ZAU & UONG

[2014] FamCA 961

FAMILY COURT OF AUSTRALIA

ZAU & UONG [2014] FamCA 961

FAMILY LAW – PRACTICE AND PROCEDURE – Mother’s application for the preparation of a family report, access to the father’s files from previous proceedings, and request for the Department of Human Services to intervene – consideration of the principles for conducting child-related proceedings under Division 12A – application dismissed.

Family Law Act 1975 (Cth) s 69ZN

APPLICANT: Ms Zau

RESPONDENT: Mr Uong

INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon & Associates

FILE NUMBER: MLC 3931 of 2012

DATE DELIVERED: 27 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 27 October 2014

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon & Associates

Orders

IT IS ORDERED THAT

1. The time for the father to file and serve his affidavits of evidence in chief pursuant to paragraph 4 of the orders made 17 July 2014 be extended to 4.00 pm on

   
   

   3 November 2014.

2. The time for the mother to file and serve any affidavit in reply to the father’s evidence in chief pursuant to paragraph 5 of the orders made 17 July 2014 be extended to 4.00 pm on 17 November 2014.

3. The mother’s Application in a Case filed 26 September 2014 be dismissed and removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Uong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3931 of 2012

Ms Zau

Applicant

And

Mr Uong

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are parenting proceedings which have been set down for final hearing before me commencing on 24 November 2014.  The proceedings are in relation to the child W (“the child”) who will turn 17 in January 2015. 

2. On 29 September 2014 the mother filed an amended initiating application in which she seeks orders that the child continue as a boarder at E School, that the father and the mother be jointly responsible for his long-term care, welfare and development, that the father and mother share school holiday time with the child, and that the mother have access to the child’s school reports and information in relation to his attendance at E School.

3. In anticipation of the hearing, on 26 September 2014 the mother filed an application in a case in which she seeks an order for the preparation of a family report pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”), an order that she be permitted to inspect file number … and file number … – both files relating to proceedings in which the father was a party in relation to previous relationships – and finally, an order requesting the intervention of the Department of Human Services.

4. The background to this matter is that final parenting orders were made in June 2005 by Brown J providing for the father to have sole parental responsibility for the child and for the child to live with the father and spend time with the mother as agreed between the father and the mother.

5. In March 2014, Ms K, who is a family consultant with the Melbourne Registry of this Court, prepared a Children and Parents Issues Assessment Report.  Significantly, in that report, Ms K describes the child as a mature boy who has been living at E School for the past five years.  She went on to say that while his mother’s mental health issues have, at times, caused the child some emotional distress, given his age and level of maturity he is not considered to be at risk from either of his parents.  The mother today acknowledged that the child is safe at E School.  She also acknowledged that he is making good progress academically.

6. The child is described by Ms K as strongly advocating that he does not want orders compelling him to spend face-to-face time with his mother.  He also, however, told Ms K that he does and has on occasions contacted his mother, and although he finds those telephone calls sometimes difficult, he had, at least at the time of that report, maintained some telephone contact.  I am told today that the mother continues to text the child, but that he is not responding to those text messages. 

7. The mother says that the report prepared by Ms K has many mistakes in it.  She referred in particular to the fact that Ms K reports the child as being taken away from her when he was six when he was, in fact, taken away when he was four. The mother submits that the child is controlled by the father and the reason he told Ms K the things that he did is because he is too scared to tell the truth.  There is no evidence that would support that submission, and it is contrary to the evidence that I do have, that is, the evidence of Ms K as to the child’s maturity and his ability to express his own views, and indirectly, the evidence of his progress at school which supports Ms K’s observations of him as appearing to be progressing well given the current arrangements.  The mother also submitted that this is a complicated matter and a comprehensive family report is necessary to reflect the complexity.  Finally, she submitted that a report was necessary for the purposes of some other financial proceedings which she is proposing to commence.

8. Division 12A the Act sets out in detail the principles for conducting child-related proceedings. Those principles are relevant for the purposes of the decision I must make today and, in particular, the first principle which is that the Court is to consider the needs of the child concerned and the impact that the conduct of proceedings may have on the child in determining the conduct of the proceedings (s 69ZN(3)). The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings (s 69ZN(4)).

9. Those two principles are particularly relevant in this case given the child’s age.  The child, as I have previously said, is almost 17 years of age.  The child has been involved in these proceeding having attended an interview with Ms K and he has expressed a strong view as to whether or not orders should be made requiring him to spend time with the mother.  The Independent Children’s Lawyer has also travelled to E School to interview the child and he has expressed similar views to the Independent Children’s Lawyer.

10. In my view, involving the child in the process of the preparation of a further report does not take into account his needs.  Simply put, it would involve him further in the proceedings, which in my view, given his age and his strongly held views, is not necessary.  Insofar as it is submitted by the mother that the child’s views are not his own, or he has been coerced into expressing those views, there is some force in the submission made by the counsel for the Independent Children’s Lawyer that, if that were the case, he is likely in any further report to express similar views for exactly the same reasons.  There is no evidence to suggest that he has been coerced.  In my view, it is not appropriate to order a further report.

11. The mother will have an opportunity to put matters about which she says there is a factual dispute or inaccuracies in the report in the course of cross-examination.  It is not, in any event, for Ms K to be a finder of fact.  It was obviously intended that Ms K, particularly with a child of this age, investigate exactly what his views might be, but also make observations of the child in the context of her meeting with him. 

12. The second issue relates to the mother inspecting files from previous proceedings.  Whilst the rules of evidence do not strictly apply in parenting proceedings such as these proceedings, evidence must be relevant to the issues that I am required to determine.  I am mindful of the fact that there were final orders made in these proceedings in 2005, and both of these files relate to proceedings which were commenced prior to that.  Insofar as it is submitted by the mother that they will demonstrate a history of family violence, it is difficult to see how that is relevant to the decisions I must make in the circumstances of this case given the child’s age, his strongly held views and, also, given the fact that he lives at E School as a boarder, and it is the mother’s own case that he should spend equal time with each of his parents at other times.

13. I am not intending to minimise any history there may have been of family violence.  I similarly make no findings as to those allegations because I am not in a position to do so, but I must view those allegations in the context of how the child is progressing now, the arrangements that are made for his care now, and there is simply no evidence which would suggest that he is at risk of family violence presently, or that that is likely to be a relevant issue in this case. 

14. The final issue is the question of Department of Human Services and whether they should be involved in these proceedings.  There is no evidence that the child is presently at risk and I take the point made by the counsel for the Independent Children’s Lawyer that, as a full‑time boarder, one would assume if there were issues in relation to either the child’s physical or psychological wellbeing that the school would have reported those issues.  From what I have seen of his school report, he would seem to be progressing extremely well, and there is certainly no evidence of the school having any concerns about his welfare.

15. The mother submits that in circumstances where he does not have a meaningful relationship with both of his parents, that in itself is a cause for concern as to his psychological and emotional wellbeing. However, it is important to bear in mind that although the objects and principles of the Act make it clear that, if possible, it is important for children to have a meaningful relationship with both of their parents that must itself be based upon that being in their best interests. That involves consideration of a great number of factors and whilst I make no determination of that issue at this particular point of time, it does not follow that simply because a child is not having a meaningful relationship with both parents that they are either psychologically or emotionally at risk.

16. In all of the circumstances, I propose to dismiss the mother’s application.  The matter will proceed to final hearing on 24 November 2014.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Justice Macmillan delivered on 27 October 2014.

Associate: 

Date:  10 November 2014