Batas & Gaire
[2023] FedCFamC1F 685
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Batas & Gaire [2023] FedCFamC1F 685
File number(s): PAC 4114 of 2019 Judgment of: KARI J Date of judgment: 28 July 2023 Catchwords: FAMILY LAW – EX TEMPORE REASONS – Where the father seeks the release of the family report to the father’s treating practitioners – Where the release of the family report has been carefully controlled by the Court – Where the mother asserts that the father’s treating practitioners do not require all of the information that was available to the report writer – Where the Court is concerned not to taint the opinions of the treating practitioners – Where the Court considers that there is merit for the father’s treating practitioners to be aware of the report writer’s concerns – Orders for the release of particular paragraphs to the father’s treating practitioners and treating practitioners to provide an addendum report. Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 28 July 2023 Place: Adelaide (via video link) Counsel for the Applicant: Ms Breeze Solicitor for the Applicant: Family Lawyers & Mediators Australia Counsel for the Respondent: Mr Dura Solicitor for the Respondent: Rossi Simicic Lawyers Solicitor for the Independent Children's Lawyer: Johnson Vardanega Lawyers ORDERS
PAC 4114 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BATAS
Applicant
AND: MS GAIRE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
28 JULY 2023
THE COURT ORDERS BY CONSENT:
1.That within 14 days the mother do file and serve an affidavit setting out on oath the particulars of all health practitioners upon whom she and the child X (born 2011) have attended between 1 January 2018 and the present date.
2.That no earlier than 1 February 2024, the legal representatives for each of the parents shall be at liberty to provide an unredacted copy of the report of Dr B dated 24 February 2022 to each of the parents for viewing only PROVIDED that any such viewing occur in the presence of that party's legal representatives only and that a copy not be given to the party personally.
3.That leave be granted for the legal representative for the father to provide an unredacted copy of the report of Dr B dated 24 February 2022 to a NAATI accredited Country C language interpreter and/or translator for viewing only, and in relation to the same:
(a)Any such interpreter and/or translator is to be one who is not related to the father and/or be one with whom the father does not have a personal relationship; and
(b)Any viewing of Dr B's report by the interpreter and/or translator is to occur in the presence of the father's legal representatives.
4.That order 3(b)(ii) made 26 May 2023 be discharged.
5.That order 21 made on 16 June 2023 be discharged AND otherwise in relation to the documents produced pursuant to subpoena to Ms D (S35), the legal representatives shall be restrained and an injunction is granted restraining each of them from providing a copy of any such documents to their respective clients other than for purposes of discussing the contents of the same in the presence of their client.
6.That order 4 made on 26 May 2023 be discharged AND otherwise in relation to the documents produced pursuant to subpoena to Dr E (S34) and in relation to the same:
(a)the parties’ legal representatives shall be permitted to inspect and copy those documents; and
(b)the legal representatives shall be restrained and an injunction is granted restraining each of them from providing a copy of any such documents to their respective clients other than for the purpose of discussing the contents of the same in the presence of their client.
7.That otherwise leave be given to the legal representatives to inspect and copy those documents produced pursuant to any subpoena as and from 13 April 2023 (S22-S35) SAVE AND EXCEPT those documents produced by:
(a)Dr E (S34) about which order 6 herein shall apply;
(b)Ms D (S35) about which order 5 herein shall apply;
(c)F Psychology (S25), G Psychology, Mr H (S23) and Dr J (S22) about which order 17 made 16 June 2023 shall apply.
AND IT IS FURTHER ORDERED:
8.That by no later than 4.00pm on 15 December 2023 the father shall file and serve any reports from any treating medical practitioners.
9.That the father authorise any treating practitioner who is to file a report pursuant to order 8 herein to release a copy of their notes contemporaneously with the release of their report and thereafter the legal representatives shall provide a copy of those notes to each the mother’s legal representatives and the Independent Children's Lawyer with the same to occur contemporaneously with the filing and serving of any such report.
10.That no earlier than 5 January 2024 the father shall be at liberty to provide to his treating practitioners, in particular psychologist Mr K of G Psychology and psychiatrist and Dr L of F Psychology a copy of paragraphs 742 to 754 of Dr B’s report, dated 24 February 2022 AND thereafter and no later than 4.00pm on 2 February 2024, the father shall be at liberty to file and serve any addendum report from any such treating practitioner.
