Geddes and Quentin & Anor

[2020] FamCA 593

FAMILY COURT OF AUSTRALIA

GEDDES & QUENTIN AND ANOR [2020] FamCA 593

FAMILY LAW – PRACTICE AND PROCEDURE – SINGLE EXPERT – where the Applicant maternal grandmother seeks not to engage with the Single Expert appointed to prepare a psychiatric assessment of the parties – where the Applicant asserts that the Single Expert would not bring an impartial mind to an assessment of her – where no basis is found on the evidence for preventing the Single Expert from conducting the psychiatric assessment of the Applicant

Family Law Rules 2004

Nagel & Clay [2020] FamCA 326

APPLICANT: Ms Geddes

FIRST RESPONDENT: Mr Quentin

SECOND RESPONDENT: Ms B Geddes

FILE NUMBER: TVC 178 of 2016

DATE DELIVERED: 22 July 2020

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Baumann J

HEARING DATE: 21 July 2020

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE 1ST RESPONDENT:

Ms L McNamara,

Stevenson & Mcnamara Lawyers

SECOND RESPONDENT: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms D Chan,
Legal Aid Queensland

Orders

1. That the Application by the maternal grandmother filed on 25 May 2020 that psychiatrist Dr C not be permitted to assess the Applicant as a Single Expert, be dismissed.

2. That these proceedings be adjourned for Case Management Hearing to 9.30am on 9 December 2020 in the Family Court of Australia at Townsville.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Geddes & Quentin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 178 of 2016

Ms Geddes

Applicant

And

Mr Quentin

Frist Respondent

Ms B Geddes

Second Respondent

REASONS FOR JUDGMENT

1. By Application in a Case filed 25 May 2020, the unrepresented Applicant maternal grandmother, Ms Geddes, sought the following orders:

   “1. Withdrawal of Dr C as the court appointed psychiatrist in my case

   2. Request for full transparency from the ICL, (reasoning as this relates to issues surrounding 1)

   3. Request for the Principles of Equity to be upheld

   4. Request to re-open all filed related to this case

   5. Request for the Dr C report on the father to be struck from the file due to apprehended bias

   6. Request for an order that the ICL will subpoena the Ms D psychologist report in its entirety, continuing child disclosure.

   7. Request for Your Honour to consider past and current material and make a determination on an unacceptable risk of violence or otherwise

   8. Request for the Evidence Act to be applied.

   9. Request for Your Honour consider peer reviewed research supporting that only 1% of parents falsely allege child sexual abuse.

   10. Request that my duties under Section 286, of the Criminal Code 1899 are acknowledged.”

2. Her Affidavit in support of the Application contains some evidence but is in essence a submission. I return to that document below, but for the purpose of the decision in respect of the Independent Children’s Lawyers (“ICL”) selection of Dr C as a Single Expert to provide a psychiatric assessment of the maternal grandmother, the father and the mother, some context is required.

Context

1. The current proceedings relate to parenting order in respect of the child, X born in 2010 (“the child”) who is 10 years of age.

2. X had been living with the maternal grandmother before a Federal Circuit Court Judge made an Order for the child to continue to do so on an interim basis on 2 March 2016.

3. The maternal grandmother raised, against both parents, concerns about their drug use which caused a number of Applications to be filed in the Federal Circuit Court seeking prescriptive orders and resulted in a number of orders for drug testing. A feature of the extensive litigation history from initial commencement on 26 February 2016 has been the lack of consistent engagement in the proceedings by the mother, Ms B Geddes.

4. It is further noted that before the transfer of these proceedings from the Federal Circuit Court of Australia to the Family Court of Australia by Order of

   
   

   15 October 2019 that:

   a)five different Federal Circuit Court Judges had  dealt with the matter – with Judge Andrew recusing himself on 9 September 2019 before he transferred the matter to Judge Willis in Cairns; and

   b)the proceedings had been listed for trial:

   i)in January 2018 for three days, which trial was adjourned in January 2018 because of new disclosures;

   ii)in August 2018 for four days which trial was vacated in May 2018;

   c)It appears that the Applications in a Case filed by the maternal grandmother on 11 October 2018 and 13 June 2019 were not dealt with by the Federal Circuit Court before the Orders of Judge Willis transferring the “proceedings” to this Court.

