Fulwood and Wettons (No 4)

[2009] FamCA 1319

FAMILY COURT OF AUSTRALIA

FULWOOD & WETTONS (NO. 4) [2009] FamCA 1319

FAMILY LAW - CHILDREN – FAMILY CONSULTANT – application by father to have Family Consultant and report removed from file – allegations of improper behaviour and lack of integrity – allegations of conflict – issue for cross examination – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Fulwood

RESPONDENT: Ms Wettons

INDEPENDENT CHILDREN’S LAWYER: Terrence Stephen

FILE NUMBER: ADF 1140 of 2003

DATE DELIVERED: 4 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 4 November 2009

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Terrence Stephen - LSC

Orders

1. That paragraph 3 of the Application in a Case filed by the father on 26 August 2009 be dismissed and removed from the active pending cases list.

2. That by 4:00pm on 30 November 2009 the mother file and serve an affidavit confirming the names that the children currently use and any proposal that the mother has in relation to changing the children’s names.

3. That this matter be generally adjourned to 9:00am on 1 February 2010.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1140 of 2003

MR FULWOOD

Applicant

And

MS WETTONS

Respondent

EX TEMPORE REASONS

1. I commenced this case by looking to address the specific issues that the father has raised in his affidavit in support of the application.  I was part-way through that exercise when the father indicated that he had certain submissions that he wished to make and I permitted him to make those submissions before I proceeded with the matter.  I have listened closely to his submissions.  Some of them are a repeat of what is in his affidavit.  Other “submissions” comprise new factual material, which I have listened to, and although it would be open to me to not take into account that factual material because it is not in his affidavit, I propose to take it into account. 

2. I am now told by the mother who is attending this hearing by telephone link, as well, that she has not received the application or the affidavit and she was not advised of today’s hearing.  The application and the affidavit were filed on 26 August 2009, with a return date of 11 September 2009.  The father tells me that he served those documents upon the mother.

3. The hearing took place on 11 September.  The mother attended that hearing by way of telephone.  On that day, this issue was addressed in a preliminary way and I indicated how I proposed to deal with it.  I adjourned the matter to provide a listing on a future date when Ms B would be available.  The mother was present by telephone, she heard all that.  As far as I am concerned, on that occasion no comment was made by the mother that she had not received the application which was the subject of the discussion.  Thus I do not accept that she has not received this application and affidavit. 

4. In terms of the advice of today’s hearing, a letter has been sent by this court on 13 October 2009 to the mother’s address.  It has not been returned.  The mother says she has not received that letter.  I do not accept that.  Nevertheless I offered the mother the opportunity to seek an adjournment in those circumstances but she has chosen not to. 

5. Continuing then, to address, as I have already, the issues raised by the father, both in his affidavit and in his submissions, nothing that he has said in his submissions changes my view about the issue raised in paragraph 2 of his affidavit.  And to repeat, in my view, there is nothing there which provides any basis for the orders that he seeks in relation to Ms B.

6. In paragraph 5 of his affidavit the father deposes to Ms B expressing concern that she may not have the report ready for the November hearing.  Thef ather sets out the conversation that he says he had with Ms B about that and what he saw as his chances or prospects of success, and he says he told Ms B that he was not confident of success before a Family Court bench.  He says he told her that the court had allowed itself to participate in improper conduct and would make rulings in its own interest rather than in the interests of justice.  The father said that he informed Ms b that he would be taking the matter to the High Court where he was confident a more legal ruling would be made. 

7. Now, per se there should be no issue about that.  That is simply information being conveyed by the father to Ms B.  However, as is apparent from paragraph 6 of the affidavit, what the father complains about – and he has elaborated on this in his submission – is that when he said those things to Ms B, he was unaware that she – as he describes it – was a direct employee of the Family Court.  And he alleges it was unethical and a conflict of interest for Ms B to continue in the case after being told by the father of his concerns about this court and that he has every intention to take it to a higher court. 

8. In that context, the father refers to the Public Service Act and - as he describes it – Code of Conduct, Part 3, s 13(1), which reading his affidavit – and I assume it is accurate, says:

   “An APS employee must behave honestly and with integrity in the course of APS employment.”

9. And then Part 3, s 13(7), states, apparently:

   “An APS employee must disclose and take reasonable steps to avoid any conflict of interest, real or apparent, in connection with APS employment.”

10. Now, making what I can of that, what the father is suggesting is that Ms B is in a situation of a conflict of interest because she is aware of his views of this court.  Now, as far as I am concerned, that is nonsense.  It does not provide any basis for a finding that Ms B is in a position of conflict of interest.  Given that I do not accept there is any conflict of interest, there is no basis in relation to that issue for Ms B to be excused from this case.

11. In paragraph 7 of his affidavit, the father says that Ms B sought his opinion on his expectations regarding the orders that he was seeking.  He told her that he felt the matter had been pre-determined, perceived that actions between the Independent Children’s Lawyer and the court had amounted to a conspired attempt to manipulate and construct the outcome, and he did not believe the court had the integrity or legal validity to admit recognition or to redress improper behaviour. 

12. He then goes on and says in paragraph 8 that Ms B inquired as to why he was continuing with the matter if he thought he had little chance of success and he says he told Ms B that he was required to see the whole process through in order to have the matter furthered to a court that he perceived more valid. 

13. He said he was in contact with the South Australian Supreme Court and the Federal Court and he was awaiting response as to jurisdiction and procedural requirements in relation to initiating legal action against the Family Court and/or its participants.  He says he told Ms B this not knowing and without her telling him that she was an employee of a party he intended to prosecute.  He says, again, that that raises a conflict of interest, but in my view, it does not.  And again, it still does not provide any basis for there to be an order that Ms B take no further part in these proceedings.

14. Paragraph 9 is a short paragraph.  The father says that he presented to Ms B his perception of the court’s improper behaviour and lack of integrity, and he said that he wasn’t going to behave in the same manner.  That is the end of that paragraph.  I don’t know where that leads, but presumably it is part of the overall scenario that the father is presenting, indicating that Ms B is in a situation of a conflict of interest.  If that is what he is saying, I do not accept that submission.

15. Paragraph 10 is a paragraph where the father deposes to presenting to Ms B his reasons for pursuing the matter, namely, as he saw it, his participation in the children’s future needs and development was essential to offset the influence and negative inference that had been imposed by their past relationship – presumably suggesting that the mother has influenced the children against him. 

16. Paragraph 11 is where he sets out his mother’s position, namely that she certainly has never influenced or manipulated the children towards their relationship with him, and he says that she has been behaving in a diligent, and a responsible manner – providing an environment lacking conflict.  He said that if his response is unsuccessful, he felt that a positive relationship with the grandmother would provide the children an opportunity, if they sought it, to re-establish the relationship with their father as adults.

17. Paragraph 12 is a paragraph where the father says he provided information to Ms B in response to a question from her about how he views the situation and the future in relation to the children. 

18. In paragraph 14, he says that he proposes to tell the children about the behaviour of the court and its participants, and he fully expects the children to then express anger, hostility and frustration at the court and its participants.  And he says he will be there to support the children and provide an opportunity for them to redress this court’s conduct and actions into the future.  He says he has the right to pursue legal action, and his children do as well if there are just grounds for pursuing any action.

19. Again the father, in this paragraph, puts this in the context of him telling Ms B this, not knowing that she was an employee of the court.  He says the conflict is that Ms B therefore has that information in the context of a future prosecution against her employer.  He suggests that is a conflict of interest, but again, I do not agree. 

20. He then, in paragraph 15, says Ms B has sought to cease the paternal grandmother’s contact with the children.  He says that is on minimal discussion and no research.  He says the grandmother is a party to the proceedings and was more than willing to discuss her interaction with the children.  He complains that Ms B sought no interview, and declined when it was offered.  Now, I am not sure precisely in what context the father is raising that.  It does not seem to me to be relating to any issue of conflict of interest, although he says it does.  It is a straight out criticism of Ms B not undertaking what he sees as the necessary research before she makes the recommendation.  That is certainly something that the father is entitled to raise.  In my view, it is a matter, though, that the father can raise at the appropriate time, namely when Ms B is presented for cross-examination during the conclusion hearing in this matter.  It is not an issue which would lead me, at this stage, just on the basis of an allegation in an affidavit to excuse Ms B from these proceedings.  It is a common circumstance in litigation where reports are provided by experts for those experts to be challenged, both in terms of their qualifications, their expertise, their observations, and whether they have undertaken the research which might be needed to justify their opinions.  But they are matters, as I say, which are properly dealt with at the hearing, when Ms B is available for cross-examination.  Her report, if admitted at the hearing, will be treated in the same way as any evidence – namely, I have to assess what weight is attached to it after all cross-examination including by the father.