11.That the Application in a Proceeding filed on 30 May 2023 and the Response filed on 15 June 2023 be otherwise dismissed.
12.That no later than 4.00pm on 8 September 2023 the mother do file and serve any affidavit from her partner, Mr M, that she intends to rely on for the purposes of trial.
13.That in the event that the mother elects not to file an affidavit from Mr M the court shall give further consideration to granting leave to the father to issue a subpoena on the application of the father for Mr M to give evidence at trial.
14.That the proceedings be listed for further mention and case management on 29 September 2023 at 2.15pm (Adelaide time) with such hearing to be conducted by Microsoft Teams.
15.For the purposes of the adjourned hearing the father be present with his solicitor and any interpreter for the duration of such hearing.
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 Batas & Gaire has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
This matter comes before me today in relation to the parenting arrangements for the parties’ child, X.
The proceedings have a very long history before the Court having commenced in August of 2019 (admittedly also in relation to the question of settlement of property).
The proceedings are now in a position where they have been given a trial date before me in March of 2024.
The proceedings in recent times have been before me repeatedly for the purposes of making trial directions and various orders to manage the orderly and proper progression and preparation of the matter for trial purposes. More will be said about the need for that process shortly. However, today I have made a range of orders, by consent, directed to trial preparation and trial management, and I do not propose to touch on those matters further.
To the parties’ credit, counsel and the legal representatives have been able to reach agreement about various trial directions and case management issues to ensure that the matter is in a position that it can progress to trial in March of next year. There is, however, one topic about which the parties disagree, and that is the topic about which I have been asked to make a determination today. That issue has its foundation for present purposes in an application in a proceeding filed by the father on 30 May 2023. By that application, the father asks the Court to make the following order:
(1)That leave be granted to the applicant father to provide a copy of the report of Dr B dated 24 February 2022 in accordance with the recommendation contained in that report at paragraph 794 to his treating psychologist, Mr K of G Psychology, and treating psychiatrist, Dr L of F Psychology.
The father also seeks an order that the mother pay the father’s costs of and incidental to the application on an indemnity basis. The father’s application is supported by an affidavit filed on the same date.
The mother, by her response to that application, filed on 15 June 2023, asks that the Court dismiss the application in a proceeding filed by the father on 30 May 2023. To understand the issues that I have been asked to determine, more needs to be said about the background of the matter generally but specifically in relation to Dr B’s report.
BACKGROUND
These proceedings, as I indicated, have a long history before the Court, and it is impossible for me to do justice to that history in any detail in these ex tempore reasons.
That being said, the short and pertinent history for present purposes is as follows. The parents are Country C born. The parties commenced cohabitation when they married in Country C in 2003. In approximately 2006, the parties relocated to Australia. The mother is a healthcare professional and the court understands that the mother’s desire to pursue her career was part of the reason for the parties’ relocation. There are two children born of the relationship; the subject child of the proceedings, X, and a now adult child who is over 18, Mr N.
The parties separated in May of 2017 and they lived separately and apart under the same roof until about August of 2018. The circumstances for these parties came to a head in the post separation period. They came to a head in what can only be described as very confronting, difficult and tragic circumstances involving an incident in 2019. The Court understands that this incident took place in the mother’s workplace and involved what has been described by various professionals as an attempt at suicide by the father, and has been described in Dr B’s report as a “retributive attempted suicide episode”.
I do not propose to detail what occurred on that occasion for present purposes. However, as a result of that incident, a number of things have occurred, including this litigation. Importantly, for present purposes the father has received treatment from two psychologists; first, for a period of time, a Ms P, and then, for a period of time, a Mr Q. In addition, the father obtained treatment from a forensic psychiatrist, Dr J. Each of those practitioners in due course are intended to give evidence in these proceedings.
According to the father, Mr Q ceased treating the father in or about November of 2020. The father identifies in his affidavit that he re-engaged with Mr Q in May 2023 but, unfortunately, Mr Q has retired from working in Family Court matters as and from 2022. As a result, the father was referred to Mr K, a psychologist. The father deposed in his affidavit of 13 June 2023 that he had an appointment scheduled with Mr K for 14 June 2023.
