Independent Childrena**s Lawyer and SS and A nor

FAMILY COURT OF AUSTRALIA

INDEPENDENT CHILDREN’S LAWYER & SS AND ANOR

[2009] FamCA 519

FAMILY LAW – ORDERS – Application by Independent Children’s Lawyer for order for preparation of a psychiatric report – Independent Children’s Lawyer’s choice of psychiatrist rejected by mother

APPLICANT:

INDEPENDENT CHILDREN’S LAWYER

FIRST RESPONDENT:

Ms SS

SECOND RESPONDENT:

Mr AH

FILE NUMBER:

BRF

1070

1999

DATE DELIVERED:

10 June 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

9 June 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Kingston of Legal Aid Queensland appeared in person by telephone link

SOLICITOR FOR THE FIRST

RESPONDENT:

The First Respondent Mother appeared in person

SOLICITOR FOR THE SECOND

RESPONDENT:

The Second Respondent Father appeared in person

Orders

IT IS ORDERED THAT:

The Father and the Mother attend interviews with Dr X as arranged by the Independent Children’s Lawyer for the purpose of the preparation of a psychiatric report.

In the event that a party fails to attend an interview arranged by the Independent Children’s Lawyer pursuant to Order (1), the party failing to attend shall pay any cancellation fee charged in relation to such non-attendance.

The Mother’s application contained in her Response to an Amended Application in a Case filed 9 June 2009 be dismissed.

The Mother to pay the Independent Children’s Lawyers costs fixed at $1,320 relating to the Independent Children’s Lawyer Amended Application in Form 2 filed 3 June 2009 within thirty (30) days of the date hereof.

IT IS NOTED that publication of this judgment under the pseudonym Independent Children’s Lawyer & SS and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1070/1999

INDEPENDENT CHILDREN’S LAWYER

Applicant

And

Ms SS

First Respondent

And

Mr AH
Second Respondent

REASONS FOR JUDGMENT

Rule 15.42, which deals with expert evidence generally, is in the following terms:
“The purpose of this Part is:
(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b) to restrict expert evidence to that which is necessary to resolve or determine a case;
(c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d) to avoid unnecessary costs arising from the appointment of more than one expert witness; and
(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.”
The first rule under the single expert witness provision is 15.44(1):
“(1) If the parties agree that expert evidence may help to resolve a substantial issue in a case, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue.”
I note that in her response to the amended application by the Independent Children's Lawyer, the mother proposes that the parties agree on the appointment of an expert psychiatrist to assess the parties and the children. Having regard to the history of this matter, I would be very cynical if the parties could agree on much at all. There is no list of suggested names put forward as to who would be appropriate.
Paragraph 15.45(1) provides that:
“(1) The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.”
I point out that there has been no application and the Court has not, at this stage, moved to appoint a single expert witness under those specific provisions.
Under Division 15.5.3 there is provision for expert's evidence. 15.51(2) says:
“(2) An independent children’s lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission.”
On 29 September last year, for reasons given at the time, I made an order for the appointment of an Independent Children's Lawyer. Paragraph (2) of the orders of that date provided:
"On the appointment of an Independent Children's Lawyer, the Independent Children's Lawyer is to engage a psychiatrist to assess the mother and father but not the children."
My reasons for not requiring the children to be assessed by a psychiatrist, are twofold; firstly, a firm view I had formed that the children had been overly involved in the litigation process. The litigation had been in train at that time for eight years. This would be the third trial. In his reasons for judgment of

