Hadzic and Hadzic
[2011] FMCAfam 974
•14 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADZIC & HADZIC | [2011] FMCAfam 974 |
| FAMILY LAW – Parenting – separated siblings – evidence of expert witness –duties of expert witnesses – consideration of expert evidence where expert changes recommendations – best interests considerations. |
| Family Law Act 1975, ss.60B, 60CA, 60CC(1), (2), (3)(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (l), 61DA, 65DAA(3), (5) Federal Court of Australia, Practice Note CM7, “Expert Witnesses in Proceedings in the Federal Court of Australia.” |
| Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 I. Freckleton & H. Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, Fourth Edition, (Sydney: Lawbook Co. 2009) J.D. Heydon, Cross On Evidence (Eighth Australian Edition) (Sydney: LexisNexis Butterworths, 2010) | ||
| Applicant: | MS HADZIC | |
| Respondent: | MR HADZIC |
| File Number: | CAC 1198 of 2009 |
| Judgment of: | Neville FM |
| Hearing dates: | 3 & 4 February, 6 May 2011 |
| Date of Last Submission: | 6 May 2011 |
| Delivered at: | Canberra |
| Delivered on: | 14 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Jackson |
| Solicitors for the Applicant: | Legal Aid NSW, Wagga Wagga |
| Counsel for the Respondent: | Ms J Godtschalk |
| Solicitors for the Respondent: | Mackenzie & Vardanega, Griffith |
| Counsel for the Independent Children’s Lawyer: | Mr G Blank |
| Solicitor for the Independent Children’s Lawyer: | Evans Family Lawyers, Canberra |
ORDERS
All previous parenting orders are discharged.
The child namely [X] born [in] 1999 live with the Mother.
The child namely [Y] born [in] 2001 live with the Father.
The parties equally share parental responsibility for the children.
In the absence of written agreement between the parties, and while ever they live in [G] and [C] (or locations separated by a similar distance) in addition to Orders 1 and 2, the parties will spend time with the children as follows:
(a)For half of each of the NSW school holiday periods as agreed between the parties, or failing agreement commencing the first half of the holiday period in 2011 with the Mother and the second half with the Father and each alternate year thereafter; and
(b)For half of each of the NSW school holiday periods as agreed between the parties, or failing agreement commencing the first half of the holiday period in 2012 with the Father and the second half with the Mother and each alternate year thereafter;
(c)The school holidays will commence at 12 noon the day after the conclusion of the school term and will conclude at 4pm on the day prior to the resumption of the next school term period, with the middle day of the holidays to be the second Saturday of the mid-term breaks with changeover to occur at 12noon, and the middle day of the Christmas school holidays to be calculated as the mid-point from the day of the commencement of holidays to the day of the conclusion of holidays, with changeover to occur at 12 noon;
(d)During term periods whilst [Y] attends [C] Public School as follows:
(i)With the Mother in terms 1 and 3 for the [C] Public School mid-term break (Friday of week 5 and Monday of Week 6); and
(ii)With the Father in terms 2 and 4 for the for the [C] Public School mid-term break (Friday of week 5 and Monday of Week 6)
(e)With the Mother on the 2nd weekend in each school term commencing from 8.30pm Friday to 2.00pm Sunday;
(f)With the Father on the 8th weekend in each school term commencing from 8.30pm Friday to 2.00pm Sunday;
(g)For the Easter Long Weekend (if not otherwise falling in the school holiday period) in 2012 with the Father and in each alternate year thereafter;
(h)For the Easter Long Weekend in 2013 (if not otherwise falling in the school holiday period) with the Mother and in each alternate year thereafter.
The parties will communicate with the children by telephone or skype on the following days:
(a)Each Monday, Wednesday and Friday between 6pm and 7pm with the Mother to initiate telephone communication commencing in week 1 of each school term period and each alternate week thereafter and the father in week 2 and each alternate week thereafter;
(b)On Mother’s Day with the Mother between 9am and 10am with the Mother to initiate such communication;
(c)On Father’s Day with the Father between 9am and 10am with the Father to initiate such communication;
(d)On each child’s birthday between 6pm and 7pm with that parent with whom the child is living to initiate such communication;
(e)On each parent’s birthday between 6pm and 7pm with the parent to initiate such communication;
(f)On Christmas Day between 9am and 10am with the parent with whom the children are not living, with that parent to initiate such communication.
For the purpose of the changeover of the children the following will apply:
(a)When the Mother is to exercise time with [Y], he will be collected and returned to and from the [omitted] petrol station, [G], unless otherwise agreed between the parties;
(b)When the Father is to spend time with [X], she will be collected and returned to and from [M], unless otherwise agreed between the parties.
Both parties will contact the other as soon as practicable in the event of a medical emergency involving a child or in the event of illness of a child which requires medical attention.
Each party will inform the other party in writing of a current residential address, contact telephone number and any changes in those details
14 days prior to such change.
Both parties are restrained from relocating the permanent residence of the children from outside of the [C] or [G] regions without the prior written consent of the other parent.
Both parties will exchange a communication book at the changeover of the children such communication book to include information about the children for the other parent such as:
(a)Dietary requirements;
(b)Extracurricular activities.
Each party is restrained from denigrating the other party in the presence or hearing of the children and are to ensure to the best of their ability that no third person denigrates the other party in the presence of hearing of either child.
Both parties will forthwith execute an authority to the school that each child attends authorising the release of information regarding the children’s education to both parents including but not limited to school reports, school photographs, invitations to schooling events, parent/teacher nights and any other activities that the children would usually attend and that both parties be at liberty to attend all such events.
Both parties will forthwith execute an authority to each child’s treating medical professionals authorising the release of medical information on behalf of that child to both parents.
For the next five years, every six months, the Mother is to undertake regular reviews of her mental health and general well-being and is to provide the head of the Family Consultants at the Canberra Registry a short letter from her GP that:
(a)confirms her medication regime and any changes to it; and
(b)any relevant observation by the GP regarding her general well-being.
These six-monthly reports are to be placed on the Court file. A copy of the letter from the GP, on each occasion, is also to be provided to the Father.
In the event that the Head of the Family Consultants notes any matter of concern, the matter may be re-listed.
The child [X] is to continue to see a psychologist (whether it is at school or otherwise) to assist her in coping with the separation from her Father and brother.
In the event of a future dispute between the parties in relation to parenting matters, it must first be attempted to be resolved through mediation before any further Application may be filed.
It is requested that the Independent Children’s Lawyer explain the substance and effect of the orders to the children.
AND IT IS NOTED THAT:
(A)In the event that the Mother either self-harms again, or does not take her medication diligently, there would be a significant risk that [X] would immediately go to live, and remain, with her Father.
IT IS NOTED that publication of this judgment under the pseudonym Hadzic & Hadzic is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1198 of 2009
| MS HADZIC |
Applicant
And
| MR HADZIC |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern two children, [X] (who is aged 12) and her brother, [Y] (aged 10). They, and their parents, live a very significant distance apart in country New South Wales: Ms Hadzic lives in [G] with [X], and Mr Hadzic lives and works in [C] with [Y].[1] As the crow flies, the distance between these localities is approximately 365 kilometres, with a travelling time by car of 4½ hours, or thereabouts.[2]
[1][2] Among other places, see the comments from Counsel for the Independent Children’s Lawyer noting the distance between these cities at Transcript (3rd February 2011) p.40.
As originally framed, this was a relocation case whereby Ms Hadzic wished to move from [G] to north Queensland. In the course of the trial, she withdrew her application to relocate, which resulted in the issues to be determined being confined to appropriate parenting arrangements for the two children.[3] Currently, [Y] lives with Mr Hadzic and [X] lives with her Mother. Both parents would wish that the children were not, and did not remain, separated. Unsurprisingly, each parent wishes the [unseparated] children to live with them.
[3] The discussion regarding relocation and the formal abandonment of that part of the Application is located at Transcript (3rd February 2011) pp.37-39.
For reasons detailed later, summarily stated, the focus of the trial ultimately fixed, to a significant degree, on Ms Hadzic’s parenting capacity and, in consequence, the appropriate parenting arrangements that were in the best interests of [X] and [Y].[4] There were a number of dimensions to this: her history of self-harm and attempted suicide; her anxiety and depression and medication therefore; her [previous] ‘chaotic lifestyle’; her use of alcohol; the relational co-dependency between Ms Hadzic and her daughter [X];[5] her difficulty in dealing with her son [Y] and his temper; and her financial capacity to provide for her children (and herself) in the light of her relatively recent bankruptcy.[6]
[4] See s.60CA of the Family Law Act 1975 (Cth). See also the Case Summary from the Independent Children’s Lawyer, p.5, which identified the three issues for consideration then to be (a) parenting arrangements for both [X] and [Y]; (b) relocation; and (c) Mother’s mental health.
[5] I discuss later in these reasons Dr S’s evidence, which confirmed that there was “a kind of enmeshed relationship” between Mother and daughter. Among other places, see Transcript (4th February 2011) p.156.
