Vale and Vale (No 3)
[2016] FamCA 626
•5 August 2016
FAMILY COURT OF AUSTRALIA
| VALE & VALE (NO 3) | [2016] FamCA 626 |
| FAMILY LAW – CHILDREN – REVIEW – where the mother sought a review of the Principal Registrar’s interim parenting order – what orders are in the best interests of the children – where the mother also sought orders in respect of the children’s time with their maternal grandparents. FAMILY LAW – PRACTICE & PROCEDURE – where the mother sought a finding that the review proceedings were “exceptional” within the meaning of s 69ZT(3) of the Family Law Act 1975 (Cth) – where the mother sought leave to provide copies of reports to a person to enable her to prepare her cross-examination – where the mother sought discovery of correspondence from the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) Family Law Rules 2004 (Cth) |
| Baker v The Queen (2004) 223 CLR 513; Beckett & Horan [2008] FMCAfam 1437 Foley & Foley (1978) FLC 90-511; Goode & Goode (2006) 93-286; J v Lieschke (1986) 162 CLR 447; Khalil & Tahir-Ahmadi (2012) FLC 93-506; Maluka & Maluka (2011) FLC 93-464; R v Kelly (Edward) [2000] 1 QB 198. |
| APPLICANT: | Ms Vale |
| RESPONDENT: | Mr Vale |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | SYC | 7455 | of | 2012 |
| DATE DELIVERED: | 5 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 18 & 22 July 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Mr Ulbrick, G & D Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Queensland |
Orders
IT IS ORDERED THAT
The mother’s application that her application for review of the Principal Registrar’s Orders made 11 February 2016 be found to be “exceptional” pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth) is dismissed.
The mother’s application that the children, B, born … 2001 and B, born … 2004 spend time and communicate with their maternal grandparents is dismissed.
The mother’s application that the children be separately represented is dismissed.
The mother’s application that the children be called as witnesses in the proceedings is dismissed.
The mother’s application that the report of Dr H be released to those practitioners currently treating the children is dismissed.
The mother’s application for discovery of correspondence with the Independent Children’s Lawyer is dismissed.
The mother has leave to provide the Family Reports prepared by Mr E, Family Consultant and Dr F, Psychiatrist, to Dr H for purposes which include enabling her to obtain advice in relation to her preparation of her cross-examination of those persons at the final hearing of this matter commencing on 14 November 2016.
Save for as is referred to in Clause (7) of this Order, the mother is not permitted to provide any other person with a copy of the Family Reports or the report of Dr F.
Save as is otherwise provided for in this Order, the Applications in a Case filed 17 February 2016, 3 March 2016 and 15 March 2016 are dismissed.
AND IT IS ORDERED UNTIL FURTHER ORDER THAT
Clause 2 of the Order made by Principal Registrar Filippello on 11 February 2016 is discharged.
Subject to the provisions of paragraph (2) of the interim Order made on 30 July 2015, the children B, born … 2001 and B, born … 2004 spend supervised time with the mother as follows:
(a)once per month for up to two (2) hours, with the first three (3) such visits with the mother to be supervised by the Family Consultant, Mr E, or such other Family Consultant as may be nominated by the Regional Co-Ordinator of Child Dispute Services, in the Child Dispute Services (Brisbane Registry) pursuant to s 65L of the Family Law Act 1975 (Cth) commencing as soon as practicable in 2016; and
(b)the father shall be responsible for the costs for the children to travel for the purpose of Clause 11(a); and
(c)after the children have spent time with their mother in the manner prescribed in Clause 11(a) above, then their time with the mother shall occur on a monthly basis at the I Contact Centre in Sydney, New South Wales commencing as soon as practicable subject to availability at the Contact Centre; and
(d)if they have not already done so, each party shall ring the Contact Centre (telephone number: …) to register for intake within one calendar month of the date of this Order and each party shall be solely responsible for the payment of any application fee to the Contact Centre; and
(e)the costs of the supervised time which occurs at a Contact Centre shall be shared equally between the mother and father; and
(f)no other person save for the mother, shall attend at the Contact Centre for supervised time with the children without prior consent of the father and the Independent Children’s Lawyer or an order of this Court.
AND IT IS FURTHER ORDERED THAT
The mother’s application that the proceedings, being the final hearing of the matter, be declared “exceptional” pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth) is adjourned for further hearing at the trial management hearing on 2 November 2016.
The applications of the father and the Independent Children’s Lawyer for costs are adjourned to the trial commencing on 14 November 2016.
