Steyn & Garrety (No 2)
[2022] FedCFamC1F 602
Federal Circuit and Family Court of Australia
(DIVISION 1)
Steyn & Garrety (No 2) [2022] FedCFamC1F 602
File number(s): NCC 802 of 2013 Judgment of: HANNAM J Date of judgment: 5 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Ex tempore judgment – Where the mother made application to adjourn final parenting proceedings on day two of the hearing – Where the mother discharged her counsel following her failure to explore issues of significance with the expert under cross-examination – Where the father opposed the mother’s application on the basis the children are in a precarious situation where there are issues of risk – Where it is not accepted that the children are in a precarious position – Where the hearing is vacated Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 5 July 2022 Place: Parramatta Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: Gillard Family Lawyers Solicitor for the Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Legal Aid NSW Counsel for the Independent Children's Lawyer: Mr Havenstein ORDERS
NCC 802 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARRETY
Applicant
AND: MS STEYN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
5 JULY 2022
THE COURT ORDERS THAT:
1.On application of the mother, the balance of this week’s hearing is vacated.
2.The hearing is listed on 17, 18, 19 and 21 October 2022.
3.Order 14 of Exhibit 2 of 20 May 2022 is to continue pending further order.
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 Steyn & Garrety has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
This is an application to vacate the balance of four days which have been allocated for hearing of a particularly complex parenting application. The mother makes this application on the basis that, as at today, she has no legal representation, having disengaged with the counsel who was representing her on the basis, as the mother puts it, relating to that counsel’s competence and failure to explore matters of significance for the mother’s case under cross-examination with the expert. The expert who prepared a particularly detailed report has considerable expertise and experience. Both the parties at an interim hearing, and the father now that his amended final position is known, appear to have attached some considerable weight to that expert’s opinion.
In those circumstances, I accept in accordance with the mother’s submissions, that testing of that expert from the mother’s perspective was a very important issue, and I can observe that there was literally no cross-examination by the mother’s previous counsel of the expert. There was some cross-examination about an issue that had been well and truly covered in the expert’s evidence-in-chief, and after that, the counsel effectively sat down, matters which I’m quite confident the record will confirm.
The mother says that the reality for her having no counsel – a position I must accept as true – is that if the balance of the hearing dates were not vacated this week, she would be required to conduct these difficult proceedings to their end this week. The mother says that she is hampered in that task in that she has not had access to the expert’s report herself, which is true, as it has only been released to the legal representatives. She says that she had some time, less than four hours to read that report in the company of her lawyers, and that there are 11,000 pages of documents to look at, and she hasn’t yet been given access to documents produced on subpoena. She also wishes to make an application to recall the expert, and it’s unknown whether that would be something that would easily be able to be done. I recall when these dates were set aside that the expert talked about this being the school holiday period and that his only available date was yesterday, which in my view, fitted in with an appropriate way that the trial should be dealt with. In any event, it’s unknown whether we would be able to recall the expert during the balance of this week.
The father opposes the application on the sole basis that the current situation for the children is precarious for them and raises issues of risk. In particular, the father relies in that regard on the form of orders that were made as the expert recommends which the father has now adopted on a final basis. Those orders provide for a period of time in which the children spend no time with the father and have extremely limited contact with him which, if extended to an eighteen month period in total, have a protective factor for the children as at the end of that period, they would be given sufficient agency and validation to know that the final arrangement after that time would be in accordance with their wishes. It is submitted that, particularly given the absence of therapy during the interim period – which the father certainly had an expectation would occur – the children are in this particularly risky position.
While of course, I cannot make any findings in relation to those circumstances for the children right now, I do consider that there is some helpful information in relation to that. Firstly, the expert himself did not place the emphasis on therapy occurring during this time where the children are spending no time with the father as being necessarily required. In particular, the expert said positively that the children should not be required to attend therapy if they’re resistant to doing so. There’s certainly evidence of the mother – albeit, that it’s not yet been tested – that the children have been quite resistant to therapy. Indeed, in the particular incident referred to at school in mid-June (which is after this period of non-contact with the father had commenced) on the mother’s version of events, the thing that was causing the younger child distress was the prospect of having to go to more therapy.
Secondly, in terms of the expert’s evidence, I raised with him that this interim period prior to a judgment being given may be longer than usual and that it could not be expected to be within three months, as is normal in the case of a final hearing. The expert effectively said that, although he regarded it as an integral part of his final proposal that the children would be told they would have a choice, he said this delay did not really matter in that regard. In fact, I think his words were, “it didn’t really matter when the judgment was delivered, so long as everything happened within that 18 month period.” He was also not asked about the incident in mid-2022, which is the only incident referred to in the evidence that has happened since the children have had their time with their father suspended and their communication virtually completely curtailed, and it does appear to me, on the face of it, to be a far less serious incident than any of the others. The child was not injured. She didn’t require medical treatment, and apart from the mother picking her up early from school, it didn’t involve any other agencies, and as stated, the child explained that the cause of her distress was friends being mean to her and the stress of therapy itself.
So, I don’t accept for the purposes of this application that the children are in a particularly precarious position right now, having regard to that particular incident, and also because it’s clear on the record that the children have no idea when this current period is going to come to an end, in accordance with the Memorandum of the senior court child expert. This is completely consistent (as one would entirely expect) with the instructions given by the ICL. In all of those circumstances, considering that was the only basis upon which the application was put and given the position of the mother and the very high stakes in the particular circumstances under consideration, I agree that the interests of justice do require that the balance of the hearing dates this week be vacated and that the matter be listed for conclusion on the 17th, 18th, 20th and 21st of October.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 22 August 2022
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