with counsel for the father today whether the matter is to proceed to be given a further first day hearing in order that trial dates can be allocated to the matter. The father’s counsel has opposed that course of action and indicated that the same should essentially await consideration and any determination of any further Application in a Proceeding, either fresh or amended, filed following today at his end.
The consequence of that is that the matter will go back into the trial pool and it has lost any sense of priority in terms of the matter being allocated an earlier trial date. As the father’s counsel properly identifies, the prejudice in that regard is to the father. However, it is not lost on me that any ongoing delay of a final resolution of these proceedings does have an ongoing impact to persons other than the father. In particular, it has an ongoing impact to the children and the mother, who has their primary care and, as a result of the ongoing nature of these proceedings, has uncertainty about their long-term parenting arrangements. From my perspective, this matter needs to be given a trial date sooner rather than later. However, the loss of priority of the matter despite repeated attempts to give the matter a trial date is an outcome that has arisen as a result of various indulgences given to the father and the position he agitates before the court.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 22 September 2023
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