[6] There remain on foot property proceedings between the parties. In the course of the trial, which was confined only to parenting orders, the Court was regularly advised that the property issues were in the process of being resolved. Formally, that has yet to occur.
A secondary but nonetheless important issue also concerned the evidence of the expert, Dr S. This experienced psychiatrist, who also is qualified and well-experienced as a paediatric oncologist, provided a detailed report (which became Exhibit A)[7] and gave oral evidence (by telephone). There was some dissonance between Dr S’s recommendations in the report and her recommendations made during the course of her cross-examination. In the light of relevant authority, most recently the detailed discussion by the High Court in Dasreef Pty Ltd v Hawchar,[8] and established principle,[9] it is necessary later in these reasons to discuss the duties of an expert witness, and the circumstances that arose in this case where there was a change of view of the expert between what was in an earlier written Report and what was said in oral evidence during the trial.[10]
[7] Dr S's Report was released to the parties on 2nd November 2010. The Family Report by Ms D, which was released on 11th January 2010, became Exhibit B in the proceedings. Ms D was not required for cross-examination. Because of the time-frame between when the report was written and the trial, Ms D’s Report played little or no part in the trial.
[8] (2011) 277 ALR 611.
[9] The discussion necessarily includes a consideration of Division 15.2 of the Federal Magistrates Court Rules 2001 in relation to “expert evidence”, which expressly incorporates Practice Note CM7 from the Federal Court of Australia entitled “Expert Witnesses in Proceedings in the Federal Court of Australia.” In her Report, Dr S referred, as most experts commonly do, only to “Chapter 15 of the Family Law Rules.” Clearly (and unfortunately so) the Rules of this Court remain an under-stated, and certainly under-used, item and point of reference.
[10] The discussion of the change of position begins at Transcript (4th February 2011) p.166. Counsel for Mr Hadzic described Dr S’s evidence as “unusual” while Counsel for Ms Hadzic seemed to describe it as “interesting.” See Transcript (4th February 2011) p.191.
It is convenient and apposite to note in this introduction that, at the outset of the trial, the Independent Children’s Lawyer (“the ICL”) had not formed a view regarding the appropriate parenting orders. However, following the close of evidence, and confirmed in a Minute of Orders, and in oral submissions,[11] the ICL submitted that it was in the best interests of the children to remain in their current living situation: thus [X] should continue to live with her Mother and spend time with her Father, and [Y] should continue to live with his Father and spend time with his Mother.
[11] Among other places, see the summary of the ICL’s position at Transcript (6th May 2011) pp.3-5.
These reasons proceed as follows: (a) orders sought by each of the parties; (b) evidence of the parties; (c) evidence of Dr S; (d) outline of legal principle in relation to parenting matters and in relation to expert evidence; (e) consideration of evidence & the legislative pathway; (f) conclusion.
Orders Sought
The Applicant Mother sought orders as follows:
1. That the children [X] born [in] 1999, and [Y] born [in] 2001, (“the children”), shall live with the Mother.
2. That the children spend time with the Father as follows:
(a) During school terms, two weekends out of every three in a three weekend cycle, from Friday at 6pm, until the following Sunday at 6pm.
(i) The weekends referred to in paragraph 2(a) shall be the first, second, fourth, fifth, seventh, eight, (and if applicable) tenth and eleventh weekends of every school term.
(ii) The second, fifth, eighth, (and if applicable) eleventh weekends referred to above, shall take place whereupon the children’s nights with their Father shall take place within 100 kilometres of their Mother’s place of abode.
(iii) The place of handover shall be the children’s school.
(b) During school holidays, being the entirety of the shorter school holidays, and one half of the longer summer holidays, being for even numbered years for the first half of such school holidays; and for odd numbered years the second half of such school holidays
3. The children shall have telephone communication with the other parent between 7 and 7:30pm on each Tuesday, Wednesday and Sunday with the Father telephoning [G] on each Thursday and the Mother telephoning [C] on each Tuesday and Sunday.
4. Handover shall be at [M] or as otherwise agreed, whereupon the Mother shall transport the children to the Father at the commencement of the Father’s time with the children; and the Father shall transport the children to the Mother at the conclusion of the Father’s time with the children.
5. That each party is to keep the other party informed of their current residential address and contact telephone numbers, (including landline and mobile), and advise the other party of any changes to these telephone details within seven (7) days of such a change occurring.
6. That during any period referred to in these Orders, in the event of the children being hospitalised or receiving medical attention the parent spending time with the children shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
7. That neither parent shall in the presence of the children denigrate the other.
8. That these Orders authorise each parent to obtain information from any day care facility, school or medical practitioner that the children attend upon.
9. That the Father shall ensure that the children are not to be taken to the [B] Club, or any activities associated with the [B] Club.
10. That the Father is not to drink alcohol to excess or consume any illegal substances when the children are in his care.
The Respondent Father sought orders as follows:
1. That the Mother and Father have equal shared parenting responsibility for the children, namely, [X] born [in] 1999 and [Y] born [in] 2001.
2. That the Mother and Father have joint responsibility for making decisions about the major long term issues in relation to the said children, including as regarding:
(i) Health;
(ii) Education;
(iii) Religion.
3. That the said children live with the Father.
4. That, subject to and except for as otherwise provided for in clauses 5, 6 and 7 of this Order, unless otherwise agreed by the Mother and Father, the said children shall spend time and communicate with the Mother as follows:
(a) Whilst the Father reside in [C] and the Mother resides more than 100 but less than 400 kilometres by main road from the Father:-
(i) from 1.00pm on the Friday of the [C] school’s mid-term 4 day long weekend break (usually the 5th weekend following the first day of term of the New South Wales gazetted school holidays and known as the “Mid Term Break”) until 1.00pm on the Monday of the Mid Term Break;
(ii) during those school holidays commencing at the end of the second, third and fourth school terms in each year, from 1.00pm on the Saturday of the 3rd weekend following the first day of term of the New South Wales gazetted school holidays until 1.00pm on the Sunday of that week end;
(iii) from 1.00pm on the Saturday of the 8th weekend following the first day of term of the New South Wales gazetted school holidays until 1.00pm on the Sunday of that week end;
(iv) from 9.00am on the Saturday until 2.00pm on the Sunday of one additional weekend of each school term to be exercised in [C] (or any other town the children live and/or participate in a sporting activity) to be notified in writing to the Father at least 7 days prior to that weekend;
(v) from 1.00pm on the first day of the school holiday periods that commence at the end of the first, second and third school terms each year concluding at 1.00pm on the second last day of each of those school holiday periods;
(vi) for the first half of the school holiday period that commences at the end of the fourth/final school term in each year, except from 1.00pm Christmas Day until 1.00pm Boxing Day.
(b) Whilst the Mother and Father reside within 100 kilometres by main road of each other:-
(i) alternate weekends from 5.00pm Friday until 5.00pm Sunday during each school term;
(ii) where a weekend pursuant to clause 4 (b) (i) of this Order falls on a long weekend (including pupil free days) which includes a Monday, then the time the said children shall spend with the Mother shall be extended for a period of twenty-four (24) hours and shall conclude at 5.00pm on Monday of that long weekend;
(iii) where a weekend pursuant to clause 4 (b) (i) of this Order falls on a long weekend (including pupil free days) which includes a Friday, then the time the said children shall spend with Mother shall be extended for a period of twenty-four (24) hours and shall commence at 5.00pm on the Thursday immediately preceding the long weekend;
(iv) from 1.00pm on the first day of the school holiday periods that commence at the end of the first, second and third school terms each year concluding at 1.00pm on the second last day of each of those school holiday periods, except for the Easter Long Weekend in each odd numbered year (as defined in clause 6 of this Order);
(v) for the first half of the school holiday period that commences at the end of the fourth/final school term in each year, except from 1.00pm Christmas Day until 1.00pm Boxing Day;
(vi) for the Easter Long Weekend in each even numbered year from 9.00am on the Saturday until 1.00pm on the Monday of the long weekend (as defined in clause 6 of this Order).
(c) Whilst the Father Mother and Father reside more than 400 kilometres by main road of each other (including if the Mother relocates to [omitted] in Queensland):-
(i) from 1.00pm on the first day of the school holiday periods that commence at the end of the first, second and third school terms each year concluding at 1.00pm on the second last day of each of those school holiday periods, except for the Easter Long Weekend in each odd numbered year (as defined in clause 6 of this Order);
(ii) for three weeks from the first day of the school holiday period that commences at the end of the fourth/final school term in each alternate even numbered year;
(iii) for three weeks of the school holiday period that commences at the end of the fourth/final school term in each alternate odd numbered year concluding on the second last day of the school holidays;
(iv) Whilst the said children attend school in [C] or any other school having a similar length break, from 1.00pm on the Friday of the Mid Term Break until 1.00pm on the Monday of the Mid Term Break.
5. Where Mother’s Day does not fall on a weekend that the said children are to spend with the Mother as provided for otherwise in this Order, the children shall spend time with the Mother from 1.00pm on the Saturday of the weekend that Mother’s Day falls on until 1.00pm on the Sunday of the weekend that Mother’s Day falls on and the time the children are to spend with the Mother pursuant to clause 4 (a) (ii) for the school term in which Mother’s day falls be suspended.
