Finiotis and Finiotis - [2009] FamCAFC 30

FAMILY COURT OF AUSTRALIA

FINIOTIS & FINIOTIS

[2009] FamCAFC 30

FAMILY LAW - APPEAL – Parenting proceedings – Appeal against a procedural order made by a Federal Magistrate – Where the father sought to set aside an order of the learned Federal Magistrate directing the provision to the Court Expert of copies of affidavit material filed in the proceedings – Appeal dismissed – Application to adduce further evidence refused (CDJ v VAJ (1998) 197 CLR 172).

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

MR FINIOTIS

RESPONDENT:

MRS FINIOTIS

INDEPENDENT CHILDREN’S LAWYER:

LEGAL AID COMMISSION OF NEW SOUTH WALES

FILE NUMBER:

PAC

1187

2007

APPEAL NUMBER:

116

2008

DATE DELIVERED:

5 March 2009

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

COLEMAN J

HEARING DATE:

12 February 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

17 September 2008

LOWER COURT MNC:

[2008] FMCAfam 1129

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self Represented

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

C/- Alice Finn
Legal Aid Commission of NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Clifford

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Michael Wayne Tiyce

Orders

That the appeal be dismissed.
That the application for leave to adduce further evidence be dismissed.
That costs be reserved.
That the father within 21 days file and serve submissions in opposition to the making of costs orders against him in favour of the mother and the ICL.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 116 OF 2008
File Number: PAC of 1187 of 2007

MR FINIOTIS

Appellant

And

MRS FINIOTIS

Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed 10 October 2008 Mr Finiotis (“the father”) appealed against orders made by Federal Magistrate Halligan in parenting proceedings between the father and Mrs Finiotis (“the mother”) on 17 September 2008.
The orders of the learned Federal Magistrate relevantly provided that:
(3)The Independent Children’s Lawyer may provide to the Court Expert copies of the mother's affidavit filed on 26 August 2008, the affidavit of [Mr T] filed on 26 August 2008 and the affidavits of the father filed on 19 October 2007 and 29 July 2008.
(4)The proceedings are listed for final hearing before me at 10.00 am on 23 March 2009 in relation to parenting issues, estimated hearing time three days.
(5)Both parties shall file and serve all further affidavit evidence together with a list of documents to be relied on at the hearing not less than 14 days before the hearing.
The father sought that such orders be set aside.
The mother and the Independent Children’s Lawyer (“the ICL”) resisted the father’s appeal and sought to maintain the learned Federal Magistrate’s orders.
The father sought a series of other orders:
1.That orders 3 order 4 order 5 be struck out of the orders made by Magistrate Halligan on the September 17th 2008.
2.That the affidavit evidence of this case be heard prior to any false labeling [sic] of mental health issues being raised.
3.That a Child Psychologist address the Notice of Child Abuse and Family Violence and assess the impact the event has ad [sic] on the child.
4.That the father be allowed 1 midweek phone call to the child at 8 pm prior to the child going [to] bed.
5.That the court refrain from ridicule of the fathers [sic] christian faith.
6.That the selection of any court appointed expert to assess the father be selected by the father and without bias of unfounded un proven [sic] affidavit hearsay by the mother. [Notice of Appeal filed 10 October 2008].
As is apparent from their terms, they are not orders which this Court could make.

Background

Whilst there appears to be little common ground between the parties, some matters appear incapable of being controversial.
The parties married in 1999 and have one child, J who was born in 2001. The child J is accordingly 7 years of age.
The parties separated in April 2005 and, in August of that year, entered into consent parenting orders.
The mother re-partnered in April 2008 and, at the date of the preparation of a welfare report in August 2008, was reported as expecting a child of her new relationship.
The child J currently lives with the mother and spends three nights in each two week cycle with the father, from Friday afternoon after school until Sunday afternoon at 4pm in one week, and from the conclusion of school on Thursday until Friday morning in the following week. The child spends half of his school holidays with the father.
In the substantive parenting proceedings which are pending in the Federal Magistrates Court, the father seeks orders providing that the child will primarily live with him. The mother appears to seek orders essentially continuing the current arrangements for the child.

