Wahab & Rassi

[2022] FedCFamC2F 254

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Wahab & Rassi [2022] FedCFamC2F 254

File number:	MLC 3885 of 2019
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	24 February 2022
Catchwords:	FAMILY LAW – transfer matter from Division 2 of the Federal Circuit and Family Court of Australia to Division 1 – trial plan a good idea only – organisation for trial a shambles – 2 day time estimate – probably a 4 to 5 day trial – one party appearing in another court.
Legislation:	Family Law Act 1975 (Cth).
Division:	Division 2 Family Law
Number of paragraphs:	19
Date of hearing:	24 February 2022
Place:	Melbourne
Counsel for the Applicant:	Mr S Howe
Solicitor for the Applicant:	RRR Lawyers
Counsel for the Respondent:	Ms A Monteiro
Solicitor for the Respondent:	Romer Maud Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms P Treyvaud
Solicitor for the Independent Children's Lawyer:	Leslie Family Law

ORDERS

MLC 3885 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR WAHAB

Applicant

AND:

MS RASSI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	24 FEBRUARY 2022

THE COURT ORDERS THAT:

1.That Orders 2, 3, 4, 5, 9 and 10 of the Parenting Orders made by Consent dated 8 October 2021 be discharged.

2.Until further order, X born in 2017 and Y born in 2018 ("the children") spend time with the Mother as follows:

(a)from 10am Sunday until 6 pm Tuesday each week;

(b)for the first day of the Eid Al Adha and Eid Al Fitr respectively from 10am until 10am the following day.

(c)If the children are not otherwise in the care of the Mother, the children spend time with the Mother on Mother's Day from 5.00pm on the Saturday preceding Mother's Day until 10.00am the following Monday, upon the children returning to day care/kindergarten or school.

(d)For one half of each term school holiday period as agreed, and in default of agreement, for the first week in odd years and the second week in even years.

(e)For one half of the long summer school holiday as agreed and in default of agreement, on a week about basis with the father to have the first week.

(f)For Christmas, the children spend time with each of the parents as follows

(i)In all even numbered years:

1.The children will spend time with the Mother from 2.00pm Christmas Eve until 2.00pm Christmas Day; and

2.The children will spend time with the Father from 2.00pm Christmas Day until 2.00pm Boxing Day,

(ii)In all odd numbered years:

1.The children will spend time with the Father from 2.00pm Christmas Eve until 2.00pm Christmas Day; and

2.The children will spend time with the Mother from 2.00pm Christmas Day until 2.00pm Boxing Day,

(g)such further and other time as agreed between the parties in writing.

3.That once the children are eligible to receive their COVID-19 vaccinations, the father make the appointment and notify the mother of the appointment time and date, and the mother be permitted to video call the children between 7pm and 7.30pm on the date of the appointment.

4.On or before 19 April 2021, the mother comply with Order 11 of the Parenting Orders made by Consent dated 8 October 2021 and in default of compliance, the Father be permitted to arrange the removal of Y’s tonsils with the father to provide the details of such surgery to the mother.

THE COURT ORDERS THAT:

5.The parties are directed to file and serve a revised, but accurate, list of documents relied upon for final hearing by 4:00pm Friday 25 February 2022.

6.The Independent Children's Lawyer provide the Family Report Writer (Ms B) with the Affidavit of Dr C dated 24 January 2022 and Ms B be at liberty to comment on that is she wishes to.

7.This matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia, on a date to be advised, noting that the following criteria are identified:

(a)The final hearing will likely take 4-5 days;

(b)There are number of witnesses and the Father requires the assistance of an Arabic interpreter;

(c)The serious and complex nature of allegations; and

(d)The matter was otherwise ready to proceed this day and was unable to be accommodated in the available 2 days and the proceedings were issued 11 April 2019.

8.The matter is referred to the National Assessment Team for consideration of transfer to Division 1 AND IT IS NOTED THAT the matter requires allocation of a final hearing in Division 1 and the parties will be contacted directly by the National Assessment Team confirming the transfer/relisting of proceedings and the next listing date.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 a pseudonym Wahab & Rassi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
EX TEMPORE

JUDGE O’SHANNESSY

1. The matter of Wahab & Rassi comes before me for what was meant to be a two-day final hearing on 24 February 2022.  The matter had been so listed by orders of March 2021.  As a then newly appointed judge, I accepted what the parties told me about how long the hearing would take.  Experience now tells us I should not have done so.  The matter had all the signs of being longer than a two-day case when the readiness for hearing questionnaires came back from the parties in recent days, and that referred to seven witnesses, including the parties;  two expert witnesses;  and supervisors.  It is now clear that the matter cannot be contained within two days.

