CAREW & CAREW

[2010] FamCA 484

FAMILY COURT OF AUSTRALIA

CAREW & CAREW [2010] FamCA 484

FAMILY LAW – PARENTING – both parents seek separate interim orders for an overseas holiday with the children – children’s best interests – where the father’s application should be heard at the final hearing – where the mother’s application should succeed based on child’s best interests
FAMILY LAW – EXPERT EVIDENCE – leave sought to appoint further expert where psychiatric diagnosis differs – what constitutes a “special reason” under rule 15.49(2)(c)

FAMILY LAW – EVIDENCE – where wife seeks access to material relied on by the husband’s witnesses in their affidavit material

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Makita and Sprowles [2001] NSWCA 305

APPLICANT: Ms Carew

RESPONDENT: Mr Carew

INDEPENDENT CHILDREN’S LAWYER: Ann Connor

FILE NUMBER: SYC 2398 of 2007

DATE DELIVERED: 17 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 7 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson, SC

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Ms Rees, SC

SOLICITOR FOR THE RESPONDENT: Enza Ruscica Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. By consent and pending further order, the wife have sole parental responsibility in relation to applying for passports for the children, M born … January 1994 and B born … August 1999 (“the children”) from the United States of America without the need for written consent from the husband, Mr Carew.

2. Within 7 days of the making of these orders, the husband provide to the wife an executed passport application in relation to the children being issued with an Australian passport.

3. The wife do all acts and things necessary to cause the completed Australian passport applications to be lodged with the relevant passport office.

4. Within 48 hours of receipt of each of the passports, the wife shall cause the children’s passports (both from Australia and the United States of America) to be deposited with the Registry Manager of the Family Court of Australia, Sydney registry and neither party may collect those passports without the written consent of both parties or further order of the court. 

5. The mother Ms Carew be permitted to remove M born … January 1994 and B born … August 1999 from the Commonwealth of Australia for the purpose of travelling to the United States of America in the period 28 December 2010 to 26 January 2011.

6. Leave be granted to the husband to file in court a Response to an Application in a Case and an affidavit. 

7. The hearing of the husband’s Response to an Application in a Case, by consent, be adjourned.

8. The hearing referred to in the preceding order occur at the same time as the final hearing in this matter. 

9. Leave be granted to the husband to rely upon a report of Dr R dated 12 March 2010 with those parts that have been struck from exhibit B excluded and pursuant to s 136 of the Evidence Act 1995, statements that relate to the husband’s impairment are to be limited in their use so that they are read only as a statement about Dr R’s view of the husband’s mental status, not as commentary upon his capacity as a parent.

10. The leave granted to the husband to rely upon evidence from Dr R is condition upon the following:

    10.1.Within 14 days the husband will cause to be provided to the legal representatives for the wife and the Independent Children's Lawyer a copy of all letters of instruction provided to Dr R;

    10.2.Within 14 days the husband will cause to be provided to the legal representatives for the wife and the Independent Children's Lawyer a copy of Dr R’s notes in respect of any attendances made by him on the husband and otherwise produced in course of preparation of his report;

    10.3.In the event the husband does not comply with order 10.2, the legal representatives for the wife and the Independent Children's Lawyer have leave to issue a subpoena to Dr R to produce the said documents;

    10.4.The wife be granted leave to treat Dr W as if he were an expert called by her; limited to the issue of the husband’s mental health (“the issue”), rather than a single expert, provided that any conversation between the wife’s lawyers and Dr W about the issue not take place until after Dr W has provided his updated report;

    10.5.Dr R and Dr W confer and discuss their respective opinions and produce a joint statement (but limited to the issue and no other issue) in compliance with Rule 14.69(3) of the Family Law Rules and identifying in concise terms the reasons for which they each contend that their view ought to be preferred to the other in any area that they are in a disagreement; and

    10.6.By 15 July 2010 (and to be incorporated in the husband’s trial affidavit) the husband provide a statement in writing identifying in the first person the context and terms of the “stand up argument” about which he had informed Dr R that he had with Dr W and which is described in part by Dr W at page 4 and again at the bottom of page 7 to the top of page 8 of Dr W’s report dated 12 March 2010.

11. Dr W prepare an updated report and for that purpose the parties are to attend any appointment made by Dr W and to arrange for B to attend any appointment made by Dr W.  Dr W, at his discretion, is at liberty to see and interview either or both the two elder children, C and M. 

12. Within 28 days the husband cause to be provided to the legal representatives for the wife, the working papers inclusive of source documentation of the husband and the accountant of the husband for his past two income tax returns.

13. In the event the husband does not comply with the preceding order, the legal representatives for the wife have leave to issue a subpoena to the husband’s accountant to produce the said documents.