In addition, the father annexed to that affidavit a letter from Mr Q that had been given to his general practitioner and a copy of the mental health care plan that had been prepared by his general practitioner.
The father further deposes in his affidavit that Dr L was the treating psychiatrist consulted by the father in 2020.
Beyond the matters raised in the father’s affidavit and any reports that have been filed to date in these proceedings, it is not clear to the court the basis upon which the father has sought and obtained treatment from his psychologist and/or psychiatrists.
The court understands the focus of the father’s application is that he now wishes to put relevant material, being the report of Dr B, before his treating psychologist and psychiatrist in order to assist him generally but also to assist him in the context of this litigation.
In the context of the litigation and, consequential upon all of the events that occurred in the life of these parties and the proceedings generally, the parties have attended upon Dr B for the preparation of a family report.
That family report was prepared in February of 2022. In the context of the preparation and release of that report, some significant recommendations were made by Dr B as to how that process might be managed. Those recommendations have as their foundation, from Dr B’s perspective, concerns about risk factors, particularly to the mother and to her role as the primary carer for the child, X.
When the report was ultimately released to the parties, Judge Neville (the matter having been in Division Two of the court), made very careful and considered orders as to the release of that report. Those orders included that certain portions of the report be redacted and that a copy of the report not be released to the parties but, rather, that they be permitted to view and read that report in the presence of their legal representatives.
THE PRESENT APPLICATION
That background gives some little indication as to why it is that the father now seeks the permission of the court to provide a copy of Dr B’s redacted report to his current treating practitioners.
As the court understands the submissions made on behalf of the father, the father wishes to address the concerns raised by Dr B in the report in order that he can ultimately address the court and satisfy the court as to the risk factors relating to him that have been identified.
It is important to note at this juncture that the final orders sought by the father in his amended Initiating Application filed on 14 July 2023, in broad terms, are that the parties share parental responsibility and that the child, X, live in a shared care week-about arrangement.
The mother’s position filed in her amended response to final orders on 14 July 2023, in broad terms, is that she have sole parental responsibility for the child, X, and that the child live with her and spend no time nor have any communication with the father. The mother additionally seeks a range of orders by way of injunction to protect her and the child.
It would be trite to comment at this juncture that the parties’ positions are entirely polarised as to whether or not the father is to play an ongoing role in the child, X’s life.
That said, the mother’s opposition to the release of Dr B’s report is grounded in a number of factors. Principal, however, amongst the opposition at the mother’s end, is that she says that the opinions of the father’s treating practitioners should not be tainted by having the benefit of Dr B’s report and that in addition the father’s treating practitioners, their views, their opinions, their assessment, their reasons for treating the father and the information conveyed by the father to his treating practitioners are relevant factors ultimately to the court in assessing any risk presented by the father.
The Independent Children’s Lawyer agrees with and supports the submissions made on behalf of the mother. The Independent Children’s Lawyer has some significant additional concerns supporting those raised by the mother. The additional concerns raised are related to the careful and controlled manner in which Dr B’s report has been released to the parties to date.
As I indicated earlier, orders were made in February of 2022 controlling the release of Dr B’s report. I have today, with the consent of the parties, made orders that provide for an unredacted copy of Dr B’s report to be provided to the parties for viewing purposes only and for legal advice more proximate to the trial date. As it stands, the parties themselves, at the present moment, do not have a copy of Dr B’s report, and they have only viewed a redacted copy of that document together with their legal representatives.
The Independent Children’s Lawyer’s position is that careful consideration must be given by the court as to the release of Dr B’s report outside the confines of the parties to the litigation, given the very significant and careful control mechanisms put in place by the court. The Independent Children’s Lawyer has highlighted that those arrangements for the careful control over the release of documents have been ongoing in relation to not just Dr B’s report but a whole swathe of information and documents produced in the context of the litigation as reflected in orders made today and earlier orders made by me over the last few months.
