Farnell and Farnell & Anor
[2019] FamCA 981
•19 December 2019
FAMILY COURT OF AUSTRALIA
| FARNELL & FARNELL AND ANOR | [2019] FamCA 981 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena objection – Where the children’s treating therapist objects to the production of his files – Where the Independent Children’s Lawyer submits the objection should be upheld – Where the inspection of material would compromise the therapeutic relations – Where it is not in the children’s best interest for the material to be inspected – Objection upheld. FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of adversarial expert – Where the father seeks the appointment of an adversarial expert – Where the criteria in Rule 15.49 of the Family Law Rules 2004 have not been met – Application dismissed – Where leave is granted to provide documents to a shadow expert. |
| Family Law Rules 2004 rr. 15.49, 15.64B, 15.65 |
| CDJ v VAJ (1988) 197 CLR 172 |
| APPLICANT: | Mr Farnell |
| RESPONDENT: | Ms Farnell |
| SECOND RESPONDENT: | Ms Pelino |
| INDEPENDENT CHILDREN’S LAWYER: | Morton Family Lawyers |
| FILE NUMBER: | SYC | 659 | of | 2018 |
| DATE DELIVERED: | 19 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 18 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lawson |
| SOLICITOR FOR THE APPLICANT: | Nicole Evans Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Beazley Lawyers |
| SOLICITOR FOR THE 2ND RESPONDENT: | Gordon & Barry Lawyers Pty Ltd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Morton Family Lawyers |
Orders
IT IS ORDERED
That the objection by Mr B to the production and inspection of material relating to the children is upheld.
That the application of the father for permission to appoint an adversarial expert is dismissed.
That the solicitors for the father have leave to provide documents, including the report of Dr C, to Dr D for the purpose of his advising the father in the conduct of the proceedings.
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 Farnell & Farnell 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 659 of 2018
| Mr Farnell |
Applicant
And
| Ms Farnell |
Respondent
And
| Ms Pelino |
Second Respondent
REASONS FOR JUDGMENT
This matter, which concerns the parenting arrangements for two girls aged 15 and 12, is listed for hearing for five days commencing on 17 February 2020.
There are two matters to be determined. The first is an objection by the children’s therapist to the production of his file. The second is the application by the father for permission to instruct an adversarial expert.
The second respondent was excused from appearance.
OBJECTION TO PRODUCTION
On 6 September 2019, a subpoena was issued to Mr B who is the children’s treating therapist, for the production of his clinical notes, assessments, diagnoses reports and treatments relating to the children and to the mother. Mr B has been the children’s therapist since early 2017. These proceedings commenced in early 2018.
By letter dated 18 November 2019, Mr B objected to the production of that material, stating:
The subject children have a long term therapeutic relationship with me and over time have developed considerate [sic] trust in that relationship, enabling them to talk openly and freely about a range of sensitive issues. Providing my notes for the purposes of a court case will inevitably compromise the therapeutic process.
Due to these reasons I would sincerely hope and request the Judge to redact the previously provided notes from the record and not make them available to anyone.
Reference to the information contained in these documents without explanation of the context in which they are written is unlikely to assist the Court and may be misrepresentative of fact.
Both the father and the mother press for inspection of the material produced by Mr B in relation to the children.
The Independent Children’s Lawyer (“ICL”) submitted that the objection should be upheld in relation to the children but not in relation to the mother.
In CDJ v VAJ (1988) 197 CLR 172 McHugh, Callinan and Gummow JJ stated:
It is not to the point that the Full Court in this case was not asked to make a parenting order as such. An order admitting or rejecting further evidence is part of the appeal process in which the best interests of the child are the paramount consideration. In determining whether or not to admit that evidence, the effect that it may have in determining what are the best interests of the child is a factor of great weight. It will be one of the most important discretionary considerations to which the Full Court must have regard.