The Reasons for Judgment of the Federal Magistrate

Having identified the parenting proceedings which were before him, the learned Federal Magistrate turned to consider the application made by the ICL “for the appointment of a psychiatrist as a court expert to prepare a report as to a diagnosis, prognosis and recommendation of any treatment of a mental health condition either of the parents may have”. [Reasons for Judgment, par 1]. His Honour recorded that the application also sought “that the expert express an opinion as to any risks to any welfare and development of the child while in each of the parents care”. [Reasons for Judgment, par 1].
His Honour then traversed what he perceived to be the mother’s allegations about the father [Reasons for Judgment, paras 2 & 3] and acknowledged that the father denied the substance of the mother’s allegations. His Honour recorded in that regard that, notwithstanding that “in cross examination in the further hearing of this matter some explanation may be provided” with respect to the matter to which he made brief reference, he did not regard the absence of such explanation “as adverse to the father in the current application”. [Reasons for Judgment, par 4].
The learned Federal Magistrate recorded, accurately there is no doubt, that the father “vehemently” opposed the making of the order sought by the ICL.
His Honour noted that “the father makes various allegations in relation to the mother, amongst other things that she is a pathological liar. There are therefore matters upon which the Court may benefit having available some expert opinion evidence in relation to the mother”. [Reasons for Judgment, par 8].
The learned Federal Magistrate proceeded to observe that:
9.Whether or not the father has demonstrated behaviours which were, or had the potential to be, detrimental to the child is a matter of fact to be determined by the Court. If the Court were to be satisfied of such behaviours, then unless there were reasons whereby the Court could be satisfied that those behaviours would not recur in the future, the Court would need to and could take those matters into account in formulating appropriate parenting orders. If the Court were satisfied there were no such behaviours then it would cease to be a continuing issue in determining the matter. [Reasons for Judgment, par 9].
Reference was then made to the Family Report, which had issued the previous month, which his Honour recorded as expressing “the opinion that a psychiatric assessment is appropriate based upon the material she [the author of such report] has seen from the father, her interviews with each of the parents, and material that she has seen from the mother”. [Reasons for Judgment, par 10].
Reference was also made to portions of the Family Report recording “certain behaviours by the father which she [the author of the report] says could in lay terms be described as paranoid and has also indicated that in her opinion some of the behaviours by the father, including his hypervigilance and suspicion of strangers, and the suggested projection of that upon the child, may have had an adverse effect upon the child already”. [Reasons for Judgment, par 10].
The learned Federal Magistrate then considered the possible scenarios which may arise at the conclusion of the trial:
11.If the Court were to come to a similar conclusion and be left with that fact without any expert evidence whether there was a cause for it in a medical sense, and without any expert evidence as to whether or not there is some means of ensuring the amelioration of that behaviour or its effect upon the child, the Court would simply have to accept that that behaviour would be likely to continue for the indefinite future and make orders on that basis. Those orders could entail some significant curtailing of the time that the child might otherwise spend with the father. If on the other hand, assuming that those facts were proven, but in addition the Court had expert psychiatric opinion evidence that these behaviours were the function of a diagnosed or diagnosable condition for which there was treatment and it indicated the form of that treatment, and if further it indicated that subject to that treatment there was real prospects that the adverse effects upon the child could be either removed or significantly ameliorated, there would then be a basis for rather different orders. For example, with expert evidence there may be a basis for some restriction of the time that might otherwise be appropriate initially until there was an opportunity for any treatment options identified by the expert to be pursued and for the beneficial effects of those upon the father to be assessed. Similarly, if any such conditions were identified in relation to the mother the same may be the case. It might then provide an opportunity for the Court to frame orders which might perhaps only render temporary any curtailment of the child's time with one or other of the parents or any other protective provisions that may be appropriate. [Reasons for Judgment, par 11].
His Honour concluded that:
12.Expert evidence from a Court Expert may in that sense provide a better opportunity for the Court in determining this matter to formulate orders in the medium to longer term which would better promote the welfare of the child than if the Court did not have that information or evidence before it. [Reasons for Judgment, par 12].
Having thus considered the issues, the learned Federal Magistrate reiterated that he was “not assuming the father has any particular condition at all. Nor am I assuming that the mother’s allegations against him, which he denies, have been proven”. Those matters, his Honour observed, would have to abide “the hearing of the evidence in relation to these matters to determine whether those matters established”. [Reasons for Judgment, par 13].
The learned Federal Magistrate concluded, relevantly, as the order he was asked to make was referrable to the parenting power reposed in the Court by Part VII of the Family Law Act, that the order sought was “one which is in the child’s best interests”. His Honour observed that:
14.… The child's best interests at the end of the day must be the paramount consideration, not the sensitivities or preferences of either parent. Where the expert evidence is likely to place the Court in a better position to make orders which will promote the child's best interests, in my view there are strong reasons why the order should be made. [Reasons for Judgment, par 14].
Although not directly relevant for present purposes, the learned Federal Magistrate declined to authorise the Family Report being published to a school counsellor at the child’s school. His Honour’s reasons for doing so were as follows:
20.Bearing in mind that so many of the factual matters upon which that report are based are hotly disputed, in my view I should have some hesitation in giving too much currency outside these proceedings to the report as it currently stands. It remains to be seen whether ultimately this particular recommendation and other others find favour with the Court, and unless and until they do in my view there is a potential, particularly if the foundation for the Report is ultimately proven to be wrong, that more harm than good might be created by counselling proceeding upon the appearance to the school counsellor that the Court has accepted everything that is in the Family Report. That would be the clear implication if the Court were to make the order that is sought and I am therefore not prepared to make that order. [Reasons for Judgment, par 20].
His Honour also, for reasons which he provided, declined the mother’s request in relation to “counselling for the child and facilitate his attendance with the school counsellor at [W] Public School as recommended in the Family Report.” [Reasons for Judgment, par 21]. His Honour’s reasons for such refusal were:
22.The mother seeks to do this and that is a matter for her, but I am not inclined to formally note that because of the risk of giving the appearance of the Court’s imprimatur to that particular course. I am not suggesting that I have formed a view that the counselling should not take place, but nor can I at the present stage form a view that it should. [Reasons for Judgment, par 22].

