PLAYFAIR & HANFORD
[2020] FamCA 759
•27 August 2020
FAMILY COURT OF AUSTRALIA
| PLAYFAIR & HANFORD | [2020] FamCA 759 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open – where the mother filed an application to re-open the proceedings to adduce further evidence – where an order is made granting the mother leave to re-open to adduce further evidence. FAMILY LAW – CHILDREN – Interim parenting – where the mother seeks to suspend the operation of orders which provide for the father to spend supervised time with the child – where an order is made suspending such time on an interim basis. |
| Family Law Act 1975 (Cth) |
| Banks & Banks (2015) FLC 93-637 CDJ & VAJ (1998) 197 CLR 172 Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Mr Playfair |
| RESPONDENT: | Ms Hanford |
| INDEPENDENT CHILDREN’S LAWYER: | ELR Law |
| FILE NUMBER: | NCC | 2491 | of | 2017 |
| DATE DELIVERED: | 27 August 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 27 August 2020 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Kelly, Legal Aid Queensland |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Rayment, ELR Law |
Orders
IT IS ORDERED THAT
The Respondent Mother has leave to re-open the proceedings to adduce further evidence.
The part heard final hearing of this matter is listed to recommence at 9.30 am on 22 October 2020.
AND IT IS ORDERED UNTIL FURTHER ORDER THAT
The operation of Orders, 3, 4, 5 and 6 of the Orders made on 15 January 2019 is suspended.
AND IT IS FURTHER ORDERED THAT
By 4.00 pm on 2 October 2020: the Applicant Father has leave to file and serve electronically, an Amended Application for Final Order and any affidavits intended to be relied upon at the further hearing of the matter listed to recommence on 22 October 2020, if any.
The Independent Children’s Lawyer has leave to issue further subpoenae directed to:
(a)Department of Child Safety, Youth and Women for production of documents; and
(b)Queensland Police Service for the production of documents.
The legal representatives for the Respondent Mother have leave to issue further subpoena directed to Ms B, Child Safety Officer, Department of Child Safety, Youth and Women to attend to give oral evidence.
AND IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT
Unless otherwise agreed between the parents and the Independent Children’s Lawyer in writing, the mother is restrained and an injunction issue restraining her from taking the child, Z, born … 2015, to the program known as F Services for the purpose of counselling or therapy.
AND IT IS FURTHER ORDERED THAT
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Playfair & Hanford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: NCC 2491 of 2017
| Mr Playfair |
Applicant
And
| Ms Hanford |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Application to re-open to adduce further evidence
I have today an application brought by the mother in the proceedings, by Application in a Case filed on 17 August 2020, to seek leave to re-open the proceedings and leave to adduce certain evidence. The evidence is as outlined in her affidavit also filed on 17 August 2020. The proceedings are currently the subject of a reserved Judgment following a trial before me earlier this year.
It is clear that the principles to be applied in determining the Application are as have been helpfully summarised by Murphy J in Suell & Suell(Re-opening).[1] The submissions made by the mother’s legal representative, Ms Kelly, addressed those necessary criteria which was there said to be relevant to the exercise of discretion about whether to permit a re-opening in the current circumstances or not.
[1] [2009] FamCA 55.
The fundamental principle, of course, to be applied in determining whether to grant such an Application as the one before me today is whether the interests of justice are better served by allowing the Application or rejecting it. The matters summarised by Murphy J are, I think, a number of matters that are particularly relevant to applications for leave to re-open in parenting matters conducted under Division 12A of Part VII of the Act, as this one was.
I accept the submission made by Ms Kelly that the further evidence is relevant to issues that directly affect the child’s best interests. I also consider that the evidence is relevant to the ultimate decision about those best interests. I accept, at least on a prima facie basis, that the evidence sought to be adduced is likely to affect in a substantial way ultimate findings, whatever they might be, that would otherwise have been available on the evidence at the hearing.
