DICKENS & DICKENS

[2017] FamCA 572

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS [2017] FamCA 572

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the single expert to answer questions to clarify his report – Where answering those questions would involve the single expert in an unreasonable amount of work – Where the requirement for the single expert and the father’s treating psychologist to confer before giving evidence is dispensed with and an order is made for the single expert and the father’s treating psychologist to give evidence concurrently – Where the father’s application is dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the Independent Children’s Lawyer to pay any fees associated with the single expert answering additional questions posed by the father or in the alternative for the single expert not to be paid for that exercise – Application for the single expert to refund Legal Aid the full fee paid to him regarding his report –– Where there is no basis established for such orders.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the single expert report not to be relied upon – Where no basis is established for the single expert report to be wholly excluded from the evidence.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the discharge of the Independent Children’s Lawyer and for no replacement Independent Children’s Lawyer to be appointed – Where part of the foundation for that application relies on the father’s own action in commencing civil litigation against the Independent Children’s Lawyer – Where the mere existence of civil litigation forms no basis for the granting of the father’s application – Where there is no basis for the Independent Children’s lawyer to be removed for actual or perceived bias.  

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Dickens

RESPONDENT: Ms Dickens

INDEPENDENT CHILDREN’S LAWYER: Mr Moylan

FILE NUMBER: SYC 739 of 2010

DATE DELIVERED: 3 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Father in person

SOLICITOR FOR THE RESPONDENT: Mother in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Moylan Family Law

Orders

(Made 26 July 2017)

1. The Application in a Case filed by the father on 25 May 2017 is dismissed. I reserve my reasons for doing so

…..

1. ….. any requirement that Dr U and Dr II confer before giving evidence is dispensed with and I reserve my reasons. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 739  of 2010

Mr Dickens

Applicant

And

Ms Dickens

Respondent

REASONS FOR JUDGMENT

1. On 26 July 2017 I dismissed the Application in a Case filed by the father on 25 May 2017. On that day I also dispensed with any requirement for Dr U and Dr II to confer before giving evidence. I reserved my reasons. These are those reasons for those decisions. .

2. By way of an Application in a Case filed 25 May 2017, the father applied for the following orders:

   1.  That [Dr U] be compelled to answer the questions to clarify his 28 February 2017 report and to email his answers to the Court and the parties within 7 days after the hearing scheduled for 26 July 2017, and that,

   a.the Independent Children's Lawyer pay [Dr U’s] fee to answer the questions, or in the alternative

   b.[Dr U] not be paid any fees to answer the questions.

   2.  That [Dr U] refunds Legal Aid the full fee paid to him regarding his 2017 report.

   3.  That the Court refused to allow [Dr U’s] expert report to be relied upon on the basis that is non-compliant, not impartial and misleading.

   4.  That the Independent Children's Lawyer, Mr Paddy James Moylan / Moylan Family Lawyers be removed from this matter.

   5.  That no replacement Independent Children's Lawyer be appointed.

3. In support of that application, the father relies upon an affidavit filed by him on 25 May 2017. Neither the mother or the Independent Children's Lawyer has filed any response to the Application in a Case or any affidavit responding to the father’s evidence.

4. The mother and the Independent Children's Lawyer seek that the father’s Application in a Case be dismissed in its entirety.

5. The father made written (Exhibit 61) and oral submissions in support of the application.

ORDER 1 AS SOUGHT

1. The father makes an application to compel Dr U to answer questions and orders relating to paying him for doing so.

2. Over the father’s strenuous opposition, on 1 March 2016 I made an order requesting Dr U to prepare a report pursuant to Chapter 15 of the Family Law Rules 2004 (Cth), particularly to update his opinion in respect of the mental status of each of the parties and deal with any other matter that he considered relevant pursuant to s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”). The reasons for making that order are contained in [26] to [39] of my Reasons dated 1 March 2016. The father appealed that order, setting out 26 pages of narrative and 10 grounds as to why the order should not be made. The Full Court found that there was no basis to grant the father leave to appeal on this point, commenting that the father’s submissions in the appeal about the unsuitability of Dr U amounted to no more than unsupported assertions based on the father’s interpretation of events and statements. I have been told that the father has sought special leave from the High Court to appeal the Full Court’s decision of 21 February 2017 but I am unaware as to the progress of that application.

