REDMOND & STOLZ

[2015] FamCA 367

FAMILY COURT OF AUSTRALIA

REDMOND & STOLZ [2015] FamCA 367

FAMILY LAW – PARENTING – Where judgment is reserved in the substantive parenting proceedings – where the father makes an application for a review of the Principal Registrar’s decision in respect of the mother’s planned overseas travel with the child and the father’s application to have the ICL dismissed  – where the Principal Registrar’s orders have been stayed pending the determination of this application – where the father makes an application to have the child’s name placed on the Family Law Watch List – where the mother seeks an injunction to restrain the father from filing any applications seeking an order for the placement of the child on the Family Law Watch List – father’s applications dismissed – injunction granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Redmond

RESPONDENT: Ms Stolz

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley

FILE NUMBER: BRC 4493 of 2011

DATE DELIVERED: 19 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 11 May 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley

Dooley Solicitors

Orders

1. The Applicant father’s applications filed 17 March and 31 March 2015 are dismissed.

2. Order 1 and Order 3 of the Orders made by Principal Registrar Filippello on 10 March 2015 are discharged.

3. The mother is permitted to remove the child, E born … 2005, (“the child”) from the Commonwealth of Australia for the purposes of overseas travel between 21 June 2015 and 5 July 2015.

4. The mother is permitted to travel overseas with the child to Country W, Country U and Country I provided that the Australian Government Department of Foreign Affairs and Trade travel alerts for those countries remain at “Exercise normal safety precautions”.

5. The Australian Federal Police are requested to remove the name of the child, E born … 2005 from the family law watch list as soon as practicable.

6. The Registry Manager of the Brisbane Registry of the Family Court of Australia is directed to release the said child’s passport to the mother, on written request by the mother, on or on any date after 1 June 2015.

7. Pending delivery of final orders by the Honourable Justice Forrest, the mother is directed to deliver the child’s passport, within seven (7) days of the child’s return to Australia, to the Registry Manager of the Brisbane Registry of the Family Court of Australia with such passport to be released with the written consent of both parties or by Order of this Court.

8. Any existing parenting order providing for the said child to spend time with the father during the period between 21 June 2015 and 5 July 2015 that the child is out of the country is suspended for that particular time and any such time missed by such suspension shall be made up for as soon as can practicably be arranged by the mother, the father and the relevant children’s contact centre after the child’s return to Australia. 

9. Pursuant to s 68B(2) of the Family Law Act 1975 (Cth), until further order, the father is restrained and an injunction is hereby granted restraining him or any person acting as his agent from taking any steps to communicate with the Australian Federal Police so as to cause them to put the name of the child, E born … 2005, on the Family Law Watch List.

10. Until further order, the father shall not file any further applications seeking parenting orders in which he also seeks to have the child’s name, E, added to the Family Law Watch List, without first obtaining the leave of this Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Stolz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4493 of 2011

Mr Redmond

Applicant

And

Ms Stolz

Respondent

REASONS FOR JUDGMENT

1. Over the last three days in October last year I presided over a trial of contested substantive applications for parenting orders and property adjustment orders involving the parents of 10 year old E whose interests were also represented at that trial by an Independent Children’s Lawyer, Mr Patrick Dooley.

2. Also included in the relief sought by the mother at the final hearing was a declaration that the father is a vexatious litigant in this Court as well as orders consequent upon such a determination.

3. At the conclusion of the trial, I reserved my judgment. It is still reserved. Pursuant to interim parenting orders I made earlier last year, the child was living with her mother and was spending limited supervised time with the father at a children’s contact centre in the months leading up to the trial. Those orders remained in place at the end of the trial and were left in place to govern the child’s parenting arrangements pending the delivery of my judgment.

4. In January this year, the mother wrote to the father asking him if he would consent to her taking the child on a holiday to Asia during her school holidays at the end of the first term of this school year. The father did not agree. In fact, he did not even respond to her requests.

5. The mother then filed an Application in a Case seeking orders from the Court permitting her to take the child on that holiday. She also sought ancillary orders in respect of the child’s passport to facilitate that travel. The father opposed the orders being made and the mother’s Application in a Case was set down for hearing by Registrar Filippello on 10 March 2015.

