Philidor & Philidor
[2023] FedCFamC1F 245
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Philidor & Philidor [2023] FedCFamC1F 245
File number(s): MLC 9942 of 2020 Judgment of: MCNAB J Date of judgment: 29 March 2023 Catchwords: FAMILY LAW – PARENTING AND PROPERTY – Where the matter is part heard - Whether the Court should make Interim Orders – Where the Court has not heard the evidence from the Family Report Writer -Whether interim orders for supervised time would be a form of pre-judgment Legislation: Family Law Act 1975 (Cth) s 64B Cases cited: Jacks & Samson [2008] FamCAFC 173
L & T (1999) FamCA 1699
Oberlin & Infield [2021] FamCAFC 66
Division: Division 1 First Instance Number of paragraphs: 15 Date of last submission/s: 24 March 2023 Date of hearing: 14 – 23 March 2023 Place: Melbourne Counsel for the Applicant: Mr Hutchings Solicitor for the Applicant: Milton Lawyers Counsel for the Respondent: Ms Devine Solicitor for the Respondent: Nevett Ford Counsel for the Independent Children's Lawyer: Ms Treyvaud Solicitor for the Independent Children's Lawyer: Lampe Family Lawyers ORDERS
MLC 9942 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PHILIDOR
Applicant
AND: MR PHILIDOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCNAB J
DATE OF ORDER:
29 MARCH 2023
THE COURT ORDERS THAT:
1.The matter be listed (part-heard) before the Hon. Justice McNab for final hearing on 18 April 2023 at 10.00am for 1 day.
2.The Family Report Writer – Ms B is granted leave to give her evidence by video link.
3.In anticipation of the final hearing each party file and serve closing written submissions as follows:
(a)the Applicant mother by 4.00pm on 12 April 2023;
(b)the Respondent father by 4.00pm on 14 April 2023; and
(c)the Independent Children’s Lawyer by 4.00pm on 17 April 2023.
4.The parties make closing addresses on 18 April 2023 at the conclusion of Ms B’s evidence.
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 Philidor & Philidor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)McNab J:
This matter concerns an application for interim orders sought by the ICL and the father in respect of the child, X, born 2019. The mother opposes interim orders being made. In summary, the father and mother seek interim orders that the father spend professionally supervised time for a period of about eight weeks, a report be obtained from the supervisor, and that report be provided to the Family Report Writer. It is anticipated that the report will inform the Family Report Writer for the purpose of giving evidence.
The final hearing of the matter was adjourned part-heard after eight days of hearing, which commenced on 14 March 2023. From the respondent mother’s perspective, the principal issue in the case is whether the applicant father should spend any time with the child. All the evidence in the trial has been heard, except for that from the Family Report Writer, Ms B. The recommendations of Ms B are conditional and subject to qualifications based on findings of fact that the Court must make on the nature and effect of family violence alleged to have been perpetrated by the father on the mother.
The trial commenced with all parties having knowledge that the proceeding would have to be adjourned in order for Ms B to give evidence. The father, at the commencement of the hearing, stated in open court that he would be seeking that his time with the child commence by way of professionally supervised time, to continue for a period to allow his reintroduction to the child, whom he has not seen since about mid-2020.
In relation to the period between the eighth day of the trial and the adjournment date, the ICL presented draft interim orders which made provision for the father to spend supervised time with the child, restraining the mother from seeing the psychotherapist, Ms C, and for the mother to be at liberty to engage an alternative psychologist.
It was submitted by the ICL and the father that if these orders were made and implemented, at the resumption of the hearing, the report writer would then be in a position to make recommendations based on the information obtained as a result of those supervised visits. It was submitted that there was sufficient evidence that had been obtained in the course of the hearing to make findings in relation to the risk to the child and whether that risk would be sufficiently ameliorated by an order for professionally supervised time. It was said that this would allow the Court to be in a position to make final orders on the resumption of the hearing.
I am able to list this matter for further hearing on 18 April 2023. At that time, Ms B’s evidence can be heard, and final submissions will follow, accompanied by written submissions that are to be filed prior to the return date.
The mother opposes those orders sought by the father and the ICL, which provide that the mother be restrained from further attendance upon Ms C in any of her professional capacities, and that the mother be at liberty to engage an alternate psychologist to provide her with therapeutic support, with a mother to put a proposal in writing containing three options as to her preferred psychologist, and the ICL to nominate a psychologist to be appointed from that list.
The mother refers to L & T (1999) FamCA 1699 at 49 and makes a submission to the effect that the Court cannot make an order of the kind sought, and that an order of that kind must form part of a parenting order as defined by section 64B of the Act (See also Oberlin & Infield [2021] FamCAFC 66 at [50] and [51] and Jacks & Samson [2008] FamCAFC 173 at [200] to [203], [216], [219] to [222] and [224]). While it is strongly arguable that the proposed orders 6 and 7 do form part of a parenting order and are designed to assist the mother in giving effect to the orders, that has not been fully argued.
Further, given the adjourned date, those particular orders will have little impact.
I note that by paragraph 7 of her written submissions, the mother states:
To be clear, the wife is not, by opposing the orders as sought, suggesting she will not engage with a new counsellor, nor that she intends to continue attendance upon [Ms C]. Her present intention is to locate and commence therapeutic work with a clinical psychologist, but she has had little opportunity to reflect upon the evidence and explore when and how this will take place.
I strongly urge the mother to locate and commence work with a clinical psychologist, and I will take those matters into account at the final hearing. I also note the evidence of Dr D that an order restraining the mother from seeing Ms C may be counterproductive. I do not intend by that evidence to convey that I have made findings that it is in the best interests of the mother or the child for her to continue attending upon Ms C.
The order for supervised time is also opposed by the mother on the basis that, given the father had not spent any time with the child and, in fact, the child does not know who the father is, the proposed orders did not make any provision for effective reintroduction between the father and the child nor necessary explanations to the child as to who he was meeting. The independent children's lawyer subsequently provided proposed orders making provision for Ms B to provide an explanation to the child as to the identity of the father and that he will be commencing to spend time with him.
Again, given that the matter can be fixed for further hearing on 18 April 2023, I do not see any particular utility in proceeding down that path at this time. These matters might be the subject of further evidence and assistance by way of recommendations from Ms B.
The most significant issue raised for determination by this application is the effect that making the interim orders of the kind sought may have by pre-empting the final decision. Making orders for supervised time may pre-empt the final decision of whether the father is to spend any time with the child, and the mother may be denied the ability to test the evidence of Ms B by reference to the extensive evidence that has been given, in particular, the evidence of Dr D (psychiatrist) and Ms E (psychologist). Making the interim orders may create the impression of pre-judgment of the central issue of what must be determined at the conclusion of the final hearing from the perspective of the mother.
If the matter had not been the subject of an 8 day hearing and/or where the court was unable to accommodate a resumed hearing date within a relatively short period, different considerations may have arisen. In these circumstances, I decline to make the interim orders sought.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 29 March 2023
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