3. Dr U has provided a single expert report dated 28 February 2017.

4. At lines 775 to 783 of that report, Dr U records:

   Unfortunately [the father] did not attend the assessment and so I wasn’t able to reassess him directly to gain his recent perspective on the relevant issues. I also wasn’t able to interview him with each of the children or with [the mother]. I therefore rely upon the previous history that I have taken and the materials that have been provided and the information given to me from the attendees at the assessment. Although I have not re-interviewed [the father] I feel confident from the previous contact and the updating information to provide advice to the court. I would be happy to interview [the father] again but I feel confident of my assessment even without the additional interview.

   [I note lines 39-41 of Dr U’s report appear to be included in error]

5. On 10 April 2017 the father emailed the single expert a document containing questions to him regarding his 2017 expert report. Those questions are in two parts. The first part are questions apparently prepared by Dr II, a Clinical Forensic Psychologist who, according to the doctor’s trial affidavit filed 14 July 2017, has been providing the father with cognitive-behavioural psychotherapy since 2012. Those questions are contained in 17 paragraphs, with some paragraphs containing more than one question.

6. Question 4 provides an indication of the nature of some of the questions:

   4.  Is it possible that the fact that on 2 May 2012 (about three months after [the father] reported an alleged assault upon his son [C] by the mother’s partner, [mother’s partner], for which [the father] had an audio recording which he provided to police) [the father] was unlawfully arrested, falsely imprisoned and then maliciously prosecuted and the charges against him dismissed, are reasonable grounds for [the father] to be suspicious?

7. The second part of the document are questions formulated by the father. There are 37 paragraphs in those questions and a significant number of those paragraphs have many sub-questions.

8. On 11 April 2017 the Independent Children's Lawyer wrote to the parties and Dr U indicating that the expert had been paid a fee allocated by Legal Aid for the preparation of the report but any additional fee for work involved in attending to these questions would not be a responsibility that the Independent Children's Lawyer could meet. The email asked Dr U to please confirm if there was a fee for considering the questions and raised an issue as to whether or not the questions complied with the Rules.

9. The father replied by email that day alleging that the Independent Children's Lawyer had failed to provide to Dr U material facts and relevant matters and had not made all appropriate inquiries to enable the expert to “compile a compliant expert report”. The father in that email asserted that it should not take Dr U very long to answer the questions and requested the Independent Children's Lawyer to apply to Legal Aid for a grant of aid to pay for answering of the additional questions, saying if they would not the father would accept the responsibility for his fee, “at gazetted rates for psychiatrist”.

10. Dr U in a letter dated 8 May 2017 responded to the Independent Children’s Lawyer as follows:

    I wish to raise with you my serious concerns for this matter highlighted by this latest call for for [sic] more argument by [the father]. The manner in which this request to answer questions has been put to me concerns me greatly as to the mental health of [the father]. [The father] has framed his questions of me in such as [sic] way that shows he is not able to focus on the key issue, which is the welfare of his children.

    The questions from [the father] demonstrate further his disordered state of mind and obsession with detail, such as the precise wording of Family Court rules regarding expert witnesses. [The father] appears obsessed with events from 2011 and 2012 and is not able to address the important changes that have affected his children in the past 5 years.

    It is of great concern that instead of attempting to learn from the previous assessment by me which was supportive of him, he is challenging my latest report with pedantry, thus further confirming in my view that he has a paranoid belief system about me being against him and a belief that I am attempting to undermine him.

    It is worth noting that I welcomed the opportunity, and still do, of meeting with [the father] to assess him and to hear from him about his position and genuine concerns. Yet, the fact that the father did not attend the appointments for an assessment with me for the court indicates to me most likely his pathological suspiciousness about me.

    With respect I do not feel that an additional report addressing the point by point answers to the disordered questions presented by [the father] would be of assistance to the court as it would only invite and fuel further vexatious debate from [the father] and potentially delay further a healthy result for the children and be potentially harmful to the children. I am alarmed to the degree to which [the father] is prepared to litigate and, as I experienced with him previously, I expect further official complaints from him against my professionalism.

