Simons & Morin
[2022] FedCFamC1F 909
Federal Circuit and Family Court of Australia
(DIVISION 1)
Simons & Morin [2022] FedCFamC1F 909
File number(s): SYC 5136 of 2020 Judgment of: AUSTIN J Date of judgment: 31 October 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the father sought review of interim parenting orders made by a senior judicial registrar in a limited respect – Where the father sought an order for the child to communicate with him three times each week and the discharge of an injunction restraining the child’s knowledge of and involvement with paternal family members – Where the injunction made by the senior judicial registrar was discharged and replaced with an injunction in varied terms – Where the mother sought reasons confined to why the father’s adult son was excluded from the operation of the varied injunction. Legislation: Family Law Act 1975 (Cth) Pt VII Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 31 October 2022 Place: Newcastle Counsel for the Applicant: Mr Batey Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the Respondent: Mr Schonell Solicitor for the Respondent: Delaney Lawyers ORDERS
SYC 5136 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SIMONS
Applicant
AND: MR MORIN
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
31 october 2022
THE COURT ORDERS THAT:
1.Orders 5(a) and 5(b) made on 20 September 2022 are discharged and in lieu thereof the following shall apply:
5(a)Each Tuesday and Thursday between 6:00 pm and 7:00 pm (Brisbane time), with the mother to initiate the call.
5(b)Each Saturday between 5:00 pm and 6:00 pm (Brisbane time), with the mother to initiate the call.
2.Order 8 made on 20 September 2022 is discharged and in lieu thereof the following shall apply:
8.The parties are restrained from discussing with or introducing the child to the following persons, other than in accordance with the recommendations made to the parties by the family therapist appointed pursuant to Order 6 made on 20 September 2022:
a.The father’s wife, Ms B;
b.The father’s step-child, C; and
c.Any of the father’s other children, other than Mr D.
3.Otherwise:
a.The Application for Review filed on 11 October 2022 is dismissed;
b.The application for orders contained within Exhibit F1 is dismissed;
c.The application for orders contained within Exhibit M1 is dismissed; and
d.Any and all other applications for interim relief under Part VII of the Family Law Act are dismissed.
4.The mother’s application for costs of the review application is dismissed.
NOTATION
A.The parties inform the Court that they do not require the publication of Reasons for Orders 1, 3 and 4 hereof.
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 Simons & Morin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
These reasons are given at the mother’s request to explain Order 2 made today.
The parties are in dispute under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) over their only child, who was born in 2015 and is now aged over seven years.
The child lives with the mother in Brisbane. The father lives abroad, as he always has done. Proceedings were commenced by the mother in July 2020 seeking financial relief. The father joined issue in December 2020, seeking both financial and parenting relief.
In the parenting proceedings, Dr E was appointed as the single expert in March 2021. The single expert report was prepared and released to the parties in February 2022.
An interim dispute arose between the parties, principally in relation to the nature of the child’s interaction with the father. That dispute was heard by the senior judicial registrar in August 2022. Relevantly, orders were then made on 20 September 2022 providing for the child to live with the mother (Order 1), to spend time with the father in Australia (Orders 2, 3 and 4), to communicate electronically with the father (Order 5), and to restrain the parties from discussing or introducing the child to certain paternal relatives (Order 8).
On 11 October 2022, the father applied to review the senior judicial registrar’s orders in a very limited respect, namely:
(a)he wanted the child to communicate with him thrice, instead of twice, each week (Orders 5(a) and 5(b)); and
(b)he wanted the injunction restraining the child’s knowledge of and involvement with the paternal family members discharged (Order 8).
Although the review also sought to discharge another order (Order 7), that dispute dissipated for reasons it is now unnecessary to explain.
At the conclusion of the hearing, I announced the orders I intended to make, including as to costs. The father did not want reasons published for any of the orders. The mother wanted reasons, but only in a very narrow respect.