AND IT IS FURTHER ORDERED THAT
The matter is listed for a trial management hearing commencing at 9.15 am on 2 November 2016 before the Honourable Justice Hogan.
For the purposes of the trial management hearing referred to in Clause (14), the parties and their legal representatives have liberty to attend by telephone. Should any party wish to exercise this liberty, they are to provide their best contact telephone number to Brisbane…. to the attention of the case manager, no later than three (3) business days prior to that hearing.
AND IT IS FURTHER ORDERED THAT
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED
A.The matter remains listed before the Registrar for the making of trial directions on 16 August 2016.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vale & Vale has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: SYC 7455 of 2012
| Ms Vale |
Applicant
And
| Mr Vale |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Ms Vale has filed a number of Applications in a Case seeking that various interim orders be made. These Applications were filed on 17 February 2016, 3 March 2016 and 15 March 2016 respectively.
The context in which these interim Applications fall to be determined includes that the matter – which is about what parenting arrangements are in the best interests of the parties’ two children (B, born in 2001 and B, born in 2004) - has now been listed for final hearing before me for five days commencing on 14 November 2016.
This listing means that, before the end of this calendar year, each parent will have the opportunity to ventilate their competing cases. These may be broadly summarised as including:
a)on the mother’s case: assertions that, because of the father’s asserted domestic or family violence toward her and the children, the children will be at an unacceptable risk of harm if they remain living with him rather than returning to her primary care; and
b)on the father’s case: assertions that, such is the mother’s attitude to him, and the children’s relationship with him, and her approach to the management of their health and education, their best interests will be met by them remaining in his primary care.
It is probably trite to record that there are, of course, a number of other issues requiring determination, some of which will necessarily depend upon the resolution of the primary matter of the children’s primary living arrangements.
The children currently live with the father. They have done so since about July 2015. This situation occurred after the Australian Federal Police executed a Recovery Order made on 18 September 2014 and placed the children in their father’s care.
The current operative parenting Order is that made by the Principal Registrar on 11 February 2016. This provides that the children live with their father and spend time with their mother for three occasions (supervised by Mr E from the Court’s Child Dispute Services) and, thereafter, once per month on a supervised basis at a Contact Centre in Sydney.
Mr E has prepared two Family Reports to assist the Court in this matter – the first dated 3 July 2014 followed upon interviews and observations conducted on 12 June 2014 and the second, dated 27 November 2015, followed upon interviews conducted on 10, 11, 19 and 25 November 2015.
Despite the existence of the Order and the opportunity it provides to the mother to spend time with the children, they have not spent time, nor have they communicated, with her since their recovery into the father’s care.
Matters relevant to the interim proceedings
The Application for an order that the circumstances of the Review Application are ‘exceptional’ pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth)[1]
[1] Clause 4 Application in a Case filed 17 March 2016.
The mother sought a finding that the circumstances of her Application for a Review of the Principal Registrar’s decision were “exceptional” within the meaning of that phrase pursuant to s 69ZT(3) of the Act. The consequence of such a finding would be that certain provisions of the Evidence Act 1995 (Cth), otherwise excluded from application by subsection (1) of that provision, apply to the evidence led in the proceedings.
Given that her primary challenge is to the expertise of Mr E, it is not entirely clear whether the mother seeks the application of all otherwise excluded provisions of the Evidence Act 1995 (Cth), or only those relating to expert evidence. A resolution of this does not seem to me to matter for the purpose of deciding this application.
Section 69ZT of the Family Law Act 1975 (Cth) provides, simply, that certain provisions of the Evidence Act1995 (Cth) do not apply to child-related proceedings. Such provisions include those which deal with:
a)general rules about giving evidence, examination in chief, re‑examination and cross-examination, other than sections 26, 30, 36 and 41 of the Evidence Act 1995 (Cth); and
b)documents and other evidence including demonstrations, experiments and inspections; and
c)hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character.
Section 69ZT(3) provides that the Court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
The decision to apply subsection (3) in any particular proceeding, or part thereof, is discretionary[2] and the discretion is to be exercised in accordance with the factors listed therein.[3]
[2]Johnson & Page (2007) FLC 93-344; Amador & Amador (2009) 43 Fam LR 268; Khalil & Tahir-Ahmadi (2012) FLC 93-506.
[3] Maluka & Maluka (2011) FLC 93-464 at [122]-[124].