6. Whilst the Mother and Father reside within 100 kilometres by main road of each other, the said children shall remain living with the Father during the Easter Long Weekend in each odd numbered year from the conclusion of school on the Thursday immediately preceding Good Friday (or 5.00pm on the Thursday immediately preceding Good Friday where the Easter long weekend falls during school holidays) until the commencement of school on the Tuesday immediately following the Monday of the Easter long weekend (or 5.00pm on the Monday immediately following Easter Sunday where the Easter long weekend falls during school holidays).
7. That the said children shall spend time together with the Father from 1.00pm Christmas Day until 1.00pm Boxing Day each year and, where the children are spending time with the Mother on Christmas Day and Boxing Day pursuant to this Order, the Father shall be responsible for collecting the children from the Mother at the commencement of their time with him and returning them to the Mother at the conclusion of that time.
8. That the children shall communicate with the parent with whom they are not living or spending time by telephone and/or Skype and/or email conversation between 6.30pm and 7.30pm on Wednesdays and Sundays (or any other day and time pre arranged by the parties) and the Mother shall initiate such communication between the children and the Father pursuant to this clause on Sundays and the Father shall initiate such communication between the children and the Mother pursuant to this clause on Wednesdays and both parents shall facilitate and encourage such communication between the children and the other parent.
9. The said children shall be at liberty to telephone or communicate by Skype and/or email conversation the parent with whom they are not living with or spending time with at any reasonable time and the Mother and Father shall facilitate and encourage such communication by telephone between the children and the other parent.
10. The Father shall be responsible for arranging and facilitating the transportation of the said children to and from the Mother for those weekends that the children are to spend time with the Mother pursuant to clauses 4 (a) (i), (ii), and (iii) of this Order and changeovers shall take place at the [omitted] Service Station [address omitted], [G] unless otherwise agreed by the Mother and Father.
11. Subject to clause 7 of this Order, the Mother shall be responsible for arranging the collection of the said children from the Father and their return to the Father for those periods the children are to spend time with the Mother during school holidays pursuant to clauses 4(a) (iv), (v) and (vi) of this Order, unless otherwise agreed by the Mother and Father.
12. For the purposes of clause 4(b), the parent with whom the said children live or spend time pursuant to this Order shall be responsible for arranging for the collection of the children at the commencement of each period they live or spend with that parent.
13. For the purposes of clause 4(c), the Mother shall be responsible for arranging for the collection of the said children from and return the children to the Father (and/or the associated travel costs of the children spending time with the Mother).
14. Any other regimen as to where the said children shall live or the time they shall each spend with a parent, together with any other arrangement to facilitate the provisions of the Order, as is agreed to by the Mother and Father.
15. That the Mother and Father shall each authorise any school that the said children attend or are enrolled in to release information concerning the said children, the children’s schooling or school related events to the other parent, at the other parent’s request and expense.
16. That the Mother and Father shall each provide any necessary authority to any school that the said children attend or is enrolled permitting the other parent to attend at the said children’s school for school functions and events, including parent and citizen meetings (or P and C meetings), to which parents are invited or usually permitted by the school to attend or at any other venue arranged by the school for the function or event.
17. That the Mother and Father provide to the other and keep each other informed of their current residential address and a contact telephone number, and advise of any change in relation to either within seven (7) days of such change.
18. That the Mother and Father shall notify the other parent of any medical emergency or significant or serious medical condition concerning the said children that requires medical intervention or hospitalisation whilst in their care as soon as possible and practicable after its occurrence.
19. Pursuant to Section 65DA (2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
NOTATION:
THE COURT NOTES THAT:-
(a) It is intended by this Order that the said children [X] and [Y] shall remain living with the Father from 1.00pm Christmas Day until 1.00pm Boxing Day every year, unless otherwise agreed.
(b) It is intended by this Order that the said children [X] and [Y] shall spend time with the Mother for Christmas Eve and until 1.00pm on Christmas Day every year, unless otherwise agreed.
(c) It is intended by this Order that the said children [X] and [Y] shall remain living with the Father for the Easter Long Weekend in odd numbered years and shall spend the Easter Long Weekend with the Mother in even numbered years during periods the parties reside within 100 kilometres of each other.
(d) It is intended by this Order that the said children [X] and [Y] shall spend the weekend that Mother’s Day falls on with the Mother and forfeit the weekend falling in the first half of the school term that Mother’s Day falls in.
(e) It is intended by this Order that should the Mother relocate to [M] (or similar or further distance from the Father) the Mother shall bear the cost of the children spending time with her.
(f) It is intended by this Order that the Father will use the children’s time with him to facilitate them spending time with the paternal grandparents in [B], NSW.
The Independent Children’s Lawyer sought orders as follows:
1. The child namely [X] born [in] 1999 live with the Mother.
2. The child namely [Y] born [in] 2001 live with the Father.
3. The parties equally share parental responsibility for the children.
4. In addition to Orders 1 and 2, the parties will spend time with the children as follows:
i. For half of each of the NSW school holiday periods as agreed between the parties, or failing agreement commencing the first half of the holiday period in 2011 with the Mother and the second half with the Father and each alternate year thereafter; and
ii. For half of each of the NSW school holiday periods as agreed between the parties, or failing agreement commencing the first half of the holiday period in 2012 with the Father and the second half with the Mother and each alternate year thereafter;
iii. The school holidays will commence at 12 noon the day after the conclusion of the school term and will conclude at 4pm on the day prior to the resumption of the next school term period, with the middle day of the holidays to be the second Saturday of the mid-term breaks with changeover to occur at 12noon, and the middle day of the Christmas school holidays to be calculated as the mid-point from the day of the commencement of holidays to the day of the conclusion of holidays, with changeover to occur at 12 noon;
iv. During term periods whilst [Y] attends [C] Public School as follows:
(a) With the Mother in terms 1 and 3 for the [C] Public School mid-term break (Friday of week 5 and Monday of Week 6); and
(b) With the Father in terms 2 and 4 for the for the [C] Public School mid-term break (Friday of week 5 and Monday of Week 6)
v. With the Mother on the 2nd weekend in each school term commencing from 8.30pm Friday to 2.00pm Sunday;
vi. With the Father on the 8th weekend in each school term commencing from 8.30pm Friday to 2.00pm Sunday;
vii. For the Easter Long Weekend (if not otherwise falling in the school holiday period) in 2012 with the Father and in each alternate year thereafter;
viii. For the Easter Long Weekend in 2013 (if not otherwise falling in the school holiday period) with the Mother and in each alternate year thereafter.
5. The parties will communicate with the children by telephone or skype on the following days:
i. Each Monday, Wednesday and Friday between 6pm and 7pm with the Mother to initiate telephone communication commencing in week 1 of each school term period and each alternate week thereafter and the father in week 2 and each alternate week thereafter;
ii. On Mother’s Day with the Mother between 9am and 10am with the Mother to initiate such communication;
iii. On Father’s Day with the Father between 9am and 10am with the Father to initiate such communication;
iv. On each child’s birthday between 6pm and 7pm with that parent with whom the child is living to initiate such communication;
v. On each parent’s birthday between 6pm and 7pm with the parent to initiate such communication;
vi. On Christmas Day between 9am and 10am with the parent with whom the children are not living, with that parent to initiate such communication.
6. For the purpose of the changeover of the children the following will apply:
i. When the Mother is to exercise time with [Y], he will be collected and returned to and from the [omitted] petrol station, [G], unless otherwise agreed between the parties;
ii. When the Father is to spend time with [X], she will be collected and returned to and from [M], unless otherwise agreed between the parties.
7. Both parties will contact the other as soon as practicable in the event of a medical emergency involving a child or in the event of illness of a child which requires medical attention.
8. Each party will inform the other party in writing of a current residential address, contact telephone number and any changes in those details 14 days prior to such change.
9. Both parties are restrained from relocating the permanent residence of the children from outside of the [C] or [G] regions without the prior written consent of the other parent.
10. Both parties will exchange a communication book at the changeover of the children such communication book to include information about the children for the other parent such as:
i. Dietary requirements;
ii. Extracurricular activities.
11. Each party is restrained from denigrating the other party in the presence or hearing of the children and are to ensure to the best of their ability that no third person denigrates the other party in the presence of hearing of either child.
12. Both parties will forthwith execute an authority to the school that each child attends authorising the release of information regarding the children’s education to both parents including but not limited to school reports, school photographs, invitations to schooling events, parent/teacher nights and any other activities that the children would usually attend and that both parties be at liberty to attend all such events.
13. Both parties will forthwith execute an authority to each child’s treating medical professionals authorising the release of medical information on behalf of that child to both parents.
Evidence of the Parties
By way of very brief background and overview, I note the following.
