Picken & Slater
[2023] FedCFamC1F 848
•6 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Picken & Slater [2023] FedCFamC1F 848
File number(s): CAC 1088 of 2023 Judgment of: GILL J Date of judgment: 6 October 2023 Catchwords: FAMILY LAW – PARENTING – Interim consent orders – Father to have supervised time with the children
FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties have agreed to terms of reference for the appointment of a court expert – Concerns regarding the mental health of both parties – Where both parties have made allegations of abuse – Provisions of Evidence Act under s 69ZT(1) to apply to parenting proceedings.
Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Division: Division 1 First Instance Number of paragraphs: 4 Date of hearing: 6 October 2023 Place: Canberra Counsel for the Applicant: Mr Haddock Solicitor for the Applicant: Infinity Legal Counsel for the Respondent: Ms Davis Solicitor for the Respondent: Foster Johnson Lawyers Solicitor for the Independent Children's Lawyer: Ms Campbell, Bowral Legal Solicitor for the Other: Mr Gough, Amicus Curiae ORDERS
CAC 1088 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PICKEN
Applicant
AND: MS SLATER
Respondent
DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE
Other
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
9 OCTOBER 2023
THE COURT ORDERS, BY CONSENT AND UNTIL FURTHER ORDER:
1.That, commencing immediately, the children, X born 2018, Y born 2019, and Z born 2019 shall spend time with their father for two hours each week as supervised by a professional supervision agency or child protection, as agreed between the parties and failing agreement at B Family Services.
2.That the costs of any time spent between the father and the children associated with the time in Order 1 shall be met by the parties equally.
3.That each of the parties shall forthwith do all things and sign any documents necessary for the time pursuant to Order 1 to commence and occur.
4.That each of the parties shall take all steps necessary to obtain reports from the supervising agency at which the father spends time with the children pursuant to Order 1 and the costs of such reports shall be shared equally between the parties.
5.That the father shall have video contact with the children each Friday from 6 pm to 6:30 pm using My Family Wizard or other agreed parenting application that has the capacity to record video calls and each party shall record the interactions between the children and the father AND IT IS NOTED THAT each of the parties consent to this course and consider it necessary for the protection of their lawful interests for the purposes of the relevant state legislation or similar provision of equivalency if a call takes place outside Region E.
6.The matter shall be listed for further directions and for the potential listing of the matter for trial in February 2024, at 10 am on 18 December 2023.
AND IT IS NOTED:
A.The parties have agreed to appoint Dr C as the Single Expert for the purposes of the Family Report and have prepared Terms of Reference and reserved dates for interviews in late 2023 and the parties understand that Dr C will not release that report until she has received and considered the assessment outlined at Notation B.
B.That the parties are undergoing a psychiatric assessment with Dr D in December 2023/January 2024 which is being facilitated by child protection.
IT IS FURTHER ORDERED:
7.That Dr C be appointed as Court Expert pursuant to Rule 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Court Expert”).
(a)That the parties shall in the first instance meet the costs of the report including the costs of the Court Expert in equal shares.
(b)That for the purposes of the Experts costs in 8(a) the parties shall do all things necessary to cause those costs to be met by the proceeds of sale of the former matrimonial home and in the event that the fees fall due prior to settlement whichever party meets those fees in the first instance shall be full reimbursed on the sale of the former matrimonial home prior to any distribution of sale proceeds between the parties.
(c)That within 14 days the solicitor for each party will provide copies of all affidavits filed in the proceedings and subpoena and s 69ZW material from AFP and child protection agencies relied upon to the Court Expert.
(d)That any further material to be forwarded to the Expert beyond that outlined in 8(c) is to be agreed between the parties, excepting the forthcoming psychiatric assessments of the mother and father by Dr D which the parties have agreed shall go to the expert.
8.The parties will do such things necessary to facilitate the preparation of the report including attending upon the Court Expert as requested.
9.That the Court Expert interview, assess and observe the parents Mr Picken and Ms Slater who are the parents of X born 2018, Y born 2019 and Z born 2019 for the purposes of the Court Expert preparing a report on matters relating to the children.
10.That the Expert interview, assess and observe any other significant persons deemed appropriate by the Expert for the purpose of preparing the report. Should the Expert contact any third party or rely on explanations provided by that party, the report should specify the account taken of any contact and explanation of the weight attached to same by the expert in reaching their recommendations.
11.That the Court Expert:-
(a)Investigate all matters relating to the welfare, care and development of the children;
(b)Carry out an assessment of the parents;
(c)Carry out such assessments of the children as considered necessary;
(d)Provide a report to the Court in accordance with Rule 7.07 and
(e)Comply with their duties and obligations pursuant to Rule 7.18.
