Bookhurst and Bookhurst
[2011] FamCA 16
•12 January 2011
FAMILY COURT OF AUSTRALIA
| BOOKHURST & BOOKHURST | [2011] FamCA 16 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Abuse of Process – application for the disqualification of the Independent Children’s Lawyer and single expert Psychiatrist – application dismissed |
| Family Law Act 1975 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| APPLICANT: | Mr Bookhurst |
| RESPONDENT: | Ms Bookhurst |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 1832 | of | 2007 |
| DATE DELIVERED: | 12 January 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 10 December 2010 |
REPRESENTATION
| APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Gillies |
Orders
The Application in a Case filed by the father on 19 August 2010 and heard on 10 December 2010 is dismissed.
The question of costs is reserved to the hearing of the matter.
IT IS NOTED that publication of this judgment under the pseudonym Brookhurst & Brookhurst is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1832 of 2007
| MR BOOKHURST |
Applicant
And
| MS BOOKHURST |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
The proceedings before the Court were commenced by an Application in a Case filed by the father on 19 August 2010.
In that Application the father sought a number of orders, however at the commencement of the hearing he informed the Court that he did not intend to proceed to argue for certain of the orders sought. The orders abandoned related to an application for variation of orders relating to time with the children and an order that the interviews between the children and Independent Children’s Lawyer be recorded and transcribed and that those transcripts be made available to the parties.
The orders sought by the father were otherwise, in summary, orders that the Independent Children’s Lawyer be discharged and that no Independent Children’s Lawyer be appointed in her stead. In the alternative, he sought that the Independent Children’s Lawyer be discharged and a replacement be appointed from a private firm of practitioners.
The father also sought an order that Associate Professor Q, the Court appointed independent expert, be discharged from her function in the proceedings or in the alternative that an independent transcription service be appointed to transcribe all interviews conducted by her and that such interviews be made available to the parties and that all communications between Associate Professor Q and the parties or their legal representative be in writing and the records of such written correspondence be made available to the parties before the final hearing.
The father finally sought an order that on the next occasion the Independent Children’s Lawyer advise the children that they are entitled to provide written views to present to the Independent Children’s Lawyer to then be sealed and given to the Judge in a sealed envelope.
The mother sought that the application be dismissed and also sought an order for costs.
The Independent Children’s Lawyer also sought that the Application be dismissed.
The hearing proceeded as an interlocutory matter on the written evidence and submissions were made by the father, who appeared in person, and also by each of counsel for the mother and the Independent Children’s Lawyer.
Background Facts
The primary proceedings before the Court are proceedings remitted for
re-hearing following a successful appeal to the Full Court of the Family Court of Australia.
In the primary proceedings, before the Appeal was heard, an Independent Children’s Lawyer had been appointed and has not been discharged.
The Independent Children’s Lawyer was involved in the primary proceedings and also in the Appeal and continues in her appointment in the remitted proceedings.
In relation to the Independent Children’s Lawyer continuing to fulfil that role the father argued that her conduct in a number of respects fell short of the proper fulfilment of her office and that for that reason she should be discharged. He did not address the claim for an order that no Independent Children’s Lawyer should be appointed in the event that I found that the present holder of that office should be disqualified. I find that on the totality of the allegations made and the circumstances of the dispute between the parties, and in particular its continuing and apparently intractable nature, that it is appropriate in this case for such a person to be appointed.
The father asserted that the Independent Children’s Lawyer had failed to answer a Notice to Admit Facts.
There is of course no obligation to answer a Notice to Admit Facts. The simple position is that if not denied they are taken to be admitted for the purpose of the case only. If the answer to the Notice to Admit Facts was one which traversed the entitlement to professional confidentiality then it would be objectionable in any event. I find no substance in this ground.
The second basis for criticism by the father of the Independent Children’s Lawyer was her involvement in the appointment of Associate Professor Q as the independent expert. It was asserted that expert had been involved in some collusion with the lawyer representing the mother. They are, as was submitted by the counsel for the Independent Children’s Lawyer, serious allegations and ones which should be proved in accordance with the highest requirements of the civil standard of proof sometimes called the “Briginshaw test” (Briginshaw v Briginshaw (1938) 60 CLR 336).
