Carlson and Fluvium (No. 4)

[2011] FamCA 831

FAMILY COURT OF AUSTRALIA

CARLSON & FLUVIUM (NO. 4) [2011] FamCA 831

FAMILY LAW - PRACTICE AND PROCEDURE - Further evidence - Whether leave should be given to the Independent Children's Lawyer to adduce further evidence by single expert psychiatrist where psychiatrist raises concerns existing evidence incomplete

Family Law Act 1975 (Cth)

APPLICANT: Mr Carlson

RESPONDENT: Ms Fluvium

INDEPENDENT CHILDREN’S LAWYER: Ms Leisa Toomey

FILE NUMBER: BRC 9490 of 2008

DATE DELIVERED: 26 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 26 October 2011

REPRESENTATION

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr B Thiele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Schultz Toomey O'Brien

Orders

1. The Application in a Case filed by the Father on 26 October 2011 requesting permission to file an affidavit sworn 25 October 2011 and to rely upon affidavits filed earlier in the matter be granted.

1. The Application in a Case filed by the Mother on 26 October 2011 requesting that the child be permitted to spend time in Canada over the Christmas holiday period be adjourned until 9.00am 17 November 2011.

1. The Application in a Case filed by the Independent Children’s Lawyer, Ms Leisa Toomey, on 18 October 2011 requesting further evidence be adduced by Dr V, be granted.

1. Orders 2 and 3 of the Orders dated 6 October 2011 be discharged.

1. The written submissions of the Independent Children’s Lawyer regarding the Application for Final Orders be filed and served no later than 5.00pm on Monday 5 December 2011.

1. The written submissions of the Mother and the Father be filed and served no later than 5.00pm on Monday 19 December 2011 following the filing of the Independent Children’s Lawyer’s submissions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlson & Fluvium (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9490 of 2008

Mr Carlson

Applicant

And

Ms Fluvium

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The first application before me is an Application in a Case by the Independent Children’s Lawyer seeking to adduce further evidence from Dr V, who is the single expert psychiatrist who was appointed for the purpose of undertaking the psychiatric assessment of the parties in these parenting proceedings.

2. Dr V provided an affidavit and report for the purpose of the trial, that being his affidavit filed on 3 October 2011. In the event, the trial proceeded on Monday to Thursday of 3, 4, 5 and 6 October. Dr V gave evidence in the course of that trial, from recollection, on two occasions. I think the first occasion was Tuesday 4 October, when he gave evidence and was cross-examined by each of the parties. At that time, Mr Carlson (“the Father”) was represented by solicitors and Counsel, so that Dr V’s cross-examination included cross-examination by the Father’s legal representatives, by Mr Thiele as Counsel for the Independent Children’s Lawyer and by Ms Fluvium (“the mother”) who represents herself. In the event, during the course of the trial, two other particular pieces of evidence assumed some significance.

3. First were some videos, I will describe them as, in terms of the Father’s communication with D, the subject child, in about July and/or September of this year, when the child was in Canada with his mother. Some of those videos were taken by the Mother, and at least one by the Father. The second category of evidence was that provided by the Father’s own mother, Mrs Carlson, the paternal grandmother of the child.

4. At the outset of the trial, paternal grandmother was not a witness in the Father’s case, but he was given leave to have her provide an affidavit and to be called to give evidence. The paternal grandmother’s relevant evidence for present purposes centred upon an interview she undertook with one Ms CJ of the Department of Community Services (Child Safety), and some notes recorded by Ms CJ.

5. Both of those things, namely the videos referred to and the evidence of the paternal grandmother centring upon the report to Ms CJ, were seen by the Independent Children’s Lawyer as matters that may be relevant to Dr V’s assessments made in this case. To that end, and there was no objection by either other party to this, Dr V was provided with the videos referred to.

6. His affidavit filed recently confirms that he was in fact not able to hear the audio of the video taken by the Father, so when Dr V was recalled late on Thursday 6 October, and his was the last part of the evidence in that bracket, part of at least that video had to be played for Dr V.

