FERRO & KOPEL

[2015] FamCA 869

FAMILY COURT OF AUSTRALIA

FERRO & KOPEL [2015] FamCA 869

FAMILY LAW – Parenting proceedings – what evidence will be submitted to the single experts

APPLICANT: Mr Ferro

RESPONDENT: Ms Kopel

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 6467 of 2014

DATE DELIVERED: 9 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE:

12 August 2015 and

9 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr I Mawson QC on 12 August 2015
Mr G Dickson QC on 9 October 2015

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr M Bartfeld QC on 12 August 2015
Dr Ingleby on 9 October 2015

SOLICITOR FOR THE RESPONDENT: Berger Kordos

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan, Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1.The final hearing which was allocated before me on 21 December 2015 be vacated and in lieu thereof the matter be listed before the Honourable Justice Berman sitting in Melbourne on 9 February 2016 at 10.00 am subject to part-heard cases only.

2.That the independent children’s lawyer provide to Dr B and Dr C documents relevant to these proceedings including, but not necessarily limited to, the following:-

a)The affidavit of Ms D sworn 24 July 2014 to which is annexed to her curriculum vitae as a director of E Foundation, a report of two and a half pages which bears no date save that it refers to consultations with the mother and father commenced in September 2013.  In the body of the affidavit Ms D refers in the document to her short form report dated 24 July 2014;

b)The report of Mr G, clinical psychologist, dated 22 September 2014 (29 pages);

c)The report of Mr H, psychologist, dated 16 November 2014 (23 pages);

d)The questions delivered by the husband’s lawyers to Mr H and his responses thereto in letter form from Mr H addressed to Mr I dated 15 April 2015; and

e)The affidavit of Mr G, sworn 2 February 2015 and filed on behalf of the father (discussing formal attachment assessment).

IT IS DIRECTED:

3.That the email dated 12 August 2015 from the husband’s solicitors to my Associate, to which a copy of the affidavit of Ms D is attached, be placed on the Court file in the part of the Court file that relates to family reports and social science assessments.

IT IS FURTHER ORDERED:

4.Paragraph 7 of the Order made on 12 August 2015 be amended so that the release date referred therein, being 9 December 2015, is amended to 18 January 2016 and, in any event, not sooner than 5 clear working holidays following the publication of the report of Dr C which is provided for in this Order.

5.The parties do all acts and things necessary by presenting by themselves and with the child J born … 2009 (“the child”) for Dr C to prepare an attachment assessment report as described by Mr G in the affidavit sworn on 2 July 2015 such report to be released by not later than 8 January 2016 and the parties pay one half of the reasonable costs of that report.

6.By not later than 7 days prior to the first appointment with the relevant expert, the independent children’s lawyer send to each party to the proceedings an index of documents to be sent to Dr C and Dr B in anticipation of her/his interviews AND IT IS NOTED that the family consultant has unrestricted access to all filed documents, documents produced on subpoena and released for inspection and documents provided to her/him by the independent children’s lawyer.

7.The parties and the practitioners for the parents be restrained from providing Dr C, the family consultant and Dr B with any documents in addition to those which have been indexed by the independent children’s lawyer and sent to those expert witnesses.

8.Paragraph 12 of the Order made on 12 August 2015 be varied so that the Victoria Legal Aid Family Dispute Resolution Conference take place in the first week of February 2016 and IT IS DIRECTED that the independent children’s lawyer request a mediation consistent with the Hague Model of mediation.

9.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferro & Kopel 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 MELBOURNE

FILE NUMBER: MLC 6467 of 2014

Mr Ferro

Applicant

And

Ms Kopel

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter came before me on 12 August 2015 immediately following Justice Johns having recused herself from further hearing the matter because of her knowledge of one of the potential witnesses.

2. These parenting proceedings concern J who is 5 years of age.

3. The father is 47 years of age and is employed as an organisational psychologist.  The mother is 44 years of age and is self-employed in the operation of two businesses.

4. Both parents were born in Israel.  They commenced cohabitation in 1994 or 1995 or it seems that nothing much turns on the exact date.  They married in Israel in 2000.  J was born in 2009.  The parents separated on 15 June 2014 and the husband commenced the current round of proceedings in July 2014.

5. The immediate issues are to do with J’s parenting arrangements and the parties seek an expedited hearing in that respect. 

6. The mother seeks that J live primarily with her and that she be permitted to relocate J’s residence to Israel.  The father opposes the mother being the primary resident parent and J moving to Israel.  He says that J should reside primarily with him. 

7. At the moment J lives 50 percent of the time with each parent on an alternating three night, four night basis.  There are also financial proceedings between the parties. One party, I understand the mother, was going to seek a bifurcation of the children’s proceedings from the financial proceedings.  However, the Court’s capacity to deal with the parenting proceedings in the immediate short term, having regard to the social science input which will be required, is such that I am confident with some good will the property proceedings can be ready for determination at the same time as the parenting dispute.