5. The Order which significantly changed the direction of this case, was the Order made by the Federal Circuit Court Judge on 29 May 2018 where the residence of the child changed from the maternal grandmother to the father and where no prescribed orders defining time between the child and the maternal grandmother were made.

6. Although I have not viewed any reasons published for this Order (anticipating it may have been on an ex tempore oral judgment), before the Federal Circuit Court Judge on 29 May 2018 was evidence that:

   a)the maternal grandmother had asserted the father had sexually abused the child, which allegation is maintained by the maternal grandmother (and denied by the father) and is a significant trial issue for determination;

   b)in alleged breach of existing interim parenting orders for X to spend time with the father, the maternal grandmother had failed to produce the child at a scheduled handover on 29 March 2018 and thereafter;

   c)after raising with Police that his son was “missing”, by 22 May 2018 the child had been taken into care by the Department which ceased on 29 May 2018 when the Orders to change residence were made;

   d)the maternal grandmother was charged with the offence of child stealing (under s363(1)(A) of the Criminal Code (QLD) 1899) and was granted bail on conditions including that:

   “ (4) You must have no contact, whether directly or indirectly with the complainant child X, his father Mr Quentin, and the paternal grandmother except for supervised contact with X pursuant to an order of the Family Court or the Federal Circuit Court but only after 14 days notice in writing…”

7. After the Orders of 29 May 2018, the maternal grandmother by Application in a Case filed 11 October 2018, sought an order that the order be “reversed” and “failing reverse of orders that Ms H have intrim (sic) custody until this case is finalised” and further that “I the grandmother and the mother and baby brother have time and phone contact with X”. A further Application in a Case filed 13 June 2019 seeking inter alia, “interim supervised contact” was filed.

8. When Judge Andrew recused himself from further involvement in the proceedings, he transferred the proceedings (then pending) to the Cairns based Federal Circuit Court Judge, who subsequently on 15 October 2019 transferred the proceedings to the Family Court of Australia. As a result of Orders made a Brisbane based ICL (Ms Chan) was appointed by Legal Aid Queensland and filed a Notice of Address for Service on 30 October 2019.

9. The maternal grandmother complains that her Applications in a Case filed 11 October 2018 and 13 June 2019 whereby she seeks supervised time have “not been dealt with” and should be. However when the maternal grandmother first appeared before me (in person) in Brisbane on 25 November 2019, the maternal grandmother indicated that she did not press her Application for supervised time or change of residence, acknowledging that it was appropriate for the serious criminal charges she is facing (which put her liberty potentially at risk) to be finalised. That is the effect of the notation to the Order of 25 November 2019.

10. At the procedural hearing on 21 July 2020, the maternal grandmother informed the Court that a committal hearing in respect of the criminal charges is listed for 28 September 2020.

The Issue

1. The issue for determination at this time, is whether Consulting Psychiatrist

   
   

   Dr C retained by the ICL (at the cost of the public purse through Legal Aid Queensland) should be permitted to conduct a psychiatric assessment of the maternal grandmother. It is clear Dr C had already done an assessment of the father. A partial assessment of the mother, made it seems more difficult by technological challenges has occurred.

2. The latest appointment for Dr C to interview the maternal grandmother is now 28 July 2020. Because the maternal grandmother lives in North Queensland and Dr C practices in Brisbane, the consultation will occur electronically.

