Jallip and Jallip

[2008] FamCA 328

FAMILY COURT OF AUSTRALIA

JALLIP & JALLIP [2008] FamCA 328

FAMILY LAW – CHILDREN – Release of Family Report – conditions attaching - psychiatric/neurological assessment of father recommendation adopted – mirror orders sought for assessment of the mother

FAMILY LAW – EVIDENCE – whether waiver of privilege attaching to documents produced under subpoena and inspected by all parties – dispute about letter of instruction to single expert valuer of real estate. 

Family Law Act 1975 (Cth)

Mann v Carnell (1999) 201 CLR 1

APPLICANT: Mrs Jallip

RESPONDENT: Mr Jallip

FILE NUMBER: SYC 4320 of 2007

DATE DELIVERED: 6 May 2008

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 5 May 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Butt of Louise Butt Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gruzman

SOLICITOR FOR THE RESPONDENT: McBride Harle & Martin

SOLICITOR FOR THE ICL: Ms Shea of Legal Aid Commission NSW

Orders

1.The conclusion of the hearing is to be expedited. 

2.The husband’s claim of privilege for documents MFI “2” is dismissed. 

3.The Family Report is to be released to the parties through their legal representatives subject to the conditions as follows:

(i)the legal representatives are not to provide a copy, electronically or otherwise, to either party without the leave of the court;

(ii)both parents are restrained from discussing the Family report, directly or indirectly, with either of the children. 

4.Pursuant to Part 15.5 of the Family Law Rules 2004, Dr W, psychiatrist, is appointed as a single expert to assess and report upon the following issues:

a.        the mental state of the father;

b.whether the father suffers from any psychiatric illness or personality disorder; and

c. if the father suffers from a psychiatric illness or personality disorder, then:

i.what is the impact of the illness or disorder on the father's functioning and/or behaviour either as an individual or as a parent?

ii.is such illness or disorder amendable to treatment, and if so, what is the recommended nature and length of such treatment?

iii.      what is the father's prognosis?

d.        any other matter which Dr W considers relevant.

5. Pursuant to Part 15.5 of the Family Law Rules 2004, Dr W, psychiatrist, is appointed as a single expert to assess and report upon the following issues:

a.        the mental state of the mother;

b.whether the mother suffers from any psychiatric illness or personality disorder; and

c. if the mother suffers from a psychiatric illness or personality disorder, then:

i.what is the impact of the illness or disorder on the mother’s functioning and/or behaviour either as an individual or as a parent?

ii.is such illness or disorder amendable to treatment, and if so, what is the recommended nature and length of such treatment?

iii.      what is the mother’s prognosis?

d.        any other matter which Dr W considers relevant.

6. The Independent Children's Lawyer has leave to provide to Dr W a copy of (i) all documents filed in these proceedings, (ii) the Family Report (iii) all documents produced under subpoena and (iv) the document marked MFI “2”. 

7. Dr W is at liberty to make such enquires as he sees fit of the Family Consultant, Dr Q or Dr R and, if necessary, each party is to authorize any such consultations. 

8.If Dr W is of the opinion that it is desirable he have a current neurological assessment of the father then the father is to comply forthwith with any request to obtain such an assessment as soon as practicable and authorize a copy of the report to be made available to Dr W and to all parties in the proceedings. 

9. The cost of Dr W’s assessment, report and court attendance (if required) is to be shared equally between the parties in the first instance, to be paid according to order 10 hereof and the ultimate responsibility for costs as between the parties is reserved to the trial judge.

10.Each party is to pay on or before one (1) month from the date of these orders to the Legal Aid Commission of NSW an initial contribution of one half of the estimated cost of the reports by Dr W and each is entitled to receive one half of any amount remaining after payment is made by the Commission to Dr W. 

