Vu & Ton (No 3)
[2022] FedCFamC1F 95
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vu & Ton (No 3) [2022] FedCFamC1F 95
File number(s): MLC 7739 of 2019 Judgment of: KARI J Date of judgment: 2 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where the matter is listed for final hearing for four days – respondent seeking declaration that the parties lived in a de facto relationship and the finalisation of parenting proceedings - where the father denies the parties were in a de facto relationship for the period of time asserted by the respondent – where the mother seeks that both issues be determined at the same time – where the father seeks a family assessment report before parenting matters proceed – parties agree by consent to bifurcate the two issues – order for section 62G family report - threshold issue to proceed to final hearing Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 62G, 62G(3A), 90SM(4)(c) Cases cited: In the Marriage of Hall (1979) FLC 90-713 Division: Division 1 First Instance Number of paragraphs: 75 Date of hearing: 7 February 2022 Place: Adelaide Counsel for the Applicant: Mr Hall Solicitor for the Applicant: Hiways Lawyers Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Lander and Rogers ORDERS
MLC 7739 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VU
Applicant
AND: MS TON
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
7 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and Z (born 2009) are to attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 30 July 2022 and that the family report address:
(a)any views expressed by the child and any matters (such as the child’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, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the child and upon her relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the child and upon her relationship with the father if the Court made orders as sought by the mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child
2.Not later than 4.00 pm on 28 February 2022 the parties must provide their contact telephone numbers and email addresses to …@fcfcoa.gov.au.
3.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
4.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
5.The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Upon the 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 any Independent Children’s Lawyer in the proceedings.
6.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 child:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
7.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
8.That the proceedings be adjourned for Mention only before Justice Johns on 6 September 2022 at 9.30am.
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 Vu & Ton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
INTRODUCTION
The extant proceedings before the Court relate to both financial issues stemming from an alleged de facto relationship between the parties and in addition the parties competing parenting applications.
Before any financial issues can be progressed however, there is a threshold question to be determined by the Court before the jurisdiction of the court to make orders relating to financial issues is enlivened. The threshold question in these proceedings has two alternate elements:
(a)Firstly, whether or not there was a de facto relationship between the parties which subsisted for more than a third of the period of the relationship in Australia; and/or
(b)Secondly whether or not there were “substantial contributions” made by the respondent.
In the event that the court makes a positive determination of either or both of those questions, the court will have jurisdiction to make orders in relation to the financial affairs of these parties.
There is however a preliminary issue in relation to which topics are to proceed to trial at the present time. That question must be determined before the commencement of the trial which was scheduled to commence on 7 February 2022.
These reasons deal with that determination.
CONTEXT OF THE DETERMINATION
The dispute as to which applications were to proceed to trial arose as a preliminary issue on the first day of the scheduled final hearing on Monday, 7 February 2022.
I acknowledge that I heard fulsome submissions by counsel for each of the parties on the topic and then adjourned to consider my position and read various documents in the file. I had indicated to the parties that I would thereafter deliver ex tempore reasons and make orders in that regard.
A further reason for adjourning the hearing for a short period after submissions were made, was because I was cognisant that an Application in a Proceeding had been filed and served by the Applicant out of hours on Friday, 4 February 2022. That application was to be pressed however the late filing of that application had not afforded me the opportunity to read and consider that application.
The timing of the adjournment of the hearing coincided with the luncheon adjournment.
I acknowledge that when I returned to the bench to deliver my ex-tempore reasons and make orders, I was advised by counsel that the parties had agreed to resolve the dispute about which matters were to proceed to trial. The court was advised that the parties had agreed to bifurcate the threshold question from the parenting proceedings, and that the latter should not proceed to trial as part of the present listing of the matter.
While I acknowledge the parties had reached an agreement in that regard, I indicated to the parties that I still intended to deliver my reasons.
I determined that this was the appropriate course as I had determined to adopt a different path forward to that which the parties mutually proposed. In particular the parties proposed that they obtain a private family assessment report from Dr W, whereas I intended to make orders for a report to be prepared pursuant to section 62G of the Family Law Act 1975 (Cth).
I also formed the view that it was important for the court to deliver written reasons, so that there could be no uncertainty as to what had occurred and the reasons for it.
GENERAL BACKGROUND
By way of background I acknowledge that I have had regard to three previous judgments in the matter delivered by Justice Johns on each the 18 November 2020, 10 September 2021 and 23 December 2021.
Rather than set out any detailed background to the litigation in these reasons, I propose to adopt that which her Honour has previously set out.
BACKGROUND TO THE CURRENT DISPUTE
These proceedings were commenced by the applicant on 11 July 2019 in relation to parenting arrangements for the parties’ child Z born in 2009.