7. Dr V then gave further oral evidence, taking into account the matters referred to, including being asked to assume certain things about the paternal grandmother’s evidence surrounding the Ms CJ note. Again, Dr V was available for cross-examination both by Mr Thiele on behalf of the Independent Children’s Lawyer, Mr Ehlers of Counsel who then appeared for the Father, and the Mother, who was representing herself.

8. From recollection, the hearing on 6 October 2011 proceeded late into the afternoon and early evening, and it was clear enough that Dr V had done his best between the time of being provided with the videos, and being recalled, to assist the Court given that Thursday 6 October was the last day the Court had available at that stage to hear this matter.

9. Dr V records, in a further report dated 11 October 2011, that following his attendance at Court, he had some concerns or further concerns about the information he could provide to the Court.

10. As he notes in that letter, and I quote, “When substantial new information is provided to a witness in court, and when that information contradicts data provided prior to the written report, it is incumbent on the witness to clinically process such information for the benefit of the court. The tendency may be to rely on one’s initial report and opinions, and it is sometimes difficult to process new contradictory data, particularly if it comes from several sources.”

11. In a further paragraph, Dr V notes, “At the end of my appearance in court on Thursday and after reflecting on the new material, I was concerned that I may not have provided to the court a full appreciation of the important clinical issues.” Dr V then goes on to make some further points in his report.

12. Dr V is available to give oral evidence this morning and to be cross-examined by the Father and the Mother and indeed Counsel for the Independent Children’s Lawyer.

13. For his part, the Father opposes the application for Dr V to give further evidence. He has filed a response on 25 October 2011, with an accompanying affidavit, which affidavit records the Father’s objections to Dr V giving such further evidence.

14. Essentially, however, as I read the Father’s affidavit, his complaints about Dr V essentially concern the fairness of Dr V’s approach and the weight to be given to Dr V’s opinions in the sense of the further opinion that Dr V now expresses. The Father suggests that if Dr V is to give further evidence, there ought be the opportunity for Dr V to undertake another interview of the Father to, as the Father would put it,  put forward his side of the story in terms of the relevant evidence.

15. It seems to me that in terms of the receipt of the evidence, the question for the Court is the admissibility of the evidence. Relevant evidence is admissible. It is another matter entirely as to what weight the Court gives to relevant evidence. It seems to me that the Father’s complaints currently address what weight the Court should give to the evidence as opposed to any objection based on the evidence being irrelevant. Plainly enough, it seems to me, that in circumstances where Dr V is the independent single expert for the purpose of undertaking psychiatric assessment, evidence he urges the Court receive should not be thought to be irrelevant.

16. Plainly enough, Dr V has been provided with more information than he had at the time of his report, or at the time of giving his oral evidence, save that he has had an opportunity to consider the matter further in light of the video evidence he saw, some of which for the first time when he was sitting in the witness box on Thursday 6 October.

17. These are child related proceedings which are governed by Div 12A of the Family Law Act1975 (Cth). The principles for conducting those proceedings are set out in s 69ZN. I will not recount all of those principles, but note that one principle expressed in that section is that proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

18. To give effect to those principles, s 69ZQ sets out the general duties of the Court in giving effect to those principles. They include (a), for the Court to decide which of the issues in the proceedings require full investigation or hearing and which may be disposed of summarily, and in (c), give directions or make orders about the timing of steps that are to be taken in proceedings and (d), in deciding whether a particular step is to be taken, consider whether the likely benefits of taking a step justify the costs of taking it.

19. In my view, in circumstances where Dr V is available to give further relevant evidence on what is essentially a very important issue for the Court to consider, and in circumstances where the Father will have the opportunity to cross-examine him and put the matters in his affidavit to Dr V, so far as questions of fairness are concerned and so far as questions of whether there is a need for Dr V to further interview the Father for the purpose of providing further evidence, it seems to me that it is appropriate for the Court to allow the Independent Children’s Lawyer to reopen her case so far as evidence by Dr V is concerned.

20. I therefore give leave to the Independent Children’s Lawyer on her application in a case to adduce further evidence from Dr V.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 26 October 2011.

Associate: 

Date:  27 October 2011