11.The letter of instruction to the single expert valuer is to be sent according to the draft provided by the solicitor for the mother, to which there is to be attached the schedule of renovations prepared by the mother and also the schedule of renovations prepared by the husband [and photographs], subject to the letter being amended to identify the two schedules and to request the valuer to give an opinion with respect to the work referred to in each schedule in so far as the difference leads him to a different opinion. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC4320 of 2007

Mrs Jallip

Applicant

And

Mr Jallip

Respondent

REASONS FOR JUDGMENT

Introduction

1. There are several decisions required in this matter which is otherwise managed and to be heard by O’Ryan J.  The pending proceedings are related to property settlement and parenting arrangements for the parties’ two children: Y (7) born in July 2000 and L (6) born in December 2001. 

2. The more central developments or aspects to the case are reflected in the evidence currently available: the affidavits filed to date; the questionnaires each parent completed prior to the initial appearance before O’Ryan J on 28 January 2008; and a large bundle of documents from various sources produced to the court under subpoena and tendered by agreement in the course of the hearing this morning.  Obviously none of it has been tested and so what follows of the history is not to be read as found fact; rather, it sets out what appears to be uncontested, or it is a summary of what is being alleged by one or the other, or it reflects what is said in documents tendered by agreement although it is recognised their context or meaning may be the subject of submission at a later time. 

Background

1. The father (46) and the mother (39) met in 1993 and married in August 1994.  They separated around October 2006, allegedly at the instigation of the mother after her husband had assaulted her while at the Gold Coast the previous month.  But they remained living at the family home until 11 November when the father was arrested and charged with common assault and assault occasioning bodily harm to his wife.  This precipitated his departure from the home and he went to live with his parents nearby.  A year later, in early November 2007, he moved back into the family home and the mother left to live in rented premises elsewhere.  This development is reflected in notations and orders made by a Judicial Registrar on 24 October 2007.  The parents currently live in relatively close proximity in inner-west suburbs of Sydney.  The father is a self-employed technician and the mother works as an executive assistant.  Her divorce application was returnable in the Federal Magistrates Court on 1 May. 

Current proceedings

1. At some point following their separation they agreed to arrangements for the children to spend all of Saturday and Sunday with their father every third weekend.  That came to an end in mid-June 2007 and shortly thereafter the mother instituted these proceedings by an application filed 18 June 2007 seeking orders for property settlement and certain parenting orders, including interim orders.  She later filed an amended application but this morning that was withdrawn and her position now is as set out in the initial application.  Putting aside the property component, essentially that seeks orders for equal shared parental responsibility, the children to live with her, she be permitted to relocate with the children to Brisbane and the children spend time with their father one weekend every two months and during long weekends as well as other specified occasions and half of each school holiday period.  In her affidavit directed to the interim proceedings, she proposed the arrangement in place at the time continue though extended to include an overnight stay on the Saturday and she proposed other weekend contact as long as the children spent that time predominantly in the father’s care. 

2. The father’s response was filed on 1 August 2007, later amended by a response filed 11 March 2008.  By the latter he seeks sole parental responsibility, according to a two weekly cycle the children would live with their mother for five nights per fortnight provided she attends an alcohol program and she is free from alcohol dependency and substance abuse and provided further she is ‘fit to properly care for the children’.  They would also spend time with her on certain specified occasions and during one half the school holidays. 

3. On 26 July 2007 interim orders were made by consent.  Essentially they provide for the parents to have equal shared parental responsibility and for the children to live between them according to a two weekly cycle: in week 1 they would live with their father from the conclusion of school on Thursday until the commencement of school on Monday; in week 2 they would live with him from the conclusion of school on Thursday until the commencement of school the next morning; otherwise, they would live with their mother. 

4. With those arrangements in place, the matter came before O’Ryan J on 25 January 2008 when his Honour made a suite of orders to have the matter progress to conclusion, including orders appointing an independent children’s lawyer [the father to pay the costs of the ICL] and directing the preparation of a Family Report which is now available for release.  At the same time his Honour granted leave for the issue of various subpoena to produce documents, made a number of other orders of no particular relevance to the decisions now required, and made this further order:

   ‘Neither party is to say anything to or in the presence of either child which is anyway derogatory of the other parent or allow any other person to say anything to or in the presence of the either child which is in any way derogatory of the other parent or in any way to speak to or discuss with either child or allow any other person with the exception of the Family Consultant and the Independent Children’s Lawyer to speak to or discuss with either child the proceedings currently before the court or any issue raised in those proceedings.’