The parties commenced a de facto relationship in December 1998, and married in October 2000 in [G]. In 2001, Ms Hadzic’s two sons from a previous relationship, [A] and [B], came to live with the parties in [G]. For a short time in 2004, Mr Hadzic worked from home which enabled him to care for the children, while Ms Hadzic worked for a short time for [omitted]. In 2006, [B] returned to live with his Father in Queensland, while [A] moved into a flat in [G]. In 2008, [A] also moved to Queensland. The parties separated in May 2008. In November of that year Mr Hadzic gained permanent employment in [C] and moved to that city. In January 2009 both [X] and [Y] lived with their Father in [C], and remained with him until March of that year when they returned to live with Ms Hadzic in [G]. In August 2009, [Y] commenced living with Mr Hadzic in [C] and has lived with him ever since. This arrangement was formalised, on an interim basis, by order of the [G] Local Court in September 2009.
Ms Hadzic: Ms Hadzic was a somewhat emotional witness. I do not say this critically. She clearly was distressed by the proceedings and the pressures that necessarily attend them. She confirmed that she had a history of not insignificant mental health issues which, from time to time, have impacted on her parenting capacity. She acknowledged that she had previously been diagnosed with depression and anxiety, and that she had some history of self harming.
She confirmed that her mental instability dated at least to when she was 18 years old, that in 1999 she suffered from post natal depression, and that on a number of occasions she had attempted suicide.[12]
[12] Transcript (3rd February 2011) pp.13-18.
In a not insignificant discussion in the course of cross examination, she said that she did not clearly distinguish, or recognise the distinction, between self harm and attempted suicide. She said that she regarded her various suicide attempts as forms of self harm, and that she was really only trying to get Mr Hadzic’s attention.[13]
[13] The discussion of her various attempts of suicide in 2007 and 2009 is found at Transcript (3rd February 2011) pp. 16, 20, 26 & 29.
She did not agree with the suggestion put to her in cross examination that she had tried to minimise or under report either her mental instability and / or attempts at self harm / suicide. She confirmed that she had been on antidepressants since the birth of [X].
Ms Hadzic acknowledged that Dr S reported her concern of [X] being overprotective of her Mother. However, she said that [X] has not had to look after her for quite a long time.[14]
[14] Transcript (3rd February 2011) p.33.
Ms Hadzic also acknowledged that her son [Y] has not lived with her since 2009. And she acknowledged that she frequently had difficulties controlling [Y] when he was in her care.[15]
[15] Transcript (3rd February 2011) pp. 34 & 61.
She confirmed that since separation from Mr Hadzic in May 2008 she has completed a ‘better parenting course’ which had as its focus keeping children safe rather than necessarily assisting with parenting strategies generally.
In relation to dealing with Mr Hadzic since separation concerning matters of communication and travel, Ms Hadzic confirmed that up to the point of the trial Mr Hadzic had been doing all of the driving between [C] and [G]. However, she said that she now had a car that could make the trip and that she could assist in the travel. She said that her basic communication with Mr Hadzic was difficult and that she agreed with Dr S’s assessment that the parents basically ‘hate each other.’[16]
[16] See Transcript (3rd February 2011) pp. 57 & 58; Dr S's Report, p.19.
Ms Hadzic said that she feels very isolated in [G] because she has no friends or family, but at the same time said that she would not consider moving even to [omitted] which is closer to [C] and therefore would reduce the travel time, and the costs associated with it.[17]
[17] Transcript (3rd February 2011) pp. 57 & 61.
She also confirmed that if she was to have both children living with her, given her “dire financial circumstances,” it would be a further strain on her, and presumably also on the children.[18]
[18] Transcript (3rd February 2011) p.60.
Three final things to note: first, although it seemed not disputed that she had been in a couple of relationships since separation from
Mr Hadzic she confirmed that she was not currently in any other relationship. Secondly, particularly in relation to her attempt at suicide in June 2009 when she was drinking regularly 5 – 6 glasses of wine each day, now she would only drink a couple of glasses of wine per week, in part because she could not afford to drink any more. Thirdly, she confirmed that [X] was doing well in her care.[19]
[19] Generally, see Exhibits D & E, being various documents that relate to [X]’s diet (including a referral to a dietician), and a school report for Semester 2, 2010. The School Report from [Y] Public School was very positive about [X]’s progress at school, and noted that [X] is “a happy and delightful student.”
Mr Hadzic: Mr Hadzic’s evidence was in significant contrast to the distress of Ms Hadzic. As well, his evidence was simple, logical and straight-forward. The impression was, and which he confirmed, that he was a man of significant discipline in his life and which was a feature of his household.
In the course of his oral evidence (as in his affidavit material also) he noted the following. There are clearly communication issues between he and Ms Hadzic regarding the children. For example, he said that
Ms Hadzic does not discuss or notify him of matters concerning the children and often only finds out about such things after the event. For example, he did not find out about the children going on a camp until later, or likewise about [X] seeing a dietician about her weight.
With some empathy which I took to be genuine, he said that he does not hate Ms Hadzic and that he feels sorry for her.[20]
[20] Transcript (3rd February 2011) p.88.
In addition to acknowledging that the parents have very different parenting styles (Mr Hadzic’s being much more ordered and controlled, Ms Hadzic’s being rather ill-defined), he said that whenever [X] lived with him she struggles to a significant degree with the regime in his household, but that her bed-wetting problem is not an issue in his household (meaning that it does not occur).[21]
[21] Transcript (3rd February 2011) pp.71 & 78, and Transcript (4th February 2011) p.123.
Mr Hadzic accepted without qualification that [X] has been essentially in the Mother’s care although it was not disputed that sometimes in the past Ms Hadzic had asked Mr Hadzic to take both children when she was not coping. Mr Hadzic acknowledged that [X] is very close to her Mother.[22]
[22] Transcript (4th February 2011) p.110.
A particular concern for Mr Hadzic was what he described as the Mother’s somewhat more flexible approach to matters of morals. By this Mr Hadzic intended to convey that he was concerned about a significant number of personal matters that, in his view, should be kept between adults but which were being shared with [X] by her Mother. He was also concerned about the number of male partners or friends who seemed, at times, to frequent Ms Hadzic’s residence.
While originally acknowledging that communication has basically broken down between the parties, later in his evidence he said that communication between them was improving somewhat. He agreed with the suggestion that a communication book would assist.[23]
[23] Transcript (4th February 2011) pp118-119.
A few other matters of relevance may be noted here.
Firstly, notwithstanding the clear and significant differences between parenting styles, Mr Hadzic acknowledged that if the parties lived closer together a shared care arrangement would probably be best for the children.[24] Secondly, Mr Hadzic has explored, to a necessarily limited degree, moving closer to [G] (his parents, who the children visit somewhat regularly, live not too far from [G]). However, it is not financially viable for him to move from his current employment in [C]. He also said that he considered it safer to live in [C] and that there was more reasonable access to medical facilities than in [G]. Thirdly,
Mr Hadzic’s de-facto relationship with Ms M commenced in July 2010. They had been in a relationship for some months before that. He confirmed that Ms M has a significant role as care giver to [Y] with his work commitments which start early in the morning. In this respect he also acknowledged that Ms M was still somewhat new to the children.
[24] Transcript (4th February 2011) p.88.
Ms M: Like Mr Hadzic, Ms M struck me as a straight-forward, uncomplicated, organised person. She works part time and deliberately keeps her hours short so as to be available for the children. She has a number of children of her own from an earlier relationship but who are now grown up. She confirmed that she would move with Mr Hadzic if and when he moved location.
Ms M also noted that she regularly went to school events to see [Y]. She gave the clear impression of being a committed parent. She confirmed that the use of Skype was possible in the household but that she would not permit Facebook to be used.
Evidence of Dr S
As previously indicated, Dr S’s evidence was in two parts: her Report, dated 31st October 2010 (Exhibit A), and her oral evidence at trial in early February 2011. I will deal with both parts of her evidence, following which I will consider the relevant principles in relation to expert evidence and, in the light of them, what should, and what should not, be taken from or relied upon from Dr S’s evidence.
Dr S's Report: Dr S's Report (“the Report”) was extensive, detailed, and clear in its recommendations. As summarily as possible, I note the following from it. In doing so, it should also be kept in mind that at the time of its writing, the Mother’s proposal to relocate to Queensland was patently in the minds of all, including Dr S.
Early in her Report Dr S said (p.7):
The mother impressed me as a devoted parent who wished to live in the same town as all her four children. She had a history of depression on and off through her life but at the time of the assessment was asymptomatic and stable on antidepressant Efexor XR 300mg daily. A history of childhood abuse together with a number of suicide attempts and unstable affect indicate Boarderline [sic] personality traits. There may have been pathological gambling by the mother on the internet.
In relation to Mr Hadzic, Dr S commented as follows (p.9):
[Mr Hadzic] gave an organised logical history and was entirely cooperative with the assessment process. There were no signs of mood disorder and there were no psychotic features. He seemed outraged at the thought of losing both his children to distance if they were to living in [M] [QLD]. He seemed proud of the job he was doing while he was a single parent, and of his ability to financially support his children.