When the respondent filed her Response to the Application for Final Orders on 26 July 2019 she sought orders both in relation to parenting arrangements for the child, certain declarations as to the existence of a de facto relationship between the parties and thereafter various orders relating to the parties financial affairs.
The topic of whether there was a de facto relationship between the parties that enlivens the jurisdiction of this court is a topic which is the subject of dispute between them.
The parties agree that they were in a de facto relationship in their native China from some time in 2009 until some time in 2011. It is during that period of time that the child of the relationship was born.
The parties however are in dispute as to whether or not they resumed their de facto relationship after 2011.
When the proceedings were initiated by the applicant they were initiated in the Federal Circuit Court of Australia.
The matter came on for hearing before Judge Carter on 30 July 2019. Her Honour made a raft of orders that day but significantly for present purposes at paragraph 5 of those orders her Honour made the following order with the consent of the parties:
5.By consent, the parties attend upon [Dr W] (“[Dr W]”) on 11 November 2019 (or such other date or time as agreed between the parties or directed by [Dr W]) for the purposes of obtaining a Family Report, such report to be at the expense of the father.
On 16 August 2019 Judge Carter determined it appropriate to transfer the matter to the Family Court of Australia.
The first hearing of the proceedings in the Family Court of Australia took place before Registrar Moser on 11 October 2019.
On that occasion Registrar Moser referred “All extant applications…to a hearing before a Judge on a date to be fixed, noting that the lawyers estimate[d] that the hearing could take 4 -5 days.”
On that same day the parties provided the court with a minute of proposed orders which were made by the court with their mutual consent.
At paragraph 1 of that proposed minute of order the following was recorded:
1.The matter be set down for a threshold defended hearing of four days duration on a date to be advised to determine:
(a)the question of whether the parties lived in the de facto relationship at any time in Australia (paragraph 9 of the Initiating and amended Initiating Application and paragraph 1 of the Interim Orders sought in the Amended Response to Initiating Application);
(b)Paragraph 8 of the Interim Orders sought in the Amended Response.
I have had regard to paragraph 8 of the Interim Orders sought in the Amended Response filed by the mother on 11 September 2019 and understand that the outstanding issue related to Visa issues pertaining to the child.
So far as the listing of the matter for trial is concerned, the matter next came before Justice Johns on 12 June 2020. On that day her Honour made orders listing the matter for trial with a four day time estimate commencing on 7 December 2020.
As part of the orders made listing the matter for trial her Honour made a raft of procedural orders for the filing of material so as to ensure that the matter was ready to proceed to trial on 7 December 2020.
At paragraphs 8 and 9 of the orders made on 12 June 2020 her Honour again made orders for the preparation of a family assessment report by Dr W. Those orders provided as follows:
8.That the parties and the children attend upon [Dr W] for the purposes of the preparation of a family report not to be commenced until after 24 August 2020 but to be completed and released by 30 September 2020.
9.That [Dr W] be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.
In addition at paragraph 11 her Honour made orders which provided as follows:
11.That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.
On 13 October 2020 her Honour Justice Johns heard a contested interlocutory application relating to litigation funding and various injunctions that were being pressed on the application of the respondent.
As I indicated earlier in these reasons I have had the benefit of her Honour’s reasons which were delivered on 18 November 2020.
I also have the benefit of the transcript from the hearing on 13 November 2020. It is unclear to me whether or not counsel for the purposes of the present application were in possession of that transcript.
So far as her Honour’s reasons are concerned it is pertinent to note that throughout her Honour’s reasons, reference is made to the fact that parenting proceedings were extant and were being pursued.
(1)At paragraph 25 her Honour noted that “…The substantive proceedings concern parenting matters, the question of whether the parties were in a de facto relationship and if so, whether the applicant is entitled to an adjustment of property and periodic spousal maintenance”.
(2)At Paragraph 71 of her Honour’s reasons she sets out the following:
“To date, the respondent has not complied with orders that he provide a Financial Statement. In relation to the parenting matters, the respondent initially sought final orders that the child live with him, notwithstanding the fact that the applicant was and continues to be the child’s primary caregiver; that part of his application was only abandoned at the hearing before me on 12 June 2020. Those factors together with the respondent’s allegations with respect to the nature and duration of the parties’ relationship has cast a heavy burden on the applicant in the pursuit of her applications before the Court. On any view, given the apparent disparity in the parties’ financial circumstances, the playing field is not level.”
[my emphasis added]
(3)At Paragraph 75 her Honour again referred to issues in dispute between the parties in the following terms:
“Having regard to the complexity of the matter, including the factual dispute as to the nature and duration of the relationship, the fact that parenting issues remain on foot and that the evidence filed to date as to the respondent’s financial circumstances indicates that they are complex and extensive, in my view it is appropriate that the interim costs order be sufficient to ensure that the applicant has available to her, her counsel of choice for the final hearing.”
