England & Harrisson (No. 2)

[2021] FamCA 372

FAMILY COURT OF AUSTRALIA

England & Harrisson (No. 2) [2021] FamCA 372

File number(s):

SYC 5095 of 2020

Judgment of:

BAUMANN J

Date of judgment:

21 May 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks an affidavit be reinstated to form part of the Court file – Where a Judge has previously struck the affidavit out – Application dismissed    

Legislation:

Family Law Act 1975

Evidence Act1995 (Cth) s 135

Cases cited:

Hall & Hall (1979) FLC 90-713

Number of paragraphs:

10

Date of hearing:

21 May 2021

Place:

Brisbane

Counsel for the Applicant:

Ms E Lawson

Solicitor for the Respondent:

Mr Butters

Solicitor for the Independent Children's Lawyer:

Ms Nielsen as town agent

ORDERS

SYC 5095 of 2020

BETWEEN:

MS ENGLAND

Applicant

AND:

MR HARRISSON

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	21 MAY 2021

THE COURT ORDERS:

1.That paragraphs 4, 5 and 6 of the Application in a Case filed by the mother on 13 May 2021 be dismissed.

2.That within twenty four (24) hours of the making of this Order, the father sign authorities to the following person/entities for the release of all and any material pertaining to the father:

(a)Dr C, Psychologist;

(b)Ms E, Counsellor;

(c)F College, including (but not limited to) H Childcare, Department L and Department N at J College;

(d)O University in Africa; and

(e)P Association,

with any such documents produced to be retained by the subpoena section of the Family Court of Australia Sydney Registry pending determination by the trial judge of any objections as to their relevance.

3.That by consent, the mother have leave to provide a copy of the interim Orders dated 19 January 2021 to the child’s, X born … 2018, daycare Q Childcare.

4.That each party have leave to file and serve by no later than 4.00pm on 31 May 2021 one (1) Affidavit strictly in reply.

5.That the parties’ costs of the Application in a Case filed 13 May 2021 be reserved to trial.

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

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 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

1. During the course of this interim hearing today on an urgent application brought by the mother, Ms England, filed on 13 May 2021, a robust exchange took place with Ms Lawson, Counsel for the Applicant mother, about the primary relief that she seeks at paragraphs 4 and 5 and ancillary 6, that, effectively, the affidavit of Ms B, sworn 26 October 2020 “be reinstated on the Court records” and that the mother be entitled to rely upon that evidence and that a copy of the affidavit be provided to the single expert psychiatrist/family report writer, Dr D.  As will become apparent from any reading of the transcript, which is also relied upon, the issue of both the relevance and probity of that affidavit has been very adequately and competently dealt with by Altobelli J in a Judgment delivered on 18 December 2020.

2. In that judgment, his Honour canvasses the probative value of Ms B’s affidavit and goes to some length to deal with what he would say – and I agree, with respect to him – the principles that need to be applied when considering s 135 of the Evidence Act 1995 (Cth). Ms Lawson, a highly experienced Counsel, of course, does not suggest that this Court now, in terms of the current application, acts in any way as a form of “appeal” Court against the decision of Altobelli J. To the extent that any appeal rights could have, with leave, been engaged in after the Judgment of his Honour delivered 18 December 2020, there was plenty of opportunity to do that.

3. So relevantly, in my view, within the available appeal time from the delivery of Altobelli J’s decision and Reasons, a family report by Psychiatrist Dr D, which I accept, for whatever reason, was not available to the Court or to the parties at 9 December 2020 when Altobelli J heard the earlier interlocutory matter, which was released on 8 January 2021.  Therefore, the contents of that report being part of the evidence, of course, which the Court will be required to consider in this matter and only part of the evidence (see Hall & Hall (1979) FLC 90-713 for example), was available for both the mother and father when the matter came before Senior Registrar Campbell for determination of interim parenting arrangements on 19 January 2021, and was available to the parties when the matter was listed before me as a result of the Orders of Altobelli J for trial directions and management on 17 February 2021.

4. Clearly, Altobelli J identified, in the “unusual” circumstances of this case, such a descriptor being used by Dr D in his report at the top of page 38, that the matter needed to be expedited.  The length of time estimated by Altobelli J was five days.  However, after exchange with the parties when they knew of the ruling of Altobelli J and the evidence of Dr D, we reduced the time for trial to three days.

5. Ms Lawson refers me to what she says would assist in the formulations of any reports or cross-examination of Dr D, the paragraphs which are apparent in his report that deals with the psychiatric profile, diagnosis or behaviour of the father, which is, I guess, in some ways, most starkly identified towards the end of page 35 where Dr D opines:

   In my view Mr Harrisson approaches, but may not cross, the diagnostic threshold for a Narcissistic Personality Disorder.

6. This matter is listed for trial in less than a month.  If the matter does not proceed in the week of 21 June 2021 then, in my view, the best interests of the child, X, will be put at risk because the trial could not be dealt with, notwithstanding the order for expedition, before the end of this year, at the earliest. There is nothing in the submissions of Ms Lawson, who could have said nothing more to support her client’s position, that persuades me to reinstate the affidavit at this time.

7. I will order in terms of paragraph 7 but with the amendment as already indicated.

8. Paragraphs 4, 5 and 6 of the Application in a Case filed 14 May 2021 will be dismissed.

9. I will order, it seems by consent, paragraph 8.

10. I will reserve the costs of this application to the trial.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       21 May 2021