Bookhurst and Bookhurst

[2008] FamCA 327

FAMILY COURT OF AUSTRALIA

BOOKHURST & BOOKHURST [2008] FamCA 327

FAMILY LAW – CHILDREN - Best interests
FAMILY LAW – EVIDENCE - Expert evidence - order for psychiatric diagnosis - whether single expert biased - adequacy of expert report
FAMILY LAW – INJUNCTION - Protection of children

APPLICANT: Mr Bookhurst

RESPONDENT: Mrs Bookhurst

INDEPENDENT CHILDREN’S LAWYER: A. Connor

FILE NUMBER: SYC 1832 of 2007

DATE DELIVERED: 1 May 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 1 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Denes Ebner Solicitors

COUNSEL FOR THE RESPONDENT: Mr Hausman

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

Orders

1. That Professor Q, the single expert in these proceedings, is requested to prepare and provide a supplementary report which addresses the impact of the diagnosis provided by her of the father’s mental state in relation to parenting issues AND that report be provided to the independent children’s lawyer for immediate distribution to the Court and the parties’ legal representatives.

2. That orders as sought in paragraphs 1 and 2 inclusive of the Application in a Case  filed 7 March 2008 on behalf of the wife and reproduced as follows:

   1.        That the husband be restrained from:

   1.1Doing any act or thing to interfere with such therapeutic consultations as may be arranged by the wife with Ms [F]

   1.2Denigrating, criticising or in anyway undermining the children’s consultations with Ms [F], including the need for consultations and the purpose and objective of such intervention.

   2.That in order to facilitate the children’s consultations with Ms [F]:

   2.1The expert’s report prepared in these proceedings by Associate Professor [Q] on the 12th December, 2007 be released to Ms [F] upon her undertaking not to further release the report to any person or discuss the contents thereof with anyone other than the parties in these proceedings.

   2.2The husband pay all fees payable to Ms [F] and it be noted that the husband’s payment of such fees can be taken into account by the Child Support Agency in calculating Child Support (Assessment) Act 1989, to such extent that the Agency thinks fit.

   2.3Leave be granted for Ms [C] to uplift her file produced to this Court pursuant to Subpoena and to make that file available to Ms [F], provided Ms [C] causes a photocopy of her file to remain with the Exhibits Registry of the Court.

3. That the independent children’s lawyer may publish to Professor Q copies of the Orders made this day and this Judgment.

4. That the lawyers of the mother or the father may publish to Ms F, psychologist a copy of Exhibit 2.

5. That costs are reserved. 

NOTATIONS

(A)That the injunctive relief that I have granted, on the mother’s application, is made without admissions.

(B)That I request Professor Q to consider not charging the parties a fee in respect of the supplementary report. 

IT IS NOTED that publication of this Judgment under the pseudonym Bookhurst & Bookhurst 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

MRS BOOKHURST

Applicant

And

MR BOOKHURST

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. In these proceedings application for interlocutory orders is made by the father, pursuant to his Application in a Case filed 6 March 2008.  That application is made following leave that I granted pursuant to Order 9 made 22 February 2008.

2. In essence, the father seeks an order that another psychiatrist, namely            Dr. G be able to prepare a report which will deal with two principal matters. Firstly to provide a diagnosis of the father in relation to any personality disorders, or any other psychiatric issues that may arise. Secondly, in relation to what is described as the subheading on page 47 of Exhibit 2, “the Mental and Physical State of Both Parents” in so far as it relates to parenting issues affecting the father.

HISTORICAL BACKGROUND 

1. The brief historical background to the application is as follows. The parties cohabited for a period of approximately 10 years.  During that time they married in August 1996. So far as I am aware a decree has not been made dissolving that marriage.  There are three children of the marriage; an older son born in November 1997; a younger son born in June 1999 and a daughter born in December 2000, (who I shall collectively refer to as “the children”.)

2. Parenting proceedings are currently pending in this Court. The matter has proceeded before me as part of my docket in accordance with the Less Adversarial Trial procedures. A number of interlocutory orders have been made. Orders have also been made by a Judicial Registrar in relation to an application for interim parenting orders.

THE FATHER’S APPLICATION

1. In relation to the father’s application, there was no evidence to which I was referred which either expressly, or by implication, demonstrated any bias by Professor Q towards the father, or that she has not faithfully prepared her report having regard to her professional responsibilities.  That does not mean to say that there is an absence of any matters upon which she has reported which potentially are controversial and may be the subject of cross-examination.  To that extent, that is not an unusual feature so far as experts’ reports in parenting proceedings are concerned.

CONCLUSION  

1. I can understand the father’s negative reaction to the diagnosis that was provided by Professor Q given that he apparently sincerely believes that the basis for the diagnosis is non-existent.  Again, it is not unusual for a party to litigation to disagree with the diagnosis of a personality disorder that may have been made by a psychiatrist.  When expert evidence is fully tested, it may result in the trial Judge, who in this case is me, coming to a conclusion that the diagnosis should not be accepted. However, that stage of the continuous hearing has not yet been reached. 

