Garwood & Shipton (No 2)
[2022] FedCFamC1F 723
•26/09/2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Garwood & Shipton (No 2) [2022] FedCFamC1F 723
File number(s): ADC 4995 of 2018 Judgment of: KARI J Date of judgment: 26/09/2022 Catchwords: FAMILY LAW – INTERIM – Late application for leave to file further expert evidence – Where there was a single expert – Where there had not been compliance with the Rules – Where the area of expertise of the proposed expert was not established - Procedural fairness – Where a significant delay to the proceedings would result if the Application was allowed - Application dismissed Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Division: Division 1 First Instance Number of paragraphs: 104 Date of hearing: 29-30 August 2022 Place: Adelaide Counsel for the Applicant: Ms O’Connor SC Solicitor for the Applicant: Stanley & Co Lawyers Counsel for the Respondent: Ms Tinning Solicitor for the Respondent: Barnes Brinsley Shaw Lawyers ORDERS
ADC 4995 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARWOOD
Applicant
AND: MS SHIPTON
Respondent
order made by:
KARI J
DATE OF ORDER:
30 AUGUST 2022
THE COURT ORDERS THAT:
1.That there be an extension of time for the Applicant to comply with order 1 of the orders made on 29 August 2022 to 4.00pm.
2.That the Application in a Proceeding sealed on 19 August 2022 and the Response filed thereto sealed on 24 August 2022 be dismissed.
3.That the Respondent’s costs with respect to the said Application and Response and the hearings in relation to the same on 25 August 2022 and 29 August 2022 be reserved to Trial NOTING that costs have been sought pursuant to the Scale.
4.That no later than 4.00pm on 2 September 2022 each of the parties do file and serve an Updated Financial Statement.
5.That in relation to the Trial commencing on 5 September 2022 the court directs:
(a)That forthwith the Mother’s solicitors make arrangements for the following expert witnesses to give evidence at Trial as follows:
(i)Ms G from 10.00am until 1.00pm on Thursday, 8 September 2022;
(ii)Ms B from 10.00am until 12noon on Thursday, 15 September 2022 and from 10.00am until 1.00pm on Friday, 16 September;
(iii)Ms J from 2.15pm until 4.15pm on Tuesday, 13 September;
(iv)Dr N from 10.00am until 11.00am on Monday, 19 September 2022;
(v)Ms L from 2.15pm until 4.15pm on Friday, 16 September 2022.
(b)That forthwith the Father’s solicitors make arrangements for the following expert witness to give evidence at Trial as follows:
(i)Professor O to give evidence from 2.15pm to 3.15pm on Wednesday, 14 September 2022 subject to any rulings the court may make as to the admissibility of his report.
6.That no later than 4.00pm on 31 August 2022 the Mother’s legal representatives do file and serve a list of objections upon which they require a ruling.
7.That no later than 4.00pm on 30 August 2022 the Father’s solicitor do file and serve a copy of the Addendum Report prepared by Ms B dated 29 August 2022.
8.That leave is given to the parties to jointly approach the chambers of the Honourable Justice Kari to relist the matter at short notice prior to the commencement of Trial for any further trial directions and/or case management orders.
9.That no later than 4.00pm on 31 August 2022 the Mother’s solicitors do file and serve a copy of the report prepared by Dr N.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garwood & Shipton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
introduction
The substantive proceedings before the court relate to the parenting arrangements for the child X (born in 2018) together with a preliminary question as to whether the parties were in a de facto relationship.
The proceedings are listed for Trial for a period of 12 days commencing 5 September 2022.
The current application before the court was filed by the Applicant Father on 19 August 2022.
That application has at its focus whether or not the Father be permitted to file further expert evidence for Trial purposes.
That application is opposed by the Respondent Mother and in the alternative the mother says that if the court were to accede to the Father’s application then there is a concomitant application that the Trial be adjourned.
Argument was heard in relation to the application on 29 August 2022 and judgment was reserved.
At a hearing on 30 August 2022 the court made orders dismissing the parties competing applications, and indicated that reasons would be published separately.
These are those reasons.
information about the parties AND THE CHILD
The parties to the proceedings are:
(a)MR GARWOOD, born in 1974, who is 48 years of age; and
(b)MS SHIPTON, born in 1969, who is 53 years of age.
The child who is the subject of the proceedings is X. She was born in 2018, and she is 4 years of age.
The parties agree that X was born as a result of an artificial conception procedure, undertaken in Country AA in 2017.
There is no dispute that for the purposes of the procedure resulting in X’s birth, donor eggs were used together with Mr Garwood’s genetic material.
