Tian & Heng (No 2)
[2023] FedCFamC1F 963
•10 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tian & Heng (No 2) [2023] FedCFamC1F 963
File number: SYC 3144 of 2021 Judgment of: CAMPTON J Date of judgment: 10 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where father made oral application for the appointment of a single expert to opine on content, operation and effect of Australian migration law as it relates to the mother’s prospective residency in Australia – Where dismissal of the application will not compromise the interests of justice – Where the appointment of an expert will create unnecessary cost – Where the contended expert evidence not relevant to the determination of factual issues and the operation of law enlivened in the proceedings – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 64B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, r 7.08
Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 10 November 2023 Place: Sydney Counsel for the Applicant: Mr Wong Solicitor for the Applicant: The Australian Legal Practice Counsel for the Respondent: Ms Hamilton Solicitor for the Respondent: E Berman & Co Solicitor for the Independent Children's Lawyer: Mr Holmes of Holmes Donelly & Co Solicitors ORDERS
SYC 3144 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TIAN
Applicant
AND: MS HENG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
10 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The applicant father’s (“the father’s”) proposed Minute of Orders comprised of two paragraphs together with a draft letter of instruction dated 8 November 2023 be marked Exhibit 1.
2.The father be granted leave to make an oral application for the appointment of Mr D as a single expert to opine as to the content, operation and effect of Australian migration law and as to other matters as contained in Exhibit 1.
3.The father’s oral application for the appointment of a single expert be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tian & Heng has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine the application by the applicant father (“the father”) made today for the appointment of a single expert witness to opine as to the content, operation and effect of Australian migration law in so far as it relates to the respondent mother’s (“the mother’s”) current application for a visa to remain in Australia with the child X (“the child”).
The proceeding relating to the parenting of the child commenced upon the father filing an Initiating Application for Final Orders on 1 May 2021. The matter is listed for trial in the rolling list in the Sydney Registry commencing on 11 March 2024. The father has been more often than not resident in Country B subsequent to the separation of the parties in 2019, the mother and the child from separation more often than not being resident in Australia.
The substantive relief as sought by the father, as contained in his Amended Initiating Application filed 29 July 2023, is for an order that the mother return the child to Country B and in the alternative, should the child remain with the mother in Australia, for the parties to have “joint parental responsibility”, for a specified regime of time being spent by the father with the child in Australia and as to communication between the child and the father.
The mother by way of her Further Amended Response to Initiating Application filed 14 August 2023 seeks orders in the alternative, the primary regime being that the parties will have equal shared parental responsibility for the child should the father be permanently resident in Australia or she have sole parental responsibility otherwise, that the child live with the mother in Australia and that regimes of time being spent between the father and the child dependent on whether the father is resident in Australia on a permanent or temporary basis. She further, in the second circumstance, sets out a regime of the father communicating with the child. The mother additionally seeks orders by way of child maintenance should she and the child remain in Australia. She does not seek a regime of time spent by the father with the child should the child live in Country B.
The mother does not oppose the father’s application for the appointment of an expert having the specialised knowledge as identified by the father for the purposes of giving evidence in the proceeding. She and the father are in dispute, should the expert be appointed, as to the terms of the instruction to be provided to the expert grounding an opinion. The Independent Children’s Lawyer has identified an absence of apparent relevance to the subject matter for which the father promotes single expert opinion evidence.
In support of his application, the father submits with some vigour that the mother’s current visa status as to her continued permanent residence in Australia is yet to be determined and that it is relevant to know “sooner rather than later” if the mother achieves, is likely to, or can achieve, the requisite criteria to obtain a permanent resident visa. He submits that the mother’s prospects of success in obtaining such visa to remain in Australia ought to be clarified prior to trial in circumstances where it is the prospective parenting of the subject child which will be the subject of and the determination of the inquiry. He submits that it will “settle the matter as to the mother’s visa status one way or another before the trial”. I do not accept that last submission.
During the course of exchanges for the purposes of the hearing of this application I enquired of the father’s counsel as to why it was necessary for an expert to provide an opinion as to the content, operation and effect of Australian migration law in circumstances where the Court can make such determinations as to the probability of future circumstances grounded from facts as are found in the course of the litigation. Additionally, a reading of the proposed letter of instruction forming part of the father’s application today requests that the expert opine as to disputed factual matters as between the parties. The factual matters grounding the ultimate conclusion as to the likelihood of the mother’s application for permanent residence in Australia and consequently the child’s potential permanent residence in Australia will be matters to be determined on the facts in the course of the forthcoming trial.
Additionally, consideration needs to be given to the purpose of ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Cth”) (“the Rules”) as expressed in r 7.02. That rule records that the purpose of ch 7 is to ensure that parties obtain expert evidence only in relation to significant issues in dispute and that expert evidence is restricted to that which is necessary to resolve or determine a proceeding.
In respect of this matter, there appears to be no absence of capacity to ensure that the interests of justice are achieved in circumstances where each party can conduct the proceeding in the alternative and the Court can make a decision providing for a regime of parenting for the child prospectively should the mother and the child be required to return to Country B, should the father’s substantive primary relief be successful, or should the mother and child remain in Australia.
The father has been placed on notice today as to the source of power by which his primary relief, being that the mother cause the child to be returned to Country B within seven days of the making of an order, is grounded. The father contends that such order is a parenting order within the parameters of s 64B of the Family Law Act 1975 (Cth). This may or may not be a matter for trial and it may or may not be at trial that the primary relief of the father if grounded from that source of power is incompetent. I express no further view in relation to that at the present time.
For all of the above reasons, I find that the dismissal of the father’s application for the appointment of expert evidence in the terms identified earlier in these reasons will not compromise the interests of justice, that the appointment will create unnecessary costs and that the relevance of the contended expert evidence will not in and of itself determine both factual issues and operations of law that are live issues in the proceedings.
For all of the above reasons I make the above orders.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton delivered on 10 November 2023. Associate:
Dated: 14 November 2023
0
0
2