My impression was that he was an alcohol abuser and minimising his binge drinking every weekend, although this did not appear to be impacting adversely on his relationships or social functioning. However, it appeared that in the past he had abused substances, cannabis in particular, however given the random drug screens at the [workplace] he has had to relinquish this habit. There was no further psychiatric diagnosis that could be made at the time of the assessment.
In relation to [X], in the course of her report Dr S said (p.10):
When considering how her mother is, [X] said “Mum’s got depression and whenever she skips her tablets she will cry and lose control of her emotions. Sometimes she cries and thinks that the fight with her and Dad is all her fault and that she will lose me, her only daughter.
A little later in her Report Dr S said (p.11):
According to her clinical psychologist, [X] wants to live with her mother but feels safer with her father. At times she has to support the mother emotionally. The situation at the mother’s home is relatively neglectful of [X]’s needs and is likely to lead to long term mental health problems into adolescence.
Dr S further commented on [X] in the following terms (pp.11 & 12):
[X] was a short, slightly overweight girl who was extremely loquacious, yet unsophisticated. … My impression was that [X] was a somewhat immature girl for her age who was greatly saddened by the fracture in her family. She clearly missed her Father and her Mother and fanaticised about her parents reuniting. She seemed guileless and unable to keep a secret.
Finally, in relation to [Y], Dr S noted (p.12):
[Y] was a tall boy for his age who appeared sad at times during the interview. [Y] told me that if he had three wishes he would keep Mum and Dad together and that they would all live in one house in [G], that is it.
A little later in her Report, Dr S said (p.13):
[Y] was a sad little boy who was missing his Mother and struggling to adjust to the situation of a broken family. Although the routine and structure of his Father’s household has settled him and allowed him to do well at school, he appeared to greatly miss the nurturance of his Mother.[25]
[25] Dr S also noted her observations of the clearly close connection between [Y] and his Mother and particularly of [Y]’s need to be comforted and cuddled by her. Amongst other places, see Report, p.13.
In the “recommendation” section of her Report the following observations should be noted not only for their significance but also because they provide an important contrast to matters that were canvassed in Dr S’s cross examination.
Concerning [X], Dr S noted that she looked happy in the company of her Mother, who was her primary care giver and that her attachment was secure. She recorded however that the attachment between [X] and her Father was insecure and uncertain.[26] In some respects, this observation or comment, in my view, could be said to sit somewhat awkwardly with Dr S’s earlier observations that [X] engaged easily with her Father.[27]
[26] Report, p.18. It is important to recall here that Ms Hadzic has 2 older sons ([B] & [A]) with whom [X] and [Y] have lived at various times of their lives. However, both of these older children now live in far North Queensland and, therefore, their involvement or engagement with [X] and [Y] is necessarily limited.
[27] See Report, p.14.
Dr S confirmed that the attachment between [X] and [Y] was secure.
Although the point became moot, in Dr S’s view, Ms Hadzic’s then proposal to move to [M] was not in the best interests of the children, among other things, because it would so significantly diminish
Mr Hadzic’s involvement in their lives. In her view it showed a degree of lack of insight for its potential negative impact on the children.
In relation to parenting capacity, Dr S noted that in Ms Hadzic’s current mental state, it is likely “that her mood is stable and that she will be able to parent more consistently than ever before in her life. If she were to cease her medication it is likely that her mood would rapidly relapse and that her parenting capacity would vastly diminish.” Dr S went on to note again: “At times the mother is emotionally dependent on [X], as evidenced by [X] feeling responsible for her mother at times.”[28]
[28] Report, p.21.
Concerning Mr Hadzic, Dr S said (p.21):
He said that he wanted to parent the children both equally and he was observed to be affectionate and positive with both of the children. He seemed to offer affectionate consistent parenting and firm limits to which [Y] has definitely responded.
Dr S noted that it would appear that Mr Hadzic has a greater capacity to assist the children with their education than does Ms Hadzic.
If both children were to live with Mr Hadzic, Dr S opined that this “is likely to sadden both the children and cause them to regress somewhat in their behaviour in the short term. They are also likely to feel more insecure with the absence of their mother.”[29]
[29] Report, p.23.
While there was much else in Dr S's Report it is sufficient for current purposes only to note the following things from the report before turning to her oral evidence.
First, Dr S noted the Mother’s inability in the past, at times, to cope with both children and that when this occurred she had passed them over to Mr Hadzic. When this happened, Dr S said [Report p.25] that this relinquishment of responsibility “sends a message of abandonment to the children.”[30] Secondly, Dr S considered both children to be somewhat immature for their respective ages and noted, in my view significantly, that the children “were both very sad at the thought of permanent separation and would be made more sad and more insecure if there were further separation by either time or distance.”[31]
[30] Report, p.25.
[31] Report, p.27.
The final thing to note from Dr S’s report is her recommendation that, in effect, the children’s primary residence be with their Mother but otherwise they would spend each weekend with their Father. It is sufficient to observe here that the travel involved on children of this age (or of any age), not to mention the impact on their parents and others involved, would be profound and exhausting.
Dr S’s Oral Evidence: Again by way of overview the following matters were canvassed in the course of Dr S’s cross examination, which unfortunately had to be by telephone.
Dr S first confirmed that she accepted that there was some degree of denial by the Mother of her mental health history and that it had necessarily had an impact on her parenting capacity.[32] There was no suggestion that Dr S had not properly taken account of Ms Hadzic’s mental health history, or that she had not had access to relevant records.
[32] Transcript (4th February 2011) p.155.
In the light of the evidence (both from her own observation and from what she was told of the evidence that had been given during the trial) Dr S agreed that the Father was the more consistent parent, and equally that any concerns that she may have had about any alleged binge drinking or use of drugs were obviated by the random screens that he was required to undergo in his job at [omitted] in [C]. There was a zero tolerance in relation to such things.[33]
[33] Transcript (4th February 2011) pp. 163-164.
Dr S agreed that [X] sees her mother as a secure person and also that the Father’s parenting style was more containing and stable.[34]
[34] Transcript (4th February 2011) p.166.
Of special significance was Dr S’s comment that, in her view, [X] was suffering under the burden of the closeness and intensity of the relationship with her Mother. At the same time, there was likely to be a greater risk to Ms Hadzic if [X] went to live with her Father. The risk would be, in effect, cumulative because of the potential harm to the mother’s mental health, and if that was affected, how it would in consequence affect her parenting capacity and negatively impact [X] most immediately.[35]
[35] Transcript (4th February 2011) p.166 and especially at p.183.
A very significant part of Dr S’s evidence was devoted to her discussion of and response to questions concerning what she described as the ‘enmeshed relationship’ between [X] and her mother.[36]
[36] See Transcript (4th February 2011) pp.156, 166, 172, 173, 176, 177.
Dr S was strongly against the children remaining separated.[37]
[37] Transcript (4th February 2011) p.175.
In the course of being cross-examined by learned Counsel for
Mr Hadzic, the following exchange took place with Dr S: “… it would seem from the discussion we’ve just had and from your findings in the report that the Father really does appear better able to give the children stability and consistent parenting?” To this Dr S said: “That was my impression.”[38]
[38] Transcript (4th February 2011) p.163.
Then when learned Counsel for Ms Hadzic commenced to cross-examine Dr S shortly thereafter, the following exchanges took place. It is as well to set them out in full, beginning with her discussion about the ‘enmeshed relationship’ between [X] and her Mother. First,
Mr Jackson put to Dr S certain matters concerning ‘any instability’ in relation to [X] living in her Mother’s household. Dr S replied:[39]
[39] Transcript (4th February 2011) pp.166-167.
Mr Jackson: … I’ve already put to you that certainly recently, there was no indication that there has been any instability in relation to [X] living in her mother’s household?---Well, in the last six months, I’m not in a position to agree or disagree with that because I don’t know. But you’re saying if I were to accept what you say, is there a case for moving [X] away and I guess my impression was that although [X] liked living with her mother and said that she wanted to stay there, the type of parenting style that the father offered was more containing and more stable than what the mother offered. So, what I think is that neither of them are entirely bad but what we’re doing is weighing up which is better and for individual children, my impression was that [X] was, in a way, suffering under the burden of the closeness and intensity of the relationship with her mother. Now, it doesn't mean that if she doesn’t live with her mother she will be able to do some of the development that is normal for an adolescent which is to separate and individuate from her mother because she’s in such an enmeshed relationship it’s going to be very hard for her mother to let her go and I think the one who will suffer the most if [X] changes residence is the mother.
Dr S, I’m just a bit taken aback by your evidence just a moment ago and I’ll tell you why, can you look at page 29 of your report again?---Yes.
Paragraphs 2 and 3?---Yes.
That was a recommendation that you made that the children live with the mother from Sunday to Friday every week?---And then have the weekend with their father.