A number of decisions of this Court[4] have referred to Baker v The Queen[5] in which, in considering the meaning of “special reasons” for the purpose of an appeal against criminal sentence, Callinan J said, having cited Lord Bingham in R v Kelly (Edward) [2000] 1 QB 198, that:
We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
[4]See, for example, Segur & Segur [2010] FamCA 556; State Central Authority & Ustinov (No 4) [2008] FamCA 987; Emmett & Emmett (No 2) [2010] FamCA 57.
[5] (2004) 223 CLR 513.
In summary, the mother’s contention is that the father’s affidavit material is rife with “second-hand hearsay”, which she says unfairly creates a certain perception about her. She asserts his material is “factually incorrect” and he was at liberty to obtain affidavits from the sources of the information about which he deposes to on an information and belief basis to establish the facts to which he deposes, but he has chosen not to do so.
I consider the issues the mother raises go largely to the weight which might be attached to such evidence rather than to establishing the existence of exceptional circumstances.
None of the matters the mother took me to persuades me that these circumstances are “exceptional” within the meaning of that word in s 69ZT(3).
For these short reasons, I decline to accede to the mother’s Application to apply one or more of the provisions of the Evidence Act1995 (Cth) excluded by s 69ZT(1) of the Family Law Act 1975 (Cth) in the determination of her Application to review the February 2016 Order on the basis that I am not satisfied that the circumstances are exceptional.
The Application for a Review of the existing Parenting Order
The mother’s Application that her review of the Order made 11 February 2016 be heard by way of de novo hearing is unnecessary given Rule 18.10(1) of the Family Law Rules 2004, which provides that a Court must hear an application for review as an original hearing.
Thus, the Court must proceed in the manner in which all interim parenting applications are to be determined, applying the well-known principles to such determination.[6]
[6]See for example: Goode & Goode (2006) 93-286, particularly at [80] and [82]; Banks & Banks (2015) FLC 93 -637.
The competing proposals
The mother’s proposal for interim parenting orders is that:
a)the children spend time with her at a Contact Centre in Sydney for two hours each weekend; and
b)she have the opportunity to communicate with the children by telephone three times per week, and by email and Skype on an unsupervised basis; and
c)she be permitted to send letters and cards and gifts to the children for their birthday at a frequency of not more than once per week, with such documents and gifts to be forwarded to the Independent Children’s Lawyer for her to vet and, if thought appropriate, pass on to the children; and
d)the children spend time and communicate with their maternal grandparents each week by telephone, and spend time with them once every two months for two hours, with such time to be unsupervised.
Whilst the mother initially sought an order that B live with her on an interim basis, this was not ultimately pressed. Had it been, I would not have been persuaded in the circumstances of this case that such an order is in B’s best interests - particularly given that the trial will occur in mid-November 2016.
The father and Independent Children’s Lawyer both opposed the mother’s Application. Each submitted that orders in the terms made by the Principal Registrar were those interim orders which are in the children’s best interests: that is, that the first three visits between the children and their mother be supervised by Mr E pursuant to s 65L of the Act and that, thereafter, supervised time of two hours per fortnight occur at a Contact Centre in Sydney.
Brief summary of relevant factual matters
The parents married in 2000. Whilst there is a dispute about when they separated on a final basis, it appears they physically separated on a final basis in or about September 2012.
At some time in late 2012, the mother relocated with the children to northern New South Wales.
Proceedings were initially commenced in late 2012 by the father.
In February 2013, final orders were made by consent. These Orders provided that
a)the parents have equal shared parental responsibility for the children and
b)the mother relocate with the children to the J Town area from Sydney; and
c)the children spend with their father during school holidays.
There is dispute as to what time the children spent with their father after this.
On 18 September 2014, a Recovery Order was issued in respect of the children.
On 3 October 2014, the mother attempted to remove the children from the Commonwealth of Australia. It seems that, having been stopped at the Sydney Airport, she fled with the children, leaving behind various belongings.
Thereafter, she and the children were uncontactable until July 2015.
On 23 July 2015, the Australian Federal Police recovered the children and placed them in their father’s care. As noted, they have not spent time or communicated with their mother since.
The children’s time with their mother at a Contact Centre
The mother submitted that, because she cannot afford to travel to Brisbane, and because the professionals at the Contact Centre in Sydney will be adequately able to manage any distress or stress on the part of the children – an issue Mr E identified - there is no need that any time with the children occur under Mr E’s supervision.
She submitted her continued absence from the children’s lives – because she was unable to travel to Brisbane to facilitate the time – will be making “it hard on them [the children]” because she is their primary attachment figure.
