HARDWICK and HARDWICK

[2013] FCWA 57

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: HARDWICK and HARDWICK [2013] FCWA 57

CORAM: WALTERS J

HEARD: 20 MAY 2013

DELIVERED : Ex tempore

FILE NO/S: PTW 5410 of 2011

BETWEEN: DOUGLAS HARDWICK

Applicant

AND

JESSICA HARDWICK
Respondent

Catchwords:

FAMILY LAW - Parenting dispute - Appointment of Single Expert - Dispute regarding identity of Single Expert - Dispute regarding instructions to be proposed to Single Expert - Use of expression "terms of reference"

Legislation:

Family Law Act 1975 (Cth), s 60CC, s 69ZX, s 69ZN
Family Law Rules 2004 (Cth), r 15.46, r 15.54

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms K Truscott

Respondent: Ms A Van Gent

Solicitors:

Applicant: Beacon Family Law

Respondent: Cleveland & Co

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1This decision relates to a very limited dispute between the parties – namely, who is to be appointed a single expert witness to provide expert evidence that may help to resolve a substantial issue in the proceedings, and the "terms of reference" that should be included in the instructions to be given to the expert. The relevant issue in relation to which expert evidence is sought relates to the time that the husband should spend with the parties' child, [Drew], who is two years old. More particularly, it relates to the question of when Drew should begin spending overnight time with the husband.

2Although the law now refers to a child "spending time" with a person with whom the child does not live, I prefer to use the obsolete term "contact" because it is both more convenient and less grammatically challenging to do so.

3I note that the expression "terms of reference" does not appear in the Family Law Act 1975 (Cth). Indeed, the only provision in which the word "expert" appears in the Family Law Act 1975 (Cth) is s 69ZX, which is contained in Division 12A. Division 12A deals with child-related proceedings and the principles which adhere to the conduct of such proceedings.

4Section 69ZN sets out five principles for conducting child-related proceedings. The Court must give effect to the principles when exercising its powers in relation to child-related proceedings. It is unnecessary to set out all the principles in these short Reasons, but the second and fifth principles are clearly relevant to the current dispute:

The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.

The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

5Section 69ZX(1) is the only subs of s 69ZX in which the word "expert" appears. The sub empowers the Court to do certain things and make certain orders when giving effect to the principles in s 69ZN. Relevantly, in giving effect to those principles, the Court may, among other things:

(d)if the Court considers that expert evidence is required – give directions or make orders about:

(i)the matters in relation to which an expert is to provide evidence; and

(ii)the number of experts who may provide evidence in relation to a matter; and

(iii)how an expert is to provide the expert's evidence; and

(e)ask questions of, and seek evidence for the production of documents or other things from ... experts on matters relevant to the proceedings.

6I note, as well, that neither the Family Law Rules 2004 (Cth) nor this Court's Case Management Guidelines use the expression "terms of reference" either. Rule 15.46, for example, refers to the Court having power to make an order "settling the instructions to be given to the expert"; r 15.54(2) requires all instructions to an expert witness to be in writing and to include, among other things, "the issues about which the opinion is sought" and "a description of any matter to be investigated ... or issue to be reported on".

7It follows from the above that the use of the expression "terms of reference" may imply a degree of precision which was not intended by the Act and the Rules, and introduce an unnecessary level of complexity into what is, at its heart, a relatively uncomplicated process designed to assist the Court to resolve a substantial issue – not to generate its own subset of controversies.

8Given that the expert is to be appointed pursuant to the powers contained in s 69ZX, and given that the principles for conducting child-related proceedings are contained in s 69ZN (to which s 69ZX specifically refers), the Court must "actively direct, control and manage the conduct" of the current proceedings (including the current application); and it must do so "with as little formality, and legal technicality and form, as possible".

Short background

9The husband was born [in] 1981; the wife [in] 1983. They began living together in March 2005, married on 6 September 2008 and separated in late September 2011. They have one child, Drew, who was born [in] 2011.

10Pursuant to current orders, Drew lives primarily with the wife. The husband has contact with him from 9.00 am to 5.00 pm on three days each week.

