Archibald and McNab

[2013] FCCA 1509

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARCHIBALD & MCNAB [2013] FCCA 1509

Catchwords:
FAMILY LAW – Oral Application seeking an order which would compel that the parties undergo psychological assessment following release of the Regulation 7 Family Report.

Legislation:

Family Law Act 1975

Federal Circuit Court Rules 2001, Part 15

Federal Circuit Court Regulations 2000

Hasit Sali v SPC Ltd (1993) 67 ALJR 841
Makita & Sprowles (2001) 52 NSWLR 705

Applicant: MS ARCHIBALD

Respondent: MR MCNAB

File Number: PAC 3628 of 2012

Judgment of: Judge Harman

Hearing date: 13 September 2013

Date of Last Submission: 13 September 2013

Delivered at: Parramatta

Delivered on: 13 September 2013

REPRESENTATION

Solicitors for the Applicant: Mahony Family Lawyers

Solicitors for the Respondent: Winn Legal

ORDERS

1. Leave is granted to the solicitors for the Father to make an oral application for orders pursuant to Part 15 of the Family Law Act1975 for psychological assessment of the parties and each of them.

2. That application is dismissed.

3. The matter is listed for Final Hearing before Judge Harman at 10.00am on 24, 25 and 26 March 2014 and to continue until completed.

4. In the event that either/any party (or the Independent Children’s Lawyer) requires the report writer for cross examination then written notice of that fact is to be given to the report writer within 21 days of today’s date and in the event that the report writer is not available on the allocated dates then upon that fact becoming apparent to a party or the Independent Children’s Lawyer they shall cause the proceedings to be relisted.

5. Direct the Applicant to file and serve all Affidavit material on which she intends to rely at trial no later than close of business on 17 January 2014.

6. Direct the Respondent to file and serve all Affidavit material on which he intends to rely at trial no later than close of business on 21 February 2014.

7. Direct the Applicant, should she consider it necessary or appropriate, to file an Affidavit by her and only her answering any material in reply to the Respondent’s Affidavits which has not already been addressed in her evidence in chief no later than close of business on 7 March 2014 and in the event that evidence is to be called in reply it shall be by filing such Affidavit and not otherwise.

8. The Court notes that the Applicant would propose calling evidence from herself and one other.

9. The Court notes that the Respondent would propose calling evidence from himself and one other.

10. In the event that either party seeks to call evidence by any medical practitioner or expert other than the Report Writer then they shall give the other party and the Independent Children’s Lawyer not less than 42 days’ notice of this and in the event any party wishes to cross examine that person they are to give 28 days’ notice of same and in that circumstance the question of costs with respect to the expert’s appearance is reserved to the hearing.

11. The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.

12. Direct each party and the Independent Children’s Lawyer to file a Case Outline directly by email to my Associate no later than close of business 14 March 2014 such Case Outline to incorporate:

    (a)The material that is relied upon by that party or the Independent Children’s Lawyer;

    (b)The material from which tender is to be made in that party or Independent Children’s Lawyer’s case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;

    (c)A chronology of events;

    (d)Orders sought at trial if different to those sought by any Application or Response filed and provided that minute of proposed orders shall not substantially vary the relief proposed by same or join fresh issues; and

    (e)A draft trial plan (preferably agreed).

13. Liberty is granted to the parties and to the Independent Children’s Lawyer to restore the matter to my list with respect to compliance with the above orders and in accordance with the Federal Circuit Court practice directions regarding same.

14. In the event that the above liberty is utilised by a party then they are to ensure that the other party and the Independent Children’s Lawyer is advised forthwith of any listing date as well as the basis on which the relisting has been sought and the orders or directions that are to be sought by them when the matter is next before the Court.

15. Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.

16. Liberty is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my chambers for the purpose of orders being made in Chambers and hearing dates vacated.

17. An (language omitted) interpreter is ordered for the hearing on 24, 25 and 26 March 2014 for the assistance of both parties.

18. Any further subpoena for the production of documents shall be filed and served and so as to require production of material to the Court not less than 21 days prior to the allocated hearing dates and the party issuing same shall ensure that all necessary steps are taken to have obtained leave to inspect material expeditiously and all parties shall ensure that they have inspected material and tabulated same (in the event that tender or cross examination on those documents is proposed) prior to the hearing (as no time will be made available for inspection of that material prior to the hearing commencing).