In opposing the making of orders as sought by the mother, the father’s legal representative pointed to the cautious approach adopted by the Principal Registrar in respect of the children’s re-introduction to their mother. The submissions made on the father’s behalf and by Counsel for the Independent Children’s Lawyer suggested that, in this particular case, the children’s re‑introduction to their mother would best be undertaken by someone with sufficient familiarity with all the circumstances of this case so as to be able to monitor and manage the mother’s interactions with the children.
In dealing with the mother’s submissions in relation to her inability to afford to travel to Brisbane on three occasions, both Mr Ulbrick and Counsel for the Independent Children’s Lawyer noted that, since the Principal Registrar made Orders on 11 February 2016, the parties have been involved in a number of Court events, including three of which the mother attended in person (on 1 March, 17 March, and 29 April 2016). On none of these occasions did she arrange to spend time with the children.
Whilst I accept that attending at a Court event and spending time with the children on the same day may well have been too overwhelming for the mother to properly be able to manage, I suspect that arrangements could have been made to facilitate the children’s time with her either before or after that day so as to take advantage of the fact of her presence in Brisbane on those occasions.
Mr Ulbrick also submitted that the mother had previously demonstrated a capacity to find funds when necessary: including obtaining the children’s passports on an urgent basis, airline tickets to Country D and for her financial support and that of the children during the approximately nine month period between October 2014 and July 2015.
He also submitted the father would be responsible for the cost of bringing the children to Brisbane to facilitate their time with their mother.
Additionally, whilst the father has completed the intake process at the Contact Centre he understands that the mother has not done so. Nothing in her submissions was to the contrary. Further, there is no evidence before me as to the potential availability or cost of Contact Centres in Sydney.
It is clear from Mr E’s reports that the interaction between the children and their mother is highly likely to be accompanied by significant upset and distress for them. It also seems more likely than not that this interaction is best initially overseen by someone with sufficient knowledge about the history of the children’s relationship with both of their parents, the issues in this case and the conflicting pressures likely to be experienced by the children on first spending time with their mother as to be able to fulfil the dual role of assisting and supporting them and providing a report to the Court of that interaction. All of these matters persuade me that either Mr E (or another person from Child Dispute Services who is able to access Mr E’s reports and notes – if any) is better placed to undertake these roles than a supervisor at a Contact Centre. Of course, after a number of visits, the responsibility for supervision can then be managed at such a Centre located closer to the parties to better accommodate the practical difficulties associated with time continuing to occur in Brisbane.
I consider that the importance of ensuring the children’s reintroduction to their mother, after such a lengthy period, is managed by someone with a full appreciation of the circumstances of this case is something which is in the children’s best interests and mandates that this occur with Mr E’s assistance or the assistance of a Family Consultant nominated by the Regional Co-Ordinator of that service.
The children’s communication with their mother
The mother submitted that, given the children have had no face-to-face contact with her since they were placed into their father’s care in July 2015, ongoing telephone communication would provide them with a continual point of contact with her and would reassure them about their relationship with her. She also submitted that it would likely be easier on the children if, once supervised time commenced, she was able to tell them that she would speak to them during the week.
Mr Ulbrick submitted that, given the children’s historical involvement in the proceedings and the dispute between the parents, there are significant concerns about the mother emailing, telephoning or Skyping the children. These concerns extended to her providing them with cards, or letters or gifts.
Counsel for the Independent Children’s Lawyer submitted that, given the mother’s previous allegations in relation to the Independent Children’s Lawyer and her attempt to have the Independent Children’s Lawyer discharged, it is likely there will be problems if the Independent Children’s Lawyer is now used as a conduit through which material created by the mother is passed to the children.
I accept the force of these submissions. It is all too easy to anticipate that an order requiring the Independent Children’s Lawyer to act as a gatekeeper in respect of the mother’s communication with the children in the period until the trial in mid-November 2016 is likely to be productive of further disputes and could well result in the Independent Children’s Lawyer becoming a witness at the trial.
Whilst I note the mother’s opposition to Mr E’s report on the basis she has outlined orally and in her written material and affidavits, his is the only evidence from an independent source about the likely impact on the children, at this time, of communication with their mother that I have before me.
I accept, for the purposes of this interim Application, his evidence to the effect that telephone or other electronic communication between the children and their mother would highly likely be problematic if supervised by the father as this would place the children in a position of having to communicate with both parents at the same time – something which is highly likely, in my view, to be enormously stressful and create significant anxiety for them.
