Charles and Hughes

[2013] FamCA 867

FAMILY COURT OF AUSTRALIA

CHARLES & HUGHES [2013] FamCA 867

FAMILY LAW – PRACTICE AND PROCEDURE – where the father seeks to adduce evidence from an adversarial expert – where the mother and Independent Children’s Lawyer opposed that application – where the application was allowed

APPLICANT: Mr Charles

RESPONDENT: Ms Hughes

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3333 of 2011

DATE DELIVERED: 1 November 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 22 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S Schonell

SOLICITOR FOR THE APPLICANT: Walkom Lawyers

SOLICITOR FOR THE RESPONDENT: Litigant in person

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

Orders

(orders made 22.10.13)

1. The applicant father be permitted to adduce the evidence that is contained in Mr P’s report of 17 July 2013.

2. The parties and the Independent Children's Lawyer are to arrange for Dr J and Mr P to confer as soon as is practicable. At the conference the expert witnesses are to do those things that are set out in rule 15.69(3) Family Law Rules and provide their joint statement to the court as soon as is practicable. The two experts are to give evidence concurrently on 2 April 2014, the date upon which it was envisaged in order 6 of 5 September 2013 that Dr J would give evidence.

3. The father pay all future costs in relation to the experts.

4. Within 7 days each party is to provide to the other a list of the documents they are relying upon at the hearing.

5. Before the joint conference takes place, the father is to provide to Mr P any material that either party is relying upon at the final hearing that he has not already seen.

[an order was made that concurrent evidence is to be given by the experts and that evidence be scheduled for the third day of the final stage of the hearing; other procedural orders omitted].

IT IS NOTED that publication of this judgment by this Court under the pseudonym Charles & Hughes 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 SYDNEY

FILE NUMBER: SYC 3333 of 2011

Mr Charles

Applicant

And

Ms Hughes

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The Independent Children's Lawyer has requested I provide reasons for the orders made.

2. In this parenting case, the court has received a court ordered report dated 22 February 2013 from Dr J a clinical and forensic psychologist, acting as a single expert. She interviewed and observed the parents, the two subject children, the father’s new partner and her children.

3. The father seeks the court’s permission, pursuant to rule 15.49 Family Law Rules 2004 (Cth) (“FLR”), to tender a report from Mr P dated 17 July 2013. Mr P is another clinical psychologist who has reviewed the first report without conducting any interviews.

4. That application is opposed by the mother and the Independent Children's Lawyer.

5. The substantive proceedings relate to parenting arrangements for the two children of the parties, namely, B born in 2001 and C born in 2003. A central feature of the case is the fact that B, now 12 years and 4 months old, has not spent time with or communicated in any meaningful fashion with her father since March 2012 and is currently alienated from her father.

6. B was assessed by Dr J as being “pseudo-mature” and is “clever, articulate and staunchly loyal to her mother”. B wrote the following on a whiteboard during the joint interview involving her father:

   the reason why [sic] do not visit you is because you are liars and you bribe and bully me so therefore I DO NOT LIKE YOU!!! so can you please just leave me alone.

7. Dr J observes at paragraph 10 of her report that:

   Even though [B] may not know what is in her best interests, her expressed wishes for care and contact must be respected because coercion would be destructive to the father-daughter relationship. With greater psychological individuation [B] may find her way back to her father in time – but not if the bridge is burnt down now. Any attempt to force reconciliation while [B] is in her present frame of mind will be perceived by her as ‘bullying’ by her father and will have the effect of incinerating the bridge and razing the pylons.

8. Dr J goes on to conclude and recommend that:

   114.  [B] should visit her father in accordance with her wishes.

9. Dr J also recommends that the parties engage with a suitably skilled child and family therapist (and that recommendation has been implemented and continues to be implemented).

10. Mr P reviewed some of the material which was available to Dr J. His report almost exclusively focuses upon what Dr J has said in her report. He does not seek to challenge what he describes as her thorough assessment of the parties nor Dr J’s articulation of the competing dynamics in this family.

11. Mr P however seeks to challenge Dr J’s recommendations and her justification for her recommendations. He opines that Dr J’s recommendation that B should visit her father in accordance with her wishes is problematic on a number of levels which he sets out at paragraph 5 of his report. At the core of the difference between the two experts is Mr P’s reliance on certain academic research that challenges the view expressed by the single expert that coercing B would be destructive to the father-daughter relationship.

12. Mr P was also of the view that the recommendations made by Dr J did not logically flow from Dr J’s factual conclusions. Mr P does not agree that:

    12.1.in circumstances where Dr J has identified B as over empowered and alienated, there is collusion between mother and daughter; and

    12.2.that the outcome for B is likely to be poor; and

    12.3.the appropriate recommendation is for therapy and that B not spend time with her father.

13. Mr P provides a different recommendation based on the factual conclusions reached by Dr J. That recommendation is in the following terms:

    Whilst I might recommend psychological treatment, this would certainly not be in the absence of time spent by [B] with her father. I would strongly encourage the court to make an order that [B] see her father and regularly so, at least on each alternate weekend. I would encourage the court to make unequivocally clear the sanctions in the event that she was not to do so, including the possible longer term change in living arrangements and I would not make those visits contingent upon therapy...

14. Mr P does not expand upon the sanctions that he had in mind and the father was not able to articulate what those sanctions might be apart from pointing to his primary application that there be a change of where both children ordinarily live.

15. Mr P particularly refers to literature relevant to B’s long term interests. He opines that it is common place that children who reject a parent will often communicate phobic-like anxiety and that the perpetuation of this phobic anxiety will only serve to reinforce the irrational fear. At paragraph 32(iii), Mr P opines that:

    Whilst no doubt there are concerns about the short-term implications of such vigorous intervention, these needs to be weighed against the long term implications that are clearly documented. The short-term discomfort is in many ways speculative. The long-term findings are becoming unequivocally clear in the research.

16. Mr P refers to research by Baker – A.J.S. (2007) and Warshak, R.A. (2012).

17. Rule 15.49(2) FLR provides that the court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:

    (a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and that that contrary opinion is or may be necessary for determining the case;

    (b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or

    (c) there is another special reason for adducing evidence from another expert witness.

18. Although it is yet to be explored, Mr P’s report, at least on a prima facie basis, points to a number of academic references that he says supports his opinion as to what approach the court should take in B’s best interests.

19. In the circumstances of this case (and my decision is not to be seen as anything other than specific to the facts in this case), the father made out that the evidence of Mr P satisfies the matters referred to in rule 15.49(2)(a) and (b) FLR.

20. I emphasise that this application is about whether or not I allow another expert opinion to be tendered in evidence, not about whether or not the court ultimately accepts that opinion.

21. The father has agreed to pay for the costs of the experts in this case (and my understanding is he paid for Dr J’s original report).

22. I will make directions in relation to the experts conferring pursuant to rule 15.69(3) FLR and will direct that they give concurrent evidence on the third day of the trial.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 1 November 2013

Associate:

Date:  1.11.2013