It is clear from the mother’s evidence – noting, of course, that it has not yet been able to be the subject of challenge by the father and that she has not been subjected to cross-examination – that the further evidence sought to be adduced could not have been discovered so as to be led before me during the hearing that occurred earlier this year. There is no suggestion, I think, that there has been any undue delay on the part of the mother in bringing the Application seeking leave to re-open for the purpose of adducing the evidence.
Whilst I accept that there is, as is the case to any person engaged in litigation that is further extended, some prejudice to the father, I consider that that can be ameliorated by affording to him an appropriate opportunity to respond to, and be heard about, and, if required, cross-examine the mother in relation to the evidence and that this can be accommodated within a reasonable time.
I am not persuaded on the evidence that the child is likely to suffer detriment if the evidence is admitted and the trial re-opened. And whilst I, of course, recognise that it is in her best interests and those of her parents that the litigation between them be finalised as soon as possible, I also, of course, take into particular account that, where proceedings such as these involve a broader inquiry into best interests of children, it is important that the Court is able to receive evidence that touches upon or goes to a consideration of that issue.
I should also note, in passing, that it seemed to me that Murphy J’s inclusion, in the list of matters to be considered in the exercise of the discretion, of the assertion that it needs to be exercised with much care in parenting cases, and his Honour’s reference to CDJ & VAJ[2] makes it clear that such principle is particularly, of course, relevant to applications for leave to adduce evidence at appeal.
[2] (1998) 197 CLR 172
For those reasons, then, I intend to accede to the mother’s application for leave to re-open her case and to adduce further evidence – that evidence being that which is contained in her affidavit sealed on 17 August 2020.
It is, I think, therefore necessary that I also grant to the mother leave to file a Further Amended Response to the document. Of course, the father needs to be accorded leave to either file, if needed, any Amended Application and, of course, also leave to file an affidavit to respond to the contents of the mother’s affidavit.
I think it appropriate that I accord to the Independent Children’s Lawyer leave to issue a subpoena to Ms B, a Child Safety Officer at the Department of Child Safety Youth and Women for the production of documents – that subpoena directed to the same Department – and, as the Independent Children’s Lawyer submitted, leave to issue a subpoena directed to the Queensland Police Service for the production of relevant documents.
It seems to me, then, that what I need to do is look to find a further hearing date so that the parties can come back before the Court with the benefit of answers to those subpoenae and to be accorded the opportunity to be heard further via cross‑examination and submissions about the additional and new evidence.
So what I am also going to do, then, is list the matter for further hearing before myself to 9.30 am on 22 October 2020.
Suspension of orders
I have also before me today the mother’s application that, pending the matter returning to the Court – now on the further trial date of 22 October 2020 – there be a suspension of the operation of orders 3, 4, 5 and 6 of the orders made on 15 January 2019. Those orders (which were made by Registrar Brooks) provide that Z spend supervised time with her father each alternate weekend from 12.00 pm until 3.00 pm on Saturday and from 10.00 am until 1.00 pm on Sunday, and that such time be supervised by the father’s grandmother or another person agreed: in this particular case, the other person who has been agreed between the parents, at least to date, was the father’s grandfather.
The Independent Children’s Lawyer supports a change to the supervision arrangements and submitted that it would be appropriate, given the contents of the mother’s affidavit, that time between the father and Z occur at a Contact Centre rather than continue to be supervised by the father’s grandparents.
The submissions made by Ms Kelly on behalf of the mother rest also upon the mother’s evidence that, on 20 April 2020, Z told her mother the following: “My dad had touched me on the vagina with his fingers”. On the mother’s account, when she asked Z where this happened, Z told her that she was in her father’s bedroom. On the mother’s evidence, when she asked Z where Mr D and Ms D, being the father’s grandparents, were when this happened, Z told her that she thought they were in the lounge room.
It is in that context, then, that the mother’s position, as advanced by Ms Kelly, is that there should be a suspension of time between Z and her father until the Court can determine whether interaction between them poses an unacceptable risk of harm to Z.
The submissions made by Ms Kelly in support of the mother’s position also emphasised that this evidence – to which I have just referred – was the first time on which it has been asserted that Z, the child the subject of these proceedings, has made a disclosure of her father touching her on the vagina and that there was not a disclosure that was the subject of consideration during the trial earlier in the year.