2. I made inquiries and was able to ascertain that I had a spare day kept aside for such emergencies, because this is not the only case that this sort of thing happens in.  That day is 6 May 2022.  I had asked the parties a couple of days ago to prepare a draft trial plan, and the impression I have is that everyone thought such a thing was a good idea, but it was not done.  I have spent more than half an hour this morning drafting a rough and ready trial plan while hearing submissions from the parties.  In terms of the Father's case, without opening and with no evidence-in-chief, it is likely that cross-examination by the Independent Children’s Lawyer (‘ICL’) and the Mother's counsel (and allowing only half an hour for re-examination): that is four hours of cross-examination by the Mother's counsel and one and a half hours by the ICL, that would take six hours, and that is assuming that the judge did not interrupt and ask questions.

3. The other witness in the Father's case, the Mother's sister, Ms D, on the basis of no evidence-in-chief, was thought to be cross-examined by counsel for the Mother and the ICL for a total of about an hour, with a possible hour and a quarter of re-examination.  Hence, there was thought to be about seven and a quarter hours in the Father's case. 

4. In the Mother's case, and assuming no opening, it was thought that there would be, on notice, 15 minutes of in-chief evidence, if leave were granted, and that there would be roughly two hours of cross-examination by the Father's counsel and one and a half hours by counsel for the ICL, with half an hour of re-examination as a maximum.  That would provide about four hours for the Mother's evidence.

5. It was indicated then that the witness Ms E would not be required for cross-examination.  The Mother's treating psychologist, Dr C, was thought to take a total of about one and a quarter hours in cross-examination and re-examination.  It was estimated that the Family Report Writer would be cross-examined for about an hour by the Father's counsel and 30 minutes by each of the counsel for the Mother and the ICL, so there is about two hours there.  It was then thought that the witness called upon subpoena, Ms F, might take, including cross-examination, some half an hour or so.  It was thought that final addresses would be on the ICL’s part 45 minutes to an hour, on the part of the Mother's counsel 45 minutes and on the part of the Father's counsel 30 minutes.

6. Hence, it looked like the matter was going to take roughly 17 to 18 hours, assuming everything ran precisely as clockwork.  I remain circumspect about that, notwithstanding the time put into preparing a plan this morning.  The Father has filed in recent times two significant affidavits:  an affidavit of evidence-in-chief and a reply affidavit.  The affidavit of evidence-in-chief is of about 98 paragraphs, and the reply affidavit is of about nine pages of text.  Neither of those documents were sworn or prepared with the assistance of an interpreter.  When the matter came on for hearing this morning by directly liaising with the Court services, the Father's lawyers had arranged for the Father to have the assistance of an interpreter.  Fortunately, the efficiency of the interpreter was such that she was able to arrange for a direct connection to the Father and for simultaneous interpretation, but, of course, if that cross-examination referred to earlier was to occur, it would mean that the Father would need to answer the question to the interpreter who would then need to interpret the matter to me. 

7. The time estimates that have been given are on the basis that the Father would use an interpreter.  Upon pressing his counsel for an explanation as to the discordance between the affidavit preparation and the use of an interpreter, I was told that the Father understands 70 to 80 per cent of spoken English, and checked or swore the affidavit with the assistance of googling words to which he was unfamiliar for understanding.  The other circumstance that was troubling, as to the smooth operation of this litigation, was that it was apparent to me that the Mother was participating in the hearing by holding in her hand a mobile phone.  That clearly was going to be unsustainable for a two-day hearing.  I stood the matter down, after expressing some pique as to the shambles of organisation and estimates of the time, for the parties to gather their thoughts and get proper instructions as to how the matter could possibly proceed.  When the matter came back at 11.30am, the Mother was absent because she was participating in another hearing or providing instructions to a lawyer in another hearing.  That hearing was a return of two applications for directions in the Suburb G Magistrates Court relating to intervention orders. 

8. The Mother's trial affidavit, at paragraph 57, had referred to the matter being, “Listed in the Magistrates Court” this day. 

9. The Mother was able to conclude her involvement in the Magistrates Court proceedings by about a little after 12:00pm.  Of course it was impossible to proceed with any substantial hearing in the absence of one of the parties.  Shortly prior to lunch, having completed the rough, on the run, trial plan, I provided the parties with options as to how the matter could proceed.  It was my intention to start the matter immediately, which would have meant a start at about 12:45pm, use up today and tomorrow, and then use up the "spare" day of 6 May 2022, and then find a further day or two to complete the rest of the hearing somewhere down the track.