6. On 11 February 2015, the father also filed his own Application in a Case in which he sought an order that the Independent Children’s Lawyer be discharged from the proceedings. That Application in a Case was also listed for hearing by Principal Registrar Filippello on 10 March.

7. After the hearing, Principal Registrar Filippello dismissed the father’s application to discharge the ICL and also made orders permitting the mother to take the child from the Commonwealth of Australia for the purposes of overseas travel between 21 June and 5 July this year. Because of the father’s opposition to the travel, the mother had changed her plans. She no longer sought to take the child during the end of the first term school holidays but rather during the end of the second term school holidays. The Principal Registrar’s orders permitted that. The Principal Registrar also made orders permitting the mother to apply for a passport for the child without first obtaining the father’s consent and expressly permitting the mother to travel with the child to Asia, conditioned upon the travel alert issued by the Australian Department of Foreign Affairs and Trade for each of those countries remaining as “Exercise normal safety precautions”.

8. On 17 March 2015, the father filed an Application in a Case for a review of the Principal Registrar’s decision of 10 March in respect of the mother’s application to take the child overseas for a holiday to Asia and in respect of the father’s application for the ICL to be discharged. On the father’s application, the Principal Registrar stayed her orders pending the determination of the father’s application for review of her decision.

9. The father’s Application in a Case was heard by me in the Judicial Duty List on Monday, 11 May 2015. At the same time, I heard another Application in a Case filed by the father on 31 March 2015, in which he separately seeks an order from the Court that the Australian Federal Police be requested to place the child’s name on the family law watch list. During the hearing before me it became clear, from submissions made by the father, that he had filed that Application in a Case as a basis, in the first instance, for supporting an application made directly to the Australian Federal Police pursuant to their procedures for them to put the child’s name back on the family law watch list until his Application in a Case seeking to review the Principal Registrar’s decision of 10 March was heard and determined.

10. By her two Responses filed on 29 April 2015, the mother seeks to have both of the father’s Applications dismissed. Furthermore, she seeks a specific order that the Australian Federal Police remove the child’s name from the family law watch list forthwith and that she be permitted, pursuant to s 65Z of the Family Law Act 1975 (Cth), to remove the child from Australia specifically for the purposes of overseas travel between 21 June and 5 July and a further specific order that she be permitted to take the child to Asia for that holiday. She also seeks orders that the Registry Manager of the Brisbane Registry of this Court be directed to release the child’s passport to her on or after 1 June 2015, that she be directed to deliver it back to the Registry Manager within 14 days of her return to Australia for it to be held pending further order of the Court and she seeks an injunction pursuant to s 68B of the Family Law Act 1975 (Cth) restraining the father from filing any applications seeking an order for the placement of the child on the family law watch list.

11. Each of the mother and the father handed to the Court comprehensive written submissions and each supplemented them by oral submissions. The ICL made oral submissions that supported the position of the mother that she be permitted to take the child on the planned holiday.

The issue of the overseas travel

1. The mother seeks to take the child on a holiday overseas for 2 weeks in her 3 week school holiday period in late June and early July this year. They would be accompanied by her partner, Mr Q.She proposes flying with the child from the Gold Coast airport to City O in Country U via City G where they will have a stopover of just a few hours in the airport. The proposed itinerary includes staying for 2 nights in a hotel in City O followed by 6 nights at a hotel in City J followed by 1 night in City Z. They would then fly to Country I where they would spend 3 nights before returning to Brisbane. The mother’s plans for Country I include taking the child to Country I Disneyland.

2. The father told the Court that he does not oppose the mother taking the child overseas as such, but rather that he opposes her taking the child into countries that are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) or countries that do not have current travel alerts with the Australian Department of Foreign Affairs and Trade (DFAT) limited to “Exercise normal safety precautions”.

3. Of the three countries the mother proposes visiting, including by way of an airport stopover of only a few hours, Country U and Country W are not signatories to the Hague Convention. All three countries have current travel alerts with DFAT limited to “Exercise normal safety precautions”.

4. Although he told the Court that he does not oppose the mother taking the child overseas as such, the father did make a submission that it is not appropriate to hear the mother’s application whilst judgment is reserved in the substantive proceedings. He told the Court that the mother had sought final parenting orders at the trial last year that included matters pertaining to the issue of a passport for the child, retention of it by her and permission for her to travel with the child overseas. He submitted that whilst my final judgment in the matter remains reserved it is not appropriate to be dealing with the issue of overseas travel now as an interim issue.