    In addition, in reference to the questions by [Dr II], I notice that most of the questions are in relation to whether [the father] has a paranoid disorder. It may be that [Dr II] has formed a different opinion from me; however I believe I have supported and justified the reasons for my opinion. I believe that I have answered these questions in my report under Opinion from page 21 to 34.

    I undertook the update assessment on the basis of legal aid funding at a considerably reduced rate from my private fee schedule. Should [the father] and the court require me to provide a detailed response to the questions, which I believe would be of no assistance to the court, I estimate the cost would be approximately $7000 plus GST.

11. The husband has, in Annexure I to his affidavit, prepared six pages of what he refers to as “submissions” regarding Dr U’s letter dated 8 May 2017. The first six paragraphs give a flavour of what is in that document.

    1.    Every expert was once a “lay person” and, there are dishonest and incompetent practitioners in every occupation.

    2.    By taking an interest in the subject matter and applying effort and persistence, most people can attain a very good understanding of any filed [sic], in particular when they are personally affected, inexact behavioural sciences are no exception.

    3.    Unlike mathematics, which is an exact science and every expert agrees that 2 + 2 = 4 and that this expert opinion is mutually exclusive, behavioural sciences such as psychiatry and psychology are not exact sciences.

    4.    By contrast, in behavioural sciences like psychiatry there are a myriad of accepted practices and, given the same evidence available and issues in dispute, there are a myriad of so-called “correct opinions”. This “anything goes” approach is “sugar coated” with expert dogmatism, autocracy and quantity over quality spin in order to make it appear plausible.

    5.    …expert opinion generated by behavioural sciences is an unstable foundation to base parenting decisions upon and has been often labelled by legal practitioners, and by our society, as “junk science”.

    6.    Science is advanced by challenging existing practices and by the application of new theories in the real world (i.e. the physical environment we live in) being proven superior to the existing practices, not by the kind of fictitious reports [Dr U] writes as “cash for comment”. [Dr U] resents his opinion being challenged, his reports are confined to the mental environment he operates in and are disconnected from facts and reality.

12. The father is not prepared to pay the fee requested by the single expert and asserts Dr U is holding him “hostage” by asking for $7,000 to answer the questions. It is the father’s opinion that that should only take Dr U about an hour. The father concludes by alleging that what the single expert really cares about is money and not the welfare of his children or family.

13. The father asserts in Annexure I that Dr U is “an unprofessional and dishonest expert and “a gun for hire””. The father also complains that Dr U did not speak to his treating psychologist nor his GP when preparing the report. I do not place a great deal of weight upon that submission given the father’s refusal to participate in the interviews for the preparation of the report.

14. Rule 15.65 deals with questions to a single expert. It provides that a party seeking to clarify the report of a single expert witness may ask questions of the single expert. Rule 15.65(2) provides that the questions must:

    (c) not be vexatious or oppressive, or require the single expert witness to undertake an unreasonable amount of work to answer.

15. Dr U has provided an estimate of his professional fees for providing a detailed response to the father’s questions. The father disputes the reasonableness of those fees.

16. I find that answering these questions would involve the single expert in an unreasonable amount of work.

17. Given that finding, the appropriate course is to require Dr II and Dr U to give evidence concurrently. By doing so it will give the court an opportunity to explore with each expert relevant differences of opinion that they might hold in relation to relevant issues. The court will then have some better control over the questions that are allowed to be asked of each expert. Given the nature of some of the questions prepared by Dr II, I have decided in this case not to order a conference between the experts. I intend to moderate and have some control over questions to be asked of each of them.

18. For those reasons, the father’s Application in a Case for order 1 is dismissed.

ORDERS 2 AND 3 AS SOUGHT

1. These orders seek that Dr U refund Legal Aid the full fee paid to him regarding his 2017 report and the court refuse to allow the single expert report to be relied upon on the basis that it is non-compliant, not impartial and misleading.

2. The father has not established any basis upon which the single expert report should be wholly excluded from the evidence. The father will have an opportunity to test the single expert report and seek to convince the court at the final hearing to not rely on any or part of it.

3. The father has established no basis for an order requiring Dr U to pay back the fee paid to him by Legal Aid for the preparation of the report.