[my emphasis added]
Reference is made to those portions of her Honour’s reasons because it is clear to me that up to that juncture, the parties themselves and indeed the court understood that both parenting and the threshold issues were the issues that were to proceed to trial on 7 December 2020.
Reference to the transcript from the hearing on 13 November 2020 further confirms my view in that regard.
In having regard to the transcript, I also understand that so far as parenting issues were concerned, the court was informed that there had been non-compliance with the earlier orders for the preparation of a family assessment report. This topic was traversed by each of the parties’ counsel in their submissions.
Significantly the mother’s counsel submitted the following:
MS RENWICK: --- the date – the date of filing that affidavit, he accepts the blame that no psychologist has been organised. And that was 23 July. And we’re now in October. And there is no evidence that any further steps have been taken. More significantly, though, in relation to the child, there were orders that were made for [Mr Vu] to have – to be able to communicate with the child. And at paragraph – sorry. Apologies, your Honour. In the mother’s recent affidavit filed, she deposes at paragraph 36 that despite those orders, despite those orders, despite commencing these proceedings, he has not exercised his ability to communicate with the child pursuant to the interim orders. And it’s not until he files his trial affidavit and his amended application on 23 July, that he puts his hand up to say, “I now accept that the application for residence of the child is not a realistic position.” And only at that time, does he drop his – drop that application and is the mother informed. [Ms Ton] deposes that her – in her affidavit, that the application for residence of her child to which she has been the primary carer of for much of this child’s life, made her feel overwhelmed, intimidated and controlled.
Of equal significance are the submissions made by the father’s counsel:
MR DICKSON: One is Ms Renwick made some comments about the parenting aspect. Yes, my client was stuck overseas and couldn’t get back from China until whenever he got back which was too late for the August appointment. So I think with [Dr W]. There were the – Ms Renwick is right. The next appointments were then available in, I think, November. There was communication with his officers. And a concern expressed generally, I think, as to whether he would have the report out in time in any event. But Ms Formica certainly, put to him that the wife’s position – I’m sorry. I will literally call her the wife. The wife’s position was a really – wasn’t …. case, for making orders that should just be the therapeutic process …. upon. My client has embraced that concept. That’s the proposal – I briefly referred to in his affidavit of being a proposal being put to resolve the parenting case. Given that was mum’s position to [Dr W] that a report is a waste of time and we need to talk about therapy, we would expect that that might – that issue might go away. But it does, it doesn’t. It doesn’t, it doesn’t.
When her Honour delivered reasons on 18 November 2020, I am aware that as part of the suite of orders that were pronounced, her Honour determined it appropriate to vacate the original trial listing for 7 December 2020 and she relisted all extant applications for a six day trial commencing on 31 May 2021.
What I now understand from a combination of the submissions from counsel on the present issue, and having read the transcript of the hearing on 13 November 2020, is that one of the reasons that the trial on 7 December 2020 was vacated was as a consequence of the Covid-19 pandemic. As I understand it, both parties and the court considered it appropriate that the matter proceed on a face-to-face basis rather than by way of a virtual court hearing.
On 27 May 2021 the second final hearing was vacated, again as a consequence of the pandemic and the ongoing desirability of both parties and the court to have the matter proceed on a face-to-face basis.
Ultimately on 16 June 2021 Justice Johns made a suite of orders relisting “all extant applications” to a final hearing on 7 February 2022 with a time estimate of four days; being the present listing.
I am also aware that the matter was before Justice Johns on further occasions after she gave the new final hearing date, they being hearings on 10 September 2021, 12 October 2021, 2December 2021 and 23 December 2021.
DISCUSSION
The background to the present trial listing that has been recited, leaves me in no doubt that the parenting proceedings were indeed listed for trial commencing on 7 February 2022.
My view in that regard is strengthened as there has been no final orders made in relation to the parties competing parenting applications and neither party has discontinued their respective parenting application.
The question however for present purposes is whether the parenting applications should proceed as part of the trial particularly in circumstances where to date the parties have not complied with the orders made for the preparation of a family assessment report.
From the mother’s perspective she asserts that the parenting application should proceed. It is her position that it is in the child’s best interests to bring finality to the proceedings.
From the father’s perspective and while he acknowledges that the parenting proceedings were listed for final hearing, he says that for various reasons the matter should not proceed to final hearing at this stage. He asserts that it would not be in the child’s best interests to proceed particularly in the absence of the family assessment report being available to the court.