5. It seemed to me though, given his concession that the mother and child can travel overseas at this point in time albeit only to countries that are signatories to the Hague Convention, that the father’s submission that it is not appropriate to be dealing with this issue on an interim basis is without merit. I remember there being little evidence about the specifics of any overseas travel adduced at the trial and there were few, if any, submissions addressed by any of the parties to this particular issue at the end of the trial. Now I have had the benefit of detailed evidence and submissions going to the specific issue of the single proposed overseas holiday within the next few months.  I am not persuaded that it is inappropriate to be hearing and determining this matter whilst I remain reserved in my judgment in the substantive proceedings.

6. Directing his submissions to the prospect of the mother travelling with the child to countries that are not signatories to the Hague Convention, the father asserted that the mother was an unacceptable “flight risk” and, therefore should not be allowed to take the child to such countries where she will be beyond the reach of Australian law.

7. Specifically, he submitted that the mother’s ties to this country, Australia, are insufficiently strong to prevent her from determining to stay with the child outside Australia once she is there. He submitted that the “long and extensive history of litigation amongst the parties since 2011” is continuing and that the level of conflict is high with both parties being critical of the other with respect to parenting. I understood the father to submit that the mother must be regarded as thereby being effected enough by this high level of conflict that she must be considered an unacceptable risk of not bringing the child back to Australia. He also submitted, on this point, that the mother had been less than frank with her disclosure of her travel arrangements and that acceptance of this fact must give rise to concerns of her bona fides and add weight to the submission that she is a “flight risk” with the child. 

8. Additionally, he submitted that the mother’s state of mental health is such that any significant stressor, such as those that can happen when one travels, could cause the mother to experience a mental health breakdown whilst overseas with the child, thus seriously compromising her immediate capacity to provide care for the child, thus placing her in a position of unacceptable risk.

9. Also on the point, the father submitted that the child would be exposed to the risk of coming into contact with criminal gangs in the countries of proposed travel which adds to the unacceptability of risk of harm to her. He submitted that the countries to which the mother proposes to travel are close to countries that have high travel alerts and that Australia’s military involvement overseas and “tough stance on various international issues” makes travelling to these countries a further risk to the child.

10. The father also opposes the proposed travel because the mother proposes to return to Australia on a morning when he is due to have a session of supervised contact with the child that would be interfered with.

11. In summary, the father submitted that that the risk the child would be exposed to by such travel “far outweighs any benefits proposed to the child by the Mother”.

The Principles by which this matter is to be determined

1. The orders the mother sought in her application that was determined by Principal Registrar Filippello are now to be determined by me, de novo¸ that is by a fresh hearing on the merits. The orders sought fall within the definition of “a parenting order” as contained within s 64B. So too, do the orders the mother seeks in her Response to the father’s review application.

2. Pursuant to s 60CA, the Court must regard the best interests of the child as the paramount consideration and pursuant to s 60CC the Court must consider the matters set out in that section in determining what is in the child’s best interests. Furthermore, when the Court is asked to determine parenting orders where the process involves assessment of risks to the child, orders should not be made if the child would be exposed to an unacceptable risk of physical or emotional harm.

My Assessment of the matters presented

1. The child currently lives with her mother and spends supervised time with her father each alternate weekend for a couple of hours. The mother gave evidence that one of the father’s scheduled visits, recently rescheduled for a Saturday morning will be missed by the child not being returned in time for it, but that she has been assured by the contact centre staff that the missed visit can be accommodated that same afternoon. The father submitted that there was no evidence of that other than the mother’s word and that he cannot be assured that his visit will occur. However, he did concede, when pressed, this problem could be remedied simply by the making of an order that the mother ensure that any missed visit is made up for as soon as practicable thereafter.

2. Whilst the father’s legitimate concerns of missing a visit are acknowledged, I am satisfied that the mother’s evidence of already seeking to make arrangements is demonstrative of her commitment to ensuring that the fortnightly supervised visits take place. I am also satisfied that making up for a missed visit as soon as practicable after the child’s return would appropriately ensure that the child does not miss time with her father that she would be having with him pursuant to existing orders.

