Donaghey and Donaghey

[2010] FamCA 744

FAMILY COURT OF AUSTRALIA

DONAGHEY & DONAGHEY [2010] FamCA 744

FAMILY LAW – Expert Reports – Cost of Subpoenae

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

APPLICANT: Mr Donaghey

RESPONDENT: Ms Donaghey

INTERVENOR: R School

INDEPENDENT CHILDREN’S LAWYER: Ms Cruttenden

FILE NUMBER: LEC 85 of 2007

DATE DELIVERED: 16 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 16 August 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Cook of Christopher Hughes & Associates Family Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Turner of Dixie Ann Middleton & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Ms Cruttenden of Legal Aid Queensland, Southport

SOLICITOR FOR THE INTERVENOR Ms Maxwell of Prolegis Lawyers

Orders

IT IS ORDERED THAT

1. The Application in Case filed by R School on 12 August 2010 is dismissed.

2. The Application in Case filed by the Independent Children's Lawyer on 12 August 2010 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Donaghey & Donaghey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  LEC 85 of 2007

MR DONAGHEY

Applicant

And

MS DONAGHEY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is a matter that comes before me for further case management in respect of a trial due to take place before me towards the end of this year. 

2. Today, there are two Applications in a Case. The first, filed by the R School, which is the recipient of a subpoena to produce documents.  That school claims to be reimbursed for “additional losses or expenses” (as that expression is used in the relevant Family Law Rule), in respect of compliance with the subpoena.

3. This matter has a somewhat lengthy history which includes a determination by Slack FM on 28 January 2010, and a determination by his Honour again on 31 May 2010, in respect of which his Honour provided, on each occasion, lengthy reasons.

4. The issues before this Court might be seen, on one view of it, to involve a re-agitation of the parenting issues at the heart of the proceedings before Slack FM. 

5. What is plain, in respect of the application by R School, is that the claim relates to a subpoena issued by that court in respect of those earlier proceedings. 

6. Any claim for expenses of the type envisaged by the application in this court is covered by rule 15.23 of the Family Law Rules 2004, which provides, among other things, that a person issued with a subpoena is entitled to be paid conduct money and, relevantly, goes on to provide:

   15.23(3):  A named person may apply to be reimbursed if the named person incurs a substantial loss or expense that is greater than the amount of the conduct money or witness fee payable under this rule.

7. The issuing of subpoenae is otherwise governed by the Family Law Rules and, in particular, Part 15.3 of those Rules. It seems to me that the issue of a subpoena is a matter within the province of the issuing court, as part and parcel of the conduct by that court of proceedings before it.

8. What is plain from the Application is that all fees and expenses said to be the subject of the claim were incurred in respect of a subpoena (or subpoenae) issued by the Federal Magistrates Court in respect of separate proceedings which have now concluded in that court. 

9. Neither the Family Law Rules 2004 nor general principle, as I see it, provide this Court with the power to make an order for the payment of expenses which have been incurred in respect of a subpoena issued by an entirely different court, in respect of entirely different proceedings.

10. For that reason, the Application in a Case filed by the R School is dismissed.

11. Otherwise, the Independent Children's Lawyer, Ms Cruttenden, applies for orders that further reports be prepared by Mr P and, as part of the orders sought in that respect, an order is sought that the parties:

    Comply with all requests made to them ... regarding attendances upon Mr [P] to include the child.

12. Plainly, then, the report process contemplated by the Independent Children's Lawyer is designed to include J.

13. Similarly, an additional order sought by Ms Cruttenden is that a further report be prepared by a reporting social worker, Ms C. That order, too, in terms, seeks compliance by the parties with all requests made of them “…to include the child”.

14. When this matter was last before me on 12 July 2010, I made a number of orders.  Included among them, at paragraphs 5, 6 and 8, were orders designed to facilitate the provision of a report by Professor Q who is a psychiatrist.  So, too, those orders contemplated the preparation of a report by Mr A, who is a child and clinical psychologist, who has been seeing J for therapeutic purposes. 

