Goudarzi and Bagheri (No 2)

[2017] FamCA 775

FAMILY COURT OF AUSTRALIA

GOUDARZI & BAGHERI (NO. 2) [2017] FamCA 775

FAMILY LAW – PRACTICE AND PROCEDURE – Leave sought by the mother to introduce evidence on first day of final hearing – Where the father cannot meet the material and seeks an adjournment - Where there is a prejudice to the father’s case if there is an adjournment as he has not seen the children since late 2015 in a meaningful way – Where there is prejudice to the children if there as an adjournment as their lives have been in turmoil due to ongoing litigation– Where the hearing cannot commence as splitting the oral evidence adds an administrative complexity and inefficiency to the complicated proceedings – Where admission of the new material means that the hearing must be adjourned.

FAMILY LAW – PRACTICE AND PROCEDURE- Where there is application to provide a single expert with material – Where there is no objection in principle to that material going forward – Where if there is an objection about some particular material the matter can be brought back to Court - Where the Independent Children’s Lawyer is to provide to the single expert such material as the Independent Children’s Lawyer considers appropriate.

APPLICANT: Ms Goudarzi

RESPONDENT: Mr Bagheri

INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

FILE NUMBER: SYC 7646 of 2008

DATE DELIVERED: 14 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 14 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lawson

SOLICITOR FOR THE APPLICANT: Cheryl Orr Family Law

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stolier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

Orders

1. The final hearing of the proceedings is adjourned to a date to be fixed.

2. Leave is granted to the Independent Children’s Lawyer to provide material to Dr LL.

3. The mother is to provide to the Independent Children’s Lawyer details of her residential address as soon as practicable and is to notify him of any change to that address, within 24 hours of such a change and the Independent Children’s Lawyer is to retain that information and not release it without an order of the Court.

4. The solicitor for the mother provide to the solicitor for the father any documents falling within the description at paragraph 2 of the letter dated 7 August 2017, with any relevant residential address redacted, as soon as practicable and in any event within 14 days from today’s date.

5. The solicitor for the mother provide to the solicitor for the father any documents falling within the description at paragraph 4 of the letter dated 7 August 2017 as soon as practicable and in any event within 14 days from today’s date with any relevant residential address redacted.

6. The Court Notes that the parties are in negotiation in relation to the balance of the letter dated 7 August 2017.

7. Mr OO who was the single information technology expert in the 2013 proceedings is appointed to that same role in these proceedings.

8. Leave is granted to any consultant psychiatrist instructed on behalf of the father to inspect any material in these proceedings in respect of which the father has the right to inspect.

9. Leave is granted for the issue of a subpoena addressed to the Proper Officer of KK Pty Ltd returnable at 3.00 pm on 15 August 2017 and it is directed that service of the subpoena be accompanied by a note to the effect that the obligation on the addressee is to comply with the subpoena by the return date and time if practicable and otherwise as soon as practicable thereafter.

10. The proceedings are adjourned to 10.00 am on 16 August 2017.

11. The subpoena issued on the application of the Independent Children’s Lawyer to Sydney University is adjourned to 10.00 am on 16 August 2017 and notice of that adjournment is to be given to the addressee by the Independent Children’s Lawyer.

12. The Court Notes that the adjournment of the subpoena to that date and time is on the basis that it is feasible and practicable for the University to attend.

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 Goudarzi & Bagheri (No. 2) 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 SYDNEY

FILE NUMBER:  SYC7646 of 2008

Ms Goudarzi

Applicant

And

Mr Bagheri

Respondent

REASONS FOR JUDGMENT

1. This is the first day of a final hearing in relation to parenting issues between Ms Goudarzi and Mr Bagheri (“the mother” and “the father” respectively).

2. A number of issues have arisen.  This morning leave was sought on behalf of the mother to introduce evidence of material in the nature of pornographic photographs said to have been found on, or accessed by, the father’s computer.

3. It was argued on behalf of the mother that she received the latest report of the single expert forensic psychiatrist late, and in that report there was a reference to her exhibiting, not a DSM-5 condition but traits or behaviours that might be seen as paranoid.  The rationale behind introducing the new material into evidence in her case was that it would go to suggest that when the mother viewed that material many years it caused a rational or justifiable impact on her state of mind.  That in turn, it is argued, might go to rebut the opinion of the single expert about the mother’s behaviour or mental health.  The material is at least, potentially relevant and was admitted.