21. In paragraph 16, the father refers to the Australian Psychological Association and says that that Association states that psychologist’s findings can be directly influenced by their own experiences.  The father hones in on a specialisation of Ms B in the past in relation to maternal post-traumatic stress disorder, and the father complains that Ms B seems to align specifically with the mother which, he feels, prejudices him.  Now, again this is a matter which should be the subject of cross-examination by the father of Ms B at the appropriate time – namely, at the hearing of this matter.  On an interim application such as this, I am not prepared to make any finding in relation to that matter which would lead me to excuse Ms B from these proceedings.

22. In paragraph 17 the father suggests that on 27 March 2009 the Independent Children’s Lawyer made a statement that Ms B’s report is comprehensive, and he complains that the court accepted that submission without reservation.  His case is that there is absolutely nothing comprehensive about Ms B’s report.  Now, that is his case.  The Independent Children’s Lawyer case is that it is comprehensive.  Thus I will have to hear evidence about that at the conclusion hearing.  Presumably the Independent Children’s Lawyer will cross-examine Ms B at the hearing, and the father will cross-examine Ms B at the hearing.  I will then be able to make a fully informed decision as to the report and the weight that I attach to it at the time.  Thus, again, that is not a matter which would lead me to make any finding or make an order now to remove Ms B.

23. The father, in paragraph 18, goes on and seeks to add weight to his case that the report is not comprehensive.  He says he has consulted with an experienced senior psychologist.  He says there are pages of affidavit material that Ms B has not read when offered to her.  As a result, there are inaccuracies in the report, and the father has taken me to some of those inaccuracies

24. He complains that Ms B has relied on a brief questionnaire.  Again, that is his case, and it does not mean that it is so.  The Independent Children’s Lawyer takes a different view, and the mother takes a different view.  There is a dispute, and I will have to decide that dispute on the day, after hearing cross-examination and submissions about the weight that I should attach to Ms B’s report. 

25. I am concerned, though, at what the father has said in paragraph 18 and also what he has said in his submissions, which was to the effect that he has obtained views of other persons, including professionals, about the report.  The father obviously has not read what is attached to the front of the assessment, which is:

    “The assessment should be treated as confidential and should not be disclosed to persons other than the legal representatives of the parties and the parties, unless the court directs.”

26. In paragraph 19 of his affidavit, the father refers to Dr C’s report and he says:

    “I hold grave concerns as to the intent of the court and the ICL, given that they sought to discard the report provided by Dr [C] in favour of that provided by Ms [B].”

    I do not know what that has got to do with an application that Ms B be excused from this case.  The fact of the matter is that I have permitted the father to present and rely on the reports of Dr C in this case, and he is on notice that he is to arrange Dr C to give evidence and be cross-examined in relation to his reports.  That is the accurate fact in relation to this matter, not as the father proposes in paragraph 19 of his affidavit.

27. In paragraph 20, the father suggests that given the complexity and considerable content in this matter, it is not feasible that a report be submitted without any due diligence. He suggests that Ms B has done so negligently and irresponsibly.  However, as far as I am concerned, there is nothing in the father’s affidavit which establishes that allegation.  Whether that allegation is pursued by the father at the trial and what the outcome is in relation to that allegation after I hear cross-examination and all of the other evidence that I am going to hear in the trial to put it into context, remains to be seen.  But, to repeat, simply on the basis of the father saying it is so, in no way indicates that it is so.  He is perfectly able to raise the matter and I will deal with it, if he pursues it at trial.

28. In his oral submissions the father has suggested that Ms B has failed to comply with s 67ZA(2) of the Family Law Act 1975, in that she has not acted on the allegations of abuse by the mother that he informed her of. He says for example that the mother has abused the children by alienating them from him and Ms B should have reported that. For my part, this is just one more ridiculous claim by the father and I reject it out of hand.

29. Thus, after having worked through the affidavit and addressed each paragraph in support of the application, and taking into account the further submissions made by the father, I propose to make an order that paragraph 3 of the Application in the Case filed by the father on 26 August 2009 be dismissed.

I certify that the preceding 29 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 4 November 2009.

Associate