2. A further submission was made on behalf of the father than Professor Q failed to fully address the issue that appears at subparagraph (i) on page 47 of Exhibit 2 in that having provided a diagnosis, she does not express the impact of that diagnosis, so far as the father is concerned, in relation to “parenting issues.”

3. Counsel for the mother and the independent children’s lawyer submitted that when one reads and takes the report as a whole, there are aspects of it which provide the necessary linkage to the mental state of the father, so far as Professor Q is concerned, which reveal the impact of it in relation to parenting issues. 

4. In my view there is some substance in those submissions.  However, on balance, I accept the submission made by counsel for the father.  One might normally expect that all aspects of the particular topic to be addressed in the expert’s report would be addressed and developed under the appropriate subheading, as has occurred in respective of other aspects of Exhibit 2. 

5. Consequently, I will make an order requiring Professor Q to supplement her report by stating and explaining her opinion as to how the “mental and physical state of both parents impact upon parenting issues” as in my view, given the volatility of the litigation, and the many serious issues that have been raised by the parties, Professor Q’s expert opinion should be made crystal clear under the sub-heading described in subparagraph (i) on page 47 of Exhibit 2.

6. It follows that I do not accept the submissions that a different expert should be appointed, having regard to the rule that counsel for the father correctly relied upon, namely Rule 15.49 2(c) of the Family Law Rules.  I do not consider that “another special reason” has been made out in the submissions.  I have not accepted the submission about the expert having been allegedly adverse to the father.  I do consider that it is arguable that other portions of Exhibit 2, when read together with the diagnoses that appear on page 47, provide the conclusion which may be drawn in terms of the mental state of the father so far as it relates to parenting issues.  Consequently, on that basis, the application has not been made out. 

7. In addition, I take into account that another expert, whether it be Dr. G or another psychiatrist, will need to be fully informed by provision of all relevant material, and potentially need to have interviews with the father, the children and perhaps even the mother.  Clearly, that is going to take time.  Against that background is the need, so far as it is possible to do so, to expedite these proceedings, having regard to the fragility of the emotional state of one or more of the three children. 

8. The manner in which the issue that I have accepted can be addressed is a relatively straightforward one so far as Professor Q is concerned, and can be remedied by provision of the supplementary report which I anticipate should be relatively brief. 

9. It is for those reasons that the application will be refused. 

10. I will include a notation that Professor Q give consideration to not charging further fees to the parties and in that regard a copy of my Judgment may be published to her by the independent children’s lawyer, as well as a copy of the Orders. 

THE MOTHER’S APPLICATION

1. Application was made by the mother by way of her Application in a Case filed 7  March  2008 seeking injunctive relief against the father and the ability to retain Ms F, psychologist in order to commence consultations with her children by way of counselling and therapy as outlined on the mother’s behalf. 

2. The children had previously been consulting a colleague of Ms F, namely Ms C who will no longer be able to continue in that role as she is about to travel to the United Kingdom. 

3. The evidence before me demonstrates that Ms C is in a position to not only provide her clinical notes to Ms F for perusal, but also to discuss with her relevant features of them.

4. The father opposes Ms F having the opportunity to engage in further consultations because of what his counsel had informed me was his concern that one of the children was opposed to attending further counselling “at that place”.  That was a reference to the professional rooms of Ms C which would be the location of Ms F’s rooms.  Support for that contention was, I was told, found in Exhibit 2. Upon closer reading of Exhibit 2 it appears that Professor Q had come to a recommendation which was to the opposite of what had been submitted, namely that the children may benefit from continuing contact with their then counsellor, “[…]” which is a reference to Ms C. 

5. Counsel took me to other parts of Exhibit 2 and also was seeking to rely upon part of an affidavit sworn by the mother during last year in support of the submissions.  Counsel quite properly conceded that Exhibit 2 did not lend the support which he had apprehended and it appeared that the affidavit to which he referred was not in the necessary specific terms.

6. One aspect of this sad matter that the parents apparently do now agree upon is the need for the children, especially the eldest child, to have counselling and therapy as soon as possible.  That represents a step forward for the benefit of the children, in contrast to the position of the father when they had appeared before me on earlier occasions. 

7. I do not see any thing other than promotion of the best interests of the children by having consultations with Ms F.  Ms F’s affidavit, which I have accepted, reiterates that she will form her own views and not be influenced by Ms C.  Ms F, understandably, also seeks to have published to her a copy of Exhibit 2.  There was no contrary submission made, and that order will be made by me today.

8. So far as the injunctive relief is concerned, no submissions were made in opposition to it.  Indeed, one might expect that parents who are genuinely concerned with the best interests of their children would cooperate so far as health professionals are concerned, and not say or do anything which may cause further difficulties in that regard.  In order to protect the father’s position so far as those injunctions are concerned, I will have it noted that they are made without admissions. 

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose. 

Associate: 

Date:  1 May 2008.