Tai & Bo - [2024] FedCFamC1F 474

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tai & Bo [2024] FedCFamC1F 474

File number(s): MLC 6905 of 2020

Judgment of: BENNETT J

Date of judgment: 17 July 2024

Catchwords
FAMILY LAW – CHILDREN – Magellan – interim defended hearing - where matter is set down for nine day final hearing in four months – where female child has disclosed sexual abuse by her father to her psychologist and the DFFH – where child has disclosed abuse to her sibling – where neither child is currently receiving mental health treatment or support – where previous orders provide for attendance at a psychologist and family therapist – where court is to determine the appropriate therapy and counselling for the children between now and final hearing – where it is ordered the psychologist who previously treated the daughter is to see both on an ongoing basis for non-reportable therapy

FAMILY LAW - CHILDREN – where there appears to have been no consideration by parties or the Court when arranging for therapy for children whether it is consistent with each individual child’s best interests that the therapy can be the subject of evidence – where when ordering that parents facilitate the attendance of a child at therapy or counselling, particularly where allegations of child abuse are made against a parent, it is incumbent on the Court and the practitioners to turn their minds to the purpose of the treatment and whether it is in the child’s best interests to allow the child’s participation, statements and views to be made evidence in the proceeding – where any parameters which it is decided should be set around the evidence (including confidentiality) should be clearly articulated in the Order

FAMILY LAW - CHILDREN – where Article 3(1) of the Convention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration – where there is a distinction between the best interests of a child and the best interest of parents in parenting litigation concerning that child

FAMILY LAW – EVIDENCE – Expert witnesses – where the father made an application for the family to attend a reportable counselling program – a program that costs $16,500 – where the father argues there is evidentiary value in having additional experts – where there is a comprehensive Magellan report – where father does not establish the necessity of appointing additional expert witnesses – where updated Magellan Family Report ordered

Legislation:
Family Law Act 1975 (Cth)

Family Law Regulations 2004 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Cases cited:
Bryce & Bryce [2020] FamCA 653

Mizushima & Crocetti [2024] FedCFamC1F 113

Division: Division 1 First Instance

Number of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tai & Bo

Details

AGLC: Tai & Bo [2024] FedCFamC1F 474
Case: [2024] FedCFamC1F 474
Decision Date: 17 July 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Tai & Bo involved significant issues regarding the welfare and therapeutic needs of the children, who had disclosed sexual abuse by their father. The court had to decide on the appropriate therapeutic intervention for the children, the necessity of additional expert witnesses, and the parameters of evidence admissibility in the context of the children's therapy. The court was also tasked with ensuring that any therapeutic measures taken were in the children's best interests and did not conflict with their confidentiality and well-being.

The primary legal issues revolved around the best interests of the children concerning their therapeutic needs, the admissibility of evidence from their therapy sessions, and the necessity for additional expert witnesses. The court had to balance the therapeutic needs of the children against the potential for their statements to be used as evidence in the proceedings, ensuring that any therapeutic arrangement was truly beneficial to the children and did not inadvertently harm them. Additionally, the court needed to determine whether the appointment of additional expert witnesses was necessary, considering the existing comprehensive reports and the potential burden on the children.

The court concluded that the children's therapy should continue with the psychologist who had previously treated them, ensuring that the sessions were non-reportable and not subject to evidence in the case. This decision was made to protect the children's confidentiality and well-being, aligning with the best interests principle as outlined in the Convention on the Rights of the Child. The court also dismissed the father's application for the family to participate in a reportable counselling program, finding that the existing Magellan report was sufficient and that the potential benefits of additional expert testimony did not outweigh the burdens on the children.

The court ordered that an updated Magellan Family Report be prepared, addressing various aspects of the children's welfare and the parents' capacity to cooperate. The court also set out detailed directions for disclosure, case preparation, and trial management, emphasizing the need for the parties to ensure that their children attend the required therapy sessions and for the Independent Children's Lawyer to facilitate the sharing of relevant documents among the parties and experts. The final orders included specific timelines for filing documents, preparing case outlines, and ensuring that the children's privacy and therapeutic needs were prioritized throughout the proceedings.