The father refers to a statement to the effect that his mental health was the subject of question. He says that in an endeavour to address this claim he nominated three psychiatrists to the mother’s solicitors and asked her to choose one for the purpose of enabling him to undergo an examination. None were chosen and the father proceeded to make an application for time to be spent with his children, and which application was successful. At the time of the hearing of the application, it is asserted by the father that he overheard the mother’s solicitor talking to the mother, saying in a situation where when it appeared to the father that the solicitor was trying to comfort her, “Don’t worry everything will be all right when we get [Associate Professor Q]”.
Associate Professor Q was subsequently nominated by the Independent Children’s Lawyer as a proposed independent expert. The father points out that the nominated expert is the one specifically referred to by the mother’s solicitor.
The father concedes that it is within the realms of possibility that
Associate Professor Q might independently have been appointed by the Independent Children’s Lawyer. Indeed in the Court’s view this is highly probably since Associate Professor Q is one of a small pool of psychiatrists available to give evidence in this Court and with the appropriate qualifications to do so and she appears frequently in this Court in that role.
I reject as improbable any suggestion that there was any collusion between the mother’s lawyer and the Independent Children’s lawyer on this issue.
Associate Professor Q made a report in previous proceedings before Justice Rose and with which report it is asserted the father did not wholly agree. That is not a basis for excluding her from the proceedings before me.
It is not she, but I who will make the decision as to the future arrangements for these children taking into account all the relevant evidence including
Associate Professor Q’s evidence which will at that time be tested by cross-examination. It is not a ground for disqualification of an expert that you do not accept her opinion and do not like it.
If it be said that the opinion is based on incorrectly assumed facts then it may be attacked on that ground.
Assuming that a body of opinion can be shown to be contrary to the views expressed by the expert then leave can be sought to adduce evidence from a shadow expert on so many of the issues where that can be shown. It is not however a basis for disqualification of an expert that her opinions do not suit your case. Were that to be the law then we would have constant applications for such disqualification.
The father submits to the Court that the Independent Children’s Lawyer operates under published guidelines. Relevantly he refers to the guidelines in the following terms:
The ICL must be truly independent of the court and the parties to the proceedings. It is the right of a child to establish special relationship with the ICL. The ICL is to promote the timely resolution of a proceeding that is consistent with the best interests of the child.
The father emphasised that the Independent Children’s Lawyer is to ensure that the Court is fully informed of the children’s views in an appropriate way.
The father refers to the Independent Children’s Lawyer submission to the
Full Court of this Court that a new date for the hearing of the father’s Appeal should be allocated at a time when the mother was making an application to vacate the existing hearing dates. In addition, counsel representing the Independent Children’s Lawyer in the Appeal said that they did not support any part of the father’s Appeal.
The father refers also to the hearing before Justice Rose which was the subject of the Appeal and to submissions made to His Honour by the Independent Children’s Lawyer that contact be supervised for a period of three occasions but on appeal sought continuing supervision. That appears to be in error and I am informed that the position is that Ms Boyle talked earlier of a continuing presence of P Bookhurst or the father’s partner with the father. Nevertheless, even if that is wrong the matter of what the Independent Children’s Lawyer submits to the Court is her view at the time is a matter for her.
The father complained that the Independent Children’s Lawyer had lied to the children, disabusing them of their belief held apparently on the basis of something said by him that the orders would not bind them beyond the age of 13 years. The advice given by the Independent Children’s Lawyer that they were binding until the majority of the child is accurate and is not a ground for her dismissal.
The father asserted that the Independent Children’s Lawyer had lied to him following a conversation in which the father complained to her that the children were not at school. The Independent Children’s Lawyer replied that the children were at school and that she had been so informed by the principal of the school. There is nothing to support the allegation that she lied to the father. The information may have been wrong but if that be the case there is no evidence that it was wrong to the knowledge of the Independent Children’s Lawyer. The making of this submission was not warranted on the evidence when taken at its highest.