10. I told the parties I was embarrassed that I could not tell them when I would be able to ascertain that third chunk for the hearing.  Hence, the roughly four-day estimate assumes nothing would go wrong, which means things would have to improve markedly in the organisation of the case.  The further options I gave the parties was that the matter be transferred to Division 1 of the Federal Circuit and Family Court of Australia, and the further option I gave the parties was that I adjourn the matter to be heard in one chunk before me, as a four to five-day matter, which would not be possible until July of 2023 as all of my hearing days have been allocated up to that point in time.

11. After taking further instructions, the Father pressed that I commence the matter this afternoon and simply get on with the matter, and he was anxious for the matter to start so that it could finish.  I acknowledge that the best way to finish a case is to start it.  The ICL pressed that the matter be transferred to Division 1 of this Court.  The matters put were that there were complex factual matters in dispute including each party's mental health, family violence and drug abuse.  Counsel for the ICL raised the reality of the difficulty for all concerned, but particularly the parties of having part-heard matters at a final hearing, and a part-heard matter that would, in all likelihood, be heard in three chunks over an indefinite period of time. 

12. Only those who have participated in such a hearing can fully understand the disadvantages to the parties, their counsel, their solicitors and the judge in such a procedure.  The Mother's Counsel joined with the ICL and pressed that the matter be transferred to Division 1 where the matter could be heard in one chunk.  The practice of this Court is to hear matters of two to three days and, at a stretch, four, but not matters that are, at a minimum, four and might end up five.  It may be that with more severe case management, some time could be trimmed off those estimates.  I note that they were given by counsel experienced in family law matters, and they appear to me to be most reasonable and even quite efficient estimates of time given the complexity of the issues.

13. The background to the matter is that the Father, Mr Wahab, was born in 1983.  The Mother was born in 1985.  They separated in 2019 or 2020.  There is some dispute about that.  But they have two children; X, recently turned age five; and Y, aged three.  Those children were two and a-half and 14 months at the time the Father left the family home, on 22 June 2019.  The children remained with the Mother, and the Father issued proceedings seeking to be able to spend time.  In December of 2020, comprehensive orders were made by consent when it looked like the matter had been well on the way to resolving.  The matter was adjourned to June of 2021, only for mention.

14. In January of 2021, significant uncertainty was released onto the children's lives.  The Mother's older child, by a previous relationship, was removed from her care, and X and Y came to live with the Father.   The Mother was admitted to a psychiatric hospital taking more than the prescribed medication in January of 2021.  Child Protection prepared a 67Z Response on 24 March 2021 and, at that time, had not received up to date, or any, drug tests from the Mother.

15. Subsequently, in 2021, the Mother produced a clean hair follicle test that would appear to have covered a period of about three months, and a number of other clean drug tests.  It is the Mother's case that she has recovered entirely from drug addiction problems.  The Father is more circumspect about her recovery and the future.

16. They are just some of the issues, but all of those matters combined convince me, with some regret, that it is in the best interests of X and Y and the parents that the matter is transferred to Division 1.  I indicated to the parties that, in the event of a transfer, that I would be able to deal with some interim issues provided that is procedurally fair.  The parties requested that after I made the decision as to whether I was going to start or transfer the matter, that they had the opportunity for discussion to see if they could resolve interim issues, and that seems most sensible. 

17. I will further direct parties to file a proper and condensed list of the documents relied upon, as it appears to me that the Mother's solicitor and the Father's solicitor have included, in the documents relied upon, all documents filed in the proceedings no matter when.  The Father's affidavit in reply refers to specific exhibits attached to a 2019 affidavit, and that is sensible that they be extracted and relied upon.  But it is not sensible that every affidavit, no matter when sworn, is relied upon.  The parties' trial affidavit are not just updating affidavits.  They should start at the start and, hence, attention needs to be drawn to that.

18. It is my experience that, when transferred to Division 1, if the matter is properly and finally prepared, it is likely to be listed sooner than if it requires further direction and time for the parties to get their case in order.  It appears to me that the parties and their solicitors have, save for the arrangements for the actual hearing, done a pretty good job in organising their evidence and their affidavit material, ready to start a hearing.  I should add that a further matter that I took into account, and that weighed heavily on me, is the fact that I have a recent family report, and it is a great pity that the Court would not deal with the matter while that report was still fresh.

19. I am also going to direct that the affidavit of Dr C, which I think was provided, on or about 14 January, be provided to the family report writer for her to comment on if she sees fit.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       10 March 2022