14. Within 28 days the husband cause to be provided to the legal representatives for the wife:

    14.1.All instructions, notes of communication with and documents provided and received from each of the following deponents in relation to the matters contained in their affidavit:

    14.1.1.Mr BE;

    14.1.2.Mr MU.

15. The husband request that Mr MU provide all documents relied upon by him or to which he has access in relation to matters deposed to by him in paragraph 3 (and each of its subparagraphs) and paragraph 13 of his affidavit sworn 15 March 2010.

16. The husband request that the entirety of the files of Mr MU and S Inc in relation to all dealings with N Corporation, the husband, any other principals of N Corporation and any third party in relation to N Corporation and NS entity be provided to the wife.

17. Leave be granted to the the wife to issue a subpoena in relation to all of the files, including all documents of whatsoever description, in the possession or control of Mr WA in relation to the sale of N Corporation.

18. The parties confer for the purposes of appointing a single expert to provide an opinion in relation to any income tax; capital gains or other tax arising out of the implementation of orders as sought by the respective parties and further the parties prepare a joint letter of instruction for the purposes of obtaining that advice.

19. Within 28 days the husband provide to the wife particulars as to whether or not he intends to file any further evidence about the amount of money that might be needed to meet expected warranty liabilities and the amount of money that might be needed to provide prudent reserves for warranty liabilities.

20. This matter be adjourned to 4.15pm on 9 August 2010. 

NOTATION

1. In relation to the orders 15 and 16, I note that if the husband fails to provide all or part of the documentation that he has been ordered to request then I will on a future occasion deal with the wife’s oral application that the husband not be permitted to rely upon Mr MU’s affidavit.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2398 of 2007

MS CAREW

Applicant

And

MR CAREW

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This was an interim hearing dealing with a number of applications regarding parenting and property issues.

2. The wife’s Application in a Case, filed 26 May 2010, seeks that the wife be able to remove the two younger daughters, M and B, from Australia in order to attend a family holiday in the United States of America (“USA”) from 28 December 2010 to 26 January 2011. This application also detailed proposed orders in relation to both children obtaining Australian passports, and B obtaining a USA passport.

3. In his Response to the wife’s Application, dated 7 June 2010, the husband sought alternate orders that allowed him to travel to Europe with B (and M too, if she wished) from 7 January 2011 to 28 January 2011.  He has sought that that application be adjourned and that application was not opposed. 

4. Senior Counsel for the husband applied for an adjournment of the wife’s application. I dismissed the application for adjournment.  Senior counsel for the husband submitted that to deal with the wife’s application would be to prejudge his application.  Senior counsel for the wife submitted that if at the final hearing it was decided that it was not in B’s best interests to travel with her mother to the United States in January, then that decision could be revisited.  Whilst that is true, given the expectations that will be created in B, in making the order the wife seeks, the husband can correctly say, that a decision in the wife’s favour now is one which is unlikely to be easily overturned.  There was no other cogent reason given as to why I should adjourn the hearing of the wife’s interim application, and I do not consider the application the husband has made, which is to be adjourned by consent, to be a sufficient reason not to deal with the wife’s interim application now. 

5. Agreement has been reached in relation to the passports.  A document was handed up, which has been marked exhibit D, and I made orders in accordance with paragraphs 1 to 4 of that document. 

6. The husband’s Application in a Case of 25 May 2010 sought that the husband be granted leave to rely upon the report of Dr R dated 12 March 2010.

7. In her Minute of Orders Sought at Exhibit B, the wife seeks that the husband provides the ‘source documentation’ from which the husband’s accountant is working to compile the husband’s 2008 and 2009 tax returns. The wife also seeks access to all instructions, notes of communication, and documents passed between the husband and each of Mr BE, Mr MU and Mr WA, in regards to their affidavits, and the documents relied upon by them.

B’s Travel

1. The wife’s application for overseas travel with B and M is supported by her Affidavits of 17 May 2010 and 2 June 2010.  Under the normal regime, B would return from her father at 9am on 28 December.  The wife proposes that B, her sisters and herself would fly out for overseas that day. 

2. The wife wishes to travel to the USA with the children to visit her family. The wife was born in the USA and lived there for most of her life up until the parties married. The wife has not been to the USA to visit her family for five years. Having not taken an oversees holiday since January 2007, presumably the children have also not visited their extended family in the USA for a substantial period of time. The wife says her 83 year old father, living in the USA, is particularly ill. The wife wishes orders to be made at this time allowing the holiday so that she may book air tickets well ahead of time in order to obtain tickets in the busy festive season, and for a reduced price.

3. Subject to any orders that might in the future be made, the effect of the wife’s application to have the children holiday in the USA with her is that the husband will miss his scheduled holiday time with B, which under the current orders (dated 6 August 2009) is from 9am Saturday to 9am Tuesday each alternate week. This will mean the husband misses 6 scheduled nights with B. The husband’s application for parenting orders to be heard later in the year, if successful, will result in B missing 21 nights with the husband over this time. The wife proposes the husband have 6 nights in lieu for the time the husband misses with B, being the period from 18 December 2010 to 21 December 2010 and 27 January 2011 to 30 January 2011.