Z’s father opposes there being a continuation of the suspension of his time with Z. That suspension has arisen since, I think, 1 June of this year when the mother decided that she would not make Z available to spend supervised time with her father in reliance on her evidence of the disclosure made to her by Z on 20 April 2020. The father’s submissions included a denial of the allegations contained within the mother’s affidavit and an assertion that they are false. His submissions also included that it was, in essence, in Z’s best interests that there be a return to the supervised time that had previously occurred under the auspices of his grandparents providing the supervision.
His submissions also included that he was concerned that the cessation of time between himself and Z would cause psychological harm to Z as they had previously been spending supervised time together for a significant period of time, relative to her age. He did not, in addition, feel that any move to a Contact Centre would be beneficial to Z.
The principles applicable to a determination of interim parenting proceedings are well-known and do not need further elucidation other than to refer to Goode & Goode[3] and Banks & Banks[4], decisions of the Full Court of this Court.
[3](2006) FLC 93-286.
[4](2015) FLC 93-637.
Whilst I certainly appreciate the submissions made by the father as reflecting his desire to continue to be able to spend supervised time with Z in a manner that would facilitate Z having interactions with members of her extended paternal family, I consider that the state of the evidence now presented is such that, on an interim basis, I should act cautiously. The allegations contained within the mother’s affidavit, if established at a final hearing, would almost inevitably lead to a conclusion that the level of supervision provided by the father’s grandparents has been insufficient to protect Z.
Given that that is very much an issue in dispute as between the parents, I am not persuaded that it is appropriate, or in Z’s best interests, simply to return the situation to one where her time with her father occurs under the supervision of his grandparents.
As already noted, the Independent Children’s Lawyer submitted that it was in Z’s best interests for her to spend supervised time with her father at a Contact Centre, in essence, pending the further hearing of the matter which now will be on 22 October of this year. That hearing is about eight weeks hence.
Again, whilst I can certainly understand the submission made by the Independent Children’s Lawyer that it would be in Z’s best interests for there to be a resumption of her interaction with her father – particularly perhaps given that that time has ceased since 1 June 2020 – I consider that the nature of the allegation contained in the mother’s affidavit is such that, if established, there may well be questions about whether, if those assertions are established and if a finding is made as to inappropriate sexual touching of the child by her father, it is in her best interests that she see him, including at a Contact Centre.
For those reasons, then, on an interim basis and noting that the matter will return to Court in eight weeks time for further hearing, I intend to make an order suspending the operation of orders 3, 4, 5 and 6 of the orders made on 15 January 2019.
After the evidence is heard on the 22 October it will, of course, be open to any party to seek that further interim orders be made pending the finalisation of the matter by delivery of Judgment and making of final orders.
Injunction restraining the mother from taking Z to attend counselling or therapy
The Independent Children’s Lawyer also sought an order, in essence, restraining the mother from taking Z to attend at counselling or therapy provided by an organisation known as F Services. It was submitted that this was a program for children who had been the victims of sexual abuse. The Independent Children’s Lawyer sought that Z not engage in such therapy given that, at this stage, no finding has been made about the issue of whether she has in fact been the victim of sexual abuse.
Ms Kelly on behalf of the mother submitted that her client did not oppose the course proposed by the Independent Children’s Lawyer.
Given that this is one of the issues that is now between the parents and that it is not yet established that Z has, in fact, been the victim of sexual abuse, I accept the submissions made by the Independent Children’s Lawyer. I consider it appropriate and in Z’s best interests that she not, at this stage, attend upon F Services for the purpose of engaging in counselling or therapy.
I arrive at that decision also cognisant of the fact that the further hearing of the matter will occur on 22 October of this year: that is, about eight weeks hence. So it does not seem to me to be likely that Z would suffer irreparable harm, if it is later found that it is appropriate for her to participate in that counselling, if the same is delayed by a period of eight weeks or thereabouts.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 August 2020.
Associate:
Date: 27 August 2020
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