Complaint was made that on one occasion the Independent Children’s Lawyer did not see all three children together. There is no requirement for her to do so and there is no basis to be found in the allegation that she should thereby be disqualified. The Court finds the assertion that the Independent Children’s Lawyer had so organised the meetings as to favour the position of the mother as scurrilous and is a claim that should not have been made.
It was asserted by the father that the Independent Children’s Lawyer had misled Judicial Registrar Loughnan, as his Honour then was, in that the Independent Children’s Lawyer failed to file an affidavit as to the further report by
Associate Professor Q which was arranged. It is suggested by the father that the failure to file the affidavit was “… because what she said to the court wasn’t true.”
It is asserted by the Independent Children’s Lawyer, and the Court concurs, that it is commonplace for submissions to be received by the Court from its officers. There is no requirement to file an affidavit nor does a failure to file one give rise to any inference that the submission is incorrect. It appears that the Independent Children’s Lawyer had been informed by the expert that another report was pending and in accordance with her duty she informed the Court that further evidence was on the way relevant to the issues in dispute and to the determination of the learned Judicial Registrar. The allegation of wrongdoing is rejected and I find it to be scurrilous. It ought never to have been made.
The father complained that the Independent Children’s Lawyer did not see the children and that she had said to counsel then appearing for the father that it would be “over servicing” to do so. Whatever the terms used, the failure in circumstances where the evidence pointed to anxious children who might be traumatised further by further interview, in the Court’s view, justified the refusal of the Independent Children’s Lawyer to further see them at that time. The children’s views were discovered on certain matters relevant to the issues by the report of Associate Professor Q, albeit that that was at that time untested. As I have said elsewhere in these Reasons, the decision as to how many times she will see the children is for the Independent Children’s Lawyer to make and there was nothing in her decision which was not within the ordinary parameters of decision making. The suggestion that it was for the purpose of supporting the mother’s case is without foundation. There is no bias shown thereby.
The father asserted that there was some note, which was not produced, which suggested that the Independent Children’s Lawyer had informed the expert that the father was not as involved with his partner. The second report of Associate Professor Q states that:
[The father’s partner] was no longer present on a regular basis when the children visit with their father and this renders the situation a lot more difficult than it was before.
I can find nothing in the material before me to suggest that in that regard the Independent Children’s Lawyer did anything in relation to the matter let alone acted improperly.
What appears to have been the case is that when the expert felt that the children might be at some risk because of the absence of the father’s partner and made a report to the Department of Community Services (DoCS) she also informed the Independent Children’s Lawyer that she had made the notification and that she felt that the time the father spent with the children should be supervised. Prior to that notification the expert already had information from the family that the father’s partner was less involved.
The father complains that the Independent Children’s Lawyer aligned herself with the position of the mother on the hearing of the Appeal and in the father’s submission should for that reason be discharged. I reject the submission.
An Independent Children’s Lawyer is entitled to form a view which may be different to that held by a party or both parties and may hold a view which is aligned to that of one party and can pursue that view in the proceedings. There is no requirement for the same view to always be put. The change of position of parties in this Court is commonplace and is permitted as the issues unfold. This is similarly the case for an Independent Children’s Lawyer.
The matters raised do not, in my view, form a ground on which a finding might be made that the Independent Children’s Lawyer be discharged.
It was asserted by the father that the Independent Children’s Lawyer had asked Mr Karras, who was at the time representing the mother, to explain certain orders to the children. The father said that it was evidenced in correspondence but he was unable to produce such correspondence. The Court was informed that the Independent Children’s Lawyer had no such letter to Mr Karras informing him that she wished him to undertake the task which was hers to perform and I reject the submission.
The father drew the Court’s attention to an allegation that he had engaged in inappropriate physical contact with his daughter. He says, and I accept, that it is a very grave allegation. He says that the Independent Children’s Lawyer was under an obligation at least to put the person so alleging under oath as to the allegation before communicating by phone that such allegation had been made to the father’s solicitor. When the person said to have made the allegation eventually swore an affidavit in the proceedings no such allegation was made. Although I could sympathise with the father’s concern that such an allegation was made and he was not informed of its lack of substance for some time, I do not find it to be conduct on the part of the Independent Children’s Lawyer warranting her discharge. It seems that although it was asserted that the allegation was the subject of a telephone call, subsequent correspondence between the solicitors immediately after the alleged telephone call makes no reference to what was said to be the allegation nor are any particulars sought in relation to it.