4. The father cannot meet that material and requires an adjournment.  As I said in the course of submissions, once there has been a very significant change in the material relied on by one party and at a very late stage, it is almost impossible for the Court to gainsay the concerns raised on behalf of another party.  The father is entitled to take advice about the implications of the material and to consider whether there is evidence that might be relied on in response, as well as the approach to cross-examination by his counsel.

5. I am not even sure that the parties are confident that the proceedings can now still be contained within the time fixed for trial.  I have my doubts about that. 

6. The problem is, as I said to the parties earlier today, once the new material is admitted into evidence, notwithstanding the limit identified by the mother’s counsel as to the use to which it would be put, there is a risk that it might be put to another purpose.  I do not, by that comment, suggest there is any reason for doubting the intention expressed by the mother’s counsel.  One of the reasons for admitting the material was that it is a category of material that could be relevant to parenting proceedings in any event. 

7. In earlier proceedings there evidence was adduced from a single expert who was to give evidence about the provenance of the material; the ownership of the material; whether the father had had access or initiated access to the material.  I gather that there is said to be a link between the material and the father’s computer.  I gather that was the subject matter of the expert’s report.  Inquiries are being made to locate that expert to see whether he would be available for the purposes of these proceedings. 

8. We have a system of simultaneous filing of affidavits.  Therefore the parties have not had any opportunity to give written evidence in reply.  The father made some reference to the issue of access to pornographic material, but in light of the new evidence, he wants to say more now.  That cannot be opposed.  As was said by senior counsel for the father, if this material was important enough to be introduced so late in the proceedings, it is understandable that it would be seen as important on the father’s part.

9. On the other hand there are good reasons for not adjourning the trial.  There is a prejudice to the father’s case if the matter is adjourned because he has not seen the children since late 2015 in any meaningful way.  As to that prejudice however, albeit as a result of the admission of the late evidence, he is seeking the adjournment.  Importantly an adjournment will prejudice two children whose lives have been in turmoil.  There has been litigation about them since 2008.  Although, there was a gap after consent orders were made but the dispute resumed again.  The children have had too much of their lives taken up with the litigation between their parents.  Having said that, a trial process that has some problems with it may lead to more difficulties for the children than if there is a coherent process and we try and deal with all of the evidence in an efficient way. 

10. It is not a case, as I said earlier, that is likely to result in an ex tempore judgment.  That means that for D, who is facing the HSC in two months is unlikely to have an end to the litigation before the exam.  The report from Dr LL about the children is hopeful and optimistic in relation to both of them.  They are doing better, to his observation.  The mother says that there are pressing issues about the affect of the older child.  She is not qualified to comment on his mental health. 

11. On balance, the admission of the material means that the hearing must be adjourned.  That being the case there is a question as to whether the hearing should be adjourned prior to the commencement of the oral evidence or at some other point.

12. It was proposed on behalf of the mother that the oral hearing commence with her case.  The submission on behalf of the children and the father was that any procedural or other interlocutory matters be dealt with, but that the adjournment take effect prior to any oral evidence in the trial.

13. I indicated earlier today that I am not inclined to split the oral trial.  It sometimes has to happen, but it adds an administrative complexity and an inefficiency to what, in this case, will be quite complicated proceedings.  It means that part of the case has to be warehoused, in effect.  In this case, there is going to be a significant delay, I would think, between now and the resumption or the commencement of the trial. 

14. It means that the immediacy is lost in terms of material being heard in evidence on one day and much later being put to another party.  The parties can buy transcript of everything that is said, at great expense, but that is not always satisfactory.  From my own point of view, an oral trial divided over many months magnifies the risk of a mistake being made.  Appeal courts are critical of Judges making references to their observations of witnesses, credit findings, comparing one witness with another, and those problems are magnified if there is a long delay in the middle of a trial. 

15. There is an application in relation to a shadow expert having access to material, subject to the mother’s lawyers reading that material.  There is no objection in principle to that material going forward.  And indeed, there is a request on behalf of the mother for an expert report and perhaps, another document in relation to the father, going to the single expert.  I will leave the Independent Children’s Lawyer to manage the collation of material to be read by the single expert.  If there is, belatedly, an objection about some particular material then, the matter can be brought back to the Court. 

16. I give leave to the Independent Children’s Lawyer to provide to the single expert such material as the Independent Children’s Lawyer considers appropriate.  It might be sensible to bundle controversial material together and to advise Dr LL that that material may not be admitted into evidence.  However, if he can read it in advance, that would be best.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 14 August 2017.

Associate: 

Date:  28 September 2017