5. The decisions now required relate to:

   (i)the release of the Family Report;

   (ii)whether orders should be made for the appointment of a single expert to make a psychiatric and neurological assessment of the father and, if so, whether similar orders should be made in relation to the mother and the terms of any such orders;

   (iii)whether or not privilege being claimed by the father attaches to certain documents produced to the court on subpoena and earlier inspected by all parties; and

   (iv)the terms of a letter of instruction to the single expert who, it is agreed, will value the family home at M. 

6. Some further background is necessary to give those decisions some context. 

Further background

1. To return to the events surrounding their separation, simultaneously with the assault charges against the father the Department of Community Services [DOCS] was notified and a couple of days later an AVO issued against him for a period of one year.  By its terms he was prohibited from intimidating the mother or any other person having a domestic relationship with her; from stalking her; from assaulting, molesting, harassing or threatening her in any way; and from entering the premises at which she resides or works. 

2. The mother alleges the AVO was later breached.  The first occasion she identifies occurred on or around 21 May 2007 in the car park at the … Railway Station after she returned from work in the early evening.  She alleges the father drove into the car park and pulled up opposite where she was standing, he stopped briefly and looked at her before driving slowly around the car park and leaving.  The second occasion occurred on or around 25 June 2007 while she was driving to a job interview.  She alleges he followed her in a vehicle, when she turned into the street where the interview was to occur he also turned into that street, he drove past her, turned around and came back past her before he drove away. 

3. Before the date of these alleged incidents, the assault charges had been dealt with by the Local Court.  In March 2007 the charge of common assault was dismissed and the father entered a plea of guilty to the charge of assault occasioning bodily harm. He was convicted and given a 12 month good behaviour bond on condition that he accept the supervision and guidance of the NSW Probation Service for such period as that Service deems sufficient and that he obey all reasonable directions for counselling, education development and drug and alcohol rehabilitation.  

4. The agreed facts to support the guilty plea state that the father punched the mother in the head repeatedly whilst she was sitting at the computer desk.  She kicked out at him before she managed to get away from him.  She grabbed both children and ran for the front door and when outside the premises she called for help.  He followed and grabbed her by her hair and attempted to place her in a head lock.  He also placed his hand inside her mouth and pulled back on her head.  In the further struggle he grabbed her around her neck and held her in that position before two witnesses came to her aid.  He was heard to yell ‘you’re not leaving me, I’m going to kill you.’  To one of the witnesses he said ‘I’ll kill her first, before she leaves me.’  The police were called and the father was arrested and taken to the police station where he participated in a record of interview and made certain admissions.  The mother sustained heavy bruising to the left side of her head, lumps to her head, her right eye was filled with blood, and she had scratches to the neck, face, head and the upper palate of her mouth.  

5. The mother’s evidence and other documents put it beyond contention that the children were present during this assault.  The mother gives other detail of the assault in her evidence here, including the allegation that she was holding one of the children at one point while the father was punching her. 

6. In a pre-sentence report provided by a probation and parole officer, the father’s background was set out briefly as were the factors said to relate to the offence – apparently derived from the self-report of the father – before a summary and sentencing options were set out.  The report refers to a psychiatric assessment having been provided by the father – no doubt a reference to a report from Dr R, psychiatrist, dated 17 January 2007. 

7. In that report, Dr R noted he had seen the father on 9 January for purposes related to the pending court hearing.  His report traverses presenting complaints and aspects of the father’s history and personal habits before commenting on matters discussed with the father.  It is not necessary here to set that out in any detail.  Suffice to say that in the course of his interview the father described his wife as alcoholic and having suffered from post-natal depression after the birth of the children; she was having a ‘mid-life crisis’, she was involved on the internet, and she was dismissive of him.  Later he commented that she was becoming involved in clothes, exercise machines, botox injections, and teeth whitening; he suggested she had opened a secret bank account and had threatened to leave him on a number of occasions; he spoke about his sadness at losing a pet; and he described hiding under the house where the dog used to live and crying when he was depressed and that his children had heard him and searched for him.  The father commented on the cultural differences between himself and the mother, stating that he wanted to be with his family whereas she wanted to socialise; he spoke of her ‘dumping’ the children.  Dr R arranged for an MRI of the brain given the father’s reports of mood fluctuations. 

