Radev & Radev
[2022] FedCFamC1F 737
Federal Circuit and Family Court of Australia
(DIVISION 1)
Radev & Radev [2022] FedCFamC1F 737
File number(s): WOC 982 of 2019 Judgment of: CAMPTON J Date of judgment: 26 September 2022 Catchwords: FAMILY LAW – PARENTING – Where the children live with the mother and spend time with the father as agreed between them – Where the maternal grandmother seeks final relief as to time-spent with the children – Where the maternal grandmother seeks disclosure as to the details of the children’s school and treating medical professionals – Information sought not apparently relevant – Updating family report ordered in preparation for trial. Legislation: Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 69ZM, 69ZQ
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6
Cases cited: Hatton v Attorney-General (Cth) (2000) FLC-038; [2000] FamCA 892
National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 26 September 2022 Place: Sydney Solicitor for the Applicant: Ms Cox, Bowral Legal Counsel for the First Respondent: Ms Breeze Solicitor for the First Respondent: Family Lawyers & Mediators Australia Solicitor for the Second Respondent: Ms Sipka, Forshaw Lawyers Solicitor for the Independent Children's Lawyer: Ms Luke, agent for Legal Aid NSW ORDERS
WOC 982 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS J RADEV
Applicant
AND: MS A RADEV
First Respondent
MR BARWEGEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
26 SEPTEMBER 2022
The Court notes that:
A.For the purposes of the trial, the maternal grandmother has elected not to amend her final relief by way of filing any further amended Response to an Initiating Application pursuant to Order 5 made 16 September 2022, such that her final relief at trial will be as contained in paragraphs 8 to 17 of her Amended Response to an Initiating Application filed 6 July 2022 (“the maternal grandmother’s Amended Response”).
B.The final relief as sought by the mother, the father, and the Independent Children’s Lawyer as to the parenting of the children is as identified in Order 1 and notations [A]‑[D] made on 12 July 2022.
C.It is anticipated at the time of the trial, as between the mother, the father and the Independent Children’s Lawyer, subject to the terms of any time to be spent by the children with the maternal grandmother, orders will be made in accordance with Order 1 made on 12 July 2022 (being paragraphs 1 to 12 of Exhibit A annexed thereto).
THE COURT ORDERS THAT:
1.The proceedings are listed for trial in the Sydney Rolling List for three days, commencing on 6 March 2023.
2.The applicant, respondent and second respondent are to pay the setting down and hearing fees in equal amounts (or seek an exemption) no later than 4.00 pm 28 days prior to the trial.
Filing of additional material
3.On or before 7 October 2022, each of the mother and father are to file and serve any Reply to the maternal grandmother’s Amended Response, setting out with particularity any orders sought in reply to that relief.
4.On or before 28 October 2022 the maternal grandmother is to file and serve:
(a)A single consolidated trial affidavit relevant only to the spend-time with relief as sought in her Amended Response, or the other parenting orders sought therein, noting that any part of the affidavit not relevant to the identified relief will be struck out; and
(b)A single affidavit of each other witness upon who she intend to rely at trial.
5.On or before 16 November 2022, each of the mother and father are to file:
(a)A single consolidated trial affidavit relevant to the relief sought by the maternal grandmother in her Amended Response; and
(b)A single affidavit of each other witness upon who they intend to rely at trial.
6.All affidavits are to comply with Pt 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
7.Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at trial without the leave of the Court.
Subpoenas
8.The Independent Children’s Lawyer is at liberty to issue any subpoena as they consider relevant to the issues in dispute as identified in these orders.
Relisting
9.In the event that any party or the Independent Children’s Lawyer becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party by way of email to my chambers at …@….
10.Each party and the Independent Children’s Lawyer is to advise the Court forthwith upon becoming aware of any charge or conviction of a family violence offence, any family violence order (other than an interim order) currently in place, or any injunction under s 68B or s 114 of the Family law Act 1975 (Cth) (“the Act”) with respect to the parties or child and advising that in those circumstances direct cross-examination of a party by a self-represented party may be prohibited pursuant to s 102NA of the Act and, further, that if either party becomes self-represented that they are to forthwith and within seven (7) days of their becoming aware of that circumstance file a Notice of Address for Service and advise chambers, in accordance with the protocol for communication with chambers, of that fact.