IT IS NOTED that publication of this judgment under the pseudonym Archibald & McNab is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3628 of 2012

MS ARCHIBALD

Applicant

And

MR MCNAB

Respondent

REASONS FOR JUDGMENT

1. These proceedings are commenced by Application filed 21 August 2012. 

2. A Response was filed 30 November 2012. 

3. The proceedings relate to future care arrangements for a child, X born on (omitted) 2009 and who is, accordingly, four years of age. 

4. The parties to the proceedings are X’s parents being her mother, who is the Applicant, and her father, who is the Respondent. 

5. The proceedings have been before the Court, as would be apparent from the above, for some little time.

6. The proceedings first came before the Court on 22 August 2012.  On that date the child was absent the jurisdiction.  A number of orders were made intended to facilitate the child’s return to the jurisdiction. 

7. The child’s return to the jurisdiction subsequently occurred.

8. The proceedings were again before the Court on 4 October 2012.  At that time orders were made for the parties to make contact with a contact service with a view to undertaking intake and assessment prior to further mention and directions. The parties were also directed to attend a Child Dispute Conference. A number of other orders and directions, not germane to the issue before the Court today, were made. 

9. The proceedings next came before the Court on 14 December 2012. On that date and at the request of the parties, the proceedings were adjourned. An order was made for the appointment of an Independent Children’s Lawyer and a number of orders made by consent and pending further order.

10. The orders made 14 December 2012 included an order that X spend time with her father for such periods and with such frequency as could be accommodated by the (omitted) Supervised Contact Service.  Further orders were made to facilitate implementation of those arrangements. 

11. The Court is advised that time at the Contact Centre has now commenced. Whilst records have been subpoenaed from the service, they relate to only the very initial period of such supervised time.

12. The matter was last before the Court on 6 March 2013. On that date, the proceedings were adjourned to today (or to a day which has been replaced with today’s listing) and a Family Report was ordered.

13. It was intended that the Family Report would be released to the parties some time prior to today’s listing. However, the Report has only become available today. 

14. The report, prepared by a Regulation 7 Family Consultant whom it is to be noted is a former Family Consultant and a highly-qualified and experienced Child and Family Psychologist, has been provided to the parties and the Independent Children’s Lawyer this morning. 

15. The Report contains recommendations at paragraph 62 to 67. The first of those recommendations, whilst difficult to implement as an order of the Court, deals with a fundamental and significant issue underlying the dispute between these parties. It recommends that the parties:

    Do their upmost to improve their communication so they can assume joint parental responsibility.  If this is not possible, it is recommended that sole parental responsibility be granted to the mother.

16. It is suggested that unless further evidence is brought before the Court that would contraindicate same, that X should live with her mother.

17. The report then provides at paragraph 64:

    It is difficult to make clear-cut recommendations about how much time and the level of supervision that is required for any time X spends with her father.

18. Paragraph 67 of the recommendations suggests:

    If the Court considers it necessary, a comprehensive mental assessment of either or both parties may be appropriate.

19. Within the context of that recommendation (the concluding paragraph of the Report), an Oral Application is made today by the attorneys for the Respondent Father seeking an order which would compel that the parties undergo psychological assessment. The details of a proposal, such as the identity of the psychologist to be engaged, whether it is the same psychologist for both parties and funding of same is not before the Court. However, that is no criticism of the Father’s attorneys, as the Report has only been made available today and thus attention only turned to that issue this morning.

20. To give context to that Application, it is necessary to have some cursory regard to the factual history of the matter. That is set out in the most objective form available in paragraphs 2 to 5 of the report.

21. The Report suggests that following the mother’s arrival in Australia that the parties had lived together and that the mother was granted permanent residency in 2009, being the same year as X was born.  It suggests that both parties reported tension in their relationship, presumably from the outset:

    Although their accounts of the extent and nature of the violence differ significantly.

22. It is to be noted that on most, if not all, factual issues the parties’ versions of events differ significantly. 

23. The Report suggests that the parties returned to (country omitted) with X for a visit in (omitted) 2010 and that during this time that the Mother stayed with X with her family whilst the Father travelled to (country omitted) to provide support to a family member and that the parties returned together from (country omitted) to Australia in December 2010.

24. The parties agree that the tension in their relationship had existed prior to their trip to (country omitted), but it would appear that they escalated upon their return. 