10 June 2005
(the second trial), Buckley J observed at paragraph (258):
"I am satisfied that the mother's actions in taking the children to various professionals is further evidence of emotional abuse and demonstrates the incapacity of the mother to meet the ongoing emotional needs of the children. Whilst the children's attendance on certain professionals was required, others, including Ms [B] and Ms [H], were only engaged to promote the mother's interest in the present proceedings. Over the last three years, the children have been taken by the mother to:
(a) Ms [G];
(b) Ms [B];
(c) Ms [H];
(d) Ms [L] on at least 19 occasions, (see mother's affidavit filed December 2004);
(e) innumerable times attending upon Dr [C].
The children have additionally had many interviews or attendances upon Mr A, the Court appointed expert. In addition they have attended upon:
(a)DoCS workers;
(b)police officers;
(c)Mr [F], Court Counsellor;
(d)Dr [Q].
The child J has also attended upon:
(a) A Speech Pathologist; and
(b) An Audiologist."
At paragraph (261) of the judgment, his Honour noted:
"In this respect, I note the evidence of Dr [D’s] affidavit filed 29 January 2003, who undertook a psychiatric assessment of both parties and who concluded her report with the following observation:-
"As I have not seen the children I cannot comment on the likelihood of them having problems with contact with their father. However, reading the material makes it obvious the children are experiencing considerable anxiety and are aware of the conflict between their parents. In my view, this awareness would be sufficient to produce the types of symptoms described, namely somatic complaints and enuresis in [J] and school refusal in [K]. The likelihood is that the children are aware of the mother's disapproval of the father and have experienced anxiety as a consequence. Frequently children ally themselves with the custodial parent in an attempt to minimise this anxiety and it may also be a possibility that [J] may seek to obtain the approval of his mother by reporting negative aspects of his time with his father.”
I am not adopting Buckley J's reasoning or methodology, I simply quote those passages to show:
(a) the extensive number of professionals/experts who have been involved in assessing the children, and;
(b) the expressed opinion of Dr D as to the impact of the children in being caught up in this conflict.
The second reason is the Independent Children's Lawyer has foreshadowed that there would be a family report ordered. The dynamic of a family report is quite different from a psychiatric assessment. The children will be interviewed in the preparation of a family report; the children are normally interviewed with each of the parents in turn, and the Court obtains the views of the children from that process. I did not see that there was any benefit to the Court in making an order for the children to attend upon any psychiatrist.
The mother says that the father has attempted to alienate the children from her. That is referred to in her written submissions at page 1, paragraph (3) of her affidavit filed on 3 June this year, for the purposes of the current application. She notes:
"It has been the mother's contention that the father is a master manipulator and has very cleverly and cunningly alienated the children from the mother and that in this process, he has been assisted by the Court."
I turn to the amended application as filed by the Independent Children's Lawyer. The Independent Children's Lawyer filed this application on 3 June. The Independent Children's Lawyer seeks orders:
1.   “That the father and the mother attend interviews with
Dr [X] or such other psychiatrist as arranged by the Independent Children's Lawyer for the purpose of the preparation of a psychiatric report.
2.   In the event that a party fails to attend an interview arranged by the Independent Children's Lawyer pursuant to the previous paragraph, the party failing to attend shall pay any cancellation fee charged in relation to such non-attendance.
3.   That the mother pay the Independent Children's Lawyer costs of this application.”