With their father, have you changed your position in relation to that recommendation?---I think that it would work either way whether they have four nights with one and three with the other, whether they - - -
Well, hang on just pausing there. It was a straight forward question, Doctor?---Yes, have I changed. [sic]
Have you changed your position in relation to that recommendation?---No. I mean, I don't see that the recommendations were cast in stone. I think that as I said before - - -
Sorry, I beg your pardon?---I don't think that either of the parents are totally bad and I think that what we have to do is weigh up what would be best for the children. Now, your other friend has suggested could the father offer the children stability during the week? Yes, he certainly can. Can the mother? Yes, she probably can. She has had episodes of mood instability and at times had difficulty looking after the children but she appears to be trying to keep her own mental health under control and if she were able to do that with help then she may be able to offer them a stable week.
The exchanges continued with Dr S, which led to the statement of her intention in making the recommendations she did. She said:[40]
This recommendation that you put in writing and you gave no indication that you were equivocal about, you’re now changing your position, is that right?---Recommendations are recommendations, they’re not laws and they’re not black and white. Nothing in biology is black and white and when I wrote this report the mother was saying very clearly that her intention was to go to [M] and part of the reason that I gave her so much time with the children was because I wanted to show her that it was possible to have a good life with the children in [G]. So that’s why I wrote it that way.
So are you suggesting, Doctor, and I have to be very careful the way I word this but this recommendation was not for the purpose of indicating your opinion as an expert as to what you think is the most preferable position but to send a message to the mother?---Yes.
[40] Transcript (4th February 2011) p.167.
In answer to a question from the Bench, Dr S confirmed that an arrangement for the children to live with their Father and spend time with their Mother “could work well.”[41] And following this exchange, Dr S confirmed that one of the objects of writing her report in the way that she did was “to get the Mother to step up to the plate.”[42]
[41] See Transcript (4th February 2011) p.168.
[42] Ibid.
Then, after a somewhat lengthy series of exchanges, again between
Dr S and the Bench, she said:[43]
… If she [[X]] went to the father it’s much more likely that she would lose weight. The father seemed to be on top of that and I think that avoiding those social problems is really important for her so if that requires me to change my recommendations then I will.
[43] Transcript (4th February 2011) p.170.
Later in her evidence, in the course of her cross-examination by learned Counsel for the ICL, Dr S said that the main reason for her change in opinion was because of Mr Hadzic’s more containing parenting style and more stable household.[44]
[44] See Transcript (4th February 2011) p.187.
Finally, of immediate relevance was the opinion expressed by Dr S that, at an appropriate age, it was genuinely therapeutic for a child who is in an ‘enmeshed relationship’ to move away from the household in which it occurs. Typically, she said, that would be when the “child” was about 18 years old.[45] Dr S also stressed that, in the event that [X] moved to live with her Father, the person who would suffer most would be Ms Hadzic.[46]
[45] Transcript (4th February 2011) p.176.
[46] Transcript (4th February 2011) p.183.
By way of preliminary comment, it may be observed that the concern with Dr S’s evidence was not so much the change in her opinion and recommendations (although that did cause some difficulty), but rather the revelation that in writing her report she had sought to send a particular message to Ms Hadzic.[47] Respectfully, it would have been much simpler and straight-forward had she assessed the parties (as she did) and made recommendations in the light of those assessments and her obvious expertise. It is one thing for an expert to change opinion in the light of later evidence; it is quite another for an opinion to be expressed that has a particular, but unexpressed, object behind the recommendations made.
[47] I note that the Federal Court Practice Note in relation to expert evidence actually contemplates circumstances where an expert changes his or her opinion, although that is more usually in the context where experts have conferred following which one or more expert has a changed position. In such circumstances, the Practice Note directs: “If, after exchange of reports or at any other stage, an expert witness changes the expert’s opinion, having read another expert’s report or for any other reason, the change should be communicated as soon as practicable (through the party’s lawyers) to each party to whom the expert witness’s report has been provided and, when appropriate, to the Court.”
Principles in Relation to Expert Evidence
In its most recent pronouncement in relation to expert evidence, the High Court in Dasreef Pty Ltd v Hawchar may be taken to have confirmed that the exposition of principle by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (“Makita”) remains the appropriate touchstone and lodestar.[48] For the purposes of the matters before this Court, I note the following.
[48] Dasreef Pty Ltd v Hawchar (“Dasreef”) (2011) 277 ALR 611 at p.622 [37] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ). Although dissenting in the result, Heydon J’s consideration of relevant principle in Dasreef, at [50] – [134], in relation to expert evidence – in which he does not mention his earlier judgment in Makita – can only be described, respectfully, as magisterial. Otherwise, see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at pp.743-744 [85]. Among other things, in Makita Heydon JA relied upon the discussion by Gleeson CJ in HG v The Queen (1999) 197 CLR 414 at pp.427-429 [39] – [44].
The High Court began its discussion of ‘expert opinion evidence’, in the context of its consideration of s.79 of the Evidence Act, by referring to Gleeson CJ’s earlier remarks in HG v The Queen, thus:[49]
… in HG v The Queen, Gleeson CJ pointed out that, "[b]y directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, [s 79] requires that the opinion is presented in a form which makes it possible to answer that question”.
[49] Dasreef at [36]. The internal citation is to HG v The Queen (1999) 197 CLR 414 at [39].
Then, at a little length in Dasreef, the High Court said, at [37] (emphasis added):[50]
It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.
[50] Internal citations have been omitted because they are set out in the preceding footnotes.
In Makita, Heydon JA (of course, then on the Court of Appeal in the Supreme Court of New South Wales), noted the following matters in relation to expert evidence.
First, his Honour cited with obvious approval the description of the duties and responsibilities of expert witnesses as described by Cresswell J in The Ikarian Reefer, as follows (internal citations omitted; emphasis added):[51]
[51] Makita 52 NSWLR at [79]; National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The ‘Ikarian Reefer’) (1993) 20 FSR 563. The decision of Cresswell J in The Ikarian Reefer is a foundational point of reference in many places in the Federal Court’s Practice Note, to which I have earlier referred. I note, too, that the Practice Note has been recently updated so as to take account of the High Court decision in Dasreef.
In National Justice Compania Naviera SA v Prudential Assurance Co Ltd (“The Ikarian Reefer”) … Cresswell J set out a list of duties and responsibilities of expert witnesses in civil cases as follows:
“1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation … .
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise … . An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one … . In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report … .
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports ….
While some of these matters have an ethical dimension, taken together they point to the need for the trier of fact to be fully informed of the reasoning process deployed in arriving at the expert’s opinions. Cresswell J’s list has been influential both in causing rules of court to be devised in this and other jurisdictions to control expert evidence and in later judicial pronouncements. Thus in Clough v Tameside and Glossop Health Authority [1998] 2 All ER 971 at 977 Bracewell J said:
“It is only by proper and full disclosure to all parties, that an expert’s opinion can be tested in court: in order to ascertain whether all appropriate information was supplied and how the expert dealt with it. It is not for one party to keep their cards face down on the table so that the other party does not know the full extent of information supplied.”
This implies that not only must the appropriate information be supplied, but that the expert must reveal the whole of the manner in which it was dealt with in arriving at the formation of the expert’s conclusions.Respectfully, I wish to emphasise in the strongest possible way his Honour’s last [highlighted] comment in relation to the requirement for an expert to reveal ‘the whole of the manner’ in which his or her expert opinion was formed, and its importance to the expert evidence in this case.
Next, Heydon JA summarised matters that dealt formally with the admissibility of expert evidence. Although in the case before this Court Dr S's Report had already been admitted, and thus the issues relate more to questions of its reliability and weight to the opinions expressed, nonetheless the comments from Makita are, in my view, apposite and important guides. Thus, at [85], Heydon JA said (emphasis added):
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR 414, on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise” (at [41]).
Finally, his Honour noted approvingly, at [86], the following comments by the Full Court of the Federal Court (Black CJ, Cooper & Emmett JJ) in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (emphasis added):[52]
[52] Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 at [21]-[23].
“[21] The primary judge considered that it was permissible to examine the reports and draw inferences from the form and contents of them. His Honour considered that it was permissible to take into account:
· the factual context in which a report was produced;
· the description and designation of the person making the report;
· the contents and language of the report and the nature of the assertions made in it;
· the form of the report;
· the expressed qualifications of the person making it as set out in the report.
[22] However, it is not permissible to conclude from those matters alone that an author of a report has any specialised knowledge, except to the extent that the report states (or it otherwise appears from admissible evidence) what that knowledge is. Nor is it permissible, by reason of those matters alone, to conclude that any specialised knowledge that the author of a report has is based on any training, study or experience of the author. Thus, it is not permissible to conclude, simply because a person expresses an opinion on a particular subject, referring to particular technology, that that person has any specialised knowledge in relation to that subject. There must be specific evidence as to specialised knowledge of the person in relation to that subject and as to the training, study or experience upon which that specialised knowledge is based.
[23] The further requirement that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge. Similarly, opinion evidence given orally should be shown, by exposure of the reasoning process, to be based on relevant specialised knowledge.”
In the light of these authorities, Heydon JA concluded, at [86]: “Evidence not complying with the principles described … might be inadmissible as irrelevant (s.56(2)), as not complying with s.79, or on discretionary grounds (s.135).” His Honour noted, however, that in the case then before the Court of Appeal there was no formal objection to the expert’s evidence, thereby leaving the only issue for the Court to determine to be the weight that should be given to that evidence. In this respect, the case before this Court is somewhat analogous to the issues that were before the Court of Appeal: it is ultimately a matter of weight in relation to Dr S's Report. Indeed, notwithstanding their obvious concerns during the trial, in the course of their later submissions all Counsel sought to rely upon certain parts of Dr S’s evidence – both from her Report and from oral evidence.
For my part, and before moving to a more formal and detailed consideration of the evidence in the light of the legislative pathway, having regard to the totality of the expert evidence, at this juncture, it is sufficient to note the following.
First, there was not, nor could there be, any challenge to Dr S’s expertise. Secondly, the principal ground for concern was less the change in her recommendations but more the unstated – until cross-examination – objective of her Report, namely ‘to send a message’ to Ms Hadzic, and to get her “to step up to the plate” in relation to her life and parenting.
In my view, there can be little objection regarding a change of view (either in part or in whole) by an expert in circumstances where one or more factors that were a foundation for the written report may have changed. Such matters are not uncommon in litigation, and are recognised by common sense as well as by authority, evidenced by Cresswell J’s comments in The Ikarian Reefer (noted earlier), and confirmed also in the Federal Court Practice Note to which I have referred.
Nor can there be reasonable protest if a significant period of time has lapsed between the writing or compilation of a report and the trial at which that Report and the expert who wrote it are cross-examined. As difficult as such changes or circumstances are, such was the case here. In my view, in those circumstances, if there is to be any criticism of
Dr S’s change of view, it should be quite muted. Difficulty in the conduct of a trial, which is not unknown or uncommon, is one thing; criticism of expert evidence (justified or otherwise) is another.
The primary difficulty with Dr S’s evidence, as I have already indicated, lay in the unspoken object of her Report to encourage and or ‘to send a message’ to Ms Hadzic. That unspoken object should have been plainly set out in her Report and her recommendations tailored accordingly. Better still: as also previously indicated, an expert should state as plainly as possible the grounds upon which his or her opinion and recommendations are based. In the absence of an expert reviewing either Heydon JA’s judgment in Makita, or the High Court’s decision in Dasreef, before writing one’s expert report, it may assist, at least, to recall the following comment by Heydon JA in Makita quoted earlier in these reasons: “the expert must reveal the whole of the manner in which [the relevant facts and evidence generally] was dealt with in arriving at the formation of the expert’s conclusions.”[53]
[53] It would be no bad thing also to consider Spigelman CJ’s detailed discussion of the “Makita principles” in Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 beginning at [96]. Among other things, at [163], his Honour referred to the importance for a Court, in evaluating an expert’s report, to conduct a “systematic analysis of the probative value of the evidence.” Among other things, this was for the purpose of the ‘weighing of essentially incommensurable factors’ required by s.135 of the Evidence Act1995 (Cth). Likewise, especially having regard to the Rules of this Court, rather than the Rules of any other court, those parts that relate to “expert evidence” should regularly be consulted, and by incorporation, the Federal Court of Australia, Practice Note CM7, “Expert Witnesses in Proceedings in the Federal Court of Australia.” Generally, more expansively, see J.D. Heydon, Cross On Evidence (Eighth Australian Edition) (Sydney: LexisNexis Butterworths, 2010), “Expert Opinion” [29045] ff; I. Freckleton & H. Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, Fourth Edition, (Sydney: Lawbook Co. 2009), especially Chapter 31 “Psychiatrists’ and Psychologists’ Evidence: General Principles.”
It may be taken from this analysis that the unspoken objective of Dr S to send a message to Ms Hadzic cast something of a cloud over her evidence.[54] In my view, however, it was not so dark as to make either hopelessly opaque or otherwise unusable significant parts of her assessment that were, and remained, relevant to the Court’s determination of appropriate parenting orders. Plainly, too, this was the view of all learned Counsel given that they relied on various parts of Dr S’s evidence. Nonetheless, it was an extra complication that could, and should, have been avoided for the reasons I have already given in relation to the duty and responsibility of expert witnesses.
[54] In my view, some allowance also may be given for the always difficult circumstance – for the Court, Counsel and for any witness – when cross-examination takes place only by telephone, which occurred on this occasion.
For example, Counsel for the ICL noted, on the one hand, there were obvious difficulties in accepting Dr S's Report. On the other hand, Counsel noted that there were basic consistencies between the observations and comments by the Family Consultant, Ms D, in her earlier Report (Exhibit B), and those set out in more detail by Dr S in her later Report.[55] Thus, notwithstanding some difficulties, Counsel relied, to varying degrees, on Dr S’s evidence.[56]
[55] See the submissions of Counsel for the ICL at Transcript (6th May 2011) at pp.9-10.
[56] Leaving aside various critiques of Dr S’s evidence, the following are instances where each of the three Counsel expressly relied on parts of Dr S’s evidence in the course of their oral submissions (all references are from Transcript (6th May 2011): Counsel for the ICL, p.13; Counsel for Ms Hadzic, pp.18, 22, 23; Counsel for Mr Hadzic, pp.29, 30, 32, 33, 34-35.
Indeed, I accept Dr S’s comments that she was [only] making recommendations that were not set in stone. Moreover, no court is bound, in any event, to accept the evidence and recommendations of any expert. It is for the Court to determine the most appropriate evidence, including that which comes via experts, and only in the considered assessment of the totality of the evidence should, and does, the Court determine the appropriate orders in each case.
From another field of discourse (design infringement, but used widely in intellectual property litigation), I note the comments of Crennan J (then on the Federal Court of Australia) in Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd which, in my view, are apposite in the Court’s use of expert evidence in this case. Her Honour referred succinctly to “expert evidence [that] enables the court’s eye to be an “instructed eye.””[57] It remains always for the Court to use the evidence provided to it, instructed and weighed appropriately.
[57] Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (2006) 66 IPR 561 at [28]. Internal citations omitted. An appeal against her Honour’s decision was dismissed. See Ullrich Aluminium Pty Ltd v Dias Aluminium Pty Ltd (2006) 233 ALR 660.
The legislative pathway & the evidence
Respectfully and gratefully I adopt the comments of Brown J in Mazorski v Albright as a convenient summary of relevant principle of Part VIII of the Act in relation to (a) children having a meaningful relationship with both parents, and (b) for them to be appropriately protected.[58] The relevant sections of her Honour’s judgment are set out below:[59]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[58] Mazorski v Albright (2007) 37 Fam LR 518 especially at [3] – [6] and [20] – [26]. Among a significant, and growing, number of Full Court “endorsements” of her Honour’s remarks, see McCall v Clark (2009) 41 Fam LR 483 at [121].
[59] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[60]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[60] Brown J’s remarks in this regard have been ‘endorsed’ by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall v Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, the further Full Court decisions in Collu & Rinaldo [2010] FamCAFC 53 at [335], and Sigley v Evor (2011) 44 Fam LR 439 at [132] & [133], similarly have embraced Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Against this background or overview of legislative and other jurisprudential principle, I turn to a consideration of the evidence.
Mr Hadzic and the ICL sought an order for equal shared parental responsibility. Ms Hadzic’s ‘orders sought’ are silent on the issue. Notwithstanding the difficulties in communication between the parties, but also in the light of Mr Hadzic’s evidence (which I accept) that things are improving on this front, in my view it is in the children’s best interests that such an order is made. Indeed, in their oral submissions, Counsel for Ms Hadzic and Mr Hadzic confirmed that there was nothing to rebut the presumption that otherwise applied under s.61DA in relation to equal shared parental responsibility.[61]
[61] See Transcript (6th May 2011) pp. 24 & 30, respectively.
I propose dealing next with the ‘additional considerations’ before dealing with other relevant sections in Part VII, including s.65DAA. Unless otherwise specified or required, I should be taken to follow the “considerations” sequentially as set out in the Act.
From the Court’s perspective, the views of the children here should be given some weight, albeit that discerning the detail or specifics of those views is somewhat problematic. As recorded by Dr S (to such matters there was no challenge) they are that [X] would continue to live with her Mother. [Y]’s views were rather less clear. He wants (a) the family re-united (unsurprisingly), and (b) to spend time more time with [X]. Such matters were, however, more by way of inference from the detailed material in Dr S's Report.[62] On more than one occasion, however, Dr S noted the relative immaturity of each of the children, which clearly militates against being able to place very much weight on whatever might be able to be divined in relation to their views.[63]
[62] Among other places, see Dr S's Report, pp.18-19 & 26-27.
[63] For judicial discussion of the treatment of children’s views, see various Full Court consideration of such matters in R and R: Children’s Wishes (2000) 25 Fam LR 712; In the Marriage of R (Children’s Wishes) (2002) 29 Fam LR 230; and VW v J (2006) 34 Fam LR 499.