8. On 12 August 2015 I made orders setting the matter down for hearing notionally before myself on 21 December 2015 estimated to take 3 to 5 days.  The timing of the final hearing will have to be flexible. As the matter cannot be accommodated in December it will now be accommodated in February 2016 before Justice Berman.

9. On 12 August 2015 I ordered by consent that the parents attend upon Dr B, psychiatrist, and following that a s 62G(2) family report to be prepared by a family consultant who is in the employ of the Registry. 

10. Social science input to date has been somewhat problematic.  The parents saw one Ms D post separation and she prepared a brief report to which the wife takes exception.  That report reflected not only attendances upon the mother and the father but also a series of attendances upon the father subsequently.  The parties then saw Mr G.  In the intervening period an order had been agreed to, and indeed made by the Court, that Mr G would have no reference to, and not read, the report of Ms D.  However, the husband provided the report of Ms D to Mr G who then proceeded to quote from the report and consider the contents of the report in the formulation of his own opinion.

11. There then followed an arrangement whereby the family would be assessed by Mr H, a psychologist, although as the husband now points out not a clinical psychologist.  Mr H delivered a report.  Somewhat unusually, Mr G then made comment on some aspects around preparation of reports in this matter, although not specifically Mr H’s report, and has outlined the merits of an attachment assessment being done between the parents and the child.  The upshot is we have a surplus of social science reports with the parties unable to agree on the appropriateness of the qualifications or methodology that has gone into preparing any one of them.

12. It is now agreed, and ordered, that there will be a new family report prepared by a Family Consultant employed by the Registry after a psychiatric assessment by Dr B.

13. The matter that I am required to determine is what previous reports should go to Dr B as his preparatory reading for preparation of his psychiatric assessment of both of the parties.  In turn, what reports and information should then go to the family consultant charged with the preparation of the family report pursuant to s 62G(2).  It was agreed by the parties that I would make this determination without receiving any further submissions from them and I now do so.

14. I have read the following documents:-

    a)The affidavit of Ms D sworn 24 July 2014 to which is annexed her curriculum vitae as a director of E Foundation, a report of two and a half pages which bears no date save that it refers to consultations with the mother and father commenced in September 2013.  In the body of the affidavit Ms D refers in the document to her short form report dated 24 July 2014;

    b)The report of Mr G, clinical psychologist, dated 22 September 2014 (29 pages);

    c)The report of Mr H, psychologist, dated 16 November 2014 (23 pages);

    d)The questions delivered by the husband’s lawyers to Mr H and his responses thereto in letter form from Mr H addressed to Mr I dated15 April 2015; and

    e)The affidavit of Mr G, sworn 2 February 2015 and filed on behalf of the father (discussing formal attachment assessment).

15. The purpose of the psychiatric assessment and the s 62G(2) report will be to assist the Court in determining what orders are in J’s best interests.  It is obviously a case where it is necessary for both parties to be psychiatrically assessed because, by seeing both parents, Dr B will be placed in the optimal situation to observe and understand the parents and their individual characteristics and to assess how they may interact as parents.  It may be that neither of the parties fall within the clinically relevant range for psychiatric disturbance or condition.  In fact that is probably the most likely outcome.  However, each parent’s unique view of the world should be more apparent to Dr B if he gets to see both parties.  He can make an assessment of the extent to which either contribute to or are reacting to problems perceived by the other parent.

16. This is not an easy matter.  Having read all of the material to which I have referred to above, I have no doubt that it is necessary for Dr B to read that material.  The material is not important because it constitutes the opinion rendered by various experts from time to time but is also because it is material on which each party has acted, not acted and one passed on in apparent non-compliance with an injunction that it not be shown to Mr G.  What the parties have said and done about and with the material from the previous social scientists may, in my view, be as important as what the previous social scientists have said.  Accordingly, I will require that the independent children’s lawyer pass on all material to ensure that the psychiatrist, Dr B, receives all of the material. 

17. Following the hearing on 12 August 2015 the husband’s lawyers sent in an affidavit from Ms D to which I have referred.  They did that because it had previously been filed and then ordered to be removed from the Court file.  I will now order that it be replaced on the Court file so it will be available to the family report writer with all other documents filed in the proceedings and documents produced on subpoena and any other documents which the independent children’ lawyer countenances ought go to the family consultant.

18. Finally, I remind the practitioners that the first two family reports were prepared without the assistance of an interpreter for the child.  The child is not fluent in the English language.  Accordingly, the independent children’s lawyer should check with Child Dispute Services whether Ms K requires an interpreter.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 9 October 2015.

Associate:  Ms Janet Durham

Date:  16 October 2015