Before proceeding to the mother's response, I note that although I did not refer to it at the time, the reason why, with the benefit of hindsight, I would not have ordered a psychiatric assessment under the single expert witness provisions, is that given the history of this matter, it is highly likely the parties would want to refer, for example, to Dr D's report, albeit back in 2003. The point I am making is that in the event Dr X's report expresses a certain opinion, the mother is at liberty to get her own psychiatric evidence and apply to the Court for such evidence to be adduced to negative or to counter any opinions expressed by Dr X. I do not have to go any further on that aspect, other than to note that eventuality in the litigation process.
In her response to an amended application, which she filed in this matter, the mother seeks the following orders:
“1.That the psychiatrist appointed in this case be a child and adolescent psychiatrist with relevant and current experience and qualifications and that he/she be appointed as a single expert witness.
2. That such appointment be deferred until the decision of the appeal is handed down.
3. That the issues to be determined by the single expert witness be jointly determined by all parties and joint instructions be given and failing that, the matter be brought before the Court.
4. That the ICL inform the mother in writing at the times she makes any such arrangements of any policies/fees etc, which may be billed to the mother in relation to the ICL's actions.
4. (sic) That the ICL pay the applicant's and appellant's costs of and in relation to the ICL's application.
5. That the issues of costs be deferred and reserved pending any further appeals in the matter subsequent to the final orders in this matter.”
Paragraph (6) is not of relevance in the current matter. The only operative order in place is as previously quoted, for the Independent Children’s Lawyer to arrange a psychiatric assessment of the parties but not the children. I have previously canvassed why the order was in those terms.
The respondent mother's stance as set out in her written submissions, and in her oral submissions yesterday, is that she has cancelled the appointment scheduled with Dr X for 23 June. The father's appointment, as I understand it, is for 16 June. He has indicated he is quite prepared to attend. The mother has indicated in oral statements at Court, she has no intention of complying with any order that she attend upon an assessment by Dr X. She says at page 6 of her report:
"The ICL is asking the Court to issue an order to force the mother to see the psychiatrist she chooses. The mother even in court proceedings retains autonomy over her own body and mind under a plethora of laws and Conventions. If the mother refuses to see a particular psychiatrist, the court may act as it will and punish her. The Court may even decide to proceed to a final hearing in the face of the mother's refusal and deem it in the children's best interests. The mother, however, still retains her own personal autonomy."
At page 7 she adds:
"Given events since then -"
since she has corresponded with Dr X
"the mother is no longer prepared to see [Dr X] under any circumstances and seeks that a Single Expert Witness be appointed in this matter, after the decision of the Appeal Court is handed down."
I originally understood the mother's position to be that she had no difficulty attending on a nominated psychiatrist with the father in these proceedings, but she sought that the children be involved, and she sought the psychiatric assessment be postponed until after the Full Court's determination of her appeal against the interim orders.
I note that in relation to the order in question, namely paragraph (2) of the orders of 29 September last year, on 3 December last year, the mother applied for a stay of orders. On 26 February this year, for reasons given, I dismissed the application for a stay. On my recollection the stay application was not directed to paragraph (2) of the orders of 29 September, but nothing greatly turns on that because the mother's inquiries about Dr X postdate the timing of the reasons.
In her written submissions, the Independent Children's Lawyer refers to paragraphs (31) to (34) inclusive of my reasons of 29 September, and I will just briefly refer to those. They are a summary of why I was of the view that the children should not be involved in the process and why the proceedings should be expedited.
In accordance with the spirit of the directions and orders made on