Chronology
11.No later than 14 days prior to trial, the parties and Independent Children’s Lawyer are to confer and the Independent Children’s Lawyer is to forward to my associate by email to my chambers a joint chronology of uncontroversial facts in Microsoft Word format setting out all agreed non-controversial facts that the parties will ask the Court to take into account.
Case outlines
12.Not less than seven (7) days prior to the trial date, each party and the Independent Children’s Lawyer are to file and serve a Case Outline document and shall include:
(a)A list of the material relied upon; and
(b)A summary of contentions as to s 60CC factors relied upon to satisfy the Court that it is the best interests of the children to make the orders sought.
Updated report
13.The single parenting expert, Dr G, is to provide an updated opinion as to any s 60CC(2) and (3) matters relevant to the relief sought by the maternal grandmother as contained in paragraphs 8-17 of her Amended Response filed 6 July 2022 and any replies of the parents thereto.
14.For the purposes of these orders, the mother, the father and the maternal grandmother shall do all such things as are necessary to comply with the requests of Dr G as may be made to facilitate the preparation of her updated opinion.
15.The maternal grandmother shall meet the costs of the updated opinion of Dr G.
16.The Independent Children’s Lawyer shall do all such things as are necessary to provide the Dr G all further documents as she may need to prepare her updated opinion, including the following:
(a)A copy of all orders made in these proceedings subsequent to the completion of Dr G’s first report dated 29 October 2019;
(b)The supervision reports of the time spent between the maternal grandmother and the children from August 2020 to September 2021;
(c)The final relief sought by each party, including:
(i)The maternal grandmother’s Amended Response filed 6 June 2022; and
(ii)Any Reply to the maternal grandmother’s Amended Response as may be filed by the mother and/or father pursuant to these orders;
(d)The trial affidavits filed pursuant to these Orders;
(e)Any subpoena material relevant to the relief to be determined at the final hearing produced in these proceedings to date;
(f)Any further material produced on subpoena as issued on the request of the Independent Children’s Lawyer pursuant to these orders;
(g)A copy of the ex tempore reasons for judgment delivered today.
Notice to the expert
17.Where a party wishes to cross examine Dr G at the final hearing, that party shall provide written confirmation to Dr G not less than one (1) month prior to the commencement of the trial. In the event this order is not complied with and Dr G is unavailable, her reports will be admitted into evidence without cross-examination, subject only to evidentiary objection.
Tender bundles
18.The parties’ legal representatives only (and the Independent Children’s Lawyer), are to photocopy all documents produced on subpoena to which access has been granted in the proceedings for the purposes of each preparing a proposed tender bundle.
19.The tender bundle is to comprise all documents that the parties’ and the Independent Children’s Lawyer propose to tender into evidence, or put to a witness in cross examination.
20.In the event either party Independent Children’s Lawyer proposes to rely on a tender bundle, that tender bundle is to be bound, indexed and paginated and provided to each of the parties and the Independent Children’s Lawyer and my associate electronically and in hard copy not less than two business days prior to the commencement of the hearing.
Outstanding applications
21.The Application in a Proceeding of the maternal grandmother filed on 21 September 2022 and the Response to an Application in a Proceeding of the father filed on 26 September 2022 be otherwise dismissed.
22.All extant interlocutory applications are otherwise dismissed.
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 Radev & Radev has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Introduction
These are proceedings as to the parenting of two children, X, born 2016 (“X”) and L, born 2018 (“L”). They were commenced by the mother in the Federal Circuit Court on 2 September 2019, at a time when X was in the care of Ms A Radev (“the maternal grandmother”).
The maternal grandmother contends, which may not be contested, that the parents placed X in her care in or about late 2017. Her case is that for the first seven or eight months of her life, L lived with the maternal grandmother and X about “50 per cent of the time”.
As part of these proceedings, the parties engaged Dr G as a single parenting expert. Dr G prepared a report as to the parenting of the children dated 29 October 2019 (“the Family Report”). In preparation for the report each of the parents and the maternal grandmother engaged in interviews with Dr G, who also attended upon and observed X.
After the release of the Family Report, Judge Altobelli (as he was then) conducted an interim hearing and made orders on 20 December 2019 that the children live with the mother and, after a period of three months, commence spending time with the maternal grandmother supervised by N Services for not less than two hours per month. Those orders were varied on 9 June 2020 so that the supervising agency would be “O Agency”, and that the maternal grandmother would meet the agency’s costs.