15. Earlier orders had been made preventing J being brought into contact with Mr A but, subsequent to that order being made, the parties who, it needs to be observed, have the primary caring responsibility for their child, agreed that the process in which J was engaged with Mr A should continue.  Accordingly, he has been continuing to see J. 

16. I am told that the father has played at least some part in that therapy, although it would seem that the father's connection with Mr A has been somewhat minimal.  Mr A, though, continues his process with J and will prepare a report for the purposes of the trial.

17. A significant issue in this case, whatever might be the other contentions and counter-contentions made by each of the parties, concerns a child not yet quite six who has, on any view of it, been exposed to a number of interviews by a number of different people.  They include: the Department of Communities (Child Safety Services), the police, Mr A, Ms C (twice), and Mr P. 

18. On the last occasion, I considered it appropriate that the trial court be furnished with a report from a reporting psychiatrist, with a view to that expert addressing what had been referred to in the submissions before me on that occasion, as the "Russell and Close issue".

19. It is primarily, but not exclusively, for that reason that I made orders that Professor Q conduct the investigation and prepare a report referred to in the orders.  At paragraph 8 of the orders made on that day, I made it very clear that J was not to be further interviewed unless Professor Q, who is a qualified child psychiatrist, having seen and been referred to all of the relevant material, considered it appropriate in J’s best interests that this occurred.

20. Paragraph 8 of those orders provides, in terms:

    In the event that Professor [Q], having considered the documents and reports provided to her, and the fact that the child [J] (born […] August 2004) has been seen by Ms [C] and Mr [A] on multiple occasions, concludes that it is, nevertheless, appropriate for her to interview [J], the parties are to do all such things and sign all such documents to effect same, but only if Professor [Q] is of that opinion having read the documents provided pursuant to the earlier orders.

21. As will, I think, be plain from the somewhat unusual terms of that order, the Court was profoundly concerned about the extent to which this child has been seen and interviewed as part of the process of investigation into claims made by the mother in respect of sexual impropriety towards him and otherwise pertaining to issues related to, but separate from, that specific issue in the Federal Magistrates Court and now in this Court.

22. It is said that Ms C can provide further information to a trial court, in light of the fact that the last report that she has provided was in November of last year and would be about 12 months old when the matter is heard on a final basis by this Court.  In the intervening time, it is said J has moved, pursuant to orders made by Slack FM, from having supervised time with his father to having unsupervised time.  However, it would appear to be common ground, that the number of occasions on which that has occurred, and its frequency, have each been limited. 

23. Furthermore, it is said that Mr P, who also prepared a report for the purpose of earlier proceedings, should see the parties (and primarily the mother) with respect to the issue earlier identified as the "Russell and Close issue". 

24. It is said on behalf of the mother, in support of at least some of those orders, that the child has made further disclosures, not of a sexual nature but of what the father has allegedly said to him in the intervening period.

25. Questions such as those confronting the Court today always involve a balance.  On the one hand, the Court is frequently assisted in arriving at decisions with respect to the best interests of children by significant input from experts.  However, any such assistance as might be rendered to a court by reference to any such expertise must be balanced with the perceived effect that the intervention, essential thereto, has upon the child. 

26. It is with that specific issue in mind that I made the order referred to at paragraph 8 of the orders on 12 July, earlier referred to.  In this case, particularly bearing in mind the past history of this matter, the numerous interviews and interventions to which J has been exposed, the issues at stake, J’s age, and the other matters earlier referred to, it seems to me the balance favours the intervention by Professor Q in order to assess, among all such other matters as the Professor might consider appropriate in her expert opinion, the "Russell and Close issue".

27. Those same issues militate against further reports being received from either Ms C or Mr P, particularly in light of the proposed involvement of the child in each of those processes.

28. For those reasons, the Application in a Case filed by the Independent Children's Lawyer on 12 August 2010 is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 16 August 2010.

Associate: 

Date:  24 August 2010