Grable and McCORNISH

[2010] FamCA 608

FAMILY COURT OF AUSTRALIA

GRABLE & MCCORNISH [2010] FamCA 608

FAMILY LAW – CHILDREN – Submission that Family Report be withheld from parties

Family Law Act 1975 (Cth)

APPLICANT: Mr Grable

RESPONDENT: Ms McCornish

INDEPENDENT CHILDREN’S LAWYER: Mr Emerson

FILE NUMBER: BRC 9363 of 2007

DATE DELIVERED: 12 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 12 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Schultz Toomey O’Brien Lawyers

SOLICITOR FOR THE RESPONDENT: M.A. Kent & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Sara

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Emerson Family Law

Orders

IT IS ORDERED THAT

1. The matter is adjourned to the Magellan Registrar at 11.00am on 22 October 2010 for the making of all such directions as might be necessary for the further progress of this matter, and that unless otherwise ordered by the Registrar, such hearing shall be conducted by telephone.

2. The report of Ms C dated 10 May 2010 be marked for identification as Exhibit A in these proceedings.

3. A copy of the report of Ms C be provided to the parties as a matter of urgency and leave be given to the Independent Children’s Lawyer to uplift the report from the file for this purpose.

4. The Independent Children's Lawyer and each of the parties be provided with a copy of the Report, produced pursuant to s 69ZW, provided to the Court by the Department of Communities (Child Safety Services).

NOTE:

A.The Independent Children’s Lawyer anticipates that Dr M will complete a report or reports in these proceedings within 3 moths of today.

B.It is requested that the Magellan Registrar do all things reasonably possible to expedite the final hearing of this matter.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9363 of 2007

MR GRABLE

Applicant

And

MS McCORNISH

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me in the Magellan list.  It had been before me for directions on an earlier occasion.  The matter has a long and unattractive history that stretches back to 2006.  Current proceedings commenced by an application filed on 12 October 2009, wherein the father sought an order that the child as subject of these proceedings – A, born in July 2004 – should live with him.

2. It is not necessary for the purposes of the present matter to traverse that history, or indeed to refer to the serious allegations, that lie at the heart of these current parenting proceedings.

3. It is sufficient to observe that, by reason of previous orders, the child currently lives with the father and that those orders provide for there to be supervised time with the mother at Y Contact Centre.

4. Counsel for the Independent Children’s Lawyer, in responding to an invitation from the Court to appraise the Court of the current situation with respect to this matter, advised that a family report had been filed in May of this year.  No such report had been filed. 

5. It transpired that the report was annexed to an affidavit purportedly affirmed by Ms C, according to its jurat, in October 2009.  The body of the affidavit referred to a report of May 2010.  Mr Sara who appears for Mr Emerson today says that, “the swearing date is a mistake”. 

6. Whilst that might be the case, it is troubling, to say the least, that a deponent to an affirmed document should affirm that document without checking the date.  More troubling is that a qualified justice of the peace who witnessed the signature did not apparently pick up what is said to be an error in the jurat, and even more troubling is that the same justice of the peace witnessed the annexure marking which, contrary to the jurat, indicates that the affidavit was sworn (as distinct from affirmed) and that it was sworn on 11 May 2010 - a date different, obviously enough, from that appearing in the jurat. 

7. I am not prepared to accept an affidavit in that form and indicated that to Mr Sara.

8. Having said that, it is important that this matter progresses as quickly as the resources of this court allow.  It is in that context that I indicated that I was minded to mark the report as an exhibit, to give leave for it to be uplifted and provided to each of the parties, and an opportunity thereby provided for them to peruse it.

9. When indicating that proposed course in open court, Mr Sara indicated that there was an objection to the report being provided to each of the parties. 

10. No reasons for that are deposed to in the deficient affidavit to which I have just made reference, nor does any such recommendation form part of the recommendations made by Ms C at the conclusion of her report.

11. At that time, I adjourned to read carefully the report.  During that adjournment, I also read the report prepared by the Department of Communities (Child Safety) pursuant to section 69ZW of the Act. 

12. The purpose of carefully reading each was to ascertain whether either such document contained any information which should cause the court concern about releasing to each of the parties the report authored by Ms C. 