8. In his summary and opinion at the end of his report, Dr R said the father exhibited an ‘episode of poor impulse control possibly compounded by modest alcohol ingestion’.  He said the MRI of the brain demonstrated there is a potential physical organic basis for his loss of impulse control although the cause has not been established.  His summary continues:

   ‘His long term prognosis depends on the underlying cause and even if an underlying cause is not established the progression of the underlying lesion. 

   A definitive diagnosis has not as yet been made – all that can be stated with certainty is that there has been demonstrated a degree of organic cerebral changes, namely atrophy which in conjunction with, on the grounds of probability a mood disorder compounded by a degree of alcohol ingestion, combined to produce a circumstance of poor impulse control, resulting in the offences for which [the father] now faces Court.

   It would be my hope that with appropriate investigations and management [the father’s] mood would be able to be controlled and his propensity to react in the manner that he did on this occasion would be very substantially reduced.’

9. Having been sentenced, for the duration of his bond the father attended appointments with an officer of the Department of Corrective Services as required and those records are in evidence.  They give some picture of his functioning over the months to follow.  Without being comprehensive, the records reflects these entries, amongst others:

   ·[18 April] The father is described as extremely compliant and amendable to attending programs and he reported seeing Dr R fortnightly.

   ·[23 May] He was stressed an agitated and worried about the Family Court, he spoke of the mother’s behaviour and how she contributed to the assault, he spoke of the female sentencing judge having pre-judged him, and he was described as becoming frustrated and raising his voice leading the case officer to query the stability of his mental health.

   ·[6June] He was described as shaking and quite anxious and upset about custody arrangements; it was suggested he participate in a domestic violence program discussion group.

   ·[14 June] He confirmed he would attend the program to run for 16 weeks. 

   ·[20 June] He was described as positive and happy, he reported he had stopped taking medication the previous week and he had cancelled his upcoming appointment with his psychiatrist, he no longer wished to be controlled by prescription drugs, and the case officer queried whether he was experiencing a manic episode. 

   ·[8 October] Dr R reported he had not seen [the father] since 30 April, he considered the father to pose some risk since there was potentially a physical basis for his poor impulse control and by stopping medication he is at risk of relapse; Dr R recommended the father be referred back to him and that was done; the father said he had not learned anything from the domestic violence program that he did not already know; he was described as remaining very focussed on the mother, her behaviour, her new partnerships etc and exhibiting little reflection on his own actions, mental health, well being etc; he was not taking any medication and he did not want to continue seeing Dr R.

   ·Towards the end of the supervision, the father was described as relaxed and happy and pleased to have regular contact with the children; there was a home visit in January 2008. 

1. In the midst of these attendances, in September 2007 there was correspondence between the father’s solicitor and Dr R.  That correspondence is the subject of a claim of privilege by the father which is discussed later and the claim dismissed.  The letter of 10 September 2007 from his solicitors seeks a report as to the father’s capacity to provide instructions, engage in court proceedings and/or enter settlements.  In his reply of 13 September, Dr R advised that the father’s last attendance had been on 23 August 2007; on the basis of a diagnosis of mood disorder, he had recommended trial treatment with an antidepressant and a mood stabilising agent; the father had not continued to take the treatment and ceased medication against Dr R’s advice; the father had referred to increased alcohol ingestion at the last consultation and he had made certain allegations in regard to his wife, including that his wife was bringing men into the house in front of the children and that his wife was drink-driving.  Dr R concluded with the opinion that for the most part the father would be able to give instructions, though he expressed concern the father is not currently engaged in treatment, that the father had spoken of increased alcohol intake when they last spoke, and that the father has evidence of organic cerebral impairment although a very mild degree. To be assured of the father’s capacity to give legal instructions, his demonstration of an understanding of certain matters would have to be ascertained by the solicitors; he could envisage that circumstances may arise where the father ‘by virtue of abnormality of mood, excessive alcohol ingestion may not give appropriate instructions and have full understanding of matters put to him’. 