Orders

Orders of the court

MLC 6905 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR TAI

Applicant

AND:

MS BO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

17 JULY 2024

THE COURT ORDERS THAT:

1. The matter remain listed for final defended hearing before me to commence on 2 December 2024 for an estimated 9 days.

2. The parents do all acts and things necessary, including obtaining a Mental Health Care Plan for each of the children being X born 2014 and Y born 2016 (“the children”) to be assessed by, and if appropriate, receive therapeutic treatment from Ms B, psychologist.

3. The parents each pay equally and be equally responsible for the reasonable costs of attendance at Court today by Ms B and do so within 7 days of presentation of an invoice for same.

4. Subject to further order any treatment by Ms B of either child is not reportable and will not be subject to evidence and no further subpoena can issue to Ms B or her practice for evidence in relation to the children.

5. The director of Children’s Court Services make Ms C, Court Child Expert, available to prepare a further report to that of the Family Report dated 8 June 2023, such report to be commenced not earlier than 1 October and be released not later than 1 November 2024.

6. Pursuant to section 62G(2) of the Family Law Act 1975, the parties and X born 2014 and Y born 2016 attend upon a Court Child Expert (practicing under their appointment as a Family Consultant), Ms C, for the purposes of the preparation of an Updated Family Report, such report to be released by 1 November 2024. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. Such report to be commenced not before 1 October 2024 and be released by not later than 1 November 2024.

7. The Updated Family Report address:

(a) any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;

(b) the matters set out in ss 60CC, 61D(3), 61DAA of the Family Law Act 1975;

(c) the impact upon the children and upon their relationship with the mother if the Court made orders as sought by the father;

(d) the impact upon the children and upon their relationship with the father if the Court made orders as sought by the mother;

(e) an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

(f) an observation of each of the parties with the child/ren (unless it appears to the Family Consultant that such an observation taking place is not in the immediate best interests of the child/ren);

(g) recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child/ren’s best interest to the greatest extent possible; and

(h) any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.

8. Not later than 4.00pm on 18 July 2024 the parties provide their contact telephone numbers and email addresses to ...@....

9. Each party do all things necessary to ensure the children attend upon to the Family Consultant pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies.

10. The parties and the children attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.

11. For the avoidance of doubt the Family Consultant be and is hereby authorized to have reference to:-

(a) all documents filed in these proceedings;

(b) any documents produced on subpoenae and released for inspection by all parties;

(c) any documents provided to him by the Independent Children’s Lawyer who will give notice to the other parties to the proceedings of what documents are so provided; and

(d) any documents or things referred to in this Order.

12. The Family Consultant be at liberty to inspect any material filed by the parties, and:

(a) the report from the child welfare agency dated 27 January 2023, Magellan Report dated 5 July 2022, 67Z responses dated 5 July 2022 and 14 October 2020; and

(b) any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the Independent Children’s Lawyer.

13. Upon the Updated Family Report being provided to the Court, the Court release the report and provide a copy to each party (or if represented, the party’s lawyer) and to the Independent Children’s Lawyer in the proceedings.

14. Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children:

(a) a Children’s Court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference.

15. Upon the Updated Family Report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to the Independent Children’s Lawyer in the proceedings.

16. Unless otherwise ordered, no person shall release the Updated Family Report, or provide access to the family report to any other person.

17. The Independent Children’s Lawyer forthwith ensure that Ms B, psychologist, has a copy of the Updated Family Report in this matter together with any other document which the Independent Children’s Lawyer considers would assist the expert to give evidence in these proceedings and in respect of which the other parties do not raise an objection.

18. In the event that there is difficulty securing an Updated Family Report in the time frame provided for in this Order, the Independent Children’s Lawyer contact my Chambers and request listing for alternative orders.

19. I dismiss the father’s application for the family to participate in L Counselling or participate in any such counselling or any such program.

Trial Directions

20. That each party file and serve an undertaking as to disclosure by not later than 30 August 2024.

21. Each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her/their case, NOTING THAT affidavits relied upon for previous hearings cannot be relied upon as evidence in chief, such documents to be filed to be as follows:-

(a) The applicant father by not later than 30 August 2024;

(b) The respondent wife by not later than 13 September;

(d) The applicant in reply by not later than 27 September 2024;

Where a party can respond to evidence of the other party, the responding party must do so in seriatim (paragraph by paragraph).

22. By not later than 20 November 2024, each parent file and serve:-

(a) a case outline document; and

(b) a list of documents to relied upon by that parent –

and send same to my Associate by email – ...@....

