Duke-Randall and Randall

[2013] FamCA 559

FAMILY COURT OF AUSTRALIA

DUKE-RANDALL & RANDALL [2013] FamCA 559

FAMILY LAW – CHILDREN – Interim proceedings – Whether the mother should be granted leave to call a number of expert witnesses in her case – Where the mother is against the children being vaccinated – Where there is a Chapter 15 expert in the proceedings

APPLICANT: Ms Duke-Randall

RESPONDENT: Mr Randall

INDEPENDENT CHILDREN’S LAWYER: Ms Crawford

FILE NUMBER: PAC 2327 of 2011

DATE DELIVERED: 18 July 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 18 July 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

COUNSEL FOR THE RESPONDENT: Mr Paul Sansom

SOLICITOR FOR THE RESPONDENT:

Ms Schrale

McPhee Kelshaw

Orders

1. That so far as leave is necessary, I grant leave to the father’s solicitor Ms Schrale and counsel Mr Sansom to appear for the father in these proceedings today.

1. That I grant leave to the mother to rely upon her affidavit sworn and filed 17 June 2013, which was filed late in respect of trial directions made previously in these proceedings.

1. That I am satisfied that this is not a case to which the special medical procedure Rules of this Court apply.

1. That Dr K shall remain as the Chapter 15 expert in these proceedings.

1. That Dr L be entitled to file an affidavit, on the mother’s assurance that he will be available for cross-examination.

1. That Dr B be entitled to file an affidavit, on the basis that she be available in a manner approved by the husband’s legal representatives to give evidence.

1. That Dr Shaw be entitled to file an affidavit, on the basis that he be available in a manner approved by the husband’s legal representatives to give evidence.

1. That the mother’s witnesses shall be called at her expense, and the testing that the mother seeks be carried out upon the children shall be conducted during the mother’s time with the children.

1. That Dr C shall be permitted to carry out on the children the following tests:-  Bioscreen Faecal Microbial Analysis, DNA SNPS, Serology Blood Test T cell subsets and two tests involving the analysis of urine. Doctor shall not be permitted to carry out food testing on the children.

1. That Dr C carry out and complete the testing that I have specified by no later than Friday 13 September 2013.

1. That by no later than close of business on Friday 11 October 2013, Dr C provide to the legal representatives of the parties, such as they are, and the Independent Children’s Lawyer a report setting out the results of her testing.

1. That by no later than close of business on Friday 8 November 2013, Doctors K and C shall confer and thereafter shall prepare a joint statement setting out areas in which they are in agreement, the areas in which they cannot agree and the reason for such disagreement.

1. That each party shall pay one half of the costs of Doctors K and C in respect of the preparation of their joint report or statement, such payment to be made to the Independent Children’s Lawyer no less than seven (7) days prior to the date contemplated for any conference of experts.

1. That in respect of the costs of the witnesses in the United States, the costs of the testing to be carried out by Dr C and any costs of any subsequent report by Dr C shall be borne by the mother in the first instance.

1. That I reserve the final issue of whether the father should make any contribution in respect of those costs to be determined by the Trial Judge.

1. That I list this matter for hearing for seven (7) days commencing on Monday 2 December 2013 before Her Honour Justice Hannam.

1. That I list the matter for mention before the Trial Judge Justice Hannam on Thursday 14 November 2013 at 10.00 am to ascertain that the matter is ready and able to proceed in all respects on 2 December 2013.

1. That I grant liberty to either party or the Independent Children’s Lawyer to relist matter upon giving seventy-two (72) hours to the other party and to the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duke-Randall & Randall 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 PARRAMATTA

FILE NUMBER: PAC 2327 of 2011

Ms Duke-Randall

Applicant

And

Mr Randall

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter, at this point in the proceedings, involves a question of competing expert witnesses.  There is already an expert in this matter, a Dr K, whose evidence comes into existence because of the Orders, and particularly Order 7, made by Federal Magistrate Coker on 13 February 2012.  The issue that is central to this matter, but not the only consideration I must stress, is whether or not the subject children should or should not be vaccinated.