I note Mr E did, however, consider it would be better for both children to have some formal contact with their mother if they continue to live with their father. He opined that such structured contact may diminish B’s desire to have covert communication with her mother and reduce the impact of the same. Additionally, Mr E considered that communication between B and his mother would commence the process of forming a different relationship between them.
Mr E also considered that this communication should be supervised in the case of both children because he considered it “unclear” how the mother would manage herself and her own behaviour if she were to have contact with the children. Unmanaged exposure of the children to their mother may also reinforce in B, at least, his existing idealised attitude toward the mother.
Mr E suggested that this communication be supervised by an independent person, such as the children’s counsellor.
One of the benefits of having the first three occasions of time between the mother and the children facilitated and overseen by someone such as Mr E is that it would ensure that the concerns referred to in paragraph 50 are addressed before permitting telephone or Skype communication between the mother and children: that is, if one was confident – because the report about the in-person time was positive and established that the mother had the capacity during that interaction to refrain from communication with the children in a way that undermined their relationship with their father and their current living arrangements – that the mother could appropriately manage her interactions with the children, telephone and Skype communication would certainly provide them with a way to continue their relationship with her.
Unfortunately, that is not the case here because the Court does not yet have the benefit of that information.
Further, there remain lingering concerns about the mother’s capacity to inveigle the children to act in a way that may undermine their current situation if she is able to communicate with them.
For these short reasons then, I am not persuaded, at present, that there is a way in which telephone and Skype communication between the mother and children can be facilitated without a significant risk of such interaction adversely affecting the children. Things may well be different after there is the opportunity to assess the parties during the trial process.
The children’s time and communication with the maternal grandparents
The mother submitted that it was in the children’s best interests to permit them to spend time with their maternal grandparents, so as to maintain their relationship with them.
In opposing such an order at this time, Mr Ulbrick for the father submitted that the Court had no evidence from either of the grandparents, or even really from the mother, in respect of this Application: for example, there is no evidence as to the practicality of facilitating these visits, other than evidence that the mother has no financial capacity.
Mr Ulbrick also submitted the father was concerned that the grandparents’ alignment with the mother made it highly likely they would seek to enjoin the children in her beliefs about the father, with the associated likely consequence that their current arrangements may be destabilised.
In developing this, he submitted that the maternal grandparents’ attitude to the father and their alignment with the mother’s case is evident from the contents of Mr E’s first Family Report. During the course of those interviews, Mr E observed the maternal grandfather ask of him whether he (the Family Consultant) had a right to interview the children on their own. When this was answered, Mr E saw the maternal grandfather turn to the mother and ask her whether there was anything else. He (Mr E) interpreted this to mean that the mother had prompted the grandfather to ask this question on her behalf. Whilst this may be the case – and I note there seems to be a dispute about whether this in fact happened as Mr E reports – I am not necessarily persuaded that such an action (if it occurred) demonstrates anything other than a supportive relationship between the mother and her father.
In addition, Mr Ulbrick relied on the father’s previously identified concerns about the maternal grandparents’ role in assisting the mother to absent the children because, despite them being served with the Recovery Order, the mother and children continued to elude attempts to execute that order for a further nine months. He reiterated that the father’s case is that the mother’s continued hiding with the children was only possible with the assistance of the grandparents. He submitted that, despite the making of the Recovery Order, the maternal grandparents either did not, or did not adequately, encourage the mother to come to the Court or surrender the children.
Mr Ulbrick also pointed to the father’s evidence that he was told by an officer of the Australian Federal Police that, upon being stopped at the international airport, the mother was in the company of an elderly man who they also believed had held a taxi cab for her outside the airport. The father believes this person was the maternal grandfather.
Mr Ulbrick concluded by submitting it would not be in the children’s best interests to commence spending time or communicating with their maternal grandparents, (particularly in circumstances where they have not spent time with or communicated with their mother since July 2015) as to do so now would likely confuse them.
The Independent Children’s Lawyer submitted that, where the matter is set down for final hearing in November 2016, the issue of the benefits to the children of the opportunity to continue their relationship with their maternal grandparents is a matter which can be properly adjudicated on the basis of evidence at the trial. Mr Andrew also pointed to Mr E’s report that he witnessed each of the maternal grandparents raise adult issues in dispute between the parents in front of the children and his opinion that they appeared uninhibited in addressing these issues in front of the children. Given this, he, in essence, submitted that the Court could not be confident that the maternal grandparents would be restrained in their communication with the children if this was permitted now.