While there is no dispute that Mr Garwood is X’s father, there is a genuine dispute as to X’s parenting arrangements in circumstances where the father has had a very limited relationship with X since her birth.
In addition, the parties vehemently disagree as to the circumstances of their relationship leading up to X’s conception. Mr Garwood asserts that the parties were in a de facto relationship. Ms Shipton asserts that the parties were never in a de facto relationship, and that the relationship can best be characterised as one of girlfriend and boyfriend (despite her dislike for the use of those terms).
The relationship between the parties is further complicated, because Mr Garwood was until shortly after the parties separation, manager of Ms Shipton’s business.
For ease of reference throughout these reasons, Mr Garwood shall be referred to as the Father and Ms Shipton shall be referred to as the Mother.
The current status of the LITIGATION
These proceedings were first commenced by the Father on 30 November 2018, when X was a few months old.
When he commenced the proceedings the Father sought orders that the parties have shared parental responsibility and that the child X live with the parties in a week about shared parenting arrangement.
The parties mutually agree that the Father has had very little to do with X since her birth.
Indeed the focus of the Father throughout these proceedings has always been the pursuit of a meaningful relationship with X and substantial and significant time spending with her.
For reasons which are of some significant controversy between the parties the Father’s relationship with X has not been able to be progressed, despite the litigation progressing through the court for over three years.
In the context of the litigation, and despite various attempts through different mechanisms, the reality is that X has not seen or spent any meaningful time with the Father since approximately late 2019.
Throughout the course of the litigation the various attempts that have been made to engage X in spending time with the Father have included supervised time at a contact service, time supervised by supervisors known to the parties and time with the assistance of professionals.
The parties mutually agree that all of those attempts to facilitate X having a relationship with the Father have largely been unsuccessful. In short it appears that X has not been able to successfully separate from the Mother for the purposes of time spending with the Father.
The parties are in heated dispute as to the reasons that lay at the heart of the unsuccessful attempts at time spending between X and the Father.
From the Father’s perspective, he asserts that the mother has done all in her power to thwart any relationship developing between he and X and that the Mother has embarked on a calculated path of alienating him from X.
From the Mother’s perspective, she asserts that the Father cannot be trusted and that she does not trust him. Amongst the various reasons that the Mother makes these assertions are principally allegations that she makes that she was the victim of unlawful sexual intercourse in early 2015 perpetrated by the Father, and that in addition, the Father misappropriated the sum of approximately $150,000 from her business.
The Mother asserts that she has done all that she can to facilitate X spending time with the Father, but that X has significant separation difficulties which require time to resolve before re-introducing the Father into her life.
The orders sought by each of the parties could not be more disparate.
The Mother asks that she have sole parental responsibility, that X live with her and that at the moment there be no time spending with the Father.
The Father promotes a range of outcomes, his primary position is that he have sole parental responsibility, that X live with him and that there be a period of no time spending between the Mother and X and thereafter and with the assistance of various experts the Mother be reintroduced to X in a supervised setting.
RELEVANT history of the litigation
The Father commenced these proceedings in the Federal Circuit Court of Australia (as it was then known).
As far back as the filing of the Father’s first Affidavit in these proceedings on 30 November 2018 he has always asserted that the Mother is the person preventing him from having a meaningful relationship with X.
The proceedings were first listed for trial with trial dates of 12 August 2019.
That trial however did not proceed by mutual agreement between the parties. It appears in part because the parties had not been able to engage X in spending time with the Father.
Ultimately, on 17 November 2020 the proceedings were transferred to Family Court of Australia (as it was then known).
On 20 December 2021 Justice Berman listed the proceedings for a 10 day trial commencing on 25 July 2022.
Trial directions were made to ready the matter for trial by Justice Berman on 4 February 2022.
Justice Berman was however unable to hear the matter, and it was thereafter assigned to my docket and a trial management hearing was scheduled for 11 May 2022.
By the time of the hearing on 11 May 2022, the Father had complied with the trial direction orders that had originally been made by Justice Berman for the filing of his trial material.
However, because the timing had not yet come up for the Mother to file to her trial material she had yet to file her trial material.
Accordingly and for a range of reasons at the hearing on 11 May 2022 amongst the raft of further trial directions made by the court, the following additional orders were made:
(1)The Mother was given an extension of time to file her trial material to 15 July 2022;
(2)The Father was given an extension of time to file any material in reply to 12 August 2022.
Importantly, new trial dates were allocated commencing on 5 September 2022 with a 12 day sitting allocation.
It is evident to the court that throughout the proceedings there have been a number of experts that have been instructed either by virtue of court orders and/or as separately instructed by the parties to provide an opinion and otherwise give evidence in the proceedings.
