PHU & CHAN (No.2)
[2015] FCCA 292
•12 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PHU & CHAN (No.2) | [2015] FCCA 292 |
| Catchwords: FAMILY LAW – Children – application to discharge Independent Children’s Lawyer – Court should be slow to discharge an Independent Children’s Lawyer. PRACTICE AND PROCEDURE – Whether Court should deliver a formal warning to a legal practitioner. PRACTICE AND PROCEDURE – Transfer – where final hearing estimated to require at least a week of hearing time – whether proceedings should be transferred to the Family Court. |
| Legislation: Family Law Act 1975 (Cth), s.68L Federal Circuit Court Rules 2001, r.15.09 |
| Cases cited: Chan & Chan & Anor [2015] FCCA 265 Lloyd & Lloyd & Child Representative (2000) FLC 93-045 – followed Phu & Chan [2015] FCCA 275 Wade & McPherson (No.2) [2014] FCCA 2490 Zandas & Zandas [2014] FCCA 1184 |
| Applicant: | MS PHU |
| Respondent: | MR CHAN |
| File Number: | SYC 1714 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 4 February 2015 |
| Date of Last Submission: | 4 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2015 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Mr Tiyce |
| Solicitors for the Respondent: | Tiyce Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Cantrall |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER
Dr C, Child and Family Psychiatrist, is appointed as Court Expert to inquire into and report on matters relating to the care, welfare and development of the child X born (omitted) 2001.
The parties are to pay to the Independent Children’s Lawyer the necessary fee required by Dr C for the preparation of her Report in equal shares within seven (7) days of being called upon to do so.
The parties are to attend upon all such interviews as may be required by the Court Expert for the preparation of her Report.
The parties are to attend an interim hearing on parenting issues on a date to be fixed.
All other applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Phu & Chan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1714 of 2010
| MS PHU |
Applicant
And
| MR CHAN |
Respondent
REASONS FOR JUDGMENT
Application
There are two Applications in a Case by the Mother seeking various orders. There is some overlapping of orders sought but the Applications are separate. The later Application apparently does not supersede the former.
The first of the two Applications was filed on 21st October 2014, accompanied by an affidavit of the Mother sworn on the day before. It is opposed by the father and the Independent Children’s Lawyer.
The Father filed an affidavit on 27th November 2014, affirmed that same day.
The second Application was filed on 28th January 2015. It is supported by an affidavit affirmed by the Mother the day before. It, too, is opposed by the Father and the Independent Children’s Lawyer.
The Application filed on 21 October 2014
The Application was returnable on 27th October but was not dealt with on that date, as the parties concentrated on a Contravention Application filed by the mother that was also before the Court that day.
In her Application, the mother seeks the following Orders:
1. That X travel overseas with me from (omitted) 2014 at the conclusion of her school trip in (country omitted) until the start of school on 28 February 2015.
2. That X immediately commence a 50/50 living arrangement with both parent(s), by staying every Monday and Tuesday nights with me. The current arrangement is completely unsuitable and unsustainable.
3. That the father be fined $5000 for each and every further attempt to unilaterally alter my access with X.
4. That Ms M and Ms Webber be dismissed from the case and be recommended for disciplinary action.
5. That X be permitted to see me and spend the night with me for my birthday, (omitted). Orders need to be amended to facilitate this as her father would never allow it otherwise.
The time for the first order has now expired, as the school holidays are now over. In any event, orders were made ex parte on 28th November 2014 that:
a)Until further order, the Mother’s time with the child should be suspended;
b)Until further order, the Mother is restrained from communicating with the child; and
c)Until further order the Mother is restrained from communicating or corresponding with the child’s school.
No appeal has been lodged against those orders.
The Mother seeks an immediate variation to the child’s living arrangements, stating in her affidavit that this is what the child wishes. Further, the child obtained a referral from a doctor to a clinical psychologist, Ms L, whose undated report is annexed to the Mother’s affidavit.
Ms L stated that she had previously been a Regulation Family Consultant and a Regulation Family Consultant with both this court and the Family Court, but no longer works with either Court.
In her report Ms L noted that the child had seen Ms M, the Family Consultant at this Registry. Ms L described the child as saying that “she didn’t particularly like Ms M’s questions because she felt that Ms M had not asked her the right sort of questions. X stated that she felt that Ms M’s questions did not really help her understand what was happening with her life and did not help her when the report came out.”[1]
[1] Report page 2
Ms L stated that X said that she loved both her mother and father equally and was feeling distressed at this because she was spending less and less time with her mother.