The Grounds of Appeal

The father, who is unrepresented, raised a number of challenges to the orders of the learned Federal Magistrate.
With respect to him, as the course that the hearing of the appeal took would confirm, and as was the case before the learned Federal Magistrate, the father’s challenge to his Honour’s decision is based upon a number of fundamental misconceptions as to the nature of the proceedings before the Federal Magistrate’s Court and the nature and effect of the orders made by the learned Federal Magistrate. Whilst the father has earnestly endeavoured in his Summary of Argument to agitate the bases of his challenge to the learned Federal Magistrate’s orders, those submissions confirm the misconceptions under which the father appears to be labouring.
As the transcript of the hearing of the appeal would confirm, this Court sought to explain to the father the nature of the final hearing of the parenting proceedings in the Federal Magistrates Court, and how any expert opinion evidence would be likely to be considered in that context.
It is clear beyond doubt that the father disagrees with the conclusions and recommendations appearing in the Family Report which was prepared in August 2008. Part of the father’s discontent with the report stems from his belief that the report was based on erroneous acceptance of the mother’s version of disputed factual issues. Whether or not the report is so affected is not a matter which arises for consideration in this appeal but, as the Court sought to explain to the father, would be pivotal to the Federal Magistrates Court determination at trial of the weight appropriate to be given to the conclusions and recommendations of the author of the Family Report.
The Court endeavoured to explain to the father the nature of expert opinion evidence, the necessity for such evidence to be at least to some extent based upon reporting of matters of which the report writer could have no personal knowledge. The Court endeavoured to explain the reality that, ultimately, the accuracy or inaccuracy of matters reported to the author of the expert report and relied upon in the exercise of his or her expertise would impact significantly, and possibly decisively, upon the weight appropriate to be given to the expert’s opinion evidence. As the Court also pointed out to the father, before objection could be taken to the report on evidentiary grounds, the author of the report would be required to face cross-examination on the report. Before any of those matters occurred, the parties to the proceedings would have had the opportunity to test the disputed issues of fact by cross-examining the witnesses making those allegations of fact.
Whatever view the author of the Family Report reached in relation to such factual or historical matters, which is not to suggest that in this case the author of the report did reach any such conclusions, such conclusions were not binding upon the Federal Magistrate conducting the trial of the substantive proceedings who was obliged as “the ultimate trier of fact” to reach his or her own conclusions having heard the relevant evidence tested.
It was also explained to the father that, to the extent that any expert report resulting from the Federal Magistrate’s orders of 17 September 2008 was shown at trial to be flawed in terms of its methodology, or reliant upon factual conclusions which were inconsistent with those reached by the Court after hearing the relevant evidence tested, or reliant upon demonstrated defects in the welfare report of August 2008, that report would also be likely to be afforded reduced or little weight.
The father also appeared to be under the misapprehension that he could adduce no evidence of his own with respect to his psychological or mental wellbeing. The Court is not aware of any impediment to the father adducing admissible evidence in relation to such matters.
The father also appeared to be under the misapprehension that punitive sanctions could attach to him, if, contrary to the orders of 17 September 2008, he failed to attend upon the expert appointed pursuant to those orders. The Court perceives that no such sanctions would be imposed in the event of the father declining to attend upon the expert appointed pursuant to the orders of 17 September 2008. In civil litigation, as other parts of the Act (such as the parentage testing provisions) suggest, the failure to attend for the purpose of preparing an expert’s report, such as that envisioned by the orders of the learned Federal Magistrate in this case, exposes the party refusing to the risk of adverse inferences being drawn in the proceedings.
Whilst the father appeared to acknowledge the force of what the Court tried to explain to him, the great bulk of which it is clear, from the learned Federal Magistrate’s Reasons for Judgment and the sound recording of the proceedings before him, were explained by the learned Federal Magistrate, the father persisted with his challenges to his Honour’s orders.
With respect due to him, to read the father’s Summary of Argument in support of his appeal is to appreciate the magnitude of his failure to understand the exercise which the authorities require him to successfully undertake before his appeal could succeed. No useful purpose is served by referring individually to the eleven paragraphs of the father’s Summary of Argument.
As noted earlier, the father’s case is predicated on an entirely erroneous premise. Contrary to the father’s belief, at least until the commencement of the hearing of his appeal, the conclusions and recommendations in the Family Report prepared in August 2008, which are clearly not favourable to him, will not necessarily be accepted or even given any weight in the ultimate determination of the parenting proceedings.
This Court has attempted to explain why that is so to the father. The learned Federal Magistrate went to some lengths, particularly in his Reasons for Judgment, to make clear that he was not prejudging anything, and that the weight, if any, ultimately to be given to the conclusions and recommendations in the August 2008 Family Report would abide the testing of both the evidence of the parties and their witnesses as to disputed factual issues, and the testing of the author of the Family Report, both in relation to her reliance upon one party’s account of such matters and other relevant aspects of the basis of her expert opinion evidence.