In circumstances where the mother’s amended position is that the children should have the opportunity to spend face to face time with their maternal grandparents every two months, and the trial is being heard in approximately four months, I am not persuaded that it is likely that the benefits associated with the opportunity to communicate with them now will outweigh the potential harm to the children. Clearly, the issue of ongoing communication and interaction between the maternal grandparents and the children can be canvassed more fulsomely at the trial.
Matters relevant to the final trial
The Application that the children be separately represented
The mother seeks that the children be independently legally represented, separately from the representation provided by the Independent Children’s Lawyer.
She referred to J v Lieschke (1986) 162 CLR 447 (“Lieschke”) and advanced that the children need to have a “voice”. She asserts “the bias and tendency to repeatedly act against the express provisions of the Family Law Act1975 (Cth) shown by [the Independent Children’s Lawyer] will not allow an independent view”; nor will their instructions be “independent”. That such a submission was made further highlights the difficulties and problems which would likely arise if, as the mother sought, the Independent Children’s Lawyer be required to act as a gatekeeper and then conduit for any written communication she wished to have with the children.
Lieschke involved an appeal by the mother of five children against orders made by a Magistrate in proceedings in the Children’s Court of New South Wales. In that case, the children were brought before the Court as “neglected children” - as was provided for by the legislation at the time. Various orders were sought for the protection of the children and they were represented by solicitors.
The mother relied on Wilson J’s separate Reasons for Judgment, where his Honour considered “a peripheral question of the legal representation of the child”, saying at page 451:
[In a case where a parent has taken no steps to arrange for the child to be represented] I see no reason why a child having the capacity to do so should not avail himself or herself of the services of the duty solicitor. The child will have that capacity if he or she is of sufficient intelligence and understanding to appreciate the circumstance and to make a rational judgment as to what his or her welfare requires…
These comments have to be seen in the context in which they were made and, in particular, noting that the Child Welfare Act 1939 (NSW) did not contain any provision comparable to s 68L and s 68LA(5)(b) of the Family Law Act 1975 (Cth).
The mother contends that it would be “beneficial and also empowering” for the children to have their own legal representation. She emphasised that B is 15 years old and B is 12 and a half years old. She also pointed to a 1990 report which allegedly asserted that a significant gap in the then current family law system was failing to facilitate children’s views being taken into consideration. I am not persuaded that the process implemented so far in this manner has resulted in a failure to ensure the Court knows the views and wishes of each of the children.
The mother also sought to draw an analogy between proceedings for parenting orders under the Family Law Act 1975 (Cth) and proceedings in the Children’s Court in which children are accused of committing crimes and are permitted to instruct lawyers; she also asserted that the children were “headed towards” Gillick competence. I do not accept that the children in these proceedings are in a situation analogous to children charged with criminal offences. I also do not accept that there is any place in these parenting proceedings for the application of Gillick competence, which, broadly speaking, relates to the capacity of a child to make an informed decision about medical procedures.
Other than the contents of Mr E’s reports – which contain his recounting of his discussions with the children – there is no independent evidence about the children’s maturity (intellectual and emotional) or their intelligence. Further, one of the significant aspects of the father’s case is the contention that, in her parenting of the children, the mother has significantly influenced and/or enjoined them in her views of, not only the father, but the manner in which it is beneficial for them to interact and form relationships with people outside their immediate family. If this were in fact established, it could not easily be thought that the children possessed sufficient independence from their mother as to permit them to form their own views about matters relevant to the determination of those parenting orders which are in their best interests.
Mr Ulbrick submitted, on behalf of the father, that the mother demonstrated a lack of insight in making such an application. He contended that the children’s views will be, and are, heard in a number of ways already: through their interviews with Mr E, the Family Consultant, and by representation through the Independent Children’s Lawyer. He contended that, acceding to the mother’s application would place the children in a position which would likely cause confusion and angst: both in advancing their own case in the form of orders which may be contrary to their best interests and by reference to the children’s (particularly B) already expressed position as feeling to blame for the mother’s current position: that is, he submitted that imposing on the children the obligation to instruct their own legal representation would potentially put the children in a position of having to take responsibility for the outcome of the proceedings. I accept the force of these submissions.
I am not persuaded, therefore, that it is in the children’s best interests for legal representatives to be engaged. I am confident that their views about their future parenting arrangements will, as they have already been, continue to be part of the evidence at trial.
