Uttara & Gopal (No 2)
[2024] FedCFamC2F 1251
•29 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Uttara & Gopal (No 2) [2024] FedCFamC2F 1251
File number(s): MLC 7677 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 29 August 2024 Catchwords: FAMILY LAW – Parenting – application for adjournment – family report writer unavailable for cross examination – notice to the family report writer was not sufficiently given – not in the best interest of the child to adjourn the matter – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 7.09 Cases cited: AonRisk Services Australia Ltd v Australian National University [2009] HCA 27
Uttara & Gopal [2023] FedCFamC2F 1622
Division: Division 2 Family Law Number of paragraphs: 32 Date of last submission/s: 29 August 2024 Date of hearing: 29 August 2024 Place: Melbourne Solicitor for the Applicant: In Person Counsel for the Respondent: Mr Turner Solicitor for the Respondent: RRR Lawyers ORDERS
MLC 7677 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR UTTARA
Applicant
AND: MS GOPAL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
29 AUGUST 2024
THE COURT ORDERS THAT:
1.The application for an adjournment by the Respondent be and is 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).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
Background
Matter of Uttara & Gopal comes before me on 29 August 2024 of day 1 of a said to be two-day trial. The parties to the litigation are the Applicant Mr Uttara (‘the Father’) and the Respondent Ms Gopal (‘the Mother’) who are the parents of X born in 2014 (‘X’) and in grade 4 at his local primary school.
The parties commenced cohabitation in late 2013, when they married. They separated in 2018 and were divorced in late 2019. Proceedings relating to X and the property of the parties were commenced by Mr Uttara on 8 July 2021. The matter has been before the Court on many occasions since. Significant public resources have been applied to this family's dispute.
Expert reports
A child impact report that was undertaken on 18 August 2022. That report was released to the parties, and the matter came back before the Court. Notwithstanding that that child impact report had been made, a family report was prepared following interviews and observations in June 2023.
First scheduled final hearing
The matter was listed for final hearing on 14 November 2023, when it was unable to proceed, as Mr Uttara required the assistance of an interpreter. The Court, at public expense, had booked an interpreter for his assistance, but the interpreter, who had been booked and was otherwise available, had suffered an injury shortly before the hearing and was unable to attend. An alternative reporter was unable to be located and retained on the day. The matter was then adjourned to 4 December 2023 where the matter came before me again for final hearing. Once again, the matter did not proceed.
I made interim orders after hearing submissions from the parties. On that occasion, on 4 December 2023, the applicant father represented himself, and the respondent mother was represented by counsel. By way of background, I refer to my previous reasons in this matter of Uttara & Gopal [2023] FedCFamC2F 1622.
2In this matter the parents of X, who recently turned 9 years old, came before me for final hearing on 13 and 14 November 2023. Because of a difficulty securing a suitable interpreter for the Father, the proceedings could not proceed on 14 November and were adjourned to this judgment writing week that I have on the basis the matter could proceed today and tomorrow, Monday 4 and Tuesday 5 December 2023.
3Mr Uttara is 45 years old (‘the Father’), and Ms Gopal is 34 years old (‘the Mother’). Both parties were born in Country B. The Father is a transport worker by occupation and the mother is a health care worker. The parties commenced cohabitation when they married in 2013, and in early 2018 they separated in very unhappy circumstances.
4The parties applied to migrate to Australia separately. At the time of marriage, the Father had already been living in Australia and had commenced to try and obtain financial success and prosperity by working very hard in a new country. The parties married in Country B. Soon after the marriage, the father returned to Australia, and the mother remained in Country B and lived with the Father’s parents. X was born in 2014 in Country B. The Mother and X remained in Country B whilst the Father worked to advance the family financially in Australia.
5In early 2016, the Mother joined the applicant in Australia, but X remained in Country B with the father's parents. The Mother says that she was forced to do this, and the Father says that this was a matter they agreed on. The extent to which cultural obligations, relative poverty and the desire to achieve financial success and prosperity in a new country as motivation for each party's activities remains in dispute.