4. The husband opposes the wife’s application on the basis that his relationship with B is improving and the wife’s proposed holiday comes at a time where he and B are able to spend extended regular time with each other. The husband has expressed a concern that B being away for four weeks will interrupt the development that has taken place in his relationship with B in recent times. The wife says that this has not been a problem in the past, where the husband missed a weekend with B on 6 and 7 March 2010, resulting in a period of 26 days with B having no time with the husband. The husband says this was an ‘investment research trip’ and was timed so that he would only have to miss one weekend and not have to miss any holiday time with B.

5. I find it is in B’s best interest to be able to take an overseas holiday with her mother and her sister(s).  There is no real reason why that should not happen and the minor readjustment in the husband’s time is not a matter that is terribly detrimental to B. The positives to B of spending quality time with her immediate and extended maternal family far outweigh the negatives of having to rearrange time with the husband.  I take into account the fact that the husband, on his own volition did not see B for 26 days when he went overseas. 

6. The husband has made an application to be able to take B overseas for three weeks in January 2010, but has sought that that application be adjourned.  He wishes to go to Europe for a ski holiday, and to see his 80 year old father.  That application in my view can only be dealt with in the context of the full hearing and accordingly that application will be dealt with at that time.  The wife currently opposes the husband having any more extended time than he already has (although I note that the effect of her offer for makeup time in relation to the January period is that B will be with her father for 6 nights out of 10).  Nonetheless, the wife has the strong support of Dr W in relation to her position and I could not make a determination that it was in B’s best interests to spend an extended period of time with her father overseas until the issues surrounding the extension of B’s time with her father is fully ventilated at the final hearing.  At that time I will have updated material from Dr W. 

Dr R’s report

1. Originally, by Application in a Case filed 25 May 2010, the husband sought to have leave to rely on the whole report of Dr R dated 12 March 2010.  Exhibit B is the orders sought by the wife in relation to this report. The wife opposes this report in its entirety, but should the report be allowed, proposes a number of conditions.

2. At hearing, Senior Counsel for husband abandoned her reliance upon the report so far as it related to any issue connected to the husband’s capacity as a parent.

3. The debate, therefore, focused on whether or not the report should be allowed at all in the context of an argument between the two experts as to whether or not the husband had a diagnosable psychiatric disorder under the DSM IV (being a particular type of personality disorder described as mixed personality disorder, with paranoid, schizoid, narcissistic elements).

4. Part of Exhibit B is the sections of the report that will be excised by agreement between the parties, should I rule to allow Dr R’s report as it relates to the husband’s psychiatric condition. Further it is agreed that any statements that relate to the husband’s impairment (for example “I formed the view that there was no reason to suggest that [the husband] was an impaired parent”) are to be limited in their use, pursuant to the provisions of s 136 of the Evidence Act 1995 (Cth), so that they are read to be relevant to a statement about Dr R’s view of the husband’s mental status. They are not to be viewed as commentary upon his capacity as a parent.

5. It remains to be seen whether or not it will be relevant to know if a label can be placed upon any personality traits, vulnerabilities or disorder with which the husband suffers.  Counsel for the husband agues that it will be a matter of relevance because a disorder by its very nature is a more serious condition than displaying particular personality traits, and is likely to have a more long term and powerful effect upon the husband’s behaviour and therefore the determination of issues regarding his parenting capacity. 

6. Senior Counsel for the wife highlighted some failings of Dr R’s report.  Although Dr R had the wife’s written evidence and Dr W’s reports, he only interviewed the husband.  Senior Counsel for the wife said that while acknowledging and transcribing parts of Dr W’s report, the conclusions that Dr R makes seem to have been formed without the benefit of any material, other than his own interview with the husband. Senior Counsel submitted that it is this type of opinion, devoid from proper reasoning, that the single expert rules were meant to avoid.  It was asserted Dr R had failed to identify the factual basis on which his opinion was based (see Makita and Sprowles [2001] NSWCA 305). Dr R has primarily based his diagnosis of the husband on his interview with him. This may, at the final hearing, prove to be an inadequate underpinning for the opinion. It is more appropriate to allow cross-examination regarding the report in the substantial proceedings rather than reject the report on this basis.

7. Senior counsel for the wife argues that the provisions of rule 15.49(2)(c), being the existence of a special reason to adduce evidence from another expert witness, are not met.  The primary “special reason” is that the husband leads evidence from a psychiatrist which says the diagnosis made by the court expert that the husband has a psychiatric disorder, is wrong.