25. It is suggested that in (omitted) 2011 the parties again travelled to (country omitted) with X and both parties stated to the report writer that they intended to spend time with family, although the Father indicated that he hoped to seek help from the Mother’s family for their ailing marriage. The Report indicates at paragraph 5:

    The parties provide discrepant accounts of what subsequently happened and the chain of events that has brought them to the present.  Essentially, Ms Archibald claimed that Mr McNab left her stranded in (country omitted) with her family without any support or documentation and that he refused to communicate with her.  Mr McNab disputed that he abandoned Ms Archibald and X.  He claimed that Ms Archibald insisted on a divorce and began making allegations that were critical of him in an attempt to keep him apart from X.

26. In any event and following commencement of the proceedings, orders were then made that facilitated the child’s return to Australia. The factual circumstances that led to that outcome are not fully before the Court and are to a large extent not relevant for today’s purposes. 

27. The Report otherwise makes continuous reference to two matters of significance.

28. The first such issue is chronic dispute between the parents. That is summarised in the report in terms that would suggest that the parties’ present ability to communicate and resolve difficulties between them is non-existent. At paragraph 57 of the Report it is suggested, under the heading “The Parents’ Current and Future Capacity to Communicate” as follows:

    This is an issue that needs addressing as a matter of urgency if the parties are to move forward.  Mr McNab and Ms Archibald presently are unable to be in the same precincts together let alone communicate with each other. Mr McNab stated that he is receiving counselling support. However, it is unclear what support Ms Archibald is receiving, other than that provided by the women’s refuge.

29. I pause to note that whether it is intended to be so or otherwise, I do not infer any criticism of the support provided to Ms Archibald through the refuge, which I have no doubt is of great significance and support to her. 

30. The second issue that underscores the report and its recommendations, caged, appropriately, in somewhat equivocal terms as the recommendations are, is the suggestion that the parties are unable to agree on factual issues regarding the past and presumably the present and the future.

31. That issue is highlighted in the portions of the Report identified and relied upon in support of the oral application by counsel for the father, commencing at paragraph 41 and continuing. Those paragraphs suggest that the factual dispute between the parents is so significant that at paragraph 53 under the heading “The Attitude to the Child and the Responsibilities of Parenthood”, the following is opined:

    There is a serious disjuncture in the accounts of the two parents as to the capacity to assume the responsibilities of parenthood.  The parties are currently highly mistrustful of each other and there is gross inability in their capacity to co-parent or assume shared parental responsibility for decisions involving X.  The nature of the parenting relationship currently makes it untenable for the parties to communicate in any way in respect of X.

32. The application that is made for psychological assessment of the parties would appear, on its face, to have some support in paragraph 67 of the report. It is, however, prefaced on the basis of, “If the Court considers it necessary”. 

33. The issue is then whether there is any basis, in the factual material as reported by the report writer or otherwise, which would render it necessary to order such psychological assessment. 

34. There are profound issues as to the further delay that would befall the proceedings, the potential for there to be dual experts, both required for cross-examination and thus making the proceedings more complex and the appropriateness of the Court compelling such interference in the lives of the parties. In addition there are issues as to how such investigation and report would be funded as both parties, and the Independent Children’s Lawyer, are legally aided.

35. The above are issues of some relevance as regards the Court’s resources (see for example the High Court’s decision in HasitSali v SPC Ltd (1993) 67 ALJR 841.

36. The basis upon which the application ultimately rests is the suggested need to obtain further forensic evidence so that the Court is in a position to assess and evaluate which reportage of which party is to be accepted as the more likely to be correct as regards the past history of the relationship and in light of the significant divergence in their events. 

37. That would appear to imply or suggest that the psychologist would be in a position to determine, through diagnosis or otherwise, whether either party had any underlying premorbidity which would impact upon their capacity to accurately comprehend and report past experience or whether either would be inclined to manufacture allegations, to misreport allegations or to undertake any other action which might fall within a psychological or psychiatric diagnosis.

38. I am not satisfied that such an order would be an appropriate use of the parties’ or the Court’s resources, or those of the public, through the extent to which either party or the preparation of such a Report would be funded through the Legal Aid Commission. 

39. The basis upon which the report is sought has some difficulty for two reasons. 

40. Firstly, I am not satisfied that it is an appropriate use of such a resource to conduct what might be generally referred to as “trial by expert”.

41. It is not the role of a Forensic Expert, under Part 15 of the Federal Circuit Court Rules 2001, to evaluate the truthfulness or otherwise of a party. Certainly, it is not put that this is the basis of the application although it ultimately becomes the purpose. 