…
8By early 2018, the parents’ relationship had deteriorated, and in early 2018, there was a bitter dispute between the parents. The Father has told me this day, and I accept, that he pushed the Mother on that occasion. His evidence before me was that she had "motivated" him to do so, and he accepted when I asked him that he had become angry with her. The parties then disagree about the immediate consequence of that and whether the Mother was rendered unconscious for a short period or not. The parties separated a couple of days later and have remained separated since. The parties separated when the police took out an intervention order on the Mother's behalf.
9The Father did not see X again until some years later, after he had issued proceedings and sought orders that he spend time with X. On 6 December 2021, an interim order was made that the Father have eight supervised visits with X. The supervised visits occurred.
…
16On the first day of the hearing of 13 November, pursuant to his obligation to the Court, the mother's counsel, Mr Robertson, raised the issue that one possible course open on the evidence was for interim orders to be made, notwithstanding that his client pressed for final orders. Having had the benefit of being able to reflect on the case since 14 November until today and following me raising with the Father a possibility of an interim order with X spending some not overnight but gradually increasing unsupervised time, the Father indicated that that was acceptable to him.
…
18Hence, during the morning of 4 December 2023 I asked to the parties to provide submissions in regard to the orders about X being interim orders and not final orders. Each party acquiesced in that suggestion and did not oppose it.
19After some more time for reflection, it became common ground that X's time could, on an interim basis, move to unsupervised time of four hours; then, after a period, six hours; then, after a further period, 10 am to 6 pm. I note that the 10 am to 6 pm time was what the Mother had proposed in her outline of case after the Father had undertaken the men's behavioural change program that he was once enrolled in but no longer wishes to do and she no longer presses. Hence, the position of the unsupervised time evolved to a point of the parties agreeing or acquiescing in the suggestion that I made.
…
I made interim orders for the father to spend time with the child, but not overnight time. Those orders were determined by the Court, not by consent. It was also ordered that the Court child expert, who had prepared the report referred to, undertake a further interview, and that report to be released by 11 June 2024 (‘the updated family report’). That report was concluded on 7 June 2024, and on 11 June 2024, I made orders releasing that report to the parties.
ADJOURN TO CROSS EXAMINE EXPERT
A controversy at the start of this case arises because one of the parties wishes to cross-examine the report writer, or the Court child expert, who has prepared both the updated family report of 7 June 2024 and the family report dated 9 August 2023.
My reason to order an updated family report on 4 December 2024 was because the time arrangements between the father and X were at an early or preliminary stage, as was the relationship between the father and X. I was concerned by the current arrangement between the Father and X to make final orders.
On 24 June 2024, the matter was listed before me for mention. In the circumstances where an updated family report making recommendations had been released to the parties almost two weeks before, one possibility of such a mention is that the parties would be able to reach agreement, considering the observations of the expert witness.
That didn't happen, and the matter was fixed for trial of two days, commencing today, on that day. Rule 7.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides as follows.
Rule 7.09 Cross-examination of single expert witness
(1)A party wanting to cross-examine a single expert witness at a hearing or trial must inform the expert witness in writing, at least 14 days before the date fixed for the hearing or trial, that the expert witness is required to attend.
(2)The court may limit the nature and length of cross-examination of a single expert witness.
(3)Unless the court otherwise orders, a party who requires a single expert witness to attend court for cross-examination must pay the reasonable fees and expenses of the single expert witness's attendance.
Hence, to cross-examine a report writer, the report writer needs to be put on notice no less than two weeks before the time fixed for final hearing. The consideration of whether the report writer is required for cross-examination should commence soon after that report is released, that is soon after 11 June 2024.
The parties should have commenced turning their mind to the issue of what evidence was required for the final trial, from, let us say, the day after the matter was fixed for trial, that is 25 June, with what their positions were going to be, and whether or not any witnesses were required for cross-examination, including the Court child expert.