In relation to Associate Professor Q it appears that the trial Judge,
Justice Rose, asked for her to provide a supplementary report in relation to her views of the father’s mental condition and to provide the nexus, if any, to the father’s ability to parent the children.
The Independent Children’s Lawyer was asked to communicate with
Associate Professor Q to procure the supplementary report and indeed did so. However, despite his Honour’s hopes it was not received until some time later.
The father says this is a basis for discharging each of the Independent Children’s Lawyer and the single expert. I reject such a submission and note that the expert asked to re-interview the children prior to the completion of the report.
An expert who is retained to provide her or his opinion must do so according to her reasonable requirements to be informed for the purpose of giving that opinion. The interview of the children was not immediately arranged but was arranged within the period referred to.
The father asserts that the mother, having informed the Independent Children’s Lawyer that the children were reluctant to be interviewed again, should not have facilitated the re-interview of the children by the expert, as she did. I reject that assertion. The Independent Children’s Lawyer was doing those things necessary to carry out his Honour’s direction, having regard to the requirements of the expert to provide the opinion sought.
It is a matter of regret that any Court proceedings bring distress upon children but it is undoubtedly true that conflict is a major part of the lives of children who come within the purview of this Court and that the process of giving voice to that conflict and the resolution of that conflict can be distressing. It is of course the hope that any such distress is temporary and that the children ultimately benefit from a resolution of their parents’ dispute.
On the subject of interviews it is the father’s assertion that the Independent Children’s Lawyer should have interviewed the children more often than she chose to. There are many ways in which the views of a child might be ascertained. One of them is direct interview but the other is interview by some other person such as an independent expert. The decision of the Independent Children’s Lawyer to interview when she did is a matter for her and is not a ground for her discharge. Similarly, her view that she should not again herself be required at that time to interview the children again and instead facilitated their interview by Associate Professor Q is also not a ground for her discharge.
The father submitted that because the Independent Children’s Lawyer did not file evidence in these proceedings that an inference in accordance with the ground in Jones v Dunkel (1959) 101 CLR 298 should be drawn. I respectfully agree with the submission of counsel for the Independent Children’s Lawyer that there is no onus upon her to file an affidavit saying what she did. No such inference as is suggested might be drawn in this case is drawn. The allegations made by the father are serious and the onus is on him to prove to the high standard required of serious allegations material upon which the Court could find that the allegations were correct. There is nothing in what has been put to me on which I could find that the Independent Children’s Lawyer has behaved in some way other than perfectly correctly.
That her views do not accord with those of the father is not a matter which can be the subject of complaint. In my view, actual bias on the part of the Independent Children’s Lawyer has not been shown, and I so find, and neither do I find that a reasonable person properly informed as to the role of the Independent Children’s Lawyer and the law and practice of this Court would reasonably apprehend from the material before the Court that there was such bias.
The father further asserted that the requirement by Associate Professor Q for a further interview was in some way ultra vires in relation to Justice Rose’s order. His Honour expressed some hopes about the early provision of the information he sought and views about the simplicity of its provision but ultimately the report which was required, was required of the independent expert who has to be the first determiner of what information she needs to make that report in an appropriate way. I do not find that Associate Professor Q’s actions were as put by the father “ultra vires” as to the order of Justice Rose and I reject that submission.
The father complains of Associate Professor Q’s methodology and her reasoning processes. The evidence of that single expert is untested before me. When it comes time for the testing of that evidence the father will have, following that process, the ability to draw to the Court’s attention any submissions he might wish to make in relation to it. It is not a ground for disqualification of an expert that her untested evidence appears to one party to be at odds with his version of logical reasoning. It may be an appropriate submission to make after the expert has explained any ambiguity or provided further detail of the process of reaching a conclusion after she has been cross-examined. In any event, the conclusions drawn by the father were not, in the Court’s view, ones which were the only conclusions which could be drawn from the evidence.