The case asserted by the maternal grandmother

1. In the lengthy and considered set of submissions filed by the maternal grandmother in support of her Application, the major concerns I distil from the Affidavit relied upon can be summarised as follows:

   a)Dr C is likely to have a pre-determined view of the maternal grandmother and will not bring an impartial mind to this process.

   b)The maternal grandmother accidentally at some earlier time (unspecified) went into Dr C’s rooms in Brisbane and he berated her.

   c)The ICL has “cherry picked” Dr C to achieve a pre-determined outcome.

   d)The ICL has not briefed Dr C appropriately, including failing to provide him with evidence of a Psychologist Ms D, who was (at one time), providing counselling to X.

   e)The father had previously objected to the maternal grandmother’s requests for the father to undertake a “psychological assessment” and has objected to a release of his medical records (such objection is still the subject of a hearing by a Registrar to be finalised in September 2020 apparently), but has been “most unusually enthusiastic about the appointment of Dr C. This creates a perception of bias … that this psychiatrist has been cherry picked to favour the father”.

   f)Dr C has a “public history of using his opinions to successfully support a reduced sentence … to help an offender found guilty of sodomy of a child under 12” and that “his support of perpetrators … will reasonable (sic) create the perception of bias in a reasonable man”.

   g)“It is entirely inappropriate to nominate Dr C to my case in any event, as the major issues to be determined are protective, involving the child’s disclosures, and historic psychiatrist reports and notifications surrounding family violence and child sexual abuse”. The maternal grandmother says, that in making this submission she relies upon, at least:

   i)some public submission to the 2017 Family Law Enquiry (from a person unidentified) claiming Dr C was not an expert;

   ii)because he has published or co-written academic articles in which he opines about matters of allegations raised of sexual abuse in a family law context; and

   iii)at least two identified academic papers co-written or written by Dr C are at odds with other academic articles expressing a contrary view – in particular by Dr F of G Hospital (see paragraphs 27 – 29 of Affidavit).

   h)Claims Dr C “may have been inappropriately selected with malice, through collusion with the ICL and paternal party”. No evidence of such “collusion” has been provided to the Court.

   i)Dr C holds “gravely outdated views” about parental alienation and has a very concerning “gender bias against women”. Again the maternal grandmother appears to rely upon some academic research that Dr C is said to have conducted.

   j)That comments made by the Former Chief Justice of the Family Court of Australia (the Honourable Alastair Nicholson) in a radio interview in 2007 are in some way binding on this Court about theories of “parental alienation”.

   k)Community perception that Dr C “lacks capacity to provide a fair and impartial report” – based it seems asserted by the maternal grandmother, by assessment of 45 “social medial reviews” alleging Dr C presents “inadequate and biased reports” and where only two comments were positive.

The position asserted by the ICL and the father

1. Very limited submissions were made by the ICL who simply contended that:

   a)Dr C has a long history of providing expert evidence in the family law area.

   b)When Judge Willis Ordered that the new ICL secure funding for a Single Expert Psychiatrist and the selection of the psychiatrist “be at the sole discretion of the ICL”, no objection or appeal to that order was raised.

   c)Order 6 of the Order made 15 October 2019 sought to restrict any influence upon the ICL by either the father or the maternal grandmother.

   d)By 25 November 2019, when the matter was before me, the ICL had identified Dr C as the selected expert psychiatrist, and the Court Ordered that:

   “the Applicant maternal grandmother, the father and the mother are ordered to attend such assessment on dates specified by the ICL”

   No objection to this Order was raised at the time by the maternal grandmother.

   e)The father has attended his interview but a report from Dr C is not yet available. I have identified the attempts to comply with the Order by the mother.

   f)Upon enquiry by the ICL, Dr C has no recollection about the incident vaguely described by the maternal grandmother, about being “berated” by Dr C.

   g)There is no basis identified by the maternal grandmother that Dr C’s impartiality could be reasonably questioned.

2. The solicitor for the father supported the position articulated briefly by the ICL.

Discussion

1. Recently in Nagel & Clay [2020] FamCA 326, Harper J observed that there are no Full Court authority which decided if the well-established principles of apprehended bias applying to judicial officers should be applied to experts giving expert evidence.