11In a draft judgment delivered on 18 April 2012, Magistrate Sutherland suggested that the application then before her (relating to the question of whether the wife should be given permission to travel to the United Kingdom with Drew for a period of approximately one month in May/June 2012) was "clearly coloured by three separate issues that are, to some extent, tangential" to the application. The learned Magistrate continued:

Firstly, in late 2011 the wife made allegations that [Drew] was at risk of harm whilst in the husband's care. These were investigated by the Department for Child Protection and found by the Department to be unsubstantiated, and arising out of [of] possibly the different parenting styles and expectations of the parents in relation to the parenting of a young child.

Secondly, following a complaint made by the wife, the husband is currently facing criminal charges arising from an allegation that he fraudulently arranged for the cancellation of [Drew’s] passport by claiming that it had been lost, in the alleged knowledge that it was in the mother's possession. Thirdly, it is clear and accepted that the parties currently have a poor relationship with each other. On the wife's part, it is acknowledged by her counsel that during the course of these proceedings she has made some fairly heated comments directed to the husband that, on reflection, she wishes now she had not said. All of those factors have led to the position that not only do the parties have a poor relationship with each other, but they have very little faith and trust in each other.

12The learned Magistrate ordered that the wife have permission to take Drew to the United Kingdom for the relevant period. Her Honour also ordered that the husband have certain make up time with Drew to compensate them both for the lack of contact while Drew was in the United Kingdom.

13It seems that the wife's trip to the United Kingdom proceeded uneventfully and that she returned to Australia in accordance with her proposed arrangements.

14On 19 December 2012, the wife filed an application for divorce. In it, she said that she proposed certain changes to the current parenting arrangements. Relevantly, she proposed to seek orders enabling her –

a)to relocate to the United Kingdom with Drew;

b)to change Drew's surname to either [Hardwick-Taylor] or [Taylor-Hardwick]; and

c)to remove Drew’s name from the airport watch list.

15The divorce was granted on 18 February 2013.

16Given the wife's proposed application to relocate United Kingdom with Drew, and having regard to the matters in dispute between the parties as a consequence of the orders sought by the wife in her initiating application filed 3 October 2011, procedural orders were made on 25 January 2013 to the effect that the proceedings be transferred to this Court and that I be appointed the managing judge. The parties were also ordered a minute of the orders sought by each of them.

17On 18 February 2013, the wife advised the Court that she had withdrawn her application to relocate to the United Kingdom with Drew. She also filed a Minute of Orders Sought.

18In the wife's Minute, she proposed that the husband continue to have daytime contact periods with Drew until March 2014, at which time she proposed that overnight contact should commence. She proposed that the overnight contact occur once per fortnight and that it be supervised by the husband's parents. She also proposed that "commencing in 2016 or the year that [Drew] commences grade 1 at school", the overnight contact be extended to "each alternate weekend from 5.30 pm Friday to 5.30 pm Sunday", and that this extended contact period also be supervised by the husband's parents. In addition, she sought an order to the effect that she have liberty to change Drew’s surname to Hardwick-Taylor.

19The proceedings came before me on 25 February 2013. Both parties were self represented on that day. The wife confirmed that she had withdrawn her application to relocate to the United Kingdom with Drew and said that the parenting issues remaining in dispute were "minor". The husband said little, save that he proposed to obtain legal advice. Orders were made adjourning the proceedings to 25 March 2013 and requiring the husband do file a notice of address for service.

20On 12 March 2013, the husband filed his minute of orders sought. Among other things, the husband sought orders to the effect that the parties have equal shared parental responsibility for Drew and that Drew live with the wife. He also sought detailed orders relating to contact and an injunction restraining the parties from changing Drew's name. In addition, he sought a series of what might be described as "good manners" orders – requiring the parties to keep each other advised of the current residential address and mobile telephone numbers and to keep each other informed of medical and educational matters involving Drew.