Again the father raised challenges to the conclusions made by Associate Professor Q in her report but conclusions arrived at by experts are frequently challenged in a proper way at a hearing. It is not appropriate that a litigant’s view of the strength or appropriateness of those conclusions be a ground for dismissing an expert. If that were the case then experts would be dismissed whenever they reach a conclusion with which a party did not agree. The Court will decide this case and will do so on the evidence when tested. It is the Court who comes to the conclusion eventually as to what it accepts as relevant and helpful in making a decision, not a party nor an expert although each of them may contribute to the formulation of that view.
Associate Professor Q is criticised for not directly asking the children where they want to live. Such questions are not a requirement of this Court and are in any event actively discouraged. It is the views of the children and not their wishes which are taken into account. The inference of wishes from a statement of views is available frequently.
The father spent some time challenging the expert’s methodology. The methodology is capable of being challenged on the hearing if it is thought by the father appropriate to do so. He complains that the single expert has heard from persons not on affidavit and that her opinion is tainted by evidence not before the Court and which is untested. Once again, on a hearing, the extent to which an expert relies on untested evidence in forming an opinion is a matter for debate and investigation. The father has, of course, the capacity to subpoena such persons to give evidence and in a proper case to procure approval for cross-examination of a witness so called. It may be however that in the formulation of the expert’s view such a person’s statement may play a minor or indeed no part in her conclusions.
The father complained that Dr Q, having said she does not necessarily believe either party who is before her, is criticised for not asking the father about certain allegations made by the mother which are in issue. Her response is asserted to be that that was something to be left to the lawyers. That is almost always the case with an expert. The finding of facts on disputed issues is not her function; it is the Court’s function, if the issues are relevant.
The father says that the expert is biased against him. That is a matter for the Court to determine but there is a significant difference between coming to conclusions which do not accord with a litigant’s view of himself and his situation and being biased. Ultimately that will be a matter for the Court after receipt of all the evidence, including evidence elicited by cross-examination.
Complaint is made by the father that Associate Professor Q referred an allegation made by a child for investigation to DoCS. She did not however make, it appears, a note of the allegation in her notes. It is also made at some time after the allegation is made. This, it is suggested, is sinister.
Once again, all these complaints can be aired and investigated on a hearing of the matter. I do not find that their being made is a ground, absent tested evidence before me, for disqualification of the expert. There is not evidence which of a type which at this time sustains in my mind a view that the independent expert is biased or that a reasonable person properly informed as to her role would so apprehend.
As to the request for orders in relation to the transcription of interviews conducted by the expert, I reject that request. No evidence is before the Court as to the expert’s attitude to such a request but the Court considers it appropriate that the expert be allowed to use his or her own methodology in arriving at her conclusions. The Court does not intend to prescribe the recording of the interviews. Such a process would in any event put pressure on the children and in this case given the problems that appear to have been caused for them it is not in their interests to do so. I also take the problems which would face the children in respect of their re-examination by any newly appointed expert into account in a general way in looking at the problems that accession to the father’s request might cause, even though for other reasons I do not find such accession justified. I equally do not intend to make orders which would potentially put the children under the pressure of either or both of their parents to make a view of their future known in writing. These children have had enough pressure in this litigation and it is not in their interests that it be sustained.
It was argued by counsel for the mother that in any event, the matters complained of by the father were matters which occurred largely before the trial before Justice Rose took place and indeed this appears to be so in relation to most of them. The decision of the High Court of Australia in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 discusses the need for an application such as the present one to be made promptly. I note that counsel for the mother referred to the doctrine of acquiescence in relation to matters complained about. However, as counsel for the mother said, I do not think that the father is excluded from making the application in the present circumstances of this case even though he did not make them before Justice Rose.
In all the circumstances the father has failed to make out a case for the relief that he has sought and in those circumstances the application is dismissed. The question of costs is reserved to the final hearing of the matter.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 12 January 2011.
Associate:
Date: 12 January 2011
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