Cage and Cage and Ors (No 2)

[2009] FamCA 1128

FAMILY COURT OF AUSTRALIA

CAGE & CAGE AND ORS (NO. 2) [2009] FamCA 1128

FAMILY LAW – CHILDREN – Updated report

APPLICANT: Mr Cage

FIRST RESPONDENT: Ms Cage

SECOND & THIRD RESPONDENTS: Mr and Mrs F

FILE NUMBER: (P)NCC 1991 of 2007

DATE DELIVERED: 22 January 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 22 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Craney Family Solicitors

COUNSEL FOR THE FIRST RESPONDENT: Mr Duane

SOLICITOR FOR THE FIRST RESPONDENT: Barbara Garrick & Associates

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: Envoy Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

Orders

1. The Court notes that the father seeks leave to withdraw the application for Orders 4 and 5 in his Amended Application in a Case filed 11 November 2008.

2. That the father withdraws his application for Orders 4 and 5 in his Amended Application in a Case filed 11 November 2008.

3. Other than as provided for below the father withdraws outstanding Contempt and Contravention Applications filed on his behalf.

4. The father's Contravention Application filed 21 January 2008, Contempt Application filed 26 September 2008 and two Contempt Applications filed 30 December 2008 are listed for final hearing before the Honourable Justice Flohm commencing 10 am 12 February 2008.

5. The Court notes that the parties representatives agree that the Contravention and Contempt Application referred to above, and listed for hearing on 12 February 2009 should take no more than one day.

6. That the father's Amended Application in a Case filed 11 November 2008 insofar as is concerns orders Order 1 is listed for hearing before the Honourable Justice Flohm at 10.00 am 12 February 2009.

7. That the Application for Final Orders is listed for final hearing before the Honourable Justice Watts for four days commencing 10.00 am 15 June 2009.

8. That this matter is listed for directions at 9.30 am on 26 March 2009 before the Honourable Justice Watts.

9. No later than 4.00 pm on 23 March 2009 the Independent Children's Lawyer shall file with the Associate to Justice Watts a list of issues and an agreed list of documents for trial.

10. That the Independent Children's Lawyer has leave to make an oral application that Associate Professor Q update her report of 5 July 2008.

11. That Associate Professor Q provide an updated report which report addresses the following matters:

    (a)       The children's views concerning their future living arrangements.

    (b)The nature of the children's relationships with their parents, each other and maternal grandparents.

    (c)The effect on the children of changing or not changing their circumstances.

    (d)The mother's willingness and ability to facilitate the children's relationship with the father.

    (e)The father's willingness and ability to facilitate the children's relationship with the mother.

    (f)       Any other matter which Associate Professor Q considers relevant.

12. Pending further order, the father and mother shall each pay one half of Associate Professor Q’s costs for the updated report.

13. That the mother, the father and maternal grandparents shall attend themselves upon Associate Professor Q at times nominated by her for the purpose of compliance with these orders and ensure the children attend as she requires.

14. The Independent Children's Lawyer has leave to give Associate Professor Q copies of documents filed in these proceedings following the release of her first report, provided that those documents given after the contempt and contravention proceedings listed for hearing on 12 February 2009 are completed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1991 of 2007

MR CAGE

Applicant

And

MS CAGE

First Respondent

And

MR AND MRS F

Second & Third Respondents

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. I am asked by the Independent Children's Lawyer to make an order the effect of which would be that Associate Professor Q would update her expert’s report dated 5 July 2008.  The final hearing will take place in June 2009.  It seems self evident and not in any event contentious, that the Court needs an updated report.  It is the mother’s position that I should order a Family Report and refuse the Independent Children’s Lawyer’s application for the updated expert’s report.

3. It appears to be common ground that there have been significant changes in the children's circumstances following the release of Associate Professor Q’s July 2008 report. Relevantly these include that presently, contrary to orders, the children are in the mother's care and not spending time with the father.  It is my understanding that amongst other things the mother says this reflects the children’s strongly held views.  These factors alone support a further report.

4. The options are that Associate Professor Q conducts a further set of interviews, or that Ms L, a Family Consultant attached to the Court prepares a family report.  The children have previously met Ms L.

5. I am informed that the children have previously attended Ms C. 

6. In circumstances such as this the Court needs to be mindful of the risks associated with involving the children in interviews with different people.  This is often referred to the need to guard against “systems abuse” of children.  That is, children involved in Court proceedings being required to meet different people and repeat their story for each interviewer.  There is ample literature about the undesirability of requiring children to tell their story again and again to different investigators.

7. As well as the children’s views it appears there is a significant issue concerning whether or not the mother has a personality disorder.  Based primarily on submissions from the Bar table, it is my understanding that Associate Professor Q believes she does and that Dr T, who is a psychiatrist giving evidence in the mother’s case, opines that she does not.  The mother does not want to see Associate Professor Q and says her report is flawed.  It is feasible that the reasons for children’s change of residence and the cessation of contact with the father, which occurred since July 2008, may shed some light on this issue. These diagnostic matters require consideration by a psychologist or psychiatrist and are not within the expertise of a Family Consultant.

8. Ms Garrick on behalf of the mother points out that the Court should not be overly concerned about systems abuse issues because the children have previously met Ms L.  It is my understanding this occurred in the context of Ms L assisting the children to move between their parent’s homes, as a consequence of orders made by Mullane J.

9. This means Ms L is not a stranger to the children.  However it does not mean she has anything other than a relatively superficial relationship with the children.  Ms L has not explored with the children the issues at the heart of these proceedings.  The task asked of her required that she do no more than engage the children to the extent needed to facilitate compliance with Mullane J's orders.  While I accept that Ms L’s prior involvement with the children moderates my concerns about systems abuse, it is inevitable that she would need to traverse matters already covered with them by Associate Professor Q and perhaps also Ms C.

10. In these circumstances I consider an updated report by Associate Professor Q is the appropriate course.  This will cost the parties a few thousand dollars.  The size of the file is itself evidence of their willingness and ability to spend significant sums of money on this litigation.  The type of evidence Associate Professor Q is qualified to provide is likely to be of particular importance.   Although the parties do not welcome being further burdened by additional expense, it is necessary that they meet the additional cost.

11. As to the matters to be reported upon, as I understand it, these will be the key issues in the parenting proceedings.

12. Accordingly I make the orders as set out at the commencement of this judgment.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  3 July 2009