21The husband proposed that he commence overnight contact with Drew in August 2013, such overnight contact to occur once per week. He proposed that such overnight contact be unsupervised. He also proposed that his contact with Drew be increased with effect from March 2014 and increased again "in 2016 when [Drew] commences compulsory pre-primary schooling". The contact arrangement that he proposed should commence in 2016 involves a fortnightly routine as follows:

a)during week one, from after school to 6.00 pm on Tuesday and Thursday; and

b)during week two, from after school to 6.00 pm on Tuesday and from after school on Thursday to 6.00 pm on Sunday.

22When the proceedings came before me on 25 March 2013, the husband was represented by Mr Klicker. The wife was represented by a duty lawyer, Ms Geronimo. Mr Klicker said that there had been discussions between the parties that morning and that the main areas in dispute between them related to the questions of when overnight contact should commence and whether it should be supervised.

23It was suggested that a single expert witness be appointed to assist the Court to determine these issues.

24After hearing from both lawyers, I made the following orders by consent:

a)Within seven days the husband provide to the wife details of his proposed single expert and terms of reference.

b)Within seven days thereafter, the wife provide to the husband her response to the above proposal.

c)The husband pay the costs of the single expert.

d)If the parties cannot agree the identity of the single expert and terms of reference, then the parties have liberty to file an application supported by a short affidavit (being no more than two pages plus enclosures) from each party, and the matter be determined in Chambers.

25The proceedings were otherwise adjourned to 20 May 2013.

26On 16 April 2013, the parties filed a joint application for consent property orders. On 9 May 2013, Acting Magistrate Calverley wrote to the parties querying their compliance with a previous order (being paragraph 5 of the orders made on 18 April 2012). The parties responded to the learned Acting Magistrate's letter on 15 May 2013. They confirmed that they seek that consent property orders be made in the terms of their joint application, but the orders are yet to be made.

Dispute regarding single expert

27The parties could not agree the identity of the single expert or the relevant "terms of reference". Consequently, and pursuant to the orders made on 25 March 2013, the husband filed an application in a case on 23 April 2013. He proposed that Dr Phil Watts be appointed single expert and that he be engaged to enquire into and report on a total of 15 matters (see paragraphs 1.1 to 1.15 of Annexure A to the husband's application in a case).

28The husband's affidavit in support of the application in a case was sworn on 23 April 2013. Annexure G to the affidavit comprises an email from Dr Watts in which he advises that his fees will be "$6,200 plus GST for assessment and report (but not trial or questions of [single expert witness])". Annexure I comprises a letter from Dr Watts enclosing his CV, confirming his requirements for accepting an appointment as single expert and noting:

I understand that this assessment is a child custody evaluation report. Estimated costs are $6200 plus GST for a Perth based assessment. This including reading standard quantities of documents, XS document reading will be charged at $250 per hour, we will advise any extra charges on receipt of documents.

29The wife filed a response to the husband's application in a case on 14 May 2013. She proposed that Ms Margaret Cherubino be appointed single expert and that she be engaged to enquire into and report on five matters only (see paragraphs 2.1 to 2.5 of Annexure Aid to the wife's response to an application in a case).

30The wife's affidavit in support of her response was sworn on 14 May 2013. Annexure D to the affidavit comprises a letter from Ms Cherubino in which she advises, among other things, that her fees will be "$4,500-$5,000 plus GST dependent on the terms of reference".

31In her affidavit, the wife records her understanding to the effect that she and the husband are in agreement about major long-term issues for Drew, such as where he will live. She adds that the parties are close to agreement on other issues. The wife also deposes as follows:

The most significant dispute between us relates to when our son should start spending overnight time with [the husband]. I would like to follow the recommendations of the Australian Association for Infant Mental Health on this issue ... I understand that [the husband] wishes to start spending overnight time with our son sooner than I would like, but even on that issue, we are only a few months apart.

I believe that these are issues which we can discuss and resolve between ourselves as parents, through family dispute resolution. I believe that there is a good chance that we will be able to reach agreement in family dispute resolution and bring an end to these proceedings by consent, given that our proposals on most issues are not very different from one another and overall we have been communicating well in recent months.