3. The proposed holiday would all take place in the child’s scheduled school holidays and she would not miss any school. The mother’s evidence is that the child has asked to go overseas with her and, knowing of the planned trip, has expressed excitement about going. The expression of excitement by a child at the prospect of her first overseas trip would not surprise me. The mother submits that there are educational and personal benefits to the child to be gained by her being exposed to and immersed in the cultures of Country U and Country I on this holiday, as well as by seeing the various places they will be visiting.

4. The father submitted that any such benefit is overstated and that the child could get exposure to other cultures in Australia. It is true that a child living in Australia is able to be exposed to various aspects of different culture but, in my view, that exposure can never be the same as the immediate experience of being immersed in the physical and built places, the language and the culture of another country. In my view, the benefit of such exposure is immense, particular for a developing child supported and encouraged by a loving parent.

5. I do not consider the risk of the mother not returning with the child to Australia is an unacceptable one.  I accept the evidence that she was born in Australia and has lived all of her life in Australia. I accept that she lives on the Gold Coast and has lived there for a long time and that members of her extended family live there too. Although there is not a lot of evidence about her current partner, I accept that he lives on the Gold Coast too and that he plans to travel to Country U and Country I with the mother and the child. I accept that the mother owns her own home on the Gold Coast and that it is subject to a mortgage liability. True it is that she could make arrangements to sell it from overseas, but I do not consider the chance of that happening is high. I accept the mother’s evidence that she has no family or financial connections with Country W, Country U or Country I. Whilst I accept the mother would like to visit those places, I do not consider that she is an unacceptable risk of staying in one of those countries. Furthermore, the mother has recently gone through the process of credentialing herself and opening her own business as a sole practising solicitor on the Gold Coast. I am not persuaded by the father’s arguments that there is anything to be concerned about in respect of her having left the employ of the firm that she previously worked for last year, however that happened, or her having opened her own legal practice.

6. The mother remains a party to property adjustment proceedings that have not been finalised by the Court yet in which she seeks orders settling hundreds of thousands of dollars upon her. I consider she will be keen to return to Australia and await the outcome of those proceedings. Her record of compliance with parenting orders made in the Courts to this date also gives rise to no significant concern of future non-compliance.

1. I am not convinced that the mother has demonstrated a lack of bona fides in respect of her proposed travel arrangements.

2. Ultimately, notwithstanding the fact that Country U and Country W are not signatories to the Hague Convention, I do not consider that the mother presents an unacceptable risk of staying in one of those countries. I will let her travel to them with the child.

3. I am quite satisfied that the mother has shown significant resilience in the face of what I consider is fairly described as unrelenting litigation that she has been party to in this Court, the Federal Circuit Court and the Supreme Court in recent years. That it may have caused her some stress and even anxiety at times could hardly be surprising. Nevertheless, I have seen no evidence that causes me to determine that she is likely either to simply decide to remain out of this country as a result of being fed up with the matter or to suffer unexpectedly from a mental health breakdown if faced with a stressor on the proposed trip. In any event, I am far from satisfied that her current partner could not or would not deal with any health problems suffered by the mother in an appropriate manner if anything like that happened whilst he accompanied her on the holiday. There is no evidence at all from which I could conclude that he would not.

4. The father does not oppose the mother taking the child to countries that are signatories to the Hague Convention and with DFAT travel warnings limited to “Exercise normal safety precautions”.  The risk of being caught up in an accident, a natural disaster, civil or military unrest or even a terrorist activity is one that is ever present around us as living beings in a modern global environment. Whilst the level of this risk must be considered to increase as one travels into environments with which one is unfamiliar, where one undertakes different daily routine and activities from that which one is familiar with at home, the determination I must make in respect of the parenting orders I am asked to make requires me to determine whether risk to the child is unacceptable. I am assisted, as are the parents in this case, by the fact that the Australian DFAT has already made a risk level assessment in respect of Australians travelling to the countries that the mother proposes to take the child to and that they keep such assessments updated.  DFAT express that current assessment as “Exercise normal safety precautions”. I have no reason to consider that the mother and her partner will not do that.

5. In all of the circumstances, I am not of the view that the child will be exposed to a level of risk to her safety that is so unacceptable that her mother should not be permitted to take her to those countries. I am not of the view that the child is exposed to an unacceptable risk of not being brought back to Australia by her mother at the end of the proposed holiday. The father, despite his apparent concerns for the wellbeing of his daughter and his future relationship with her, has not persuaded me that she should not be allowed to go on the holiday with her mother.