23. The case outline document summarise that party’s parenting case including, but not necessarily limited to, the following issues:-

(a) Parental responsibility and decision making authority as defined in s4(1) of the Family Law Act 1975

(b) What parenting orders are sought by that party;

(c) Why the parenting orders sought by that party are in the best interests of the child(ren) having regard to the general considerations set out in s60CC(2).

(d) The matters set out in s61D(3) and s61DAA of the Family Law Act 1975;

24. The case outline document summarise that party’s property case including, but not necessarily limited to, the following issues: -

(a) a list of documents upon which that party will rely at trial;

(b) a list of assets divisible between the parties (including any add-backs);

(c) a list which identifies the property, including equitable interests in property, of each of the husband and the wife;

(d) any monies or premature distributions of property to which either party has been entitled, including that property or money which is no longer in existence, and the basis (if any) upon which such property is to be adjusted against the entitlement of either party and the extent of that adjustment;

(e) whether it is just and equitable within the meaning of s79(2) to make an order adjusting the husband and/or the wife’s interests in property; and

(f) a summary of argument including but not limited to the following matters relating to a final alteration of property interests:-

(i) the contribution based entitlement of each party;

(ii) in dot point form the different types of contribution being financial contributions (s79(4)(a)), non-financial contributions (s79(4)(b)) and contributions to the welfare of the family (s79(4)(c)) upon which that party relies to support the contribution based entitlement for which they contend;

(iii) any other matters relevant to a division of property including any adjustment to the contribution-based claim (if any) having regard to the factors in s79(4)(d), (e), (f) and (g);

(iv) in dot point form what relevant s75(2) or other factors relied upon by that party for any adjustment;

(v) why the orders sought by that party are appropriate;

(g) a summary of any matters upon which evidence is adduced from experts and is not agreed, including but not limited to:-

(i) the date and outcome of the last conference between experts;

(ii) the particular matters upon which there is no agreement between experts;

(iii) what the difference there would be to the final outcome in the event that one expert’s view of any particular matter is accepted over the other experts view;

(h) a summary of argument in relation to any other financial relief which is sought including child support or spousal maintenance; and

(i) a minute of the orders which he/she seeks be made at the final hearing if the orders sought differ in any respect from his/her last filed application or response.

25. That any party who proposes at the final hearing to seek orders against a superannuation trustee do all acts and things necessary to ensure that the superannuation trustee has been accorded procedural fairness in relation to the order proposed to be sought and that party be in a position to prove that procedural fairness has been accorded if called upon to do so.

26. Until further order I relieve the parties from compliance with r.6.22(3)(b) of the Federal Circuit and Family Court of Australia Rules 2021 in relation to Specific Questions and any party receiving questions answer same on oath within 21 days of receipt.

27. By not later than 25 November 2024, the Independent Children’s Lawyer provide to each other party to the proceedings and by email to my Associate:-

(a) a chronology of relevant events;

(b) a minute of the orders which in the preliminary view of the Independent Children’s Lawyer ought to be made at the final hearing;

and the parents, through their legal practitioners, cooperate with the Independent Children’s Lawyer to ensure, to the extent that it is practicable to do so, that the information contained in the chronology is agreed to be accurate.

28. By way of compliance with Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by not later than 12.00 noon on 29 November 2024, the practitioner for each party provide notice in writing to his/her client of:-

(a) the actual costs incurred by the client up to and including that date;

(b) any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

(d) the costs payable for each day of the trial, excluding the first day;

(e) the estimated length of the trial; and

(f) the date of payments made and the source of the funds for the costs paid or to be paid so that:-

(i) if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

(ii) if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

(iii) if costs have been paid in cash, the details must identify the payer.

29. The parties prepare an Electronic Court Book using EBrief Ready AND IT IS DIRECTED that for this purpose my Legal Associate provide the template of the Electronic Court Book to the solicitors for the parties and the solicitor for the applicant include their documents first.

30. IT IS DIRECTED that any party wishing to cross examine on a document or tender a document into evidence at the final hearing, ensure that his or her counsel has a minimum of 5 copies of any such document available at the time of cross examination, evidence or proposed tender (being a copy for counsel for each party, a copy for the witness and two copies for the Court).

31. Each party has leave to contact my Chambers to arrange to have this matter listed for mention or before me, on notice to all other parties, to seek any further directions as any party considers are necessary to ensure that the matter is ready for trial or to narrow the issues in dispute.