32The wife argues that the parties have been able to successfully resolve a number of disputes in the recent past. For example, her proposed relocation to the United Kingdom with Drew was a serious dispute that is no longer relevant because the wife has decided not to relocate. Similarly, the parties were successfully able to engage in family dispute resolution leading to a settlement of property issues.

33In relation to the husband's proposed "terms of reference", the wife argues that they "ask the expert to report on issues that are not relevant to our case (such as where our son should live, which is agreed) and which are not appropriate for our son (such as whether he needs therapy or counselling, and which is not appropriate because he is only two years old)".

34The wife seeks that Ms Cherubino be appointed single expert because she understands her "to be experienced in working with children".

35The husband has not responded to the wife's affidavit, but I accept that the orders of 25 March 2013 make no provision for him to respond.

Appointment of single expert

36In my opinion, the issues in dispute between the parties in relation to which expert evidence is likely to assist the Court are broader than those suggested by the wife. For example, the wife seeks orders that the husband's overnight contact with Drew be supervised; the husband proposes that it be unsupervised. As well, the wife proposes that overnight contact occur less frequently than in the orders proposed by the husband. The date upon which overnight contact is to commence is clearly not the only issue upon which the court will be asked to rule.

37The wife's insistence upon overnight contact being supervised raises issues relating to the potentiality of risk to Drew if such contact is unsupervised. It also raises issues about the wife's bona fides in requiring the supervision.

38I see no reason why the instructions to be given to the expert should not reflect the considerations set out in s 60CC of the Family Law Act 1975 (Cth) (or, at least, those of them that are relevant to the current dispute). After all, the Court must regard Drew's best interests as its paramount consideration, and must consider the matters set out in s 60CC in determining what may be in his best interests. It follows that the instructions to be given to the expert should require the expert to enquire into and report on:

a)the nature of the relationship of Drew with each of his parents and any other relevant person;

b)the likely effect of any changes in Drew's circumstances, including the likely effect on Drew of any separation from either parent or any other relevant person for contact purposes;

c)each parent's capacity to provide for Drew's needs, including his emotional and intellectual needs;

d)the maturity, lifestyle and background (including lifestyle, culture and traditions) of Drew and of both parents, and any other characteristics of Drew that the expert thinks are relevant;

e)the attitude to Drew, and to the responsibilities of parenthood, demonstrated by each parent;

f)any family violence involving Drew or a member of his family; and

g)any other fact or circumstance that the expert considers relevant to Drew's best interests.

39To the above, I would add:

a)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between Drew and the other parent;

b)the expert recommendations as the time to be spent between Drew and the husband (with particular emphasis on the date upon which overnight contact should commence and whether such overnight contact should be supervised);

c)whether Drew is at risk of abuse of any kind from any person;

d)whether the parents, or Drew, would benefit from any therapy and/or counselling and, if so, the nature of such therapy and/or counselling and the reasons for such recommendations.

40I am satisfied that both Dr Watts and Ms Cherubino have adequate training, study and experience to qualify them as having special knowledge on the issues that I have identified above. I am not satisfied that one is better qualified than the other (for the purpose of embarking upon the role of single expert in these proceedings); nor am I satisfied that Ms Cherubino is more experienced than Dr Watts in "working with children". Even if I am wrong in that regard, I do not regard it as a relevant consideration in determining which of the two should be appointed single expert in the context of these proceedings. I accept, however, that Dr Watts has more experience as a single expert witness in Family Court proceedings than does Ms Cherubino.

41I am aware that Dr Watts' fees are significantly greater than Ms Cherubino's fees. The husband has agreed to pay the costs associated with the single expert, however, and it is his proposal that Dr Watts be appointed. It follows that the husband clearly has no discomfort with Dr Watts' fees. There is no suggestion that the husband will be seeking a contribution to Dr Watts' fees from the wife at a later stage.

42In all the circumstances, I am satisfied that Dr Watts should be appointed as the single expert witness. He is more experienced than Ms Cherubino in discharging the role of single expert witness and, although his fees are substantially higher than Ms Cherubino's fees, the husband is willing to pay those fees.

43I will now hear from counsel as to the precise orders necessary to give effect to this decision.

I certify that the preceding [43] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate