Finiotis and Finiotis - [2008] FMCAfam 1129

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FINIOTIS & FINIOTIS

[2008] FMCAfam 1129

FAMILY LAW – Parenting proceedings – appointment of Court expert.

Applicant:

MR FINIOTIS

Respondent:

MS FINIOTIS

File Number:

PAC 1187 of 2007

Judgment of:

Halligan FM

Hearing date:

17 September 2008

Date of Last Submission:

17 September 2008

Delivered at:

Parramatta

Delivered on:

17 September 2008

REPRESENTATION

Solicitors for the Applicant:

Mr Finiotis In Person

Solicitors for the Respondent:

Ms Karagiannis

Independent Children’s Lawyer:

Ms Clifford

ORDERS

The father, the mother's legal representative and the Independent Children’s Lawyer may inspect documents produced on subpoena by the New South Wales police.
Orders are made in accordance with the Independent Children’s Lawyer's Minute of Orders marked exhibit B, except for para. 6, and note paras. (a) and (b) of the notations, as amended by me.
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.
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.
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.

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).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 1187 of 2007

MR FINIOTIS

Applicant

And

MS FINIOTIS

Respondent

REASONS FOR JUDGMENT

These are contested parenting proceedings which have been listed for final hearing before me today. They relate to the parties' son [J], who will turn 7 within the month. An application has now been made by the Independent Children’s Lawyer 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. The order also asks that the expert express an opinion as to any risks to the welfare and development of the child while in each of the parent's care. Such an order will result in the final hearing being vacated.
Part of the mother's case is the assertion that the father has displayed certain behaviours which she is concerned may indicate the presence of a psychiatric condition. Other than treatment for depression, there is no evidence before the Court of any diagnosis of any psychiatric condition in the father in the past. The mother asserts that the father has demonstrated what may be described in lay person's terms as obsessive and either delusional or paranoid behaviour. Amongst other things she asserts that about five years ago he made a complaint to the Queensland Crime and Misconduct Commission alleging that because of a dispute that arose between himself and the Queensland police service in relation to the child protection educational video or film that he produced, that he has been the victim of ongoing surveillance, both electronic and physical, in Queensland, in New South Wales and apparently overseas in the Philippines and the UK. The suggestion apparently is that the surveillance has extended beyond the agents of the Queensland police service.
That is simply one aspect of the issues raised. The mother also asserts that the father has generally complained of being under surveillance, both electronic and physical, and has taken steps which have been troubling to her. She says that they have included the father whilst driving noting the registration number plates of cars that he believes are following him, placing duct tape over all apertures in walls and ceiling in premises occupied by the parties lest there be surveillance equipment installed in the form of cameras, and other behaviour.
As I understand it the father would deny any unusual behaviour. When I asked him whether or not he disputed authorship of the letter to the Crime and Misconduct Commission, he having objected to that where it is referred to as a matter relied upon by the author of the Family Report, he indicated that he could not say whether he did or did not author that letter. As I understand it, he said he could not remember authoring this particular document. It is a very lengthy document. Why he would not be able to remember such a document prepared not all that long ago containing allegations of very serious criminal conspiracy misconduct by agencies of at least the Queensland and Commonwealth governments is unclear. Ultimately, in cross-examination in the further hearing of this matter some explanation may be provided and I note without regarding it as adverse to the father in the current application the reference to a treatment for depression. Whether that could provide some explanation remains to be seen.
The mother supports the order sought by the Independent Children’s Lawyer. The father vehemently opposes it.
The issue of a psychiatric assessment at least of the father has been part of the mother's position in this case effectively from the outset, or at least since the appointment of the Independent Children’s Lawyer. The appointment of a psychiatrist as a Court Expert was addressed, albeit briefly, before this matter was set down for hearing. Then, no order such as is now sought was then sought by the mother or proposed by the Independent Children’s Lawyer. There was previously no offer by the mother to meet the cost of a Court Expert, and previously the Legal Aid Commission, who is funding both the mother and the Independent Children’s Lawyer, was not prepared to meet the costs in the first instance. There effectively was a stalemate as to how a Court Expert psychiatrist could be then appointed and I did not make an order then appointing a Court Expert. I did order the preparation of a Family Report.
I did not, as the father apparently believed and conveyed to the author of the Family Report, dismiss that part of the mother's application that sought a psychiatrist’s report. I put that issue over to the hearing today. The issue has now been raised again but in a somewhat different guise, in the form of the order now proposed by the Independent Children’s Lawyer, the Legal Aid Commission unfortunately belatedly deciding to fund the preparation of the report. Further, what is now proposed by the Independent Children's Lawyer and supported by the mother is a little different to what was sought by the mother in that what is sought is an assessment not of one parent but of both parents.
I note that the father makes various allegations in relation to the mother, amongst other things that she is a pathological liar. There are therefore matters on which the Court may benefit from having available some expert opinion evidence in relation to the mother.
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.
The Family Report has expressed the opinion that a psychiatric assessment is appropriate based upon material she has seen from the father, her interviews with each of the parents, and the material that she has seen from the mother. The author of the Family Report has referred to certain behaviours by the father which she 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.
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.
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.
I emphasise again as I think I have made plain, I am 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. The fact however is that if the Court waits until the hearing of the evidence in relation to these matters to determine whether those matters are established, then either the Court must proceed to finality at that point or the Court is faced with a very lengthy adjournment of the matter on a part heard basis to await the preparation of that expert evidence.
As I say, the father is implacably opposed to such an order as the Independent Children’s Lawyer and the mother seek. However, I am satisfied that the order that is sought is one which is in the child's best interests. 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.
I note that the father is without legal representation and I acknowledge that there may be matters that escaped his attention because of that which might argue against the order that is sought. Certainly one of those matters is the fact that this application is made on the first day of the final hearing in circumstances where this very issue has been a live one at all times in these proceedings, where it has been previously raised in Court and where both the mother and the Independent Children’s Lawyer have been aware of those matters.
The stumbling block as I mentioned previously appeared to be the unpreparedness of the Legal Aid Commission to fund the report. The Legal Aid Commission has now changed its view. That would be an argument against making the order because it would delay the hearing of this matter. However bearing in the mind the nature of the evidence that I have already read - and I observe that I have read the documents that have so far been identified by each of the parties and the Family Report - I have no great confidence that this matter would be capable of being concluded in any event in the time estimate that I was given of two days. There is now less than a day and a half left to finish this matter and I would frankly be quite surprised if it finished in that period. At that stage, in my view, it is likely that the Court would be looking at a significant adjournment of the matter part heard in any event.
Otherwise, I am not satisfied that there is likely to be any prejudice to the father, other than the frustration of not having this matter finalised today and tomorrow, that could not otherwise be remedied by a costs order, although as I say he is without legal representation.
I therefore am satisfied that in the exercise of discretion I should adjourn this hearing until there is a report in the terms that are sought.
Another order that is sought by the Independent Children’s Lawyer and supported by the mother is that the mother be granted leave to provide a copy of the Family Report to a school counsellor at the child's school. This is a recommendation of the author of the Family Report.
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.
Nor am I prepared to formally note para. (c) of the terms that have been submitted by the Independent Children’s Lawyer, that being a notation that the mother will make inquiries about counselling for the child and facilitate his attendance with the school counsellor at [W] Public School as recommended in the Family Report.
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.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate: Deanne Bush

Date: 6 November 2008