It was only in the course of oral submissions that the Court was advised by Counsel for the ICL that the ICL had previously met with the children (in late 2010), at which time that [X] confirmed her desire to remain living with her Mother, and [Y] confirmed his desire to continue to live with his Father.[64]
[64] See Transcript (6th May 2011) p.27.
The evidence, in my view, quite clearly showed that both children had a good and close relationship with both parents. They seemed also to have a good relationship with Mr Hadzic’s de facto partner, Ms M, notwithstanding that she is a relative ‘new-comer’ to their lives. I say this with no criticism or disparagement at all. As I have previously indicated, she has demonstrated both great commitment, as well as significant practical day to day inter-personal skills in dealing with a ‘blended family’ and complements Mr Hadzic’s well ordered life in [C], which has clearly benefitted [Y].
Given the logistics involved, it is difficult for the Court to have too much regard to the children’s relationship with Ms Hadzic’s older sons in Queensland, or even with their paternal Grandparents near [G]. There was no challenge to the evidence from Mr Hadzic that the children see their Grandparents regularly, perhaps every few weeks, when Mr Hadzic makes the trek from [C].[65]
[65] Mrs H (senior) was on affidavit. She was very briefly cross-examined. With no disrespect intended, her evidence added little to the proceedings, save to confirm her and her Husband’s love for their Grandchildren, [X] and [Y]. I accept that evidence, plainly set out in her affidavit, filed on 26th October 2010, unconditionally. Mrs H confirmed that she and her Husband have taken out a loan to fund Mr Hadzic’s legal costs of the current proceedings. Mr Hadzic is paying back the short-term loan directly.
There was, in my view, something of a curious, but not uncommon, tension in relation to the evidence concerning the willingness and ability of the parents to facilitate and encourage a close and continuing relationship of the children with the other parent. Such matters are also relevant to each parent’s attitude to their parental responsibilities as set out in s.60CC(3)(i).
Both parents, as I took their evidence, never questioned the other parent’s love and concern for the children. And whatever may have happened during their relationship – such as the mutual allegations of some violence, or indulgent drinking – as things stand now, there remains something of a steely respect for the tenacious love that each parent continues to have for the children, and that each would do whatever they humanly could for their children. The tension comes from either (or both) the concern about the capacity of the other to provide for the children appropriately, or the potential risk of alienation or other negativity if they were separated too long from one parent or the other. Both children exhibit these tensions, as noted by Dr S.
For example, Mr Hadzic, and Dr S, questioned Ms Hadzic’s capacity to parent [X], and certainly both children, essentially because of her unstable mental health history. However, both Mr Hadzic, and Dr S, confirmed that if Ms Hadzic kept on her medication, as it appeared she had done in more recent times, then she was capable of looking after at least [X].
Both parents acknowledged, either explicitly or implicitly, that it was important for the children to have, and to always have, a good and close relationship with the other parent and between the siblings. Put another way, neither parent sought to prevent the children from spending time with the other parent. It was rather a question of resources, distance, and time, and weighing up all the relevant factors in the genuinely difficult balance in coming to a conclusion as to what is in the children’s best interests.
Of special significance in this case is the possible or likely effect of any significant change in the child’s circumstances, including any separation from either parent. Dr S canvassed this in her evidence, particularly in the course of her cross-examination, as I have noted. In the light of her unchallenged evidence that [X] is securely attached to her Mother, I highlight especially her concern about the enmeshed relationship between Mother and daughter. I note too that notwithstanding her concerns in this regard, it did not lead her to state unequivocally, or as a final or definitive recommendation, that it would be, on balance, in [X]’s best interests to move residence from her Mother to her Father. There were clearly recognisable benefits in such a course, but there were not insignificant risks associated with it also. Dr S did confirm that, if such an event were to occur, the person who would suffer most would be Ms Hadzic. It may be inferred from this, at least, that such a course could, and most likely would, impact very negatively on Ms Hadzic’s parenting capacity, which, in turn, would impact detrimentally on [X], if not also to some degree, on [Y].
I have already noted a number of times the practical and logistical difficulties that impact on the parties because of the geographical distances involved. They will be somewhat lessened or shared now that Ms Hadzic has a vehicle so that the driving between [G] and [C] can be shared.
The issue of resources – financial, practical and emotional - are relevant to s.60CC(3)(f) and the capacity of each of the parents to provide for the respective needs of the children. This is of some special relevance here given Ms Hadzic’s bankruptcy. However, Ms Hadzic’s “emotional capacity”, particularly for [X], while strained, was always, it seemed to me, willing. Such matters also are relevant to the capacity of each parent to provide for the other needs of the children with particular regard to their stages of development and maturity.[66] I have already canvassed sufficient material and made enough comment as to where my concerns rest in terms of parental capacity. It is unnecessary to repeat them.
[66] See s.60CC(3)(g).
Although there was a brief reference in the course of cross-examination to the relevance of an indigenous connection on Ms Hadzic’s side, in my view, it is unnecessary to consider this aspect further.[67]
[67] See Transcript (3rd February 2011) p.58.
In a slightly similar vein, in my view, the evidence, such as it is in relation to domestic violence and the various allegations in relation thereto, do not warrant any form of protective or other orders. Indeed, Counsel for Ms Hadzic confirmed that there could be no reliance placed on any matter of violence that had previously been raised.[68]
[68] See Transcript (6th May 2011) p.26.
In short, within the limitations of what the blunt instrument of the law can do, the orders made by the Court are in the children’s best interests, and are the least likely to lead to further litigation.
It remains to consider the relevance and import of s.65DAA in the light of an order that the parents have equal shared parental responsibility.[69]
[69] Generally see the discussion by the Full Court in Marvel v Marvel (2010) 43 Fam LR 348 at [83] – [91] in relation to “orders” for equal shared parental responsibility.
In MRR v GR, the High Court set out succinctly the proper approach of a court in dealing with s.65DAA. At [13] and [15], the High Court said (internal citations omitted):[70]
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
[70] MRR v GR (2010) 240 CLR 461.
Having regard to ‘the reality of the situation and the children’, and in the absence of the parties living closer to each other, clearly an equal time/shared care arrangement is completely impractical. For the same reasons, so too is a parenting arrangement that could satisfy the ‘substantial and significant’ time requirements of s.65DAA(3), and the ‘reasonable practicality’ requirements in s.65DAA(5).
Conclusion
In my view, there can be no question of [Y] moving back to live with his Mother. She plainly struggles to a significant degree parenting him, and he is doing so admirably living with his Father. He should continue to live with Mr Hadzic. In such a circumstance, the issue comes down to [X]’s best interests and where and with whom she should live.
In [X]’s case, is it best for her to continue to live with her Mother and ensure the ongoing emotional and nurturing support which they provide for each other, or is it best for her to go to the more secure and ordered life with her Father and her brother? The latter would clearly have many benefits, but there would be some risk associated with what might be called the ‘fall-out’ for Ms Hadzic and its flow-on effect for [X].
On balance, and it is a genuinely delicate one, [X] should continue to live with her Mother. However, she is to spend as much time as possible with her Father and her brother [Y]. In short, the orders as sought by the ICL, should be made, but with a few modest amendments. They are as follows.
First, there needs to be regular reviews of Ms Hadzic’s mental health and general well-being. In my view, in addition to any attendance on any counsellor or psychologist, Ms Hadzic will presumably need to see her general practitioner regularly in relation to her medication regime.
For the next five years, every six months, Ms Hadzic is to provide the head of the Family Consultants at this Registry a short letter from her GP that (a) confirms her medication regime and any changes to it, and (b) any relevant observation by the GP regarding her general well-being. In the event that the Head of the Family Consultants notes any matter of concern, the matter may be re-listed. These six-monthly reports are to be placed on the Court file. A copy of the letter from the GP, on each occasion, is also to be provided to Mr Hadzic.
Should it need to be said, in the event that Ms Hadzic either self-harms again, or does not take her medication diligently, there would be a significant risk that [X] would immediately go to live, and remain, with her Father.
Secondly, [X] is to continue to see a psychologist (whether it is at school or otherwise) to assist her in coping with the separation from her Father and brother. I have no objection if, at times, [X] and her Mother see a counsellor together, whether through the Brighter Futures Program, or Relationships Australia. Without being prescriptive, this may include discussion and assistance in relation to the ‘enmeshed relationship’ between them.
Thirdly, in relation to any future parenting dispute, it must first be attempted to be resolved through mediation before any further application may be filed.
Finally, the Court requests that the ICL explain the substance and effect of the orders to the children.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 14 September 2011
[X] is not Mr Hadzic’s biological daughter. However, they regard their relationship as Father and daughter. For example, in the course of his cross-examination (and based on his affidavit material),
Mr Hadzic confirmed that he “always treated [X] as my own.” See Transcript (4th February 2011) p.106. Psychiatrist Dr S also noted in her Report: “Despite the father’s lack of genetic input with [X], he had no hesitation in adopting her as his own from birth.” Dr S's Report, 29th October 2010, p.21. In his ‘Case Summary Document’ filed on behalf of Ms Hadzic, her Counsel confirmed, at p.3, that [X] was “recognised as a child of the marriage.”
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