The proceedings were transferred to the Family Court in Sydney on 11 June 2020. Orders were made by a senior judicial registrar on 1 November 2021 again changing the identity of the supervising agency to “S Agency”. As part of the defended determinations made by the senior judicial registrar on 1 November 2021, the maternal grandmother’s application for time to be spent on an unsupervised basis and to discharge Dr G as the single parenting expert were dismissed.
It appears uncontroversial that the maternal grandmother did not exercise time with the children between 20 December 2019 and August 2020, and then did spend supervised time with them in accordance with the orders between August 2020 and September 2021. The reasons for the maternal grandmother not exercising time with the children are controversial, but include the impact of the COVID-19 pandemic, the availability of the various supervising agencies, the mother’s concerns arising from regressive and aggressive behaviour exhibited by X following time-spent with the maternal grandmother, and the maternal grandmother’s contention as to the mother refusing to facilitate her relationship with the children.
The parties’ substantive positions
The matter was docketed to me and by 12 July 2022 when it was listed before me for case management, the mother and father (as separated parents) and the Independent Children’s Lawyer (“ICL”) had reached an agreement as to the parenting of the children, which was embodied in a document marked as Exhibit 1 attached to the orders made on that date. The agreement broadly provided for the parents to have equal shared parental responsibility for the children, and for the children to live with the mother and spend time with the father.
The parents, in exercising the parental responsibility for the children with which they are seized, jointly oppose the children spending any time with the maternal grandmother. It is uncontroversial that a highly conflictual relationship exists (if any) between the maternal grandmother and the parents.
The maternal grandmother throughout the proceedings has contended that the children are at risk in the care of the mother, and until recent times, sought orders that the children live with her. She abandoned her contentions as to risk when the proceedings came before me on 16 September 2022, and on that date confirmed that the relief she sought would be restricted to that contained in proposed Orders 8-17 inclusive of her Amended Response to an Initiating Application filed on 6 June 2022.
Broadly, the scope of the substantive dispute between the parents and the maternal grandmother is:
(a)Whether the maternal grandmother is to spend time with the children at all;
(b)If so, the terms of that time, the maternal grandmother’s proposal being that it should occur as follows:
(i)Each Tuesday from 3.00 pm until 7.00 pm; and
(ii)On one weekend each month, from 10.00 am on Saturday to 10.00 am on Sunday; and
(iii)By way of electronic or electronic communication at any time as they wish to do so; and
(c)A range of ancillary orders incidental to the care of the children sought by the maternal grandmother.
The gravamen of the maternal grandmother’s case as to it being in the children’s best interests to spend time with her is recorded in her affidavit filed on 21 September 2022, and specifically paragraphs [49] to [53] therein.
The interim dispute
The maternal grandmother now agitates the interim relief sought by way of her Amended Application in a Proceeding filed on 21 September 2022, broadly being that she have leave to issue further subpoenas and that Dr G be engaged to prepare an updating family report. The mother relied on her Minute of Order, being Exhibit 2. The father filed a Response to an Application in a Proceeding on 26 September 2022. He sought orders in accordance with Exhibit 2, and by the conclusion of the hearing, so did the ICL.
For the purposes of this determination, I have had regard to the principles identified in s 69ZM of the Family Law Act1975 (Cth) (“the Act”), which apply to proceedings brought under Pt VII, Div 12A of the Act, together with the general duties of the Court identified in s 69ZQ of the Act. Each of the parties confirmed it is in the best interests of the children for this litigation to be completed and finalised as soon as is possible.
Disclosure of information
Order 1 of the maternal grandmother’s Amended Application in a Proceeding sought the disclosure of a list of “all childcare centres, preschools, medical persons and/or clinics attended by the children” over the last two years. Order 2 sought that the maternal grandmother have leave to issue a subpoena to those childcares, schools, and doctors.