The Application that the children be called as witnesses in the proceedings
Section 100B of the Family Law Act 1975 (Cth) provides that a child who is not a party to proceedings must not swear an affidavit or be called as a witness in proceedings unless the Court makes an order permitting the same.
The mother submitted that calling the children as witnesses at the trial in November 2016 would afford them the opportunity to speak to the Court and provide evidence about what has happened “within [their] situation”. When pressed to identify how such a course would be in the children’s interests, she contended that there are particular issues which need to be brought to light in the Court - including domestic and family violence - which the children are said to have observed.
Having said this, the mother also sought to put a caveat on her position: that is, she said the children should only be called as witnesses if they want to be witnesses.
In opposing the order sought by the mother, Mr Ulbrick contended that, since the making of consent Orders in February 2013, there have been no allegations of domestic or family violence and, therefore, any allegation of domestic violence relates to a time which predates that: therefore, at least, three and a half years ago. I infer that his submission also is to the effect that, given this, any evidence the children may be able to give is likely to have limited probative value. He emphasised that calling the children as witnesses would, effectively, have them placed in the witness box to be cross-examined by their father’s lawyer about whether or not they are telling the truth in circumstances where they may genuinely believe they are telling the truth because they have heard the same version of events from their mother so often. Again, there is much force in these submissions.
Counsel for the Independent Children’s Lawyer, referred to Beckett & Horan,[7] in which Wilson FM referred to Foley & Foley[8] in which Lambert J identified various factors relevant to whether the children should be permitted to swear affidavits:
a)the nature and cogency of the evidence to be given by the children; and
b)whether or not the evidence is available from another source; and
c)the maturity of the child/ren; and
d)the nature of the proceedings and the relationship of the children to the proceedings; and
e)the value of the evidence as balanced against the potential detriment to the child.
[7] [2008] FMCAfam 1437.
[8] (1978) FLC 90-511.
Other than the mother’s broad description of it – as outlined above – there is no evidence before me about the nature and cogency of the evidence the mother would have the children give. Clearly, the evidence about the allegations of the father’s behaviour toward the mother and children during the parental relationship can be given by the mother. The proceedings clearly relate to the children and the determination of those parenting orders which are in their best interests. In so far as the maturity of the children is concerned, Mr E’s evidence, taken on a prima facie basis only given the interim nature of these proceedings and the mother’s clearly stated challenge to his expertise, suggests that the children are not of sufficient maturity to withstand the influence of adults who are important to them and with whom they have somewhat entrenched relationships: arguably in this case, the mother.
Counsel for the Independent Children’s Lawyer submitted that the mother’s “influence” on the children, as discussed by Mr E in his two Family Reports, was likely to affect any evidence they were likely to give. He further asserted that the children’s views are available from other sources, including through their interviews with Mr E.
Mr Andrew submitted that the potential detriments to the children are legion, including by potentially exposing them to a greater burden and in terms of increasing the risk to them of emotional or psychological harm.
Given the children’s ages at the time of the last alleged act/s of family violence perpetrated by the father, the value of any evidence they could give is highly likely to be significantly outweighed by what I regard as highly likely to be significant detriment to them if they were to be witnesses in this proceeding between their parents about those orders and parenting arrangements which are in their short and long term best interests.
I note that, in her submissions in reply, the mother suggested, in a way, that a further option may be for me to meet with the children to give them an opportunity to voice their concerns. Whilst others may disagree, I am not persuaded that such a course is either appropriate or necessary to ensure that the children’s views are known. It clearly would result in the children being involved directly in the litigation, and may have the consequence that the Court is directly involved in assertions about what, in fact, was said.
For these reasons, I decline to accede to the mother’s application.
Dr H
Dr H is a consultant psychiatrist who assessed the children in 2014. He prepared a report, dated 8 June 2014. He has not met or interviewed the father.
Provision of Dr H’s report to the children’s treating practitioners
The mother seeks a mandatory injunction requiring the father to provide a copy of Dr H’s report to the children’s school, or any treating medical professionals, counsellors, social workers, psychologist or psychiatrist.
She does so because she asserts it is necessary for those professionals to be aware of the “dynamic” of the relationships in this matter: a matter explored by Dr H in his report. Furthermore, she also said it was important that those persons engaged in treating the children have a balance or counterweight to the contents of Mr E’s report. She also sought to emphasise the importance of historical context in the development of treatment plans for the children.
In opposing such an order, Mr Ulbrick submitted those professionals currently treating the children have been provided with copies of Mr E’s reports and these address the relevant issues: that is, while the reports may reach conclusions which are more favourable to the father, they also identify those issues raised by the mother and, in that way, all such issues are known to the treating professionals.