ORDERS 4 AND 5 AS SOUGHT

1. The father seeks that the Independent Children's Lawyer be removed from this matter and that no replacement Independent Children's Lawyer be appointed.

2. The father has previously made a similar application which was heard on 20 May 2015. That application was dismissed by me on 1 March 2016 for reasons given on that day. The father appealed the order dismissing his application for the removal of the Independent Children's Lawyer and on 21 February 2017 the Full Court refused the father leave to appeal the decision, referring to the ludicrous nature of the submission made by the father and the fact that there were over 16 pages of narrative which formed the proposed grounds of appeal which did not raise any comprehensible or competent challenge to the order that was made.

3. I also have been told that the father has sought special leave from the High Court to appeal this part of the Full Court’s decision of 21 February 2017 but I am unaware as to the progress of those applications.

4. The father’s new application to have the Independent Children's Lawyer removed is based upon three matters. Using the headings in the father’s affidavit, I deal with them in turn. There is a fourth matter included in the father’s written submissions which does not have a heading in his affidavit.

Alleged dishonest and misleading conduct by Mr Moylan

1. A court event in this matter was listed before Senior Registrar Campbell on 21 April 2016. At 10.22am Mr Ferney appeared on behalf of the Independent Children's Lawyer and announced his appearance as follows:

   Senior Registrar, Ferney. I appear as city agent for Mr Moylan, who’s the Independent Children's Lawyer and became sick yesterday. He has sent me along in his stead.

2. At 11.08am on the same day, the Independent Children’s Lawyer sent an email to the father in the following terms:

   Dear [the father],

   As a matter of courtesy, I am letting you know that I today met with the children. Without going into details of what was discussed in that meeting, I confirm that the ongoing proceedings are causing great difficulty for the children, and they really want the proceedings to swiftly come to an end.

   There have been a lot of Applications and legal squabbles over recent months, if not, years. I would implore you to try to remain child focused and remind me what you are actually seeking to achieve by way of Orders in this Case.

   Having met with the children, it is my very firm view that they would deeply benefit with recommencing having the assistance of meetings with [Mr Q].

   Regards

3. The father complains that this email demonstrates that the Independent Children's Lawyer was not so sick on the morning of 21 April 2016 that he could not interview the children and consequently the court must have been misinformed of the Independent Children's Lawyer becoming sick on 20 April 2016.

4. On 22 April 2016 the father wrote to the Independent Children's Lawyer saying, “It seems that you again mislead the court”. The email goes on to make assertions that [Mr L] was no different than:

   …you, Ms JJ, certain police officers, U, Dr F, and others involved in this case, who ignored my evidence that the mother and her partner … abuse/d [the children] and cover it up with the help of unscrupulous lawyers and experts who, through their decisions, contributed to the abuse of my sons and used them as a medium of wealth exchange and tools of emotional blackmail and deprived them of their father and childhood.

   The mother’s lawyers, with your full support and the support or [sic] fraudulent experts, supported the mother’s fresh initiating application based on fabricated false statements and kept the litigation going until the mother ran out of money.

   …

1. There is no indication from the father that the Independent Children's Lawyer responded to this email and given the language used by the father in that email, I draw no adverse inference against the Independent Children's Lawyer for that lack of response.

2. It is a serious charge to assert that an officer of the court has deliberately mislead the court.

3. Based upon the evidence provided by the father, I am not prepared to conclude that the court was misled about Independent Children's Lawyer’s health on 21 April 2016.

4. The father’s application is not successful on that basis.

Mr Moylan’s conduct concerning questions asked of Dr U

1. At [21] of the father’s affidavit sworn 25 May 2017, he sets out complaints which seem to be about the Independent Children's Lawyer’s conduct in dealing with the questions that were asked of Dr U to clarify his expert report dated 28 February 2017 and Dr U’s letter dated 8 May 2017.

2. It is unclear to me as to precisely what it is the father said that the Independent Children's Lawyer did or did not do in relation to these questions asked by the father of Dr U that constituted conduct that would amount to actual or perceived bias.