2. The mother is vehemently opposed to vaccination, at least until she says she has the comfort of certain tests that she wishes be carried out on the children by a Dr C.  I am aware, and it had been pointed out to me by counsel for the father, that allowing further witnesses should only be permitted where the Court is of the view that such further witnesses will assist the Court or may assist the Court in reaching a determination.  In this case, the mother is firmly of the view that the evidence of Dr C, having completed the tests that she posits, will be essential for a determination of this matter.

3. In addition, there are the two further witnesses that the mother makes reference to, and they are, as I understand it, witnesses in the United States who the mother proposes to put on affidavit.  It is difficult, in respect of Professor S and Dr B, to understand precisely the part that they will play in these proceedings, and it is to that issue to which Mr Sansom goes, saying that, at the present time, it is very difficult, if not impossible, to make a decision as to the utility or appropriateness of the evidence of Professor S and Dr B without seeing what it is precisely that they would wish to tell the Court.

4. There is also the issue raised as to how those persons would give evidence if such evidence was required.  It is made perfectly clear in an affidavit by the father sworn on 5 July 2013 that he has no difficultly with both of those persons, if leave is granted, swearing or affirming an affidavit, and being available in person and not by telephone for cross-examination at the final hearing.  If I can deal with those matters in that order.  It seems that the father is prepared to at least have an affidavit filed by those persons the mother proposes, so that that which would be said by each of Professor and Doctor is clearly known.

5. However, what is then put is that if that is done and if that affidavit is to be relied upon, then the evidence of either Professor or Doctor cannot, and should not, in the circumstances of this case, be given by telephone.  To my mind, in a case such as this, unless there are in agreement, there is much to be said for not having that evidence given by telephone.  One has regard to the fact that documents might need be produced. 

6. At this stage, I am of the view that I ought allow Professor and Doctor to each file an affidavit in proper form.  However, if those affidavits are to be relied upon, then the witnesses will have to be available in a manner acceptable to the father’s legal representatives, to give evidence as required at the final hearing.  I do not for one moment pretend this is a satisfactory or perfect answer.  However, with the difficulties in this case, it is something that I consider appropriate.  I say that because I am fearful that unless some action is taken, this matter will simply never be ready for hearing.

7. The mother is the one that posits that there should be no vaccination, and it therefore should be seen on balance that any delay favours her.  I am determined that this matter, as I say, will come on for hearing at the earliest opportunity.  I will make orders that Dr L, the wife’s psychiatrist, be entitled to file an affidavit, on the mother’s assurance that he will be available for cross-examination.  I propose to allow Dr B to file an affidavit, on the basis that she be available in a manner approved by the father’s legal representatives to give evidence, and an order in a similar fashion for Professor S.

8. Much time has been taken this morning with the question of further tests to be carried out.  I am concerned that these tests are both invasive and possibly unnecessary.  However, I am satisfied that, in all the circumstances of this particular case, the mother should have the opportunity to carry out some of those tests.  However, they will be at her expense, and it will be necessary for her to make arrangements within the time she spends with the children for those tests to be carried out.

9. I will not order that the food testing be carried out.  The mother has described the Bioscreen faecal Microbial Analysis, DNA SNPS, Serology Blood Test with T-cell subsets, and two tests involving the analysis of urine.  Those will be the only tests that Doctor is permitted to carry out.  I will order that Doctor thereafter provide a report, for the assistance of the Court, but as an adversarial expert.  I order that Dr C and Dr K, as experts, confer in relation to the evidence of each of them, and produce a document setting out, firstly, the areas in which they are in agreement, and secondly, the areas in which they are in disagreement, and the reasons why.

10. What I propose to do in respect of the costs of the Doctors in the United States, and for the testing, and any subsequent report by Dr C, is to order that the mother pay those in the first instance.  I will reserve the issue of whether there should be any contribution to those costs, or proportion of such costs, by the father to be determined by the Trial Judge, when the efficacy of the evidence is known.

11. I will then list the matter for hearing for seven days, commencing on the 2 December 2013, before Her Honour Justice Hannam.  I will list the matter for a trial readiness check before the Trial Judge on 14 November 2013.  I will grant to either party or the Independent Children’s Lawyer a liberty to relist the matter upon giving 72 hours notice to the other party and to the Independent Children’s Lawyer, in the event of any difficulties.

12. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 18 July 2013.

Associate:                 

Date:    29 July 2013