On any view of the evidence before the Court, there was the potential for the Court, and thus the best interests of the parties’ child to be assisted by having expert opinion evidence of the kind the learned Federal Magistrate’s order sought to facilitate.
As his Honour was as pains to point out, that exercise was by no means potentially one dimensional; both parties to the proceedings stood to be advantaged or disadvantaged having regard to the allegations each made about the other. As the learned Federal Magistrate observed, the evidence at trial may well have limited the Court’s ability to make orders which were in the best interests of the parties’ child if there was not expert opinion evidence of the kind to which the order he made was directed.
Nothing to which the Court has been referred by the father establishes that the learned Federal Magistrate’s conclusion that an expert psychiatric report would be in the best interests of the child involved either any acceptance of the mother’s version of disputed events, or acceptance of such conclusions as the author of the August 2008 Family Report may have reached in that regard. His Honour’s Reasons for Judgment clearly, fairly and even-handedly explained that nothing being done by him in any way constitutes prejudgment of the issues which clearly emerged for determination in the parenting proceedings.
Even if, contrary to this Court’s view, the father contends that the learned Federal Magistrate may bring less than an impartial mind to bear on the final determination of the substantive proceedings, that, though potentially supporting an application to his Honour for disqualification, could not advance the husband’s appeal.
Little more can or needs to be said about the father’s challenge to his Honour’s decision. In summary, the learned Federal Magistrate made a procedural order in circumstances where the disputed evidence before him justified so doing. His Honour may have exercised his discretion differently but that is not the test as the authorities make clear. The father’s appeal can, in the circumstances, have one outcome: it will be dismissed.

The husband’s application to adduce further evidence

The father also filed an application for leave to adduce further evidence pursuant to Section 93A of the Act. The husband sought to adduce before the Court by way of further evidence records from the Department of Corrective Services in relation to treatment he asserts that he unjustly received at the hands of officers of that department when unlawfully detained by them.
As the Court made clear to the father, whatever happened to the father during any detention, whether that was subsequently proved to have been lawful or unlawful, the Court accepts without difficulty that the father would have been traumatised. Whether or not such trauma as the father may have thus sustained provides insight into actions taken by him subsequently, or ameliorates such actions, or impacts upon his psychological wellbeing, are all matters which are potentially relevant to the final determination of the substantive proceedings. They in no way operate to render erroneous the decision of the learned Federal Magistrate to make the orders under challenge.
Indeed, although the father would not see it that way, the further evidence sought to be relied upon by him may well, if accepted, be matters which operated to his advantage when making an assessment of his psychological wellbeing. These are matters about which the Court need not speculate.
The further evidence does not satisfy the “test” emerging from the judgment of the majority in CDJ v VAJ (1998) 197 CLR 172 and will be dismissed.

Costs

Counsel for the mother and Counsel for the ICL sought that the father pay the costs of the appeal if, as has transpired, the appeal is dismissed.
Counsel for both parties have, properly, prepared written submissions in opposition to the father’s contentions. It was reasonable that Counsel be briefed to appear for the mother and the ICL. As the Court has recorded in its reasons for rejecting the husband’s appeal and further evidence application, the father’s appeal and application for leave to adduce further evidence, though genuine, have both been ill-conceived.
Only if the father’s financial circumstances justified so doing could the Court, in the circumstances, decline to form the intention required by s 117(2) of the Act that the circumstances justify the making of an order for costs against the father.
It might be noted that the mother and the ICL both have the benefit of Legal Aid grants.
In the absence of serious opposition from Counsel for the mother and the ICL, the Court proposes allowing the father a period of 21 days to file submissions in opposition to the making of costs orders against him.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate:

Date: 5 March 2009