29 September, the Independent Children's Lawyer wrote to the parties on

23 March this year. It is annexure E to the Independent Children's Lawyer's affidavit of 6 May and it is referred to at page 4 of the written submissions produced by Ms Kingston. She envisaged the matter progressing, given the intervention of the appeals as follows:
“1.That while the appeal process is underway, the psychiatric assessment of the parties be conducted and subpoenas be issued in particular to [M School] and more recently to Dr [Y].
2. That when the appeal process is concluded, orders be sought for the preparation of a family report by the family consultant,
Mr [C], it being intended that the family consultant will have the benefit of access to the psychiatric assessment and the documents produced by way of subpoena.
3. The issue of whether an independent educational assessment of [J] should be conducted, and the author of any such report be considered further at the conclusion of the appeal process and with the benefit of the information being obtained by the Independent Children's Lawyer from [J's] school and health professionals.”
The Independent Children's Lawyer adds in her submissions:
"Given the need to ensure that the matter proceed as quickly as possible, and being mindful of the considerable delay in obtaining appointments for psychiatric assessments, as evidenced by the fact that the June appointments obtained in this matter were sought in January, the Independent Children's Lawyer secured appointment dates for the assessments as one of the first steps undertaken on the file. Should the appointments not be met and further appointments are required, then delay in the progress of this matter will, in my submission, result."
I accept the force of the submissions made and the contents of the letter to the parties.
In response to the mother's submission that Dr X does not have the expertise to conduct the assessment required, the Independent Children's Lawyer argues that Dr X has extensive experience in complex matters and refers to his curriculum vitae. The curriculum vitae of Dr X is annexed to the affidavit of the Independent Children's Lawyer at page 31.
In her submissions, the mother says at page 3 that Dr X is an adult psychiatrist who, allegedly, according to his curriculum vitae, specialises only in euthanasia and schizophrenia. I have perused Dr X's curriculum vitae. I note that he received research grants … to study specific areas of schizophrenia and euthanasia. That consists of four years over a very lengthy professional career. Dr X has also been engaged in a university special project and a project …, relating to end of life decisions with the terminally ill. Looking at his curriculum vitae overall, it is a far cry from saying that he specialises only in euthanasia and schizophrenia. I can place on record, Dr X has written reports and given evidence in this jurisdiction for many, many years. To my understanding, his qualifications have never been challenged, nor has his objectivity. In her wide ranging submissions, the mother is highly critical of Dr X's qualifications. In particular, he is not qualified as a child psychiatrist. The answer to that, obviously, is he does not need to be; he is not seeing the children; he is seeing the adults. The mother, in effect, accuses the doctor of bias, having fixed views. It is not something that the Court has had the benefit of hearing from Dr X, but I will advert to that aspect shortly.
The mother's submissions appear to misunderstand the orders that are in place. The orders have not been set aside or stayed. The Independent Children's Lawyer does not require the mother's agreement to attend upon a particular psychiatrist. The power to arrange for the psychiatric assessment is inherent in the appointment of the Independent Children's Lawyer, but in this particular instance, has been given to the Independent Children's Lawyer by the Court. The Court has the power to ensure its directions and orders are carried out.
I turn to the specific orders the mother seeks. She seeks a child and adult psychiatrist be appointed. The answer to that is it is not her call. The psychiatrist will not be assessing the children. The decision is that of the Independent Children's Lawyer. The Independent Children's Lawyer has nominated Dr X, and I am not satisfied that the Independent Children's Lawyer's choice of Dr X is one that requires any further examination. The mother is at liberty to challenge Dr X's qualifications, his independence and such like at the hearing. She may well, prior to that time, if the report is in any way adverse to her position, seek to adduce her own psychiatric evidence.
In paragraph (2) the mother seeks to defer any psychiatric assessment until the outcome of the appeals process. I note the mother's affidavit in this regard. There has been previous references to Dr X being appointed, and that was, I believe in February 2009 when Ms Kingston first appeared in this matter.
The mother is wanting by O 3 of her response document, the appointment of a single expert witness. I have already given my reasons why this is not the sort of matter that is appropriate for there to be a single expert witness. There is obviously other psychiatric evidence which a Judge may wish to take into account.
I will turn to paragraph (4) shortly, but on my understanding, there is no intention to bill the mother at this point in time. The Independent Children's Lawyer seems to be accepting that certainly at first instance Legal Aid will bear the costs of the assessment.
In a further paragraph (4) of her response document, the mother seeks that her costs of these proceedings be paid. I will turn to that issue shortly.
I propose to dismiss the orders as sought by the mother in her response document. The reasons are that I see no difficulty with Dr X's expertise. As I said, he has given evidence on many occasions. The appointments have been made and been in place for six months. The father is prepared to attend.
I turn to consider the orders sought by the Independent Children's Lawyer.

It is noted the father does not challenge the arrangements. The mother's material was sent to his post office box but the father has not received it. He only collects his mail once a week. On yesterday's date I offered him an adjournment. He elected to press ahead without having read the material. The present proceedings mainly involve the conflict between the Independent Children's Lawyer and the mother. The father has a vested interest in having the proceedings brought to a conclusion, but other than that he did not make any submissions. If the father nominates a post office box as the address for service, he knew that the Independent Children's Lawyer's application and amended application were returnable on yesterday's date. He might reasonably expect that the mother would file material in response to the Independent Children's Lawyer's application. If he elects not to check his post office box; it is a matter for him, but he has to bear the consequences of that. In any event, it is academic as to he did not seek an adjournment, but if he had sought an adjournment, it may well have been at his expense. I do not need to comment any further. He further argued the mother could have served him by electronic means as he has provided an email address. The mother is entitled to serve at the address for service given, namely the post office box.