2. The reference to his wife bringing men into the house is mirrored in documents produced by DOCS.  The Department’s initial engagement related to two notifications arising from the assault, including one from ambulance officers to the effect that one of the children had been hit in the head.  Then on 25 October 2007 there is a further notification, obviously by the father.  In that he alleged the mother was not adequately supervising the children, he alleged there are ‘all sorts of men coming in/out of the house in the middle of the night’ and suggested their ‘cars are always around the corner’.  The record continues:

   ‘….There seem to be quite a few.  The children have told [] that “they’ve heard noises” – footsteps, giggling carrying on.  The 5yo told his father that she got up early and went to into her mum’s bed and the bed was wet.  The father asked if it was wee? the child said it didn’t smell like wee.  Caller suspects it was seamen (sic) and his kid was lying in it.  [] about to pick his children up.  He sees them 5 nights every fortnight.  [] turned a blind eye for a while but the kids are getting neglected.  The quantity of food is very poor.  They get a buttered sandwich and a bag of chips, it was minimal for the father’s liking.  They have poor eating habits.  Their mother gives them 2 iceblocks every night so they can stay in their room.  Their hair hasn’t been cut and their nails only just got clipped because father told [the child Y] to cut them.  One morning [Y] saw mother’s boyfriend lying in daddy’s bed with his under wear.  Another occasion [L] said that the mother took the children to a man’s house she had just met and was having sex with the man while she made the children stay in another room but [L] heard humping noises and saw the sheets go up and down.  [L] also saw a bottle of wine next to the man called “[…]” this happened a few months ago but [] only just found out.

   [L] had a nightmare and saw a hole in the middle of the bedroom and was scared she’d fall in it.  She went to her mum’s room and it was locked and she was knocking.  Mother wouldn’t let her go in…’

3. The file produced by the Department seems to indicate that after their initial response, which appears to be an interview with the father, the matter was not taken any further. 

4. In the course of the year, the mother consulted with Dr Q, psychiatrist.  The purpose was to address the question of the effect on her of the domestic violence she alleged she had experienced during her marriage to the father.  As such, Dr Q is not a ‘single expert’ since her report of 18 June 2007 is related only to the mother’s functioning; she is a witness called in her case, albeit an expert.  The report is relatively lengthy and it traverses a number of topics discussed with the mother, including various aspects of her background and the history of the marital relationship, the assault and its aftermath and its’ impact on the children, as well as the mother’s current mental status.  Dr Q ultimately poses and responds to the questions she had been asked to consider which are these:

   a)whether the mother is presently suffering from a diagnosable psychiatric condition; if so, what is the condition or illness and what is the required treatment;

   b)the impact on the mother’s psychological/psychiatric health of the physical assault by her husband on 11 November 2006 and the likely duration, if any, of that effect;

   c)whether the mother is suffering from the effects of a recognisable and diagnosable psychiatric syndrome related to the husband violence in their marriage as reported by her and, if so, what is the name of the syndrome, what are the medically recognised effects of it, what is the medically recognised treatment if any for it;

   d)the extent and nature of any psychological/psychiatric injury suffered by the mother as a result of either a. the physical assault in November 2006 and b. the domestic violence behaviour reported by her throughout the marriage and c. the effect if any on her i. ability to care for her children, ii. her ability to find and maintain suitable employment and iii. her ability to initiate or maintain intimate relationships including sexual and iv. any other effects she may experience that are contributing to a. or b.

   e)to what extent the mother would be assisted in treatment, recovery or management of any psychological/psychiatric condition, or in any other way identified by relocating to live in Queensland closer to her family. 