12.That the Court Expert prepare a report to consider the following issues:-
(a)The nature of the relationship between the children and each of the parents;
(b)The emotional attachment of each of the children with each of the parents;
Alleged Abuse
(c)Whether as a result of consultations, consideration of the material or any testing or anything in the behaviour of any of the children, their reported comments considered critically in the context in which they were expressed or as they are expressed to the expert, may give rise to concerns on the part of the expert that a child may have been or may in the future be at risk of abuse, including risk of physical and psychological harm in either household from any person. In this regard, the expert is not required to make a determination whether such abuse has occurred. This, however does not preclude the expert from expressing an opinion as to whether or not abuse has occurred, provided that expression of opinion is supported by the reasons for such opinion;
(d)Whether either parent holds a genuine belief that the children or any of them are at physical, sexual, or psychological risk in the care of the other parent;
(e)Assuming the Court finds the father has abused one or any of the children, or that there is an unacceptable risk to the children, recommendations as to the appropriate arrangements for the children to spend time with their father;
(f)Assuming the Court does not find the father has abused one or any of the children, or that there is an unacceptable risk to the children, recommendations as to the appropriate arrangements for the children to spend time with their father;
(g)In the event the Court does not find the father has abused one or any of the children, whether there is an unacceptable risk to the children in the care of the mother, psychologically or otherwise;
Effect on each of the children of Separation from the Father
(h)The likely effect (if any) on each of the children of an order for the children to spend time with the father, if abuse has occurred;
(i)The likely effect (if any) on each of the children and their relationship with the father of a cessation of time;
(j)The likely effect (if any) of any change in either child’s circumstances, including the likely effect on them of any separation from either of their parents, or from any other child or person with whom they have been living;
(k)The attitude of the parties to the children and to their responsibilities of parenthood, demonstrated by each of the parents, including but not limited to their attitudes to each other and to encouraging and facilitating contact and the children’s relationship with the other party;
(l)The capacity of each of the parties to provide for the children’s emotional and intellectual needs including each of the parents’ attitudes to and understanding of the children’s relationships with other significant people and their attitudes to each child’s education;
(m)The capacity of each party to provide for the children’s physical needs both without support from other persons and with support that can reasonably be expected from other persons including other family members;
(n)The understanding of each party of appropriate parenting strategies and behaviours;
(o)The likely effect (if any) on the emotional and psychological needs of the children if either of the proposals made by the parties respectively were implemented, including long term and short term effects;
(p)Any views expressed by the children in relation to issues of residence or time and any factors which the Court Expert considers are relevant to the weight that ought to be given to those views, including: -
(i)The child’s respective age and maturity;
(ii)The degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implication;
(iii)The strength and duration of the views;
(iv)The extent to which those views are based on a choice that is well thought through and appropriate as distinct from peripheral matters;
(v)The extent to which those views are the result of influence on the child by either parent and thus far how they reflect the child’s own choice;
(vi)The likely impact in the child of an order contrary to their views.
In this regard the Court Expert should note that, whilst the Court Expert may question the child regarding these issues, no child may be required during the course of the examination to express views about any matter.
(q)Recommendations as to the appropriate arrangements for the children in light of the above 6.1 to 6.16.
13.That in preparing the report the Court expert shall have access to the material provided in accordance with Order 8(c) and 8(d) and shall rely upon her interviews and observations of the parties, the child and any other persons considered by the Court Expert to be significant and any testing she considers to be necessary.
14.That the parties be restrained from providing any other documents to the Court Expert without first having provided a copy of the document or documents to the other party and obtained their agreement to providing such documents to the Court Expert.
15.In the event that the Court Expert is considering affidavits or material produced under subpoena to this Court, the Court Expert will take into account the fact that material contained in those documents may not necessarily become evidence before the court and/or may be qualified or modified by cross-examination. To the extent that the Court Expert bases her opinion on any such statement she shall identify the statement.
16.Where the Court Expert provides an opinion, she is to state the information she relies on in forming that opinion, and the manner in which that information has impacted upon his formation of that opinion.
IT IS FURTHER ORDERED THAT:
17.The provisions of the Evidence Act referred to at s 69ZT(1) of the Family Law Act 1975 are to apply to the parenting aspect of these proceedings.
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, Picken & Slater, has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
With the agreement of the parties all of the rules of evidence otherwise ousted by s 69ZT(1) are to be applicable to the parenting aspect of these proceedings. This case may be considered to be exceptional given the competing issues of the psychiatric health of the parties, the sexual abuse issues and potential emotional and psychological abuse issues that arise. Each of the party’s cases is entwined with the other party’s case, for example, the mother’s case that the father presents as a sexual abuse risk is likely be a plank in the father’s case that the mother presents a risk of psychological or emotional abuse of the children. Each of the issues laid bare by the parties’ cases, as set out in the material that they have filed to date in the proceedings, are of highly contentious and complex issues of risk. The application of the rules of evidence in respect of those matters will assist in providing clarity for the evidence that has been presented by the parties, for example, by ensuring that opinions are only offered by persons adequately qualified to give those opinions and in a manner that attaches the exercise of that expertise to the opinion that is expressed. This will ensure that, to the extent that hearsay evidence is relied upon, the sources are adequately identified and that the evidence brought is not so remote as to cause unreasonable unreliability in the evidence that has been brought before the court.
The material that has to date been identified by the parties speak strongly to the issues of risk and, if accepted, may be considered to be highly probative of those issues. The causing of such material to conform to the rules of evidence will again assist in making sure that only relevant evidence is brought before the court and is brought before the court in a manner that will allow it to be adequately tested and assessed by the court.
Under those circumstances, having considered the importance of the potential evidence in the proceedings, the nature of the subject matter of the proceedings and the potential probative value of the proceedings, it is appropriate that the rules of evidence be applicable to the whole of the parenting proceedings.
The final consideration, which is noting the power of the court to adjourn the hearing or make other orders or give directions in relation to the evidence, does not arise as, at this stage, the directions for the application of the rules of evidence are in advance of directions for the filing of the material for the trial.
I certify that the preceding four (4) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 13 October 2023
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