6. I will make orders dismissing the father’s review application in respect of the mother’s planned travel with the child and specifically order that the child can be taken by the mother to Country W, Country U and Country I whilst the DFAT travel alerts for those countries remain “Exercise normal safety precautions” and between 21 June and 5 July this year.

7. I will order that the child’s passport, recently obtained by the mother but held safely in the Brisbane Registry of this Court, be released to the mother on her written request after 1 June 2015 so as to allow her to obtain a visa for Country U for the child. My orders will require the mother to deliver the child’s passport back to the Registry within 7 days of her return to Australia.

8. I will also order that the Australian Federal Police take all steps necessary to remove the child’s name from the family law watch list as soon as practicable so that the proposed overseas travel can occur.

The Injunction sought by the Mother

1. The mother also seeks that an injunction be granted pursuant to s 68B of the Family Law Act 1975 (Cth) restraining the father from filing any applications seeking an order for placement of the child’s name on the family law watch list.

2. The Court has the discretion to grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the Court to be just or convenient to do so. Any such injunction may be granted unconditionally or on such terms and conditions as the Court considers appropriate (s 68B(2) and (3)).

3. Interim parenting orders have already been made in this case in the Part VII proceedings that were instituted a long time ago. I am also going to make further interim parenting orders in the same Part VII proceedings that permit the mother to take the child overseas for a specific period whilst my judgment in the substantive parenting proceedings is still reserved. However, as the father pointed out during the hearing before me on Monday, 11 May 2015, he lodged an appeal against orders that I made in respect to obtaining a report from a single expert witness just prior to the commencement of the trial of the substantive proceedings.  The father informed the Court that he will be submitting to the Full Court that the error of law he asserts that I made resulted in a mis-trial (whatever the outcome of the trial) and that a re-trial of the substantive parenting orders proceedings should be ordered. That matter is, I was informed, still pending in the Full Court and is unlikely to be heard before I hand down my reserved judgment. 

4. Subdivision E of Part VII of the Family Law Act 1975 (Cth) creates certain obligations under parenting orders relating to taking or sending children from Australia. Specifically, s 65Z creates obligations if proceedings for the making of certain parenting orders are “pending”. It provides:

   (1)If proceedings (the Part VII proceedings) for the making of a parenting order to which this Subdivision applies are pending, a person who is a party to the proceedings, or who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as mentioned in subsection (2).

   Penalty: Imprisonment for 3 years

   (2)Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:

   (a)it is done with the consent in writing (authenticated as prescribed) of each party to the Part VII proceedings; or

   (b)it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings. (my emphasis added)

5. The definition of a “parenting order to which this Subdivision applies” means a parenting order to the extent to which it provides, or would provide, that, amongst other things, a child is to live with a person or spend time with a person (s 65X (1)).

6. The parenting orders sought in the substantive parenting orders proceedings in which my judgment remains reserved fall within this definition. Therefore, I am satisfied that whilst my judgment is reserved, the proceedings for the making of a parenting order to which the Subdivision applies remain pending. Furthermore, as an appeal has been instituted against my decision made prior to the trial, even if I were to hand down my reserved judgment tomorrow, the parenting orders proceedings are taken to be “pending” for the purposes of the subdivision whilst that appeal remains pending and s 65Z set out above relevantly applies (s 65X(2)).

7. Clearly having regard to s 65Z(2)(b), the prohibition against taking the subject child outside Australia whilst the proceedings remain pending does not apply if it is done in accordance with an order of this Court made under Part VII after the institution of the Part VII proceedings. As I will be making an order under Part VII of the Family Law Act 1975 (Cth) well and truly after the institution of the Part VII proceedings the mother is not prohibited from taking the child, the child Redmond, to a place outside Australia in accordance with the order, even though the parenting orders proceedings do remain pending. 