The obligations of disclosure of documents and information are codified in ch 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). In order for documents to attract the obligation of disclosure, they must be apparently relevant to the relief to be agitated in the proceedings. There is longstanding authority which sets out that the bar for establishing “apparent relevance” is not high (see Hatton v Attorney-General (Cth) (2000) FLC-038, adopting National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372). That said, in circumstances where the maternal grandmother does not contend that the children are subject to risk in the mother’s care, it is difficult to distil the relevance of the material sought by way of disclosure. The maternal grandmother makes clear, in her affidavit filed on 21 September 2022 in support of her Application in a Proceeding, that:
49.I have not been able to obtain any information whatsoever on the current health, schooling and welfare of [X] and [L] by way of updating information filed with this Court by either [of the parents], or by way of [subpoenas] issued by the [ICL]
The maternal grandmother expressed her concerns as to the absence of information concerning those matters, and contended that if she did not have access to such information, she would encounter difficulties in determining the relief she seeks as to the children’s parenting on a final basis. She recorded in her affidavit the following:
52. I have no knowledge and the Court has had no knowledge in relation to:
(a) Where the children live and with whom;
(b) What the children1s education, medical and social needs are and what impact on those if any my application to spend time with the children would have.
She further said:
53.There is a complete vacuum in respect of any independent evidence at all, or indeed any evidence, as to how the children are progressing and whether their best interests will be served by orders providing for me to spend time with them.
At the hearing before me, it was submitted on behalf of the maternal grandmother that she “needs to know” the identity of the children’s schools and/or medical practitioners, because it “may be” that those organisations would have documents that would assist the Court in its determination of what is, in reality, a limited issues parenting inquiry. I do not accept those submissions. The information sought by the maternal grandmother may be the subject of affidavit evidence if it is relevant, or may be the subject of oral evidence at trial. It is of significance that subpoenas have previously issued to at least one school attended by the children.
Having regard to the principles for conducting child-related proceedings as identified by Div 12A of the Act, I am not satisfied that the relief sought by the maternal grandmother by Orders 1 and 2 of her Amended Application in a Proceeding ought be acceded to in circumstances where:
(a)As recorded above, it is uncontroversial that since the orders made by a senior judicial registrar on 1 November 2021 the maternal grandmother has not exercised time with the children; and
(b)It is agreed by each of the parents and the ICL that the ICL should be granted leave to issue such subpoenas as are relevant to the issues in dispute as to the time to be spent, if any, by the children with the maternal grandmother.
Hence that portion of the maternal grandmother’s relief will be dismissed.
Updating family report
The second portion of the relief sought by the maternal grandmother was for the parties to obtain an updating opinion from Dr G, with the maternal grandmother to meet half of the costs of such process.
During the course of the hearing today, in circumstances where it seems that Legal Aid will not fund any further updating report as sought, the maternal grandmother indicated that she will meet 100 per cent of that cost, being at least $6,600. The maternal grandmother seeks related orders that if an updated report is to be obtained, Dr G be provided with the subpoena material and trial affidavits seven days prior to the schedule date of any interviews.
It appeared uncontroversial that an updating report would require the parents, the children and the maternal grandmother to attend upon Dr G for the purposes of further observations and assessments. I am told that such further assessment would occur on or about 21 and 22 November 2022, with a report being available in December 2022. In the event an updating report was ordered, the trial dates for this matter could not be allocated until March 2023.
The ICL and the mother submitted that Dr G’s limited availability to prepare a report is restricted to the preparation of an updating assessment only and would involve the relevant parties completing written questionnaires, undertaking a telephone interview and Dr G reading the affidavit and subpoena material which has become available since the Family Report. Counsel for the maternal grandmother accepted that it is wholly a matter for an expert to determine the process and methodology to be adopted for the preparation of an updating report, and that any complaint that the maternal grandmother may have as to the methodology used would be a matter for trial.
It is strongly contended by the mother, the father and the ICL that the process of any updated assessment will occasion further distress on the parents and will expose the children to additional unnecessary processes that would not be in their best interests. It is further submitted by the mother and the ICL that Dr G’s opinion in the Family Report raised issues as to the maternal grandmother’s parenting capacity and attitude of the maternal grandmother, and that it is a matter for the maternal grandmother to satisfy the Court that she has engaged with those issues.
The mother contends that considerations of the attachment between the children and maternal grandmother is not a weighty factor to the making of orders that promote the children’s best interests, in circumstances where the maternal grandmother has exercised minimal time with them since December 2019. Arising from that contention, it is the mother, father and the ICL’s position that if necessary, Dr G can update her opinion orally at the trial.
This is a closely balanced matter. In the circumstances, I am of the view that the Court would be assisted by an updated opinion from Dr G and orders will be made to that effect. That said, in the event the expert determines that a limited scope review by way of a written questionnaire, telephone interviews and reading further documents is the appropriate methodology for grounding any further opinion, there can be little complaint made by the material grandmother.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 26 September 2022
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