Cassidy and Cassidy
[2011] FMCAfam 220
•11 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CASSIDY & CASSIDY | [2011] FMCAfam 220 |
| FAMILY LAW – Children – parenting – interim orders – preparation of report by Child and Family Psychiatrist – single expert report – source of funds for single expert report. |
| Family Law Act 1975 (Cth) |
| Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 93-079 |
| Applicant: | MR CASSIDY |
| First Respondent: | MS CASSIDY |
| File Number: | SYC 5446 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 March 2011 |
| Date of Last Submission: | 11 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Applicant: | Caldwell Martin & Cox |
| Counsel for the Respondent: | Ms Kaiti |
| Solicitors for the Respondent: | CBD Legal |
| Independent Children’s Lawyer | Ms O’Donnell |
| Solicitors for Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
Dr. W, Child and Family Psychiatrist, be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005 and that in preparing his report to the Court, Dr W be requested to consider the following matters:
(a)whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence or parental conflict;
(b)any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(c)the relationship between the children and each other and with each of their parents and any other relevant person;
(d)the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent;
(e)the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
(f)the capacity of each parent or any other person to provide for the needs of the children, including their emotional and intellectual needs;;
(g)the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents (or any other relevant person);
(h)the effect on the children of any family violence or parental conflict to which they may have been exposed;
(i)the effect on the children of spending equal time, or substantial and significant time, with each parent having regard to the parents’ current and future capacity to:
·implement such an arrangement, and
·communicate with each other and resolve difficulties that might arise;
(j)the mental state of both of the parents in so far as it relates to parenting issues, including but not limited to whether either or both parents are assessed as having a mental illness or disorder;
(k)the mental health/special needs of the children; and
(l)any other matter the Court Expert considers relevant, including but not limited to any likely effect on the children of the Court making orders in terms of the father’s current application that the children live predominantly with the father and spend time with the mother.
That the parties each pay one half of the fees payable to Dr W for the preparation of his Report.
Each party shall by close of business 14 March 2011 irrevocably authorise and direct in writing their respective solicitors to authorise Caldwell Martin Cox Solicitors of Suite 3, Level 1, 320 Camden Valley Way Narellan NSW to hold in trust the sum of $12,000.00 from the parties’ respective shares of the proceeds of any past and future sale of the property of the marriage for the purpose of payment of the fees to DR W for the preparation of his expert report, such payment to occur within 7 days of the date of receipt of DR W’ invoice by each party.
Leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing same to Dr W and that the fees in respect of that photocopying be waived.
Leave be granted to the Independent Children’s lawyer to provide copies of all three Family Reports prepared in this matter to Dr W.
The Applicant is to pay the setting-down fee prescribed by the Federal Magistrates Regulations 2000 or apply for a reduction of that fee no later than 1 March 2012.
The parties are to file and serve all further affidavits upon which they seek to rely no later than 1 March 2012.
The matter is adjourned to the 13th, 14th, 15th and 16th March 2012 for Final hearing at 10:00 am before Federal Magistrate Scarlett in Court 7A, Level 7, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.
The parties are granted leave to issue 5 further subpoenas.
The Independent Children’s Lawyer is granted liberty to apply on 7 days’ notice.
THE COURT NOTES THAT:
The Independent Children’s Lawyer is under no obligation to brief the Single Expert in Terms of Order 1 above until there has been compliance with Order 2.
IT IS NOTED that publication of this judgment under the pseudonym Cassidy & Cassidy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5446 of 2007
| MR CASSIDY |
Applicant
And
| MS CASSIDY |
First Respondent
REASONS FOR JUDGMENT
There is an issue for determination before the Court this afternoon. There were other issues originally flagged for determination, including the question of the children’s schooling arising out of a change of school and whether an order made, relating to the Mother’s attendance at the school at certain times, should be vacated. However, I am informed that these issues are not to be pressed. There are three issues that remain for determination. One issue is the changeover point to take place in respect of the time that the children spend with the Father during the school holidays.