8. As I understand the submissions that were made by both parents at the hearing on Monday 11 May, the father is of the view that all he has to do to have the child’s name entered on the family law watch list by the Australian Federal Police is to notify them that he is commencing further proceedings in the Court for a parenting order or filing an appeal against parenting orders that have been made, provide to the police a copy of his application or appeal and then, pursuant to their protocols, they will place the child’s name on the family law watch list, thus preventing the mother from taking the child until she specifically gets a further order that permits her to do so.  Although there was no evidence adduced by either parent going to this issue, the mother was clearly troubled by the fact that the father’s view might reflect Australian Federal Police practice and that he can potentially continue to thwart her intention to take the child overseas as planned simply by lodging appeal after appeal against orders that permit the mother to take the child out of the country and use such appeals to have the Australian Federal Police put the child’s name back onto the family law watch list.

9. The mother’s concern has some basis in the history of the matter to date. The father is a prolific appellant. He has appealed against so many of the orders made in these proceedings and other proceedings. He has already informed the Court that he intends appealing against the judgment in the substantive proceedings when it is delivered, without even seeing what orders and reasons it contains.

10. I consider that the father’s apparent view that simply filing an appeal against any parenting order that permits the mother to take the child outside Australia invokes the s 65Z prohibition and supports a request to have the child’s name added to the family law watch list is wrong. The requirement for a person to get an order of the Court permitting her to take a child outside Australia “after the institution of the Part VII proceedings” included in s 65Z(2)(b) is not, in my view, mandated by the institution of an appeal against a decision of a court in Part VII parenting orders proceedings. I consider the relevant “institution of the Part VII proceedings” is the filing of an application or a response in which parenting orders proceedings that remain pending, even by way of appeal, were actually commenced in the first instance. I do not consider that fresh Part VII proceedings are instituted, for the purposes of s 65Z, simply by the filing of an appeal against orders already made.

11. Furthermore, I am of the same view in respect of the filing of a fresh application in a case in which further parenting orders are sought or even in which an order specifically seeking to have the child’s name included on the family law watch list is sought. I do not consider that such an application filed in proceedings that remain pending brings the s 65Z prohibition into operation again after an order has already been made by the Court in those pending proceedings expressly permitting the child to be taken overseas.

12. In my respectful view, the correct approach is for the Australian Federal Police to act on orders of this Court that require the removal of the child’s name from the family law watch list and permit the child to be taken by a person in accordance with an order made since the proceedings that remain pending were actually first instituted even where an appeal has been lodged against those  orders, save for when the Court’s orders in that respect have been stayed by the Court on application pending the determination of the appeal against those orders.

13. I say, respectfully, that without actual evidence on the issue, I cannot even be sure that is not already Australian Federal Police operational practice.

14. However, in the absence of evidence that this is what the Australian Federal Police already do and having regard to the father’s view and his demonstrated tenacity in respect of these matters, I am persuaded that it is just and convenient to restrain the father or any person acting as his agent, until further order, from taking any steps to communicate with the Australian Federal Police so as to cause them to put the child’s name on the family law watch list. I also consider it appropriate in this case to make an order until further order that the father not file any further applications seeking parenting orders in which he also seeks to have the child’s name, E, added to the family law watch list, without first obtaining the leave of this Court.

15. I consider these orders appropriate, just and convenient given that I have determined the father has clearly demonstrated a propensity to use Court processes to frustrate and inconvenience the mother and I am satisfied, particularly having heard to the views he expressed during the hearing of this application, that he thinks he can just keep filing applications and/or appeals and be able to continually invoke the overseas travel prohibition of s 65Z and Australian Federal Police procedural action to put the child’s name on the watch list. I am satisfied that left unrestrained it is probable that the father will continue to try to do that so as to frustrate the mother’s planned overseas holiday which is less than two months away.

16. As I have said already, in my view the correct approach for the father to take if he considers I have made appealable error is to file an appeal against my orders and to come back before me seeking a stay of my orders pending the determination of that appeal. Of course, if he is determined to make a fresh first instance application for the mother to be prevented from taking the child overseas, based on any material fresh evidence, he will now need to seek the leave of the Court before he can institute such an application. 

The Application to have the ICL discharged

1. The father pressed a review of the Principal Registrar’s decision to dismiss his application for the discharge of the ICL.

2. He submitted that as my judgment remains reserved, there is an appeal against a pre-trial order I made currently pending and that he already intends to appeal against my final orders when my reserved judgment is published the matter is far from over and that the ICL’s appointment remains in place. He submitted that it is therefore appropriate for his application for the discharge of the ICL to be heard, so that a different solicitor can be appointed to the role of ICL in this case.