5. Not all of her responses need be repeated here; key areas of her opinion will be sufficient:

   ·    The mother is suffering from chronic Post Traumatic Stress Disorder (PTSD) largely as a result of the physical violence she had experienced but also the relationship she described is characteristic of a pattern of highly controlling behaviour seen in a subset of abusive spouses, of itself an emotionally and psychologically abusive experience.  She is also suffering from a Major Depressive Episode. 

   ·    The treatment is usually distance from the relationship and counselling is also essential. 

   ·    The assault has shocked and traumatised her and she has developed the typical symptoms of chronic PTSD with hyper-vigilance, exaggerated startle responses, disturbances of concentration and memory, difficulty sleeping, intrusive thoughts and memories of the trauma.  She is experiencing panic attacks and depression considered to be part of the PTSD disturbance. 

   ·    She is suffering from chronic PTSD, a well known clinical psychiatric disorder that follows exposure to trauma.  This is frequently developed by women who suffer domestic violence and depression and panic are common complications.  The phenomenon is better explained in terms of the ‘psychological entrapment’ of complex PTSD. 

   ·    Three major groups of symptoms characterize PTSD: persistent symptoms of increased arousal; re-experiencing phenomena; persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness.  She manifests all three. 

   ·    Removal from the traumatic situation is the first line of treatment; until interpersonal safety is ensured no other treatment interventions are likely to assist and may even worsen the situation.  Medication can be useful when there are severe symptoms and also for associated anxiety and/or depression and/or insomnia but it is chiefly of symptomatic value.  Counselling is essential. 

   ·    She has been in a relationship that was characteristically one of domestic violence even before the severe physical assault.  On her description of it the control and domination exercised by her husband and her adaptation to it are characteristic of such a relationship. 

   ·    In spite of her symptoms she has maintained the capacity to care adequately for her children in all respects.  She has had difficulty sustaining her employment.  Provided she is able to feel safe from further violence or control it is likely she will eventually be able to resume work.  If she were able to relocate it is likely she would feel sufficiently safe and confident she would soon be able to work again although she remains vulnerable.  She feels particularly wary of intimate relationships and that is likely to continue for some time. 

   ·    She would be greatly assisted by relocation which would provide separation from the husband and distance from him.  It would minimise any further intrusion by him on her life and establish what is critical to her recovery, removal from the specific trauma situation.  She would also have the support of family and the psychological benefits of a return to her home environment.  It is noted this relates to the mother’s individual needs and does not take account of the needs of the children to sustain a meaningful relationship with their father and Dr Q acknowledges she has not assessed them or their relationship with their father.  She elaborates on this topic in her report. 

   ·    She concludes with the observation that based entirely on the mother’s account of the relationship, ‘which is clearly not unbiased’, there is reason to be concerned that the father has not only been physically violent but also displays the characteristics of an abusive and controlling partner.  If so - though she acknowledged her remarks to be speculative - it is possible a major part of his investment is in the relationship with the mother rather than with the children and there is also a risk that post separation such a character may transfer the focus of excessive control onto the children. 

6. In the questionnaires the parents completed, the mother relates anxiety about her own safety and also concern at what she called his ‘psychological abusive influences’ on the children.  The father relates concerns about the children’s safety with this passage:

   ‘Saturday, October 6 Complaint lodged with DOCS Ref 1-BXODEN

   I have been informed by reliable people that the Mother [name] has been neglecting the children. Allowing and putting the children at risk and in dangerous situations.

   The children have informed me that along with other eye witnesses that the mother is self medicating and is consistently drunk; possibly drug abusive.  [The mother] is incoherent in that state and accident prone; self harm and possible injury to the children and others is possible.

   I have been told by the children that the Mother has been drink-driving and on one occasion a near collision took place between herself and a truck while the children were in the car.

   I have been told many men were coming to the house in all hours of the night.  I strongly suspect these men to be internet predators.  The mother has had affairs with married men and these wives have been out to hurt her.  I believe the mother is promiscuous.  [L] the youngest has witnessed sexual activity.