Mr Andrew for the Independent Children’s Lawyer also opposed the mother’s application. He submitted that Mr E had referred, to some extent at least, to Dr H’s report in preparing his own report – therefore, the essence of Dr H’s report is already in the material provided to the treating professionals. Mr Andrew also emphasised that Dr H’s report predated the making of the Recovery Order and the children’s move to live with the father. I infer from this submission that the Independent Children’s Lawyer is concerned that the provision of Dr H’s report may confuse matters, rather than assisting the children’s counsellors to understand the issues currently confronting the children.
At present, I am not persuaded that the children’s best interests mandate the provision of Dr H’s report to their counsellors. Whilst Mr E’s report no doubt has provided some background, I also suspect that most of the information most relevant to the determination of the best support currently for the children can be sourced from the children themselves.
Provision of Reports to Dr H
The mother seeks leave to provide to Dr H copies of the reports of Dr F and Mr E. The basis for that application is twofold:
a)so that he can produce a critique of those reports; and
b)so that he can assist her with the preparation of her case, because he is a professional who practices in certain psychological areas which are not within her expertise or knowledge.
Rule 15.49(2), provides the Court with a discretion to allow a party to tender a report or adduce evidence from another expert witness on the same issue about which a single expert has been appointed. However, this discretion is only enlivened if the Court is satisfied of one or more of the matters identified in subparagraphs (a), (b) or (c): that is, the Rule requires a special reason for a Court to grant leave for evidence from a further expert to be adduced when a single expert has already been appointed.
There is no current application by the mother for leave to adduce evidence from another witness to canvas the same issues dealt with by Mr E in his two reports. However, the fact that she seeks to be able to provide the reports to Dr H suggests that this is something which the mother is currently exploring. Whether she ultimately makes an application pursuant to Rule 15.49(2) may, no doubt, depend on the information provided to her by Dr H who is, no doubt, himself bound by various professional and ethical obligations.
At this stage, I can see no reason why the mother ought not be permitted to provide Dr H with Mr E’s reports to, at the very least, permit her to formulate her cross-examination of Mr E. If an application for leave to adduce evidence from Dr H is ultimately made, it will then be considered by application of the strictures contained in Rule 15.49(2)(a)-(c).
“A full discovery of communications between Ms Chan and as requested 10 December, 2015 hearing”
The mother seeks to assess whether there has been any impropriety on the part of the Independent Children’s Lawyer. She asserts she is concerned there has been improper communication between the Independent Children’s Lawyer, the Principal Registrar and Mr E. The comments I have already made at paragraphs 46 and 66 remain apposite given this submission.
The mother points specifically to [29] of the Reasons for Judgment delivered by the Principal Registrar, which provides:
Another issue in dispute was the children’s general health with [Ms Vale] ensuring that the children maintained certain dietary requirements. Ms Chan relies on the paediatrician’s report in respect of the children. In respect of [B], it is recommended that he be screened for insulin resistance and for coeliac screening but he is otherwise physically well. In respect of [B], apart from nail biting, the physical examination was normal. Neither child appears to suffer from Lyme disease or coeliac disease. [Ms Vale] maintains that this information is not correct but does not provide evidence to support her position. I accept Ms Chan’s submission in respect of [Ms Vale’s] approach to the children’s health.
(footnotes omitted)
Reference to that paragraph of the Principal Registrar’s Reasons also reflects that such conclusion was made by reference to an exhibit before the Court.
The mother asserts she was not ever present in any hearing in which that issue was discussed. It is as a consequence of this that she seeks to “clarify” whether there was communication between the Independent Children’s Lawyer and the Principal Registrar in her absence.
The mother accepted during discussions that the fact she could not remember a submission being made did not establish that such submission had not in fact been made, or importantly, that there was any communication between the Independent Children’s Lawyer and the Principal Registrar in her absence or about which she was not made aware. Given this appropriate concession, I decline to accede to the mother’s application.
The mother also identifies a particular piece of correspondence, said to have passed between the Independent Children’s Lawyer and the children’s treating medical practitioners. This communication occurred where the Independent Children’s Lawyer was the person responsible for nominating those persons. It seems the mother has received an unsigned copy of that letter, but seeks a signed copy. The reason for this is unclear to me, as it is clear that, appropriately, she has been provided with a copy of it by the Independent Children’s Lawyer.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 5 August 2016.
Associate:
Date: 5 August 2016
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