3. The father’s application for discharge of the current ICL, Mr Dooley, is singularly grounded, he submitted, in alleged incompetence. Interestingly though, in addition to that asserted ground, the father said during his oral submissions on Monday, 11 May 2015 that when he is arguing his appeal against my pre-trial orders in respect of the appointment of a single expert psychiatrist, he particularly wants to be able to point to this application to have Mr Dooley discharged if he is asked by the Full Court whether he had ever applied to have Mr Dooley discharged. This position is, to me at least, comprehensible only if the father intends to argue that I was led into appealable error by the incompetence of the ICL. I do not know if that is his intention.

4. In any event, the father submits that Mr Dooley fell decidedly short of his obligation to be an “active, independent advocate acting in the child’s best interests” and should, therefore, now be removed, even when the trial is finished and my judgment is reserved.

5. There is no doubt that the Court has the power to discharge an ICL. The father referred to the Full Court’s decision in Lloyd (2000) FLC 93-045 and submitted it is authority for the proposition that an ICL may be discharged for acting “incompetently in a professional sense”. I accept that as correct.

6. The father alleges that the ICL acted incompetently in respect of issues surrounding the retention of an independent forensic psychiatrist for the preparation of a report about the father just prior to the trial that took place last year.

7. Before the trial last year Associate Professor Dr V, consultant psychiatrist, saw the mother and the father in this case and provided a report of his psychiatric evaluation of them. That report was attached to an affidavit filed on 17 September 2015, around about six weeks before the start of the trial.

8. In that report, at page 8, the doctor said:

   With respect to the father there is a significant gap between the information that emerges from the interviews including the mental state examination and the information that emerges from the documentation with respect to his behaviour. While there is often discrepancy between the interview data and the documentation in family law cases, the degree of disparity in this case is well what I have experienced before. In these circumstances, I cannot help feeling that I missed something in the evaluation.

   When the data does not make clinical sense and there are significant implications with respect to the outcome of a clinical evaluation with respect to a child’s relationship with a parent, let alone issues of safety it is prudent to seek a second opinion.

   I would strongly urge that the father be evaluated by a forensic psychiatrist who is experienced in the evaluation of so called “querulous paranoia” and any implications for safety. I recommend that the Court order such an examination of the father. I do not believe that the mother needs to be evaluated again. I would be happy to recommend a person who could assist the Court.

9. The father himself then brought an application for the trial dates to be vacated and for such a “second opinion” to be obtained. When that application was heard, it emerged that the ICL was able to make arrangements for such a second opinion to be obtained from Dr B, a psychiatrist with higher specialist training in forensic psychiatry and experience in forensic psychiatry, particularly the assessment and treatment of mentally disordered offenders  and in the area of violence risk assessment. Mr Dooley was able to make those arrangements so that the report could be available on a short time frame so that the existing trial dates would not be lost.

10. On 24 September 2014 I made an order, after hearing argument, that required each of the parents to pay $4,000 towards the cost of Dr B’s report and his giving evidence at trial and for a report to be prepared by Dr B in respect of the father:

    …as to his mental health state, with particular attention to be given by the psychiatrist to the question of whether Mr Redmond is affected by or experiencing “querulous paranoia” and any implications that same may have for the safety of the child…

11. It is that order that the father has appealed, the Court has been informed.

12. The report was obtained and attached to an affidavit filed on 24 October 2014 by the ICL. The ICL’s letter of instruction to Dr B, dated 13 October 2014, is in evidence attached to an affidavit of the ICL filed 7 May 2015.

13. Particularising his allegations of incompetence as the father has, I assess the father as asserting:

    (i) the ICL’s instructions to Dr B contained information that was not in evidence before this Court;

    (ii)that Dr B focused on the risk of the father perpetrating physical violence on the child, saying that it was for the Court to decide, perhaps with the assistance of other experts, as to the potential for emotional, psychological and social harm to be perpetrated on the child by the father, and the ICL did nothing to address this alleged flaw in the doctor’s report;

    (iii) that the ICL failed to “follow Rule 15.42(a)” of the Family Law Rules by failing to have Dr B express opinions about the other risks of harm to the child besides physical harm;

    (iv) that the ICL was incompetent in failing to ensure only one psychiatrist gave expert evidence on the point;

    (v) that the ICL failed to provide any opportunity for the parties to clarify any issues with the expert witnesses before the trial;

    (vi)that the ICL had failed to give the father notice prior to the trial of all of the opinions that would be expressed by Dr V at the trial;

    (vii) that the ICL failed to have the two psychiatrists confer prior to the trial.