Of significance at this juncture is that Ms B was appointed as the single expert to undertake a family assessment and report.
Ms B’s appointment as an expert came about, it appears by consent and without any orders having been made by the court.
That agreement to appoint Ms B is assumed, because in the absence of the court having made orders, a notation appeared in the orders made by Judge Bender on 12 August 2019 in the following terms:
(1)“In the event the Family Assessment Report of [Ms B] will not be released to the parties prior to the adjourned date the parties’ solicitors are to contact the Chambers of Judge Kelly seeking the matter be adjourned to a date after the report’s release.”
The court understands that Ms B has undertaken two separate family assessment processes and reports in these proceedings; the first dated 13 November 2019 and the second dated 19 August 2022.
Of the various additional experts that have prepared reports in these proceedings is Ms G. Her reports are dated 12 December 2021, 6 May 2022 and 22 July 2022.
It appears that Ms G’s involvement in these proceedings ultimately came about as a consequence of orders made on 21 November 2019 by Judge Kelly which relevantly provided as follows:
…
10.The parties jointly engage with [Dr R], or such other infant psychiatrist as they may agree to provide a assessment of [X] including any apparent separation distress or anxiety she may experience to assist the parties to better manage handover and to facilitate [X] developing a relationship with the father.
11.Both parties are to attend the assessment with the psychiatrist and participate in any proposed treatment or intervention as may be directed by the psychiatrist noting the parties are not required to attend together for appointments.
12.The mother do all things necessary to engage in therapy with either [Ms G] or [Ms L] in relation to [X’s] separation anxiety and any anxiety the mother experiences in relation to [X’s] time with, and her relationship with, the father.
13.The mother provide a copy of the family assessment report prepared by [Ms B] to her treating counsellor/therapist.
14.The father provide a copy of the family assessment report prepared by [Ms B] to the following:
(a) the nominated psychiatrist; and
(b) the [S Contact Service].
…
What the court understands is that while orders were made for Dr R to undertake an assessment of X as to her “apparent separation distress or anxiety”, the parties were not able to engage her in that regard. Ms G was then instructed by the parties to undertake that therapeutic exercise with X.
Separately and in part presumably as a consequence of paragraph 12 of the orders made on 21 November 2019 the Mother has engaged in a separate and distinct therapeutic exercise with Ms L. The Mother seeks to rely at trial on a report of Ms L dated 27 July 2022.
For present purposes, it is relevant to note:
(1)Ms B’s second report was made available to the parties on 22 August 2022. The report was filed by the Father’s solicitors later that same day.
(2)When Ms B prepared her first report she made specific recommendations as to how and on what terms X’s relationship with the Father should proceed. In particular Ms B recommended that X should spend time with the Father for a period of three months for a period of two hours each week. Thereafter Ms B made a generalised recommendation that X’s time with the Father should incrementally increase if the initial period of time spending had been positive and that if time continued to progress positively then the parties might look to X spending time with the Father including full day and/or overnight periods commencing once she turned 3 years of age. Ms B also recommended that the parties undertake mediation and co-parenting therapy.
(3)By the time of her second report dated 19 August 2022, Ms B’s recommendations had changed. Ms B’s current recommendations now include:
[Ms Shipton] to have primary decision-making powers for [X’s] health and education needs and to negotiate with [Mr Garwood] on other issues of concern.
Videocalls with [Mr Garwood] to be suspended at this time.
Once [X] was able to comfortably separate and spend extended time independently with a professional support person, [Mr Garwood] to begin to spend in person time with [X] in Adelaide with this professional present. When [X] felt more comfortable with sending time with [Mr Garwood] independently, this support could be reduced and time increased.
Given her current role in working with [X] and her awareness of [X’s] needs, [Ms G] would be best placed to help facilitate this process and provide recommendations when time could be increased. Should [Ms G] be unavailable, then finding a professional adept at the reunification process and whom would be willing to work alongside [Ms G] would be preferable. [Ms J], [Ms T] and/or [Ms U] would be viable options.
Should significant evidence arise about either parent’s capacity to care for [X] then the court may need to review the care arrangements.
the current application
The current Application in a Proceeding was filed by the Father on 19 August 2022 (“the Application”).
On the same day that the Application was filed:
(a)It was given a hearing date of 25 August 2022; and
(b)Chambers Orders were made requiring the Application to be served no later than 4pm on 19 August 2022 and for the Respondent to file and serve any Response and Affidavit in support by 24 August 2022.
The relevant order sought in the Application was:
2.That the father be permitted to provide an expert report and call an expert at the trial in relation to psychological matters raised in the mother’s Trial Affidavit.