The parties would have been assisted in that contemplation from the actual proceedings of the mention on 24 June 2024, when it was apparent that they were not going to reach agreement or compromise. I have before me exhibit M1, which came in yesterday, which is an email to the applicant father and the Court, or to my associate, courteously putting the Court and the father on notice that an adjournment would be sought in the following circumstances.
…
We advise that the decision to cross examine the family consultant and hence, the notification was made on 22 August 2024 (07 days prior to the hearing instead of 14 days) due to following reasons:
1.The supplementary report of [Ms F] dated 07 June 2024 was released on 11 June 2024 pursuant to the Court Order dated 11 June 2024.
2.The matter came for a Mention before His Honour on 24 June 2024, and it was listed for Final Hearing on 29 & 30 August 2024.
3.The decision to cross examine [Ms F] was made after we secured further instructions and prepared a further affidavit and was filed on 07 August 2024.
4.Before making a decision to cross examine, [Ms F] we needed an input from the barrister, who was to be briefed in this matter. There was a delay in engaging a barrister as Mr. Robertson, who was previous involved in this hearing, no longer took s102NA briefs. Consequently, Mr. Turner was briefed on 20 August 2024.
…
The updated family report had some limitations in that at the time of the report interviews, the applicant father was not available to be observed in person or to speak to the report writer in person as he had travelled overseas to his country of origin. Nonetheless, he was able to participate in the report but not be observed with X who remained in the care of the respondent mother.
Family Report recommendations
The family report of 9 August 2023 had made certain recommendations. Those recommendations included.
91. [X] to continue living with [Ms Gopal].
…
93.That [Mr Uttara] have a further eight to ten supervised visits that could occur either weekly or fortnightly, for two to three hours each visit and the final two supervised visits be of four hour duration. A supervisor’s report would assist in determining [X]’s experience of the supervised visits. Spend time could then progress to unsupervised visits of four hours duration.
94. That [Mr Uttara] completes the [G] Program.
…
97.That consideration be given to [Mr Uttara] having access to [X]’s school reports and progress at school.
98.[Ms Gopal] consider obtaining a referral for individual play therapy for [X] to assist with him to process any early past childhood trauma, re-establish his relationship with his father and review [X]’s spend time with his father.
99.[X] would benefit from his mother engaging in individual counselling to assist her to support [X]’s spend time with [Ms Gopal], to address any of her anxieties.
100. That both parents complete a Parenting Orders Program.
The updated family report made different recommendations.
67.Given the parties have had ongoing difficulties communicating with one another the Court may wish to consider that [Ms Gopal] continue to have sole parental responsibility for [X], where she informs and considers a reply from [Mr Uttara]. This would ensure that decisions regarding [X]’s long term care, welfare and development are made in a timely manner.
68. [X] to live with [Ms Gopal].
69.[X] to commence overnight spend time with [Mr Uttara] commencing with one overnight and progressing to two nights each alternate weekend. In preparation, both parents to make a plan to support [X] during this transition. For example, consideration be given to what comfort toy, or other strategies suggestions that [Mr Uttara] could use if [X] experienced any anxiety. The parties may wish to consider an agreed plan that should [Mr Uttara] be unable to settle [X] after a range of strategies have been tried that he contact [Ms Gopal] to discuss next steps. This would require a level of trust between the parents where they child focused in responding to [X]’s needs. [X] may need a period of up to six months to establish one overnight stay each alternate weekend. Introduction to two overnight stays each alternate weekend could then be considered.
70.Ms Gopal would benefit from individual counselling to support her with the progression to overnight time between [X] and [Mr Uttara] to reduce the likelihood of increased anxiety for [Ms Gopal]. Also, to process any grief loss issues related to [X]’s transition from childhood to adolescence and any unresolved issues or vulnerabilities from the previous parental relationship.
…
72.[Mr Uttara] would benefit from his father attending [G] Program to assist [Mr Uttara] to help understand the impact of his behaviour by harnessing his motivations to be a caring dad.