It has been put to the Court that when consent orders were prepared on 9th February 2011 that in respect of the school holidays in July there had been omission of the changeover point. In respect of other matters it was submitted that the changeover point would be immediately in front of the [business omitted] and that would appear to have been the intention of the parties when entering into these orders. I note that at the time the Father was represented by a solicitor and the Mother was represented by counsel. The Mother says that there have been ongoing problems with changeover and she seeks that the changeover point should be outside the [C] Police Station. There is no evidence that has been pressed before me this afternoon of family violence or of a current family violence order.
I have before me both the sealed copy of the orders made by consent on 9th February 2011 and the original partly-typed, partly-handwritten document bearing the signatures of the parties. The order 1(c) deals with the time when the children should spend time with the Father and refers to the school holiday periods in subparagraphs (1), (2), and (3). Order 1(a) deals with weekends, changeover point is quite obvious, end of school Friday, beginning of school Monday. Order 1(d) refers to Wednesdays during school term, from after school until 7:30pm. Thus there is a need for a changeover point from other than the children’s school in respect of the return to the Mother.
Order 2 provides that the Father deliver the children to the Mother at the end of this time pursuant to Order 1(b) and 1(c) immediately in front of [business omitted]. I have checked the typed script with the original partly-handwritten, partly-typed, and it is an exact copy. In my view the existing orders to which the parties consented in the presence of their legal advisers already cover the situation, and indeed it is changeover point was agreed and ordered on 9th February 2011 to be in front of the [business omitted].
For there to be a change at this stage after one month and two days it would be necessary to satisfy the test set in the well-known authority of Rice & Asplund[1]. There would be a need to show there had been such a change in the circumstances since the orders were made as to require the Court to reopen the question. It would be surprising, but not unknown, if the circumstances had changed so dramatically in some
33 or 34 days to require a re-examination of the issue. Accordingly, I am not satisfied that a case has been made out that there should be any change to the changeover point for the school holidays as provided in Order 1(c) and it remains outside the [business omitted].
[1] (1978) 6 Fam LR 570; (1979) FLC 93-079
Turning now, perhaps, to a more important question going to the ongoing progress of this matter, the issues to be determined relate to the provision of a report for the Court. There have indeed, since these matters have been commenced, three family reports. The most recent of which was completed on 19th December and was released to the parties on the 22nd of that month. That report was prepared by a family consultant of this Registry. At page 12 of the report the family consultant makes three recommendations. One of them is that an Independent Children’s Lawyer be appointed. I abided by that recommendation, I appointed the Independent Children’s Lawyer, and I am pleased to say that the Independent Children’s Lawyer is present in the person of Ms O’Donnell.
The third recommendation was that, if it had not already been done, certain records should be subpoenaed. It seems now to have been done. But it is the second recommendation that causes controversy. It says:
It is recommended that a child and family psychiatric assessment may be appropriate to assess whether there are any factors present in either parent or Mr M, which impact on their ability to adequately fulfil their parenting responsibilities.
The reference to Mr M appears to be rather a wild card since nobody seems to know who Mr M is, and indeed I am of a view that it is just an unfortunate typographical error. That does not, however, detract from the strength of the recommendation.
What has been recommended is a child and family psychiatric assessment. The Mother submits that that may not be necessary or that an appropriate assessment should be made by some other qualified professional such as a clinical psychologist. However, the very nature of the recommendation is that the assessment should be a psychiatric assessment which, by definition, can only be performed by a psychiatrist. Psychiatrists, of course, are medical practitioners. Psychologists, although in many cases very highly qualified, are not.
The preparation of such an assessment involves a significant amount of funds. The range, it has been conceded, is from $7,000.00 to $10,000.00, but there may be some further work that the psychiatrist needs to do. There are a number of psychiatrists who perform these duties for the Court. There are four who are very regular attendees in the Federal Magistrates Court, which, of course, now does in Eastern Australia at least 90 per cent of all Family Law work filed in the various registries. Those four are Dr W, Dr R, Associate Professor Q and Dr M.