The Independent Children’s Lawyer’s concern is that if the report is released to anyone other than the legal representatives for the parties, and particularly in the present circumstance the treating practitioners for the father, there is no controlling where the report might ultimately find its way and into whose hands it might ultimately find its way. That submission is all the more powerful in circumstances where none of the treating practitioners are parties to the litigation, and there would be no mechanism for the court to control what they do and who they may release any documentation to once it has been released by the court.
During the course of submissions I raised with the parties an alternative to a redacted copy of the report being provided to the father’s treating practitioners. That alternative was that a letter of instruction be agreed between the parties providing information identifying the risk factors Dr B has identified in his report and that such agreed letter be provided to the father’s treating practitioners. That is something that found favour at the father’s end and was not opposed by the Independent Children’s Lawyer, albeit that ongoing concerns remained from the Independent Children’s Lawyer’s perspective.
However, from the mother’s perspective, that position did not find favour, but in the alternative, and in the event the court was minded to make such an order, the mother’s position was that there was no need to agree a letter of instruction but, rather, very precise and identified paragraphs of Dr B’s report could be the subject of such an order. Those paragraphs are found on page 63 of Dr B’s report under the heading Father’s Mental State, Substance Use and Personality Functioning, and they begin at paragraph 742 of the report and go through to paragraph 754.
A thrust of the mother’s submissions is that Dr B has come to a position and opinion, generally in the matter, but specifically with reference to the father, based on a range of matters; including the father’s presentation and the assessment process generally conducted by Dr B, but in addition, as a result of various sources of information that he had available to him, including and for present purposes those matters set out at paragraph 742 and 743 of his report, in particular having reviewed reports and records provided by the father’s earlier treating psychologist and psychiatrist.
The mother’s position, if the court was minded to release information to the father’s treating practitioners, is that the treating practitioners should not and do not need to know all of the information that was available to Dr B, in particular those matters personal to the mother and the children which do not impact or affect the treatment that the father is seeking from either his psychologist or psychiatrist.
DISCUSSION
From my perspective, the matter is finely balanced. I am concerned by, and I have heard, and I adopt and take on board the submissions made on behalf of the mother and on behalf of the Independent Children’s Lawyer which, to be frank, are persuasive.
Equally, however, there is some merit to the submissions made on behalf of the father that the father in properly developing insight and seeking to address risk factors that have been raised in the context of these proceedings, should be at liberty to discuss those matters with his treating practitioners.
As identified during the course of the submissions made on behalf of the father, there is nothing to prevent the father from having those discussions with his treating practitioners. Indeed, it might be assumed that that might already have occurred. However, because I do not have the benefit of any reports from his newly instructed practitioners, that is yet to be seen.
As I say, the matter is finely balanced. I am concerned not to taint the opinions of the treating practitioners and not to reduce the evidentiary value of any reports that are ultimately relied on by the father from those treating practitioners. I equally, however, consider that there is some merit in those treating practitioners at some point being aware of the concerns that have been raised in the context of this litigation so that the father has the opportunity to address those concerns.
With those matters in mind, it is my considered view, albeit a finely balanced considered view, that it is appropriate that the following occur: that the father file and serve reports from his treating practitioners in the absence of having obtained any information about Dr B’s report. The parties agreed earlier and I made orders today for those reports from the treating practitioners to be filed proximate to trial and on 7 February 2024. I am inclined however to make an order for those reports to be filed in late December 2023.
Thereafter it is my intention to make an order that having filed those reports, 21 days thereafter the father’s treating practitioners be given only that portion of Dr B’s report identified by the mother which I referred to earlier, being paragraphs 742 to paragraph 754, with a request that each of those treating practitioners provide an addendum report in light of the context of Dr B’s report.
I consider it appropriate to do so that because I am keen not to taint the process and the opinions of the father’s treating practitioners prior to their original report, but equally because it is clear to me that their views may well change once they have the benefit of the information contained in Dr B’s report.
I am minded to deal with the matter in that fashion in addition to assist in an orderly running of the trial and to avoid those matters having to be put to the treating practitioners while they are in the witness box and so that they have a chance to properly consider those matters and update their opinion, if they feel the need to do so, prior to trial.
NOTE: These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 16 August 2023
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