By making Order 2, I discharged Order 8 made on 20 September 2022 and replaced it with an injunction in these varied terms:
8.The parties are restrained from discussing with or introducing the child to the following persons, other than in accordance with the recommendations made to the parties by the family therapist appointed pursuant to Order 6 made on 20 September 2022:
a. The father’s wife, [Ms B];
b. The father’s step-child, [C]; and
c. Any of the father’s other children, other than [Mr D].
The revised injunction precludes the child from being informed about or being introduced to three particular persons associated with the father, unless that occurs pursuant to the recommendations of the family therapist who is to be jointly appointed by the parties pursuant to Order 6 made on 20 September 2022, about which order there was no dispute.
The mother wanted one more person included within the operation of the injunction – being the father’s adult son, Mr D (“the adult son”), who, as I understand it, is now aged about 19 years. The mother wants reasons published for why the adult son was excluded from the operation of the varied injunction.
It is common ground the child was formerly introduced to the adult son and knew who he was. It is also common ground that the child has not been involved with the adult son for the past couple of years, due to the pervasive effect of the worldwide COVID-19 pandemic.
The mother’s counsel contended the child should not now be involved in discussion about or re-introduced to the adult son (at least without the family therapist recommending it), because the child has forgotten the adult son.
First, I can find no reliable evidence that the child (who I remind is now aged over seven years) has forgotten the adult son altogether.
Second, even if the child has forgotten the adult son, who is to say he will not recall or recognise him when he is discussed or re-introduced?
Third, I can identify no reliable evidence to establish that the child’s re-introduction to, or engagement in conversation about, a family member whom he formerly knew would carry any tangible risk of emotional harm.
Fourth, properly construed, the single expert only identified risks in relation to the child’s engagement with the father’s other children. To elucidate that point, I recite the following portions of the single expert report.
…I also pointed out that as [the child] is not even aware of [C] or the new baby, this issue needed to be addressed and he accepted this and reiterated that he would need professional advice about the best way to do this.
…
I checked with [the father] that [the child] was unaware of the existence of [C] and the new baby and he confirmed that [the child] was not aware. He said that he thinks that introducing [Ms B] into [the child’s] life will need to be done thoughtfully, and similarly the introduction to [C] and the new baby.
…
I do have significant concerns about [the child’s] position in the father’s new family unit. Although there is a great deal of dispute about the facts and history, [the child] is unaware of the existence of [C] and the father’s unborn child, as well as [the adult son]. There appears to me to have been a history of secrecy which has made it very difficult for [the child] to have been properly informed of his parents’ relationship in a child-appropriate manner.
I am very concerned about [the child] not being properly informed about these matters. In my view, this runs the risk of [the child] finding out about [C] and/or the new baby in an unplanned manner, by the mother, [the adult son], family members or other persons. Such an unexpected revelation would have a devastating consequence for [the child’s] sense of stability and emotional security and would seriously undermine his confidence in both his parents. It could also expose him to overwhelming emotional situations which would further distress him.
(Single Expert Report dated 22 February 2022, p.18 line 518 to p.19 line 521, p.19 lines 543–546, p.38 lines 1146–1157)
The adult son is certainly mentioned in the latter of those three quotes, but only generically. I can see no logical reason to aggregate concern about the adult son (whom the child previously knew) with concern about the other paternal family members whom the child has never known. Indeed, later contents of the single expert report support the distinction. The single expert also said:
…I think it would be appropriate during one of these visits for the father to introduce [the child] to [the adult son], if [the adult son] would be willing to travel to Australia [from New Zealand]. I think that a positive introduction to [the adult son] and the establishment of this sibling bond will assist [the child] with a further introduction to the paternal family.
(Single Expert Report dated 22 February 2022, p.38 line 1162 to p.39 line 1165)
The mother’s desire to keep the adult son out of the child’s life, in my view, is unduly alarmist. In my view, it is appropriate to carve out an exception for the adult son under the injunction in its varied form. Otherwise, as I understood the submissions made on the mother’s behalf, the variation of the injunction was in terms which she found acceptable.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 29 November 2022
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