1. As to the first alleged act of incompetence, I understand that the piece of information the father complains the ICL gave to Dr B in his letter of instruction that was not in evidence is factually correct and not in dispute between the parties.  I believe I learned of it at the October trial in any event. It was that the father had conceded in Supreme Court contempt proceedings against him that he had acted in a manner that constituted contempt of that Court and that he was sentenced to twelve months imprisonment suspended for three years for that contempt.

2. I do not consider it an act of professional incompetence from an ICL seeking to obtain a report from a forensic psychiatrist as to the risk of harm that might be posed to a child if spending unsupervised time with a particular parent to provide that psychiatrist with that sort of information relating to that parent.

3. Given the time frames that were involved, the complexity of the case and the issues, particularly surrounding the father’s state of mental health, and the factual sequence commencing with the provision of Dr V’s report, I do not consider that the ICL acted in a professionally incompetent manner in the manner in which he engaged and instructed Dr B and the way in which he put Dr B’s report before the Court without doing more. The ICL is hardly responsible for the doctor determining that he should focus on the physical aspect of harm in the circumstances. I do not consider that Mr Dooley fell short of his professional duties and the responsibilities of his role as is alleged by the father in this respect.

4. The father’s reference to those parts of the Family Law Rules 2004 (Cth) that relate to expert evidence and his list of alleged failures by the ICL by reference to those Rules do not establish, in my view, that the ICL was incompetent. The ICL obtained an independent expert’s report from a psychiatrist. That doctor recommended to the Court that a second opinion from a forensic psychiatrist be obtained. Armed with that, the father came to the Court himself and argued for such a report to be obtained. An argument now by the father that the ICL was somehow professionally incompetent by failing to ensure only one psychiatrist gave evidence is rather hollow.

5. Furthermore, that the ICL did not arrange for the two psychiatrists to confer prior to the trial, in all the circumstances, does not persuade me that he was professionally incompetent. They were independent witnesses, not adversarial witnesses whose opinions on the one point significantly differed. As such, a conference between them was not necessary in my view.

6. The complaint by the father that the ICL failed to provide any opportunity for him to clarify issues with the expert before the trial is also hollow. The father worked as a solicitor for several years until recently. He had experience in litigation as a professional. He is very experienced in litigation as an unrepresented litigant. There is no evidence that the father at any time asked the ICL before the trial to arrange for him to be able to clarify issues with the expert. The father could have taken his own steps to confer with the experts or ask them any questions that he considered necessary prior to the trial commencing. He could have made application to the Court to be permitted to confer with one or both of the psychiatrists at any time prior to them giving oral evidence and being cross-examined by him if any pre-trial attempts by him to do so proved unsuccessful. It is not professional incompetence on the part of the ICL for the father not to have conferred with the experts or sent them questions in writing before the trial.

7. Finally, it sometimes occurs that expert witnesses express opinions during cross-examination at a trial that may not have been expressed in the expert’s report. That is sometimes an unavoidable consequence of the cross-examination process.  I do not consider that such an event sustains an allegation that the ICL was professionally incompetent in not having given notice of such opinions to the other parties prior to the trial commencing. At any point in time during the trial, the father could have raised objections to any such opinions being admissible if he considered he was somehow unfairly prejudiced by the way in which they were adduced. I reject the argument that professional incompetence on the part of the ICL is demonstrated. 

8. Finally, I do consider it relevant in the exercise of a discretion as to whether the ICL should be discharged or not, that the trial has been concluded and my judgment is reserved. The ICL’s responsibilities in the case are all but concluded. It would be wrong for me, in these circumstances, to conclude that the proceedings necessarily have a long way to go and that there could very well be a lot more work for the ICL to have to do. I do not.

9. In any event, the father has not persuaded me at all that the ICL has been professionally incompetent. I do not consider that anything the ICL has done or has not done as alleged by the father in this case warrants his discharge at this time. The father’s application to review the Principal Registrar’s decision to dismiss his application for the ICL’s discharge is dismissed.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 19 May 2015.

Associate: 

Date:  19 May 2015