What is significant from the court’s perspective is that the family assessment report which was first ordered by consent as far back as 30 July 2019 has not been attended to. Of equal importance and significance is that the court has not been taken to any evidence in the parties’ respective trial material that illuminates the reasons for the failure to comply with that order.
Counsel for the father submitted that the father did not comply with the orders for the preparation of a family assessment report because he mistakenly understood, that a family assessment report was only to be prepared in cases where the court had a concern that a parent had mental health issues. The father’s belief in that regard is clearly erroneous.
While the father has proffered a reason through his counsel, it is not clear to me and no submissions were made on behalf of the mother as to why she did not comply with the orders for the preparation of a family assessment report.
Importantly at no time since the hearing on 13 November 2020 (when each party identified that the orders for the preparation of the family assessment report had not been complied with), has either party sought to bring the failure to comply with the order to the court’s attention.
This is a failure that rests at the feet of both parties. This is particularly so, in circumstances where each of the parties have been represented throughout these proceedings by experienced legal representatives.
As a consequence and for reasons which are opaque, the court is now in an invidious position where there is no family assessment report despite orders having been made for the preparation of the same as far back as July 2019.
While it might be interesting for the court to understand the different reasons as to why each of the parties have not sought to bring the issue before the court prior to the present trial listing, such an exercise would be of little utility; other than perhaps with respect to any cost application that might flow.
I have had regard to section 60B, section 60CA and section 60CC of the Family Law Act 1975 (Cth).
In particular the object and principals for parenting proceedings set out in section 60B, 60CA and 60CC of the Family Law Act 1975 (Cth) provide as follows:
Section 60B
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
In order for the court to make orders that are in a child’s best interest the court must have regard to those factors set out in Section 60CC of the Family Law Act 1975 (Cth).
A family assessment report generally assists the court in the sense that there would be expert evidence addressing those relevant factors set out in Section 60CC of the Family Law Act 1975 (Cth). However in the particular circumstances of this case, and given this child is 13 years of age, the report would be of added significance as it would provide the vehicle to understanding this child’s particular wishes and views. This is something that is specifically required by section 62G(3A) if the report is be prepared by a family consultant.
During submissions it was the respondent’s position that in the absence of the applicant pursuing any interim orders in relation to the child, and the child not having seen the father since July 2019, that the parenting aspect of the proceedings should be brought to conclusion.
While there is some force to the mother’s submission, this would not be an appropriate course at this juncture, given all of the factors the court is required to take into account pursuant to Section 60CC of the Family Law Act 1975 (Cth).
In addition, the court cannot overlook that there are two further factors impacting on the present state of the father’s relationship with the child:
(a)Firstly, that there has been an Intervention Order in place since the period of separation which names the mother and the child as protected persons; and
(b)Secondly, the father was unable to return to Australia from China between December 2019 and September 2020 as a consequence of travel restrictions imposed by the pandemic.
While the court does not accept the father’s reasons for failing to comply with the orders for the preparation of a family assessment report, as identified earlier, it is not clear why the mother did not comply with the orders of the court. Had she done so, the court would have been in a position where the relevant aspects of Section 60CC of the Family Law Act 1975 (Cth) could have been assessed by Dr W and the court would be appraised of those matters from the experts perspective, having interviewed each the mother and the child. In addition, and significantly, the court would have had an understanding of the child’s views.
Had the court had the benefit of Dr W’s opinion, there would not have been any difficulty in the court finalising the parenting proceedings effectively on an undefended basis.
The Full Court decision In the Marriage of Hall (1979) FLC 90-713 identifies that there is no magic in a family assessment report. However in the present circumstances, from the court’s perspective it is significant that the court does not have available to it the very expert evidence that both parties and the court as early as July 2019 considered it necessary for the court to have in order to make parenting orders in relation to the child.
If it had simply been a matter of the father’s failure to comply with the orders of the court, the mother’s position would have been persuasive.
In addition to the failure of both parties to comply with the orders for the preparation of a family assessment report, I am also mindful that when the matter was given the present trial listing it was set down for four days.
It is inconceivable that both the threshold issue and parenting issues could have been dealt with within a four day time listing in light of the level of disputation between these parties.
I further note that the present trial listing is complicated and compounded by the fact that it is now proceeding virtually and that the parties have the use of interpreters, inherently slowing down the hearing process.
Accordingly, and for all of the reasons given, the court is of the view that it is appropriate for the parenting proceedings to be bifurcated from the present trial and that a family report be prepared pursuant to section 62G of the Family Law Act 1975 (Cth) by a court child expert.
From the court’s perspective, the parties are both being given one last chance to comply with orders for the preparation of a family assessment report prior to the court finalising that aspect of the proceedings.
I accordingly make those orders that appear at the commencement of these reasons.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 2 March 2022
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