8. The husband also wishes to assert that it was of importance that the husband had a “stand-up argument” with Dr W.  Senior counsel for the husband said that Dr W did not record the severity of the argument, and the argument could be a reason why Dr W has reached adverse conclusions against the husband.  Senior counsel for the wife said that this argument was not “passed over” in the report but was acknowledged with proper weight.  The “argument”, by itself, would not justify granting leave to adduce evidence from another expert.  This issue could be appropriately dealt with through the cross-examination of the husband and Dr W in the substantive hearing. 

9. Also in relation to the exercise of discretion to grant leave, senior counsel for the wife highlighted that Dr R has not expressed a cogent alternative to Dr W’s diagnosis, but had in fact expressed what might be interpreted as three different views about the husband’s mental disorder or lack of it.  Those views are contained on page 9 where in three different sentences he says “I don’t believe that he suffers from a psychiatric illness”, “I did not have enough evidence to form a view that he suffers from a personality disorder”, and “I form the view that these features were within normal limits and that they did not constitute a personality disorder”.

10. Notwithstanding possible inconsistencies in those particular statements of opinion, it seems clear that Dr R is asserting that the psychiatric diagnosis made by Dr W of the mental status of one of the parents is wrong. In those circumstances, I think there is “a special reason” for allowing the adducing of evidence from another expert. If I am wrong about that, pursuant to rule 1.12 Family Law Rules, on my own initiative, I would dispense with any rule that prevented me receiving the parts of Dr R’s report pressed by the husband (subject to the restriction as to the use to which those parts of the report can be put).

Role of Dr W

1. In the event that the parts of Dr R’s report which are pressed by the husband are allowed into evidence (which I have now indicated I will allow), the wife seeks that Dr W is to be treated as the wife’s witness in respect to the issue of the husband’s mental status. 

2. The reason the wife seeks that order is so that she is placed on a level playing field with the husband.  The husband will obviously be able to confer with Dr R for the purposes of constructing cross examination of Dr W in relation to Dr W’s opinion about the husband’s mental status.

3. Senior counsel for the husband argued that the more appropriate course would be for the wife to obtain advice from a third expert to assist the wife in the preparation of her cross examination of Dr R.  The obvious point to make, however, is that that will involve the introduction of a third expert into the case in circumstances where the wife would be more than happy to rely on Dr W’s opinion.  It seems to me that no utility is served by introducing a third expert into a case when the wife is happy to rely upon one of the existing expert’s opinion as if it were her own.  In those circumstances it is appropriate to grant leave for Dr W to be treated as if he were an expert called by the wife in relation to the limited issue as to the diagnosis of the husband’s mental status.  Senior counsel for the wife agreed that the wife’s lawyers should not discuss with Dr W evidence about the husband’s mental status until after Dr W completes his updated report.

4. Further discussion arose regarding further interviews which are required for Dr W to compile an updated report. The ICL and wife submitted that Dr W should have discretion regarding whether or not he had further interviews with C and M.  The husband opposed Dr W having this discretion but advanced no cogent view as to why not.  The husband did mention that he had not seen the two elder girls for some considerable time, and so a further interview with them would be inappropriate.  He also said that C was no longer a member of the wife’s household, and so her opinions would be largely irrelevant to the decision regarding B. I see no utility in not allowing Dr W to see C and M if he believes it is relevant to any opinion he might form, by way of update, in respect of B’s best interests.  I will accordingly make the order as requested by the Independent Children's Lawyer.

Property

1. The wife seeks the husband provide the source documents that the husband’s accountant is using to compile the husband’s past two tax returns. Counsel for the husband argued that these documents are in the accountant’s possession.  The husband should produce all documents held by his accountant which the husband controls.  If that does not happen, the wife should have leave to issue a subpoena to the accountant. 

2. The wife seeks access to all instructions, notes of communication, and documents passed between the husband and the following witnesses in regards to their affidavits, and the documents relied upon by them:

   29.1.Mr BE;

   29.2.Mr MU; and

   29.3.Mr WA.

3. Counsel for the husband argued that the documents relied upon by Mr MU in his affidavit are not in the husband’s possession and so orders cannot be made against the husband.  The appropriate course is to require the husband to request the documents which the wife wants from Mr MU.  In the event Mr MU does not produce those documents, the wife will be free to make a further application that the husband not be permitted to rely upon Mr MU’s affidavit.

4. If Mr WA does not produce material, then the wife should be at liberty to issue a subpoena to Mr WA in relation to the sale of N Corporation.

5. It is also appropriate to make an order that the parties confer for the purposes of appointing a single expert to provide an opinion in relation to tax issues arising out of orders and alternate orders that the respective parties might seek that the court make.

6. The wife has requested a further direction in the event the husband wishes to file any further evidence about the money that might need to be put aside for warranty liabilities and it is appropriate that I make a direction to that effect.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  17 June 2010