Kirby J stated:
Although the statutory expression of the paramountcy principle is particularly emphatic in respect of the cases to which it applies, the general obligation to approach any judicial decision which might impinge on the welfare of a child with at least a broad appreciation of the implications of the decision for that child's welfare is consistent with the longstanding parens patriae jurisdiction of the courts which have successively been involved in such cases.
(footnotes omitted)
Although their Honours were dealing with the admission of fresh evidence on an appeal, the principal must be equally applicable to production and inspection of documents.
Neither of the parents disputed the statements by Mr B that inspection of the material would compromise the therapeutic relationship. Rather, they both submitted that the Court would be assisted in what will, no doubt, be a complex and difficult matter, by having access to all relevant material.
However, Mr B’s notes are not the only evidence available. The single expert, Dr C has conducted interviews with the family including the children and prepared a report. At paragraphs 93 and 94 she details conversations with Mr B about the children’s views.
Any disruption of the children’s therapeutic relationship with Mr B is not in their best interests.
One of the possible outcomes of the hearing is that some sort of therapeutic intervention involving the children will be found to be appropriate. In that event it would be most unfortunate if the children had lost faith in their therapist.
It is not in the children’s interests to put that relationship at risk so that the parents can look at Mr B’s documents and make an assessment of whether there is any evidence contained within them that is likely to affect the outcome.
The objection by Mr B to the production of material relating to the children is upheld.
ADVERSARIAL EXPERT
Dr C is the single expert psychologist who was agreed upon by all parties and jointly instructed. She has interviewed the family including the children and prepared a report which is dated 18 February 2019.
Despite the report having been available to the father and those advising him since February 2019, there has been no conference with her pursuant to Rule 15.64B for the purpose of clarifying her report and no questions have been put to her in accordance with Rule 15.65.
Dr C was not specifically asked to conduct a risk assessment although she was aware of the allegations made against the father, the evidence in relation to the involvement of the police and had access to that material. She was aware that the father had been charged with a number of offences but not convicted.
The father now seeks to appoint another expert, also a psychologist, who, it is submitted, has particular expertise in risk assessment relating to allegations of abuse.
It is not proposed that this expert would interview the children.
On behalf of the father, counsel submitted that the proposed expert would administer psychometric testing and be able to give evidence about whether the father was likely to be a risk to the children.
Further it was submitted that Dr C had not made any recommendations about future therapy for the children or how any order for them to spend time with the father might be implemented.
The father deposed that the adversarial expert would be able to give evidence about:
(a) Whether there is any risk to the children in spending time with me;
(b) The context in which the allegations were made against me;
(c)The police investigation and alleged misconduct in the JIRT interviews of the children and destruction of evidence;
(d)The similar allegations made by the children against [the maternal grandfather];
(e)The FACS documents noting concern around [the mother’s] parenting and potential coaching of the children and my attachment to the children prior to the allegations;
(f) [The mother’s] mental health;
(g)The impact of [the mother’s] mental health with respect to the allegations, the police investigation, and the wishes and current mental health of the children.
It was not submitted that Dr C was not qualified to give that evidence.
The asserted failure of Dr C to deal with the issues, to which the father and his counsel referred, in her report has not been raised with her using the procedures available in the Rules so that she is given the opportunity either to provide an addendum to her report, or to explain why those matters have not been dealt with.
Nor is it suggested that Dr C is not qualified to give evidence about those issues, had she been made aware that the father wished them to be specifically considered.
The circumstances in which the Court will consider an adversarial expert are specified in Rule 15.49 in the following terms:
15.49 Appointing another expert witness
(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2) 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 the contrary opinion is or may be necessary for determining the issue;
(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.
I am not satisfied that any of the criteria in Rule 15.49 have been met.
The application to appoint an adversarial expert will be dismissed.
The father, if he is unsuccessful in his application, wishes to instruct the expert as a shadow expert. There is no opposition to that course. The orders will provide for the shadow expert to have access to the affidavits, reports and subpoena material.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 19 December 2019.
Associate:
Date: 19/12/2019
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