Carpenter and Carpenter

[2012] FamCA 721

FAMILY COURT OF AUSTRALIA

CARPENTER & CARPENTER [2012] FamCA 721

FAMILY LAW – PRACTICE AND PROCEDURE - Application to appoint expert report writer dismissed

Family Law Act 1975 (Cth)

B and B (1993) FLC 92-357
M v M (1988) 166 CLR 69

APPLICANT: Ms Carpenter

RESPONDENT: Mr Carpenter

INDEPENDENT CHILDREN’S LAWYER: Mr Emerson

FILE NUMBER: BRC 3510 of 2011

DATE DELIVERED: 6 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 6 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Merkin

SOLICITOR FOR THE APPLICANT: Waterford Law Solicitors

SOLICITOR FOR THE RESPONDENT: Mr Greer of Herbert Geer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Emerson of Emerson Family Law

Orders

IT IS ORDERED THAT

1. The Application in a Case filed by the mother on 24 July 2012 is dismissed.

2. The costs of the father and the Independent Children's Lawyer are reserved to the trial judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carpenter & Carpenter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3510 of 2011

Ms Carpenter

Applicant

And

Mr Carpenter

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 12 March 2012 I set this matter down for a five day hearing. It is due to commence in a couple of weeks time.  That order was made consequent upon the matter being transferred from the Federal Magistrates Court earlier in the year.  In fact, the matter had been due to be heard over two days in February before that court. 

2. When this matter was set down for final trial, the mother raised concerns in respect of two experts who have prepared reports for the purposes of the trial upon the instructions of the independent children's lawyer, namely, Mr M and Mr C:  Mr M is a social worker, Mr C is a psychologist.

3. An Application in a Case filed by the mother on 24 July 2012, that is to say about four weeks prior to the commencement of the trial, seeks the following order relevantly:

   (1)That pursuant to Family Law Rules 2004, rule 5.49 [sic], [Dr N] be appointed to write an expert report.

4. This application can be disposed of simply by reference to the fact that there is no evidence whatsoever of who Dr N is.  There is no evidence whatsoever before the court of Dr N’s qualifications or experience. 

5. There is also no evidence whatsoever before the court of Dr N’s availability.  There is no evidence whatsoever before the court about who might be responsible for the fees of Dr N, what those fees might be, and/or whether the doctor would in any event be available so as to provide a report in time for the trial or to give evidence at the trial.

6. The Application in a Case must, for those reasons alone, fail. 

7. Leaving aside those crucially important matters, however, and for the sake of completeness, I turn to the mother’s affidavit in support of the application which raises a number of concerns with respect to each of the report writers that are said to go to their expertise.  I reject the submission that the matters contained in that affidavit pertain to the expertise of the report writers. 

8. Plainly many of the matters there contained may well be the subject of cross-examination at the trial (although I point out that at the trial, which will be conducted by me, I propose to apply the mandatory principles which Division 12A of the Family Law Act 1975 (Cth) (“the Act”) imposes upon me in respect of the conduct of that trial).

9. Those mandatory principles, contained, for example, in section 69ZN of the Act, apply to the conduct of the child related proceedings. These proceedings are child related proceedings. The mandatory statutory principles imposed upon the court, in the conduct of the child related proceedings include, importantly, that the court is to consider the needs of the child, and the impact that the conduct of the proceedings may have on the child.

10. In that regard the court is mandatorily to actively direct, control and manage the conduct of the proceedings, and, with that in mind, the court is also mandatorily required to ensure that proceedings are conducted without undue delay and with as little formality, etcetera, as possible.

11. There can be little doubt that, in circumstances where the litigation between these parties had encompassed most of the younger child’s life, that these children need a final determination of the issues outstanding between their parents.  That there has already been a trial listed early in this year in another court exacerbates that concern and that need. 

12. The matters raised by the mother in her affidavit may be the subject of cross-examination.  I am not persuaded that any of them relate to the expertise of the individuals concerned. 

13. In my view, the submissions made on behalf of the mother, misconceive the nature of the inquiry to be conducted by the court at the trial. (On which, see what the High Court has had to say in M v M (1988) 166 CLR 69, and what the Full Court of this court has had to say in B and B (1993) FLC 92-357.)

14. Those submissions also, in my view, misconceive the nature of the report prepared by Mr M.  It is, as Mr Emerson submits, a report not directed toward the question of child sexual abuse but, rather, as to broader family dynamics. Further, as the High Court has plainly and unequivocally established, that is not the question to which the court must direct itself in these proceedings; the question is the best interests of the child by reference to, relevantly, unacceptable risk.

15. Mr M and Mr C can both be cross-examined to their expertise and other matters. The trial judge, who is in this case myself, can deal with that issue at the trial and may well do so. 

16. The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 August 2012.

Associate: 

Date:  24 August 2012