AND THE COURT NOTES THAT:

A. I will deliver reasons subsequently.

B. That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

C. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

However, the father did not establish what evidence would be contained in a report of L Counselling model after a six-week intervention program that would not be covered by an updating family report authored by the Family Consultant Ms C. The applicant father did not establish that the interests of justice require the appointment of a second expert witness (or raft of witnesses) to give evidence about the quality and future of the children’s relationships with the father. The applicant father did not establish that there is a substantial body of opinion contrary to any opinion given by the Family Consultant and that the contrary opinion is or may be necessary for determining the issue. The father had the opportunity to have counsel cross-examine Ms C in relation to her methodology and basis of her opinion but did not do so. The applicant father has not established that another expert witness knows of matters that may be necessary for determining this case and which not known to the Family Consultant or not able to be found out by her. The most that Mr Carne could submit was that the team of experts at L Counselling Program should be capable of performing a thorough and up to date assessment. Given the experience and talent of the L Counselling Program line up, I do not doubt that is correct. However, I must weigh the benefit of a current assessment by L Counselling experts against putting the children through what might be a six-week ordeal of assessment by professionals who are new to the children at about the same time as Y is also recommencing with Ms B and X is being assessed by Ms B to see if he should attend for therapeutic treatment as well. I conclude that the preferrable course is to have the Family Consultant prepare an up-to-date Magellan Family Report. I enquired whether any party seeks a psychiatric assessment of both parents by Mr F to be followed by a further Magellan Family Report by Ms C. Mr F is part of the L Counselling team, although Counsel for the father said not a central part. The general consensus was that an assessment by Mr F would be interesting but is not essential. My experience is that, invariably, Mr F’s opinions are interesting, and his insights are of assistance. He is a gifted practitioner and a valuable resource when retained as an expert. However, I agree that Mr F’s involvement is not essential in this case. Psychiatric assessments are helpful to determine whether concerning behaviour by a parent or child is something for which both parents are responsible or whether it is a manifestation of pathology of one parent which may or may not be amenable to treatment. The parents will be judged on their behaviour rather than whether there he or she has an underlying psychiatric condition to which his or her behaviour may be attributable. Neither parent in this case admits that their own behaviour is of concern and that he/she will change their behaviour. If they did, a psychiatric assessment would assist the Court to know how likely it is that the parent will be able to change what may be entrenched patterns of behaviour, but that is not the case here.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 6905 of 2020
Judgment of:	BENNETT J
Date of judgment:	17 July 2024
Catchwords	FAMILY LAW – CHILDREN – Magellan – interim defended hearing - where matter is set down for nine day final hearing in four months – where female child has disclosed sexual abuse by her father to her psychologist and the DFFH – where child has disclosed abuse to her sibling – where neither child is currently receiving mental health treatment or support – where previous orders provide for attendance at a psychologist and family therapist – where court is to determine the appropriate therapy and counselling for the children between now and final hearing – where it is ordered the psychologist who previously treated the daughter is to see both on an ongoing basis for non-reportable therapy FAMILY LAW - CHILDREN – where there appears to have been no consideration by parties or the Court when arranging for therapy for children whether it is consistent with each individual child’s best interests that the therapy can be the subject of evidence – where when ordering that parents facilitate the attendance of a child at therapy or counselling, particularly where allegations of child abuse are made against a parent, it is incumbent on the Court and the practitioners to turn their minds to the purpose of the treatment and whether it is in the child’s best interests to allow the child’s participation, statements and views to be made evidence in the proceeding – where any parameters which it is decided should be set around the evidence (including confidentiality) should be clearly articulated in the Order FAMILY LAW - CHILDREN – where Article 3(1) of the Convention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration – where there is a distinction between the best interests of a child and the best interest of parents in parenting litigation concerning that child FAMILY LAW – EVIDENCE – Expert witnesses – where the father made an application for the family to attend a reportable counselling program – a program that costs $16,500 – where the father argues there is evidentiary value in having additional experts – where there is a comprehensive Magellan report – where father does not establish the necessity of appointing additional expert witnesses – where updated Magellan Family Report ordered
Legislation:	Family Law Act 1975 (Cth) Family Law Regulations 2004 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Cases cited:	Bryce & Bryce [2020] FamCA 653 Mizushima & Crocetti [2024] FedCFamC1F 113
Division:	Division 1 First Instance
Number of…