It is in that context where the mother disagrees with the recommendation of the Court child expert and her counsel wishes to cross-examine the report writer. The report writer is overseas and is not available for cross-examination. The report writer was not given notice to be available within the time provided by the rules or provided by the orders of 11 June 2024.
Conclusion
I am satisfied that notice was not given for the simple reason that the need to give notice no less than 14 days beforehand was overlooked. I am comfortable that that will have been overlooked in the context of a busy practise and such things happen from time to time and indeed, many lawyers overlook time requirements from time to time, including this one.
I am satisfied that the preparation for trial of the mother's case proceeded on the basis of assuming that the report writer would be available if required, regardless of when notice was given. I am also satisfied that there was not sufficient preparation and contemplation of what was required for trial early enough. Certainly, there was contemplation of what was required eventually.
I also note that the applicant father, a litigant in person, was required to file any amended application and trial affidavit on or before 15 July 2024. He provided an amended application as ordered on 12 July 2024 and the trial affidavit on 15 July 2024. Hence, from 12 July, the mother was reminded of the importance of preparing for trial, as the father's position was apparent from his amended application.
His amended application was consistent with his position in the case since it started back in July 2021 to spend overnight time with his child. The mother was required to file her trial material on or before 5 August 2024, and she did so on 7 August 2024. I am satisfied that there is no prejudice to Mr Uttara by that slightly late filing date, and he took no objection to reliance upon it.
The parties were required to file an outline of case on or before seven days before the trial, that is 22 August 2024, and the mother's solicitors filed two days early. It is apparent that the issue of the need to cross-examine the report writer, or the alleged need, was not determined that it would have been considered earlier until 7 August 2024, that is the day that the trial affidavit was filed, albeit two days late.
I have referred counsel to the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, about the need for court cases to proceed in an orderly manner as part of the being a necessary function of a functioning society.
156.Conclusion. The presentation and adjudication of the case in the courts below do cause it to merit a place in the precedent books. The reasons for placing it there turn on the numerous examples it affords of how litigation should not be conducted or dealt with. The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other…
The mother's trial affidavit raises the issue of what is alleged to be the father's inconsistent attendance to undertake the time that is available to him. That is a relevant issue.
I regard the observations of the Court child expert of the nature of the relationship between the mother and the child and the father and the child as being the most important and central part of the report. That independent expert evidence can only come from an expert witness. The other very important part of the expert witness's evidence in this case is observations about developmental needs of X, and that is also expert evidence. I am told that issue is taken with the recommendations as recited above, that is, the report writer's recommendation that the father's time with X move gradually to overnight time.
The recommendation of a report has become a customary practise of report writers and is of considerable assistance to litigants and to the Court. But the recommendations are only that, recommendations.
They are secondary in importance to the expert observations of the nature of relationships and the social science of children's development and developmental needs. I am not satisfied that cross examination is essential for the respondent mother to challenge the recommendations. I may or may not agree with the recommendations of the report writer at the end of the case.
I am also concerned that had this case not been listed for trial before on these two days, another case, that is a controversy in another family, would have been listed before me. That other family or families who would have been listed before me have been delayed in having their case listed because I have listed this one.
The further matter I take into account is that it is likely to be in X's interests that litigation between his parents concerning his living arrangements is dealt with some reasonable expedition. In this case, that litigation started in 2021 and here we are in 2024 with that litigation is still going. If the matter is adjourned, I will be able to list the matter before me in February or March 2025.
When the case started, X was in grade one. He is now in grade four. He will be in grade five if I adjourn the case. He will have gone through the majority of his primary school years without a court determining whether or not he should spend any overnight time with his father.
Balancing all of those matters, I am not satisfied in all of those circumstances that it is in either X's best interests or the interests of justice or in the interests of the administration of this court or the community's general interest that this matter be adjourned as sought. I dismiss the application for an adjournment.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 September 2024
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