13. A perusal of each of those reports did not reveal any basis whatsoever for refusing to provide to each of the parties information directly relevant to a parenting case before the Court, and a report central to the case, containing information directly relevant to each of the parties.

14. Upon resumption, I invited counsel for the Independent Children’s Lawyer to submit why the report prepared by Ms C should not be released. 

15. I emphasise again that no material of any type is before the Court from Ms C, or indeed from the independent children’s lawyer, indicating why the report ought not be released.  Such information as was provided to the Court was provided from the bar table by Mr Sara. 

16. When pressed for submissions about the basis for such an order, Mr Sara said that the basis was paragraph 9.7 of Ms C’s report.  I should emphasise here that paragraph 9.7 is the only matter to which the Court’s attention is directed in support of the submission that the report ought not be released.  It is then important to quote that paragraph in full:

    9.7Most problematically for me, however, was the demeanour and presentation of [the father] and, to a lesser extent, his partner.  The emotional lability was so extreme that it made me question their authenticity.  [The father’s partner] appeared to be quite affected by her analgesic medication.  Fortunately, she sparked up considerably when she was engaging with [the child];  “recovery” was quite remarkable actually.  By his own admission [the father] has had to be almost forceful in his communication about [the child’s] situation.  Nonetheless, I found his expressions of concern to be so overt that it evoked a sense that there was some secondary gains (for him) inherent in this whole mess.  As I am not a psychiatrist, I am unable to undertake a medical/psychiatric assessment of [the father];  he certainly exhibited many traits consistent with a diagnosis of histrionic personality disorder.  These observations warrant further professional clarification.

17. Included then, among the specific recommendations made by Ms C was a recommendation for a psychiatric report of the type foreshadowed in the paragraph just quoted.

18. The submission made on behalf of the Independent Children's Lawyer really boils down to this: if the parties, and specifically the father, were able to read what was said in the report, it might be possible for them, and in particular the father, to, as it were, “put on an act” and thereby fool the psychiatrist set to undertake the psychiatric assessment, (which Mr Sara indicates is scheduled to take place within three months).

19. Mr Sara indicates that the psychiatrist briefed by the independent children’s lawyer to undertake the psychiatric assessment foreshadowed in the report is Dr M.  Dr M is a child and adult forensic psychiatrist who has been practising in this jurisdiction for the best part of 30 years.  She is a psychiatrist of wide experience and appropriate professional expertise and training.  Her expertise has not, to my knowledge, been questioned in any proceedings in this court. 

20. With respect, it beggars belief that an independent, expert psychiatrist could or would “be fooled” by a party in circumstances where that psychiatrist had available, to him or her, the report upon which the concerns are (in any event) based and where, central to the expertise, is a presumed capacity to distinguish the real from the feigned.

21. It seems to me that, as a matter of basic justice, parties involved in any litigation, and, in particular, litigation involving their own children, should be fully aware of all matters pertaining to their case that will be before the Court. 

22. To deny parties access to material, particularly from experts engaged by an independent children’s lawyer is, it seems to me, a very serious step that would only be undertaken where there was very good reason for doing so directly related to the best interests of the children or, perhaps, the best interests of individual parties.

23. Those situations are not unknown, but it needs to be emphasised that they are extremely uncommon.  The reason they are uncommon is that justice must not only be done but be seen to be done, and that justice must be seem to be done in an open, frank and honest way so that all parties (and the public in general) can have confidence in the system.

24. The sole evidentiary basis for the submission is that which I have earlier identified.  It seems to me that the identified paragraph provides no foundation for the submission made save for the potential for the psychiatrist to “be fooled”. I reject that as a basis. I emphasise that again this is the only basis upon which the submission is made.

25. I should also point out that, in circumstances where the highly unusual step of submitting to a court that a report emanating from a process, in which both parties have actively participated, should be withheld from those parties, such an application should be made formally and accompanied by affidavit material said to found that unusual relief. 

26. That did not occur in this case and that it did not occur is very disappointing.

27. Also disappointing is that the court was unaware (and the parties were unaware) that a report by Ms C had in fact been completed and was available, until Mr Sara referred to it in addressing the Court. 

28. I refuse the application that the release of the report be withheld.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  20 July 2010