Ms L stated in her report that the Mother had provided her with a copy of the Limited Issues Report prepared by Ms M and released by order of the Court on 4th September 2014. The Order releasing the Report did not permit the release of a copy of the Report to Ms L.
Ms L noted that X said she would like to spend 50% of her time with each parent.
It is a matter of concern that Ms L should have been provided with this Report and then involve herself in a matter that was clearly before the Court.
The issue of the child’s living arrangements has become urgent and indicates a clear need for the matter to be listed for final hearing at an early date.
The Mother seeks an order “That the father be fined $5000 for each and every further attempt to unilaterally alter my access to X.” This appears to be an order seeking punitive sanctions in the future and is without jurisdiction.
The Mother seeks an order that Ms M, the Family Consultant, and Ms Webber, the Independent Children’s Lawyer, be dismissed from the case and be recommended for disciplinary action”.
Her criticisms of Ms M, particularly in regard to the Limited Issues Report, are extreme and vituperative, to say the least:
“Ms M’s case assessment was a complete and utter joke. She demonstrated a complete inability to assess the current situation. It was clear from the very start of my meeting with her that she was going to decide against me, and her whole line of questioning was designed to go against me.
…
Ms M should be dismissed from the case and recommended for disciplinary action.[2]
[2] Affidavit of Ms Phu 20.10.2014 page 3
I have read the Report, and whilst it recommends that the Father have sole parental responsibility for the child and that the child should live with him, it does not recommend that the child should not spend time with the Mother. Indeed, Ms M recommends that the child should continue to spend time with her mother in accordance with the Orders of 18th June 2013, although Ms Phu is of the view that those Orders are unsuitable and unsustainable.
It should be noted that Ms M stated at paragraph [41] of the Report that:
…for X not to spend time with one or other of her parents would break her heart and would realise her fear that that was evident to this Family Consultant when X was six years of age, which was that she would end up with only one home.[3]
While one could think that X having no contact with her mother might be an option for all of the obvious reasons, X could not currently bear that and her father would not support it for that reason.[4]
[3] Limited Issues Report page 25 at [41]
[4] Ibid page 26 at [43]
I do not see any reason for disciplinary action against the Family Consultant, even if the Court had the jurisdiction to take such action.
That said, it is clear that the Mother, for whatever reason, has lost confidence in the Family Consultant, which does not augur well for the future progress of this matter if Ms M were to be required to provide any further report.
Counsel for the Independent Children’s Lawyer has proposed that a Court Expert Report be obtained under the provisions of Rule 15.09 and suggested that Dr C, a Child and Family Psychiatrist, should be appointed. I propose to accede to this suggestion, as it will be advantageous for an independent professional to provide a report to assist the Court in deciding what arrangements are in the child’s best interests.
The Mother seeks an order that the Independent Children’s Lawyer, Ms Webber, be dismissed and recommended for disciplinary action. She claims that Ms Webber has never intervened to assist when the Father was interfering with her scheduled time with the child, even though the child herself was distressed by her father’s actions. The Mother deposes that the child is not comfortable seeing Ms Webber again, and the Mother does not believe that Ms Webber “would fairly represent X’s best interests”.[5]
[5] Affidavit of Ms Phu 20.10.2014 page 3
Both Ms Cantrall, who appeared for the Independent Children’s Lawyer, and Mr Tiyce, who appeared for the Father, referred the Court to the decision of Holden CJ, of the Family Court of Western Australia, in Lloyd & Lloyd & Child Representative[6], where his Honour held that there are a number of very good reasons why a court should be slow to discharge a child representative (to use the old terminology) on the basis of largely unsubstantiated complaints of one of the parties. They include:
a)the best interests of the child have to be borne in mind;
b)the Court should treat allegations of lack of impartiality with caution; and
c)the public policy consideration of cost and any new separate representative having to spend a lot of time acquiring the necessary knowledge of long proceedings.
[6] (2000) FLC 93-045
I am not persuaded that a basis has been shown for removal of the Independent Children’s Lawyer, even though it appears that the Mother has lost confidence in her and claims that the child has also lost confidence.
As for disciplinary proceedings against a practitioner, this Court has not been slow to refer practitioners to the Office of the Legal Services Commissioner for perceived unsatisfactory professional conduct (see Zandas & Zandas[7]; and Wade & McPherson (No.2)[8]).
[7] [2014] FCCA 1184
[8] [2014] FCCA 2490
This is not such a case.
In view of the Mother’s hostility toward Ms Webber, however, it may well be advisable for the Independent Children’s Lawyer to brief counsel for all future court appearances.
The Mother also sought an order that X should be able to spend the night with her for her birthday on (omitted) 2014. That date has passed. Again, the mother stated that the Orders need to be amended to allow for that to happen, but there is already such an order in existence.