3. In the written submissions provided (Exhibit 61) the father complains that the Independent Children's Lawyer did not provide the single expert with proper instructions in relation to various documents that the father asserts the single expert should have looked at prior to the preparation of his report. That is a different issue to anything in relation to questions to do with the report. The father has not made out any complaint against the Independent Children’s Lawyer about what he did or did not do about the father’s questions of Dr U. The father will have the opportunity to test any deficiencies in the preparation of the single expert’s report at the final hearing.

Mr Moylan being a defendant in civil Supreme Court proceedings

1. The father has commenced proceedings in the Supreme Court of New South Wales against the police force, the Independent Children's Lawyer and the mother’s former lawyer for personal injury alleged to be sustained by the father at the hands of those parties. The father asserts that this creates a conflict of interest on the basis that it is now impossible for the Independent Children's Lawyer to act impartially towards him as mandated by s 68LA(5)(a) of the Act.

2. Being sued by a party might form the basis for the Independent Children's Lawyer to reasonably conclude that they should not continue to act in the proceedings but the Independent Children's Lawyer has not made that choice. The Independent Children's Lawyer has indicated that having considered the claim made by the father against him personally, he does not seek to be discharged from his responsibilities as Independent Children's Lawyer.

3. I set out the legal principles in respect of the removal of an Independent Children's Lawyer at [46] to [53] of my Reasons dated 1 March 2016 that I gave in the father’s previous application for dismissal of the Independent Children's Lawyer.

4. The test is whether or not a fair-minded lay observer might reasonably apprehend that the Independent Children's Lawyer lacks impartiality.

5. In this part of the father’s application for the discharge of the Independent Children's Lawyer, the father relies upon his own action in commencing civil litigation against the Independent Children's Lawyer, as the foundation for the application.

6. The father has led no evidence about the basis upon which he claims personal injury at the hands of not only the Independent Children's Lawyer but the former lawyer of the mother and the NSW Police. The mere existence of the Supreme Court litigation forms no basis for the granting of the father’s application for the Independent Children's Lawyer’s removal. The father cannot simply rely upon his own conduct in commencing civil proceedings against the Independent Children’s lawyer to base an application for disqualification of the Independent Children's Lawyer.

Asking my solicitor to act against my instructions

1. A fourth matter was raised in the father’s submissions which related to the Independent Children's Lawyer allegedly asking his solicitor to act against the father’s instructions.

2. At [17] of the father’s affidavit of 25 May 2017, the father gives the following evidence:

   17.  On 15 February 2016, [the Independent Children's Lawyer] emailed my solicitor a letter regarding the hearing scheduled for 16 February 2016, the last paragraph on page 1 states:

   “…I request that the father’s lawyer mention my appearance and seek that the matter be adjourned to a date after the appeal issues and the disqualification issues have been dealt with. We await reply.”

   My solicitor did not reply to [the Independent Children's Lawyer’s] letter. Instead, he said to me words to the effect of

   “[The Independent Children's Lawyer] asks me to act against your instructions, that would amount to negligence”. Annexed and marked “N” is a copy of this letter.

3. The letter from the Independent Children’s Lawyer of which the father makes a complaint is in the following terms to his then lawyers:

   We note the father’s Application is listed for a Procedural Hearing tomorrow.

   We also note that there is still Judgment outstanding in relation to the father’s Application to have the writer disqualified.

   We further note that there appear to be ongoing appeal issues.

   At all times I have made clear my position is that I support some supervised time. The father has not agreed to that suggestion.

   In circumstances where there are outstanding Judgments and appeal issues and that the matter is listed for procedural orders only I request that the father’s lawyer mention my appearance and seek that the matter be adjourned to a date after appeal issues and the disqualification issue have been dealt with.

   We await your reply.

4. There is absolutely nothing untoward about one lawyer asking another lawyer to mention a matter. Obviously the lawyer to whom the request is directed would then need to seek instructions from their client. If their client did not agree then the request would be refused. In this case it seems that the father’s lawyer was instructed not to reply to the Independent Children's Lawyer’s letter. The father’s complaint against the Independent Children's Lawyer is without any foundation.

CONCLUSION

1. None of the matters referred to by the father either individually or cumulatively constitute a basis for the Independent Children's Lawyer to be removed from this matter for actual or perceived bias. 

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 3 August 2017.

Associate: 

Date:  3.8.2017