2. I received no submissions on this issue, and without forming a concluded view, I see a difference between an opinion expressed by an expert and the opinion that may be expressed (in the form of findings) by a judicial officer who has the duty to determine facts and the application of facts to the law.

3. I accept Dr C is a qualified psychiatrist and, through many years of practice, he has demonstrated the capacity to offer expert opinions as a psychiatrist to both Courts exercising family law jurisdiction and other Courts exercising civil and criminal jurisdiction.

4. The ICL has selected Dr C to prepare a psychiatric assessment of the parties – not a family report, and it appear this distinction may not be truly appreciated by the maternal grandmother. Dr C is not expected, or required, to make an assessment of whether the alleged disclosures of sexual abuse by the father (relied upon by the maternal grandmother) are true, or, for that matter, to consider “parental alienation”. His role is not to determine, even if possible, those facts. That is a matter ultimately for the trial judge.

5. It follows therefore, that whilst Dr C may have expressed some views (singularly or with others) about allegations of sexual abuse in a family law context that is not his brief in this matter.

6. Similarly, he would not, without conducting a family report (which he is not) offer any opinion on ‘parental alienation’ in a psychiatric report. Of course, if I am found to be wrong in either of these assumptions, then the appropriate recourse, as it is in any adversarial system, is to cross-examine the expert at the trial. It is trite to observe that a trial Judge is not bound to accept the evidence of any expert – even a Single Expert appointed under Chapter 15.

7. Decisions on what ultimate parenting orders are in the best interests of X, are to be founded on all the evidence properly tested including expert evidence, and including a family report writer’s evidence.

8. In my assessment, nothing in the broad assertions of the maternal grandmother raised by her is reliable or objective evidence that would cause a fair minded observer to regard Dr C as unlikely, as an expert, to bring an impartial mind to his assessment. I accept he is well aware and is bound by the rights and duties prescribed by Division 15.5.5 of the Family Law Rules 2004.

9. The practice of ICL’s, in Queensland in particular, to select and brief the expert witness (and to pay for the expert) should not be placed into question without good reason and none has been demonstrated in this case on the evidence.

10. Whilst I accept that the somewhat unusual history of this case and the concerns of the unrepresented maternal grandmother exacerbate her concerns or suspicions that the system is flawed – or worse designed to obtain a result that is pre-determines contrary to her case and contrary to the best interests of X – it is not proper for an independent expert to be prevented from undertaking the role for which he has been selected by the ICL, without good cause.

11. None has been demonstrated.

12. In the circumstances, the Application by the maternal grandmother seeking that Dr C not be permitted to provide a psychiatric opinion or assessment of the maternal grandmother is dismissed.

13. During the course of the submissions delivered on 21 July 2020, entirely for a matter of practicality, I enquired of the maternal grandmother what was her position if I ruled against her Application. Quickly, and with frankness, the maternal grandmother indicated she would appeal my decision. She of course is perfectly entitled to seek leave to appeal the interlocutory order now made. Ms Chan indicated that with the appointment now scheduled for less than a week away, a further cancellation would likely incur costs to Legal Aid and further funding in the future cannot be guaranteed.

14. I invite the maternal grandmother, now that I have refused her application, to engage in the consultation with Dr C next week. If she fails to do so, then it is not reasonable to expect the ICL to seek further funding. This means that whilst there may be evidence about the father’s psychiatric assessment, there may be none about the maternal grandmother.

15. It may of course be, that ultimately the maternal grandmother at a trial can produce evidence that does assist the Court about any challenges to her psychological functioning – an issue which she says is not an issue at all.

16. In terms of the case management of these proceedings, I otherwise adjourn all applications for further Case Management until after the date set for the committal hearing in respect of the criminal charges facing the maternal grandmother.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on

22 July 2020.

Associate:

Date: 22 July 2020