The Application filed on 28 January 2015
This Application seeks the following Orders:
a)Urgent and intense psychological intervention for X;
b)Full hearing of my contravention application filed in October 2014;
c)X to live with me until the conclusion of the court matters when final orders are made;
d)Immediate dismissal of Ms Webber;
e)Dismissal of Ms S’s application;
f)Enforcement of existing court orders;
g)Michael Tiyce receive a formal warning over his behaviour;
h)That Mr Chan pay me $100,000 immediately so that I may get appropriate legal representation to bring out the full truth; and
i)That X spend the entire weekend of (omitted) 2015 for her birthday with me.
The Application is supported by an affidavit of the mother affirmed on 27th January 2015.
As can be seen, there is some duplication of the orders sought in this Application compared to the earlier Application. Some orders sought have already been dealt with in separate decisions.
A decision about the Mother’s Contravention Application has been prepared and will be handed down at the same time as this decision (Phu & Chan[9]).
[9] [2015] FCCA 275
The Mother seeks urgent psychological counselling for the child. As I indicated at [24] above, I propose to appoint Dr C, Child and Family Psychiatrist, as a Court Expert to provide a Report about the care, welfare and development of the child. She can investigate whether the child requires psychological counselling.
The Mother seeks an order that the child should return to live with her until final orders are made. I have some misgivings about the continuation of the earlier interim orders made on 28th November 2014 that the child should not spend time with the Mother until further order. I note that this was not recommended by Ms M in her report, where she expressed the opinion that not either spending time with either parent would break the child’s heart. Ms M recommended that the child should continue to spend time with the Mother in accordance with the Orders of 18th June 2013.
It may well be time to revisit the orders suspending the Mother’s time with the child.
Again the Mother seeks the immediate dismissal of Ms Webber as Independent Children’s Lawyer. I have already covered that issue at [25]-[27] above.
The Mother seeks the dismissal of Ms S's Application to intervene in the proceedings. I have dealt with this issue in a separate decision to be handed down at the same time as this decision ( Chan & Chan & Anor[10].
[10] [2015] FCCA 265
The Mother seeks in her Application enforcement of existing Court orders. There is a contravention Application on foot which has been covered in a decision handed down at the same time as this decision.
The Mother accuses the Father’s solicitor of “lying, bullying and intimidation”[11] in the conduct of the Father’s case and seeks that he should receive a formal warning over his behaviour. In support of her claim she annexes various documents to her affidavit, including:
a)A Minute of Orders sought by the Father, including summarily dismissal of her contravention applications, an order that she provide the sum of $20,000.00 by way of security for costs and that the hearing of the contravention be stayed until payment;
b)Various letters written to her by Mr Tiyce; and
c)Printouts of various emails.
[11] Affidavit of Ms Phu 27.1.2015 at page [7]
On my reading of the material, there is nothing that to my mind could be classified as bullying or intimidation, as claimed by the Mother. As I indicated at [28] above, the Court is not slow to refer practitioners to the Office of the Legal Services Commissioner where instances of unsatisfactory professional conduct appear. This is not such a case and I do not see the need to issue a formal warning to Mr Tiyce.
The Mother seeks an order that the Father pay to her the sum of $100,000 immediately, to fund her future legal representation, claiming in her affidavit:
Clearly Mr Chan has money to burn, and will stop at nothing to destroy me.[12]
[12] Affidavit of Ms Phu 27.1.2015 page 6 at [8]
There are no current financial proceedings between the parties arising out of their relationship, which ended some thirteen years ago, and there is no jurisdiction to make the order sought.
The Mother also seeks an order that X should spend the weekend of (omitted) for her birthday with her mother. This sort of application should be considered in the context of the interim parenting orders that in my view need to be considered.
Security for costs
I have considered the Father’s Minute of Order where he seeks that the Mother pay the sum of $20,000.00 by way of security for costs and that the contravention application should be stayed until the money is paid. I am not satisfied that the Court should exercise its discretion to make those orders.
The future progress of the litigation
The litigation between the parties has increased and there needs to be a final hearing to resolve the parenting issues between the parties on a final basis. In my view, a final hearing will take at least a week, which is outside the scope of the resources available to the Federal Circuit Court. Consequently, an early transfer to the Family Court is indicated and I propose to make such an order in due course.
There are two matters that need to be considered by this Court before a transfer to the Family Court for the purpose of a final hearing takes place.
First, the Mother’s Contravention Application should be heard; and
Second, the parties may wish there to be an interim parenting hearing to make parenting orders until further order to cover the period until the final hearing can take place.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 12 February 2015
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