   I believe the children have some emotion and psychological issues and are in need of professional help.’

Decisions required

1. Against that general and summarised background based on what is currently available, I come to the decisions now required. 

(i) Family report release

1. Having read the Family Report, I determined that it should be released in the first instance only to the ICL to gain some assistance in the decision about the conditions of its release.  My hesitation to release it according to the usual practice came about as a result of some of the contents of the report, more particularly the reporter’s remarks about potential risks she detected from her interviews and her recommendation that the father undergo an independent psychiatric and neurological assessment. 

2. Having read the report, the ICL proposed that the Family Report not be released to the parents until there is a psychiatric and neurological assessment of the father by an independent psychiatrist according to the further orders the ICL proposed, as set out hereunder:

   1. That pursuant to Part 15.5 of the Family Law Rules 2004, Dr [W], Psychiatrist, be appointed as a single expert witness to assess and report upon the following issues:

   a.        The mental state of the father, […].

   b.        Whether the father suffers from any psychiatric illness or personality disorder.

   c.        If the father suffers from a psychiatric illness or personality disorder, then:

   i.What is the impact of the illness or disorder on the father's functioning and/or behaviour?

   ii.Is such illness or disorder amendable to treatment, and if so, what is the recommended nature and length of such treatment?

   iii.      What is the father's prognosis?

   d.        Any other matter which Dr [W] considers relevant.

   2. That the cost of Dr [W’s] assessment, report and court attendance (if required) be shared equally between the parties.

   3.For the purposes of Order 3 herein, each party shall within 28 days pay to the Legal Aid Trust Account an initial contribution in the amount of $1,100.00 to be p-5-td by the Legal Aid Commission of NSW to Dr [W] upon completion of his report.

   4.In the event that Dr [W’s] costs exceed the total amount of $2,200.00, then each party shall pay one half of the outstanding amount within 21 days of receiving a written request and a copy of Dr [W’s] invoice from the Legal Aid Commission of NSW.

   5. The Court NOTES that in the event that there are surplus funds held in the Legal Aid Trust Account after Dr [W’s] costs have been paid in full, then such funds shall be refunded to the parties by the Legal Aid Commission at the conclusion of these proceedings.

   6.The Court NOTES that the Independent Children's Lawyer is under no obligation to brief Dr [W] in terms of Order 1 herein until Order 3 has been complied with.

   7.That the Independent Children's Lawyer have leave to provide Dr [W] with a copy of all documents filed in these proceedings; all documents produced under subpoena and the document marked as "MFIl" for the purposes of his report.

   8. That Dr [W] have leave to liaise with the Family Consultant, [Ms B], in the preparation of his report.

   9.That within 14 days the father shall obtain a referral for a neurological assessment and a copy of any report produced as a result of such assessment is to be provided to the independent children’s lawyer for the purposes of being forwarded to Dr [W].’

3. In response, the father’s counsel put his position this way.  First, he submits that the Family Report should be released now to enable advice to be given as to its contents.  As for the assessments proposed, he submits there is no reason for it to be undertaken, the assault of November 2006 was an ‘isolated incident’ and the sentence imposed was a bond which is the bottom end of the sentencing scale, the father had successfully completed the bond conditions some time ago, there had been no re-emergence of anything since, and the parents had been dealing with each other while the children were spending five nights a fortnight with their father. Counsel characterised the proposal for further reporting as a ‘fishing expedition’.  Secondly, if an assessment is to be ordered, he submits it should be similarly undertaken by the mother upon the same terms and that was supported by reference to the father’s allegations of her being afflicted by problems with drug abuse and alcohol dependence.  Further, if the assessment is to be ordered, he proposes amendments to the orders sought by the ICL so as to add to the end of 1.c.i. ‘…and how that would impact on the children’.  However, after I indicated an expert who will not see the children is highly unlikely to be able to express an opinion along those lines, he agreed it might be substituted with ‘…as an individual and/or as a parent’.  Counsel for the father also proposed the addition of order 1.c.iv. requiring the expert to assess the impact of the orders proposed by each parent in the parenting proceedings.  Finally, he submits proposed order 9 should not be imposed. 