42. It is suggested that a psychologist would be of some assistance to the Court in understanding whether either party has a predisposition, due to diagnosable psychological condition, to distort or misrepresent events.  That is not a matter which I am satisfied could be properly addressed nor ordered on the evidence available. 

43. There is nothing in the present evidence, other than suggestion by the parties and each of them, (and I accept based purely on their lay opinion rather than previous diagnosis) of depression or anxiety or any other mental illness or disorder. That each would suggest that of the other is, perhaps, to be expected. However, there is nothing to suggest that there is any clinical basis for those suggestions.

44. I am satisfied that to seek to address the disparity in the parties’ past recollections and thus evidence on the basis of seeking to ascertain whether there is a psychological basis for it, is not supported by the evidence and would thus be tantamount to the most invasive of fishing exercises.

45. The second basis which obviates against such an order is the absence of any evidence that would suggest that a psychologist would be in a position to offer such a diagnosis.  To the extent that there is the capacity for same to occur it is to be noted that the report writer, being a Regulation 7 Family Consultant, lists their qualifications (and signs off on the Report as) and experience as B.Occ.Thy., M.S., G.D.F.E, M.H.Ed., G.C.E.E., M.A.P.S., D.Ed

46. The report writer Ms V has previously been a family consultant with in the Court.  She is a qualified and registered clinical psychologist.  She lectures in Clinical Psychology at the (omitted) University.  She has a Doctorate in Education, a Masters of Tertiary Teaching, a Masters of Science and abundant qualification in psychology.

47. Thus, to the extent that psychological assessment might be required, I can infer from her Report and its reportage that:

    a)She has turned her mind to the existence of such premorbidity;

    b)Her absence of comment with respect to it, subject to her cross-examination at hearing, which may produce a contrary finding, would be suggestive that no such premorbidity has been detected.

48. I am further of that view in light of the comments made by Ms V and her recommendations. 

49. It is suggested that Ms V’s report is defective in that Ms V has not made any recommendation with respect to time that might occur between X and her father in the future.

50. I note that it is not the purpose of the report to determine the outcome of the proceedings. It is the purpose of the Report to offer expert opinion with respect to the issues presented by the parties and to the extent that the reporter is able to do so. Thus, it is entirely appropriate for Ms V to make the recommendation she has leaving it, as it were, as the “refs call” in relation to future time arrangements. 

1. Ms V has very clearly articulated her inability to make a concrete recommendation, (and it is to be noted that the Court is not bound to follow any recommendation proffered in any event and recommendations are always subject to testing, see for instance, Makita & Sprowles (2001) 52 NSWLR 705.

2. Ms V’s recommendation is that the court must ultimately determine such factual dispute between the parties before anything further can be advanced. 

3. It is not the role of a report writer to become a tribunal of fact. That is the role of the Court.

4. The expert’s opinion is designed to speak to the facts which are ultimately found by the court absent agreement. 

5. It would have been open to Ms V to offer opinions or recommendations based upon alternate findings of fact. However, I am entirely satisfied that the recommendation raised, being:

   It is difficult to make clear cut recommendations about how much time or the level of supervision that is required for any time X spends with her father

   is entirely appropriate in light of the factual dispute that exists.

6. As a forensic exercise, I am not satisfied that a psychological assessment of the parties would bring anything to the evidence already available or which will be available through the parties themselves. 

7. If either party is suggesting that the other party has previously experienced any psychiatric or psychological examination or investigation, it is and has been open to them to lead evidence to that effect. No such evidence is presently before the court. I accept in that regard, that the evidence filed by the parties has been focused upon interim issues and compliance with the Federal Circuit Court Rules 2001, wherein their affidavit material is required to be sufficient to identify issues in dispute, rather than the evidence relied upon in asserting same. However, the issue is not referred to.

8. What is put is that factual dispute to the extent apparent in this case, whereby the parties give diametrically opposed versions of events, must suggest psychological or psychiatric diagnosis of one party or the other.  In the vernacular “for the wife to tell such an outrageous story, so far removed from the truth, she must be mentally unwell” I do not accept that submission (and whether raised of the wife, as it is, or of the husband.  It is no basis or no sufficient basis for the application

9. In the evidence filed there is an entire absence of any suggestion that would warrant further psychological or psychiatric investigation or investigation beyond that already undertaken by Ms V. 

10. Thus the application must fail.

11. Accordingly I make the following Orders.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date:  1 October 2013