They are all experienced and capable psychiatrists. They have all given evidence before me in this Court and, indeed, in some cases in a previous jurisdiction dealing with the care of children. The Father, through his counsel, Mr Campton, proffers Dr W. The Mother, through her solicitor, Ms Kaiti, suggests Dr R may be more appropriate. The Independent Children’s Lawyer has no objection to either the preparation of a child and family psychiatric assessment or the appointment of Dr W. Counsel for the Father, as I said, has pressed
Dr W upon me not only for his expertise in child and family psychiatric assessments, which, in my respectful opinion, would be a quality held by the other three practitioners to whom I refer, but because of his particular expertise in the forensic side of such matters and his ability to prepare reports which can give considerable guidance to the Court, to practitioners and to the parties themselves.
I am of a view that it is appropriate for the Court in these circumstances to call for a child and family psychiatric assessment as recommended by the family consultant. The Court puts weight on the recommendation of the family consultant because it is well known to the Court that in parenting matters, the family consultants, certainly of the Sydney registry, provide a very high standard of service to this Court based on a high degree of expertise. The Court would not take such a recommendation lightly, although it does not mean that every recommendation that is ever made by a family consultant would automatically be accepted. The Court is not a rubber stamp.
In my view, there has been no persuasive reason advanced as to why Dr W should not be appointed. Indeed, his appointment is supported by the Independent Children’s Lawyer, who, of course, has not cast any aspersions on any other of the practitioners to whom I have referred. I am of the view that the Court will appoint Dr W. I take into account the fact that Dr W may not be available to interview the parties until July whereas Dr R would be available in April. As I indicated to the parties earlier, the question is: when is the Court going to be available?
The Court will not be available to hear a case of this length in July or in August. It has been estimated by counsel for the Applicant Father this matter may take four days, although counsel for the Father has stressed that in his view it is still an appropriate matter to be dealt with within the Federal Magistrates Court and not in the Family Court. The regretful situation is that this Court does not have a block of four days available, certainly not in my docket nor I would suggest in the dockets of any of my learned colleagues available this year. It would appear that the first available four-day block would be in March 2012 and I am happy to list the matter for final hearing then.
The question, of course, of the cost of the report arises. It appears to be agreed between the parties a range of $7,000.00 to $10,000.00 would be appropriate. I see no reason to disagree with that. The Father submits that that sum could be provided in the first instance from a larger amount of $31,759.00 held in a controlled moneys account on behalf of the parties pending the resolution of property matters between them. The Mother opposes that and submits that the parties should pay half the cost of the report each from their own resources. I have been informed that the Mother’s financial situation is strained and, indeed, her solicitor told the Court that she was appearing today almost on a pro bono basis.
Of course, it is to the credit of a practitioner that she would appear for a party to protect the party’s interests at little or no fee. The Court is mindful of the fact that lawyers do perform services for their clients in Court for which they expect little or no reward and quite often critics of the legal profession can conveniently overlook the fact that this is a not uncommon occurrence. Certainly, in my experience in Courts that is the fact. However, this led to the inquiry as to the ability of the Mother to meet the funding, which would have to be, if it is to be a half-and-half split, between three and a half thousand to five thousand dollars and may possibly be more. It was indicated that she intended to borrow the money.
That appears to me to impose a financial burden upon her, even though she would, apparently, be willing to do so in order to resolve the question of the welfare and future lives of her children. The difficulty is that it is not unknown in this Court for matters not to proceed due to the unavailability or quite unexpected unavailability of funds for the preparation of expert reports, which is involved in hearings going over with a consequent financial loss to the parties. In this case, there is in existence a definite sum of money from which the funding can be met and that is the money in the controlled moneys account.
The Wife opposes this. But as far as future property proceedings are concerned, the allocation of those funds can comparatively simply be calculated so that in the long run parties’ interests, certainly vis-à-vis each other in the asset pool, can be protected. But I would go further to say that an expenditure of funds to provide the Court with a useful report, which would lead to the Court making parenting orders in which the best interests of the children must be the paramount consideration, is an appropriate way for the parties’ funds to be spent.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM.
Associate:
Date: 17 March 2011
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