Before concluding, I make a few general observations. The Independent Children's Lawyer plays an important role, an invaluable role, in the presentation of material to the Court in child-related matters in this jurisdiction. The Independent Children's Lawyer issues subpoenae for the Department of Child Safety, Police records, school records, hospital and medical records. The Independent Children's Lawyer arranges the preparation of family reports, psychiatric assessments and a range of other professional assessments. It may well be that an assessment of J's educational progress will be sought at a later point in time, as foreshadowed in the correspondence to the parties of March this year. The system would be unworkable if individual litigants elect not to comply with arrangements made to see specialist doctors on the basis that the individual litigant is not accepting of the particular specialist involved. If the mother does not comply with the Court order made on today's date, there could be a number of consequences. The father or the Independent Children's Lawyer may bring contravention proceedings against the mother. There could be an application by the father or the Independent Children's Lawyer for a stay of proceedings, until the mother elects to comply with the order. The matter may proceed to trial as foreshadowed by the mother in her written submissions, with the consequences of the mother's failure to comply with directions being taken into account by the trial Judge. I accept the mother's submissions that the Court cannot physically force her to attend an appointment with a psychiatrist or indeed any other medical professional, if she is insistent she will not attend. However the mother has to bear in mind there may be consequences for her failure to so comply.
On yesterday's date, I was referred to the decision of Robertson & Chin, a decision of Rose J in October/November of 2007. There is considerable difference between the situation which prevailed in that matter and the present case. The psychiatrist in question, a Dr T in Sydney, had written three previous reports. There is no reference to the contents of the reports, but it seems clear that the reports favoured the father and not the mother. The choice for the Court was either/or; in other words, a further report was to be commissioned, was it to be Dr T, a psychiatrist or a family consultant. For the reasons he gave, Rose J directed a new report be prepared by the family consultant. It is a totally different scenario here where there is to be both a psychiatric assessment and a family report. I make no further comments.
Orders will issue in terms of the draft.

This is a discrete application being heard, one of many interlocutory proceedings. The current proceedings have been in train since 2007, but there were trials in the year 2000 and again in 2005 before other Judges. The parties are not legally represented. I made an order for an Independent Children's Lawyer to be appointed in this matter. I gave my detailed reasons. I virtually implored Legal Aid to fund the appointment of an Independent Children's Lawyer in circumstances where in the lengthy proceedings before Buckley J in 2005, there had been an Independent Children's Lawyer and the funding in this matter must have exceeded the cap many times over. On today's date, I have had to deal with an application for orders that the mother attend for a psychiatric assessment. I do not recall ever having to deal with such an application before. Almost invariably, the Independent Children's Lawyer makes an appointment to attend upon the psychiatrist and the parties comply. The mother has given her reasons as to why she does not propose to comply; I have ruled against her in relation to the submissions that she has made. I have made the orders that she attend. It seems to me that the proceedings have been brought about by the mother's entrenched stance that she is simply not accepting of Dr X and wants some other psychiatrist chosen. As I have said it is not her call.
The matters of costs is to be determined under s 117(2)(a). I have to have regard to the financial circumstances of the parties. The parties have spent huge sums of money in the past on legal proceedings. As I pointed out in the course of submissions, because a party is impecunious, it does not mean they can litigate with impunity. I am satisfied that albeit there may be a degree of financial hardship, the costs are modest and the mother is professionally qualified and would in the fullness of time have the ability to pay the costs. Paragraph (b) is not relevant as the parties are not legally aided other than the applicant who is employed by Legal Aid Queensland. I have had regard to the conduct of the parties to the proceedings. In relation to sub-paragraph (d), whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court, it really is an indication here of an indication to fail to comply with an anticipatory order, or an existing order of the Court. The mother has indicated she does not intend to comply. The mother has been wholly unsuccessful in the proceedings. There are no offers in writing. In the circumstances the costs sought are relatively modest, they are set out in annexure D to Ms Kingston's affidavit of 3 June. The costs sought are $1320. I have the power to order specific amounts of costs. I find it appropriate that the costs order be made in the sum claimed.

ORDERS DELIVERED [10.37 am]

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 10 June 2009

[2009] FamCA 519

10 June 2009

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Costs

Jurisdiction

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