Such a broad and ambiguous order was not one that the court could or would ever make. This difficulty was acknowledged by the Father’s Counsel during the course of submissions on 29 August 2022, with alternate orders sought orally.
In support of the Application the Father filed a very brief Affidavit comprising of some 3 pages (“the original Affidavit”).
That contents of that Affidavit bear repeating in these reasons.
1.On 22 July 2022 I received the mother's (unsealed) trial affidavit.
2.On 22 July 2022 I also received the latest report of [Ms G].
3.On 3 August 2022 I received a letter of report of [Ms L] dated 27 July 2022 and later an affidavit of [Ms L] on 10 August 2022.
4.The mother has raised in her trial affidavit concerns about her own mental health through the annexed report of [Mr N] and the affidavit of [Ms L]. The mother, in the information given to both these experts and in her trial affidavit, alludes to my being the cause of former and ongoing PTSD in the mother and, in particular, refers to panic attacks she claims she had this year on learning that I was to know her address and on a supposed sighting of me in a shopping centre.
5.I have addressed part of this diagnosis and the symptoms in my reply affidavit but I also wish to obtain an expert report on the validity of the mother’s claims about her suffering from the said disorder because of my contact with her rather than because of the impact that my getting Orders that [X] spend time with me might have on her. The expert will also be asked to address if the diagnosis is consistent in any event.
6.Further, I am concerned that my daughter is presently estranged from me and is able to have time with others besides the mother - including Facetime. I only learned that [X's] anxiety, which was being dealt with through the years the matter has been in the Court, had abated where she formerly could not separate from the mother at all.
7.The mother's trial materials and the [Ms G] report first informed me that [X] was able to spend time, including overnight time, with others and that [X] could spend Facetime for lengthy periods with others yet not me.
8.My worry is that [X] is now aligning with the mother and is estranged from me through the actions or omissions of the mother. I believe this is an area of expertise.
9.At present none of the experts who will be assisting the Court in the trial addresses these issues including the short and long-term impact on [X] if the mother is causing or contributing to [X's] failure to attach to me and, in any event, what solutions can be offered to reduce the impact of harm on my daughter.
10.Further, it is my view the current experts lack the required expertise to assist the Court.
11.I have instructed my lawyers to contact an expert on alienation, estrangement and alignment in children.
12.I make this application out of time of the Trial Orders because of matters raised by the mother which I only learned about in the Trial materials.
The Mother duly filed a Response to the Application in a Proceeding as directed on 24 August 2022.
By her Response the Mother sought the following orders:
1.That the applicant’s Application in a Proceeding filed on 18 August 2022 be dismissed.
2.Alternatively, in the event that the applicant is successful in obtaining an order in the terms of his Application in a Proceeding filed 18 August 2022:
2.1the trial listed to commence on 5 September 2022, be vacated and relisted at a date convenient to the Court and parties;
2.2the applicant pay the respondent’s costs thrown away by reason of the vacation of the trial;
2.3directions as to the materials to be provided to the applicant’s new expert, the timing of service of the report and for its provision to other joint and single expert witnesses.
3.That the applicant pay the respondent’s costs of and incidental to this application.
4.For such further or other orders as the Court deems fit.
The Mother’s solicitor filed an affidavit in support where she set out the following:
1.I am the solicitor for the respondent mother [Ms Shipton]. I make this Affidavit in response to the Application in a Proceeding (Application) filed by the applicant father on 18 August 2022 and listed for hearing at 2.15pm on 25 August 2022.
2.Annexed hereto and marked with the following letters are the current Curriculum Vitae of:
2.1[Ms B], Annexure “A” (a copy of which is attached to her Updated Family Assessment Report dated 19 August 2022)
2.2[Ms G], Annexure “B” (provided to my office on 23 August 2022); and
2.3[Ms L], Annexure “C” (provided to my office by Ms L’s receptionist on 22 August 2022).
3.At the hearing of the Application the respondent intends to refer to the Orders made 4 February 2022 (in particular paragraph 1) and the Orders made 11 May 2022 (including notations A and C).
4.The applicant father’s allegation that the respondent mother’s conduct is the cause of [X’s] separation anxiety and/or other behavioural issues has been a feature of these proceedings from the outset, and was raised in the applicant’s affidavit of 1 November 2019 at paragraph 17.6 and in this trial affidavit of 19 April 2022 at paragraphs 35 and 94.
5.The first occasion on which the respondent received notice of the applicant’s desire to obtain further expert evidence was upon service of the Application.
6.In the event that the Court were to grant the Application, the respondent would seek that other expert witnesses, in particular [Ms B], [Ms G] and [Ms L] be given the opportunity to read and consider the new report prior to them giving their evidence. Depending on the content of the new report, the respondent might seek orders permitting one or more of the other experts to prepare a written response to it prior to trial.
7.As a result of enquiries made by me, and on my behalf by my administrative assistant [Ms V] to give their oral evidence in the upcoming trial it is my belief that each of them have very limited time available in the period up to 20 September 2022. I am informed by [Ms V] and believe that their availability is as follows:
7.1[Ms B] is available 13 September (all day), 14, 15 or 16 September (mornings only);
7.2[Ms G] is only available 8 September;
7.3[Ms L] is only available 15-16 September.
8.I know the facts deposed to herein to be true to the best of my knowledge, information and belief except where otherwise appears.
Despite no orders being made for the filing of further material in support of the Father’s Application in a Case, further documents were filed by him as follows:
(1)An Affidavit was filed by the Father’s solicitor at 3.23pm on 24 August 2022 (the day before the hearing).
(2)A further Affidavit was filed by the Father’s solicitor at 1.04pm on 25 August 2022 (just over one hour prior to the hearing).
The Affidavit filed by the Father’s solicitor on 24 August 2022 again is brief in its contents and comprises some one and a half pages in the following terms:
1.I am the solicitor acting for the Applicant Father in these proceedings.
2.On 24 August 2022 at 9:52am I had a telephone conversation with [Dr W], Psychologist, in relation to his availability to give expert evidence in this matter.
3.I had, earlier this week, sent to him a brief email in relation to the proceedings to ascertain if he would be able to assist the Court on behalf of the father, in particular where the most recent reports and the Respondent mother's case is that the child, [X], not have time with the Respondent until the child had undergone more therapy.
4.I knew that [Dr W] was an expert in the issue of attachment, reunification, and unification issues involving children and has given evidence in Courts in Australia and elsewhere. He recently presented at [a conference] on these topics.
5.I received instructions from the father to approach [Dr W]. It is the Applicant’s case that the present experts who are assisting the Court in relation to [X] and her presentation do not have the particular expertise that [Dr W] has.
6.[Dr W] informed me today that:
(a)He is available to provide a written report prior to the commencement of the Trial on 5 September 2022.
(b)He is available for cross-examination during the period of the adjournment of the Trial;
(c)His hourly rate is $… USD; and
(d)He would need to give evidence by way of video link. [Dr W] resides [in the United States].
7.If leave is granted by this Court for the Applicant to obtain a report and call evidence in relation to this area of expertise the Applicant would seek that I be permitted to:
(a)Send him a letter of instruction. Annexed hereto and marked with the letters “[X-1]” is a true copy of that letter of instruction.
(b)To provide him with each party’s electronic Court Book, which contain:
(i) the Orders each party seeks at Trial.
(ii) the evidence-in-chief of all witnesses.
(ii) the Tender Books; and
(iv) expert reports.
8.I know the facts deposed to herein of my own knowledge, information and belief except as otherwise appears on the face of this Affidavit.
The Affidavit filed on the day of the hearing by the Father’s solicitor relevantly for present purposes had annexed to it a copy of the CV of the Father’s proposed expert namely, Dr W.
When the matter came on for hearing on 25 August 2022 the court raised with the Father’s Counsel a number of concerns, including but not limited to:
(a)The court’s concern already identified in these reasons that the order sought in the Application was not one that the court would make.
(b)The eleventh hour filing of the Application on the eve of trial.
(c)The court’s concern about the lack of procedural fairness that would be afforded to the Mother if the Father’s application was acceded to.
In addition, at that hearing it was raised with the parties that Dr W was someone known to me as a consequence of my attending a conference at which Dr W had presented and at which the Father’s solicitor had first become alerted to the possibility that he give be an appropriate expert in these proceedings.
Ultimately however, and due to constraints on the court’s time on 25 August 2022, the Application was listed for a fulsome hearing on 29 August 2022. What could not have been anticipated then was that the hearing which ultimately proceeded on 29 August 2022 would consume an entire sitting day. The duration of the hearing is perhaps emblematic of the level of acrimony and passionate dispute in which the parties are embroiled.
the submissions made on behalf of the father in support of the application in a proceeding
As has already been identified, the orders sought in the Application in a Proceeding were not ones which the court was capable of making and/or enforcing.
Ultimately the Father’s Counsel identified that what was being sought was the court’s permission to obtain a report from Dr W as to the long term impact of X not having a relationship with the Father.
While this topic was identified at paragraph 9 of the Affidavit originally filed in support of the Application by the Father, it is also clear from the Father’s Affidavit that he also had a desire to obtain further expert evidence.
As best as it might be understood it appeared that the additional expert evidence the Father was pursuing was:
(a)An expert report on “the validity of the mother’s claims about her suffering from… PTSD …”, with that expert to also “address if the diagnosis is consistent in any event.”; and
(b)An expert report from someone who specialises in “alienation, estrangement and alignment in children”.
By the time that Ms Y filed her affidavit on 24 August 2022 Dr W was identified as the Father’s proposed expert, as Ms Y had attended Dr W’s conference presentation which Dr W had co-presented with a clinical psychologist, Dr Z.
During the course of the hearing on 29 August 2022 the Father’s counsel variously submitted that the focus of the report that the Father wished to obtain from Dr W was the long term impact to X if she was not to have a relationship with the Father.
In support of the appropriateness of Dr W giving that opinion, the Father’s counsel was critical of Ms B, as this was a topic that it was submitted Ms B should have addressed but had failed to do so.
In response to questions from the bench as to why the Father’s Application had been made so late, the submissions that were ultimately made were:
(1)That it was not until the Father received Ms B’s second Family Assessment Report on 22 August 2022 that he understood that Ms B’s recommendations had changed such that her recommendation that all time spending between X and the Father be terminated and that it not be reinstated until X could separate from the Mother with no timeframe being given as to when that might occur.
(2)That it was not until the filing of the Mother’s trial material on 23 July 2022 that the Father first understood that from his perspective the Mother’s case had changed from one which was based on X being unable to separate from the Mother whatsoever to one where she was able to separate from the Mother to be cared for by a range of people including the Maternal Aunt, the Maternal Grandmother and the Mother’s housekeeper.
(3)That it was not until the filing of the Mother’s Trial Affidavit that he understood that the Mother was for the first time informing the court that she had suffered two panic attacks. Firstly on one occasion when she saw the Father at a shopping centre and secondly on an occasion when she understood that the Father knew her new home address in M Town.
During the course of the submissions, the court asked the Father’s Counsel why it was that Dr W should now give evidence about those matters instead of and in place of Ms B who had been charged with conducting a Family Assessment and a report in these proceedings.
Ultimately a range of submissions were made by the Father’s Counsel which while at times were confusing ultimately distilled to a submission that while Ms B was qualified to give an opinion about the long term impact of attachment and separation anxiety, this was not something that she had considered at all in her reports.
The apparent inference from the Father’s Counsel being that Ms B’s failure to do so was now a disqualifying factor in questions now being put to her in that regard.
When the court challenged the Father’s Counsel as to why an Addendum Report could not be obtained from Ms B addressing those issues, the court was advised that the Father did not agree with Ms B’s conclusion and her recommendations.
The court was not otherwise addressed by the Father’s Counsel as to:
(1)The Federal Circuit and Family Court of Australia Rules;
(2)Any relevant authorities;
(3)The expertise or otherwise of Dr W, Ms B or any other relevant person who has given expert evidence in these proceedings.
The court ultimately asked the Father’s Counsel to address the orders sought by the Mother if the Father’s Application was successful, namely that there be an adjournment of the trial.
The submissions that were ultimately put were:
(1)That in circumstances where it appeared that Ms G was not available during the trial to give evidence, then there would be no difficulty and/or prejudice to the parties if Ms G and Dr W gave evidence at a later date in the proceedings than the present trial listing.
(2)That in the alternative, and if the court considered that the Mother was prejudiced by the late provision of Dr W’s report then it was appropriate that there be a bifurcation of issues in the trial, and that the existing trial dates be preserved to deal with the threshold jurisdictional questions of whether or not a de facto relationship existed between the parties.
(3)That if the court was not of the view that a bifurcation of issues was appropriate, then the Father no longer pressed his application for Dr W to give evidence in these proceedings.
The latter position promoted on behalf of the Father gave the court cause for some significant consternation, as the issue had been traversed with the Father’s Counsel at the hearing on 25 August 2022. At that hearing, the court commented that while not a concluded view, the preliminary submissions made on behalf of the Mother against a bifurcation of the issues in the trial appeared to be persuasive.
In addition, the court made it clear that there was a strong procedural fairness point to be argued in favour of the Mother arising from the late filing of the Application, as the Mother was entitled to know the case that she was being asked to meet prior to the commencement of trial, such that her evidence be tailored to meet it.
In response to all of those concerns, the Father’s counsel indicated that in the event that the court did not support any of the alternative options proposed on behalf of the Father the Father would seek to have the assistance of Dr W as a shadow expert in the proceedings.
While the court acknowledges that there was some significant interchange between bar and bench, at times the submissions made on behalf of the Father were difficult to follow, and the focus of what was being sought and the reasons for it appeared to change during the course of submissions.
SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT MOTHER
The submissions made on behalf of the Mother were concise, articulate, focussed and easily understandable.
The Mother’s position in response to both the formal orders sought in the application in a Proceeding together with all permutations of proposals as submitted by the Father’s Counsel during the course of the hearing was that the same be opposed.
There were a number of bases of attack made on behalf of the Mother to the Father’s position.
The first line of attack was that there had been a mischaracterisation of matters by the Father’s Counsel and in particular:
(1)The submission that Ms B’s most recent report made a recommendation that there be no time spending between the Father and the child. Rather it was submitted that the recommendations were such that there be a suspension of time to give the child space and once her separation issues had been addressed adequately then there be a unification between the Father and the child.
(2)It was a mischaracterisation to suggest that the Mother’s case had changed by the matters raised in her Trial Affidavit. In particular the Mother’s Counsel identified that it had long been known to the parties through a range of material before the court that the Mother is suffering from anxiety in relation to the child’s relationship with the Father and more broadly that the Mother was suffering anxiety as a result of her contact and communication with the Father.
(3)While not ultimately pursued by Father, it was a mischaracterisation to suggest that a new expert was required to give an opinion about the Mother’s anxiety and its manifestation in panic attacks, when that subject was within the remit of Ms L rather than any new or adversarial expert.
(4)It was a mischaracterisation to suggest that the report of Dr W was necessary to address the long term consequences of X not having a relationship with the Father.
Significantly from the Mother’s perspective is that the alleged “new information” identified on behalf of the Father to explain the late filing of the Application were in fact matters that had long been raised by the Mother throughout the litigation.
In relation to the child’s alleged separation it was identified:
(a)The Father’s own Case Outline prepared for the original trial listing of the matter back in August 2019 which provided as follows:
•The mother is attempting parental alienation by
•Denying that the father and she were even in a relationship to get Orders she hoped a court would make that he was simply a donor sperm provider and the child should spend not (sic) time.
•Limiting the time the father had with is (sic) daughter until she was six months old in any event.
•Insisting the father is a threat to the child.
•Providing a made-up diagnosis of separation anxiety to ensure that during the crucial first years of the child’s life she does not attach to the father.
•Suggesting Orders so limited in time (24 hours a year) that would see that child does not develop a bond with her father.
•Not enabling the child to separate from her.
(b)The orders made by Judge Kelly on 21 November 2019 and in particular paragraph 12 of those orders as set out earlier in these reasons, which particularised and required the Mother to engage in therapy with a focus towards the child’s separation anxiety and any anxiety the mother experiences in relation to X spending time with the Father and/or her relationship with the Father.
In relation to the Mother’s personal anxieties it was identified:
(a)This topic had been raised in detail in an affidavit filed by the Mother on 6 September 2021 in support of her position that she be permitted to relocate the child’s principal place of residence to M Town.
(b)Again, the orders made by Judge Kelly on 21 November 2019 specifically addressed the Mother’s own anxieties and her need for therapeutic intervention, hence the involvement of Ms L.
The second line of attack submitted on behalf of the Mother was to criticise the late filing of the Father’s Application against a backdrop of matters including:
(a)When the Application was filed, the Father had been in receipt of the Mother’s Trial Affidavit for a period of approximately one month, and had not done anything address the issues created by the alleged “new information” until the eleventh hour.
(b)When the Application was filed, the Father could not have known what Ms B’s recommendations and the basis for them would have been as her second report had not yet been completed. This therefore meant that it could not have been known what her recommendations would be, and whether she had failed to address matters of concern to the Father.
(c)It became known during the course of the hearing that the Father’s solicitors first made contact with Dr W as to his potential to give evidence in these proceedings some 5 days after the filing of the Application.
(d)When the Application was filed both of the parties were in receipt of a number of reports from Ms G including most relevantly her report of 6 May 2022 which discussed issues pertaining to the Mother.
The third line of attack submitted on behalf of the Mother was to raise some significant criticism of the draft letter of instruction to Dr W, a copy of which was annexed to the Affidavit of the Father’s solicitor filed at 3.23pm on 24 August 2022. In particular the Mother’s Counsel identified that the proposed letter of instruction appeared to go far beyond the Father seeking an opinion from Dr W about the long terms impact on X if she was not to have a relationship with the Father and to instead include:
(a)An opinion as to the “Father’s application to spend time with [X]”;
(b)An opinion about the history of the Father’s contact with X and the assessments and treatments she has undergone.
(c)A “comment on the steps the Mother has taken which she says were her “best efforts” to enable a relationship to form between the father and his daughter”.
(d)That Dr W “opine on the impact that could occur on [X] if she is deprived of a relationship with her father at all or until she is in her third year of primary school”.
(e)An opinion as to the Father’s application that there be a reversal of care in relation to X such that she primarily live with the Father.
(f)An opinion as to “whether it would ever be appropriate to do so should the court make findings that the Mother’s conduct has caused or contributed to [X’s] developmental difficulties”.
A fourth line of attack submitted on behalf of the Mother was a submission that there did not appear to have been any enquiries from the Father’s legal representatives nor any effort to put any evidence before the court as to the expertise of the various experts, including but not limited to:
(1)The expertise or lack thereof of the existing experts in the matter to comment and give an opinion as to the long terms impact on X is she was not to have a relationship with the Father, in particular the expertise of the single expert Ms B.
(2)Satisfying the court that parental alienation and/or the alignment of children was a specific area of expertise.
(3)It not being evident from Dr W’s CV that he had any particular expertise in parental alienation and/or alignment of children.
The fifth line of attack made on behalf of the Mother was that the Application could only be categorised as an application for an adversarial expert, and that as such the Father was required, but had entirely failed to comply with the relevant provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
The relevant rules of court provide as follows:
7.01 Application of Part 7.1
(1) This Part (other than rule 7.14) does not apply to any of the following:
(a)evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i)the results of an examination, investigation or observation made;
(ii)a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;
(b)evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceeding, being evidence:
(i)about that expert’s involvement with a party, child or subject matter of a proceeding; and
(ii)describing the reasons for the expert’s involvement and the results of that involvement;
(c)evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a proceeding for a purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceeding, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;
(d)evidence from a family consultant employed by the Federal Circuit and Family Court or the Family Court of a State.
Example:An example of evidence excluded from the requirements of this Part (other than rule 7.14) is evidence from a treating doctor or a teacher in relation to the doctor’s or teacher’s involvement with a party or child.
(2)Nothing in this Part prevents an independent children’s lawyer communicating with a single expert witness.
The sixth and final line of attack made on behalf of the Mother was to highlight the effects of the lack of procedural fairness afforded to the Mother and the case management consequences, including but not limited to:
(a)The Mother being entitled to understand that the case she is being asked to meet before the trial commences, which meant that if the Application was acceded to the court would likely be met with an application made at the Mother’s end that she be permitted to uplift her Affidavit and refile fresh evidence in chief in light of any evidence proffered and/or opinion proffered by Dr W.
(b)Given the late breaking nature of the Application, there would be no ability for the Mother to recalibrate her case prior to the trial commencing.
(c)The Mother opposed a bifurcation of the issues in the trial for three reasons:
(i)On the Mother’s case significant there was cross over between the evidence to be adduced in relation to the existence of a de facto relationship and parenting issues; and
(ii)The delays to the court being able thereafter list parenting issues could not be seen to be in X’s best interests given that for almost of the entirety of her life the parties have been embroiled in highly acrimonious litigation; and
(iii)It would be likely that the court would make credit in relation to the existence of a de facto relationship between the parties, and if made it was highly likely that the court would be met with an application that a different judicial officer hear and determine the parenting issues, which would add additional delays to the finalisation of parenting issues.
DISCUSSION
The submissions made on behalf of the Mother in opposing the Application were exhaustive and compelling.
While it would be sufficient to simply adopt the submissions that were made on behalf of the Mother, there are some additional factors that have weighed in the court’s decision.
Those factors are as follows:
(a)There is nothing new about the mother’s case to that which has always been understood at the father’s end to warrant any new or adversarial expert being instructed.
(b)There is nothing to prevent the Father utilising the process available to him pursuant to Rule 7.26 of the Rules, to put further questions to the single expert which would address the topic about which an opinion from Dr W was sought; namely the long term impact upon X if she did not have a relationship with the Father.
(c)The Father’s Counsel is able to cross examine Ms B at trial to challenge her opinion and or the foundations of her opinion.
(d)Simply because the Father does not like or accept the opinion of the single expert tasked with preparing the family assessment, is not a basis for a new expert to be appointed; to do so would open the floodgates to unending disputes between litigants in every contested parenting case heard in this jurisdiction.
Additionally, from a case management perspective:
(a)The rules of court do not exist to be observed in the breach.
(b)Applications filed on the eve of trial which give rise to serious procedural fairness implications should not be lightly entertained. To do so would result in unending litigation and significant loss of court time effecting not only the litigants in these proceedings, but in every other piece of litigation vying for the court’s attention and priority.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 26 September 2022
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