4. As for the mother’s response, her solicitor also asked that the Family Report be released now for the same reasons related to giving advice.  However, the mother adopts the ICL’s proposal for the appointment of an independent expert to assess the father although she rejects the proposal that she share in the costs and proposes that the father be responsible for the costs involved.  As for the proposition that the mother undergo the same assessment, it is submitted there is no demonstrated need for that; however, if the court considers it to be helpful, the mother would obtain a supplementary report from Dr Q, at her own cost, addressing those same matters. 

5. These submissions considered, I propose releasing the Family Report to the parents through their legal representatives.  Having read all of the material currently available, including what is agreed to come into the evidence from documents produced under subpoena, I have concluded this case ought to be brought to a conclusion as expeditiously as possible.  To that end, final hearing days will be allocated towards the end of July.  The case needs to be properly prepared without either parent being prejudiced and without those hearing dates being put in jeopardy by reason of the late receipt of an important piece of the evidence.  While cognisant of the issues the reporter raises, including concerns about what is assessed as potential risks, I can see no realistic alternative.  Of course it is expected that its release would be accompanied by appropriate advice from the legal representatives who would be more familiar with the underlying circumstances than is possible to detect from this distance on a hearing such as this. 

6. Having said that, I propose making an order prohibiting a copy of the report, electronically or otherwise, being given to either parent subject to the further leave of the court.  I also propose making an order prohibiting either parent from discussing the Report, directly or indirectly, with the children or either of them.  The reason for the first order proposed is to avoid as much as possible the prospect of the Report fuelling grievances and being circulated to others of similar mind.  The reason for the second is self evident. 

(ii) ICL’s proposed orders

1. I turn to the ICL’s proposal to have the father undergo assessment by an independent psychiatrist.  Having had the advantage, as did the ICL, of reading the Family Report, an independent psychiatric and neurological assessment is one of the reporter’s recommendations.  Despite the submissions for the father against that course, I propose to make that order with some slight modification to the wording.  In my opinion there are obvious aspects of the history that plainly call for the assessment recommended.  The decision to order it is supported not only by the assessment of the author of the Family Report [now to be made available] but also by Dr R’s report in January 2007, the history of the father’s consultations with Dr R and his abandonment against advice of the treatment prescribed, his engagement with the supervising parole officer over time, and the records of his notification produced by DOCS.  Without it, it is reasonable to suppose that any adjudicator would be hampered in their task by the absence of focussed, contemporaneous opinion about the father’s functioning, treatment and prognosis. 

1. That said, it seems to me there may very well be assistance in having available a similar assessment of the mother.  The case to support a mirror order is not strong, even acknowledging the father’s allegations relayed in various directions over time, but procuring an assessment would at the least obviate any suggestion at the end of the day of a gap in what is known of her level of functioning.  The longer term view I see as sufficient to support the order. 

(iii) terms of orders for assessments

1. As for the terms of the orders, I am content to adopt the amendment to proposed order 1.c.i. by adding the words ‘…as individuals and/or as parents.’  But I could not adopt the proposal that the expert express an opinion about the impact of the proposed orders on each of the parents.  In part that is because I cannot be sure at this stage what each parent will be seeking when the matter concludes – there has been a significant shift by the mother recently and I could not be assured the father’s response is yet formulated.  In any event, I see that proposal as widening the scope of the enquiry more than is necessary on the material available. 

2. There is then the question of proposed order 9 which strikes me as somewhat problematic.  I cannot say – nor were any submissions made about it – whether the independent psychiatrist would see further neurological assessment other than that undertaken by the father at Dr R’s direction in January last year as desirable and nor could I say such an order would be necessary for the expert to express the opinions asked.  I see the solution in framing an order to require the father to undergo neurological assessment should the appointed expert so require it. 

3. The orders will authorise the availability of all material available to the court including the Family Report, the report by Dr Q and by Dr R and the expert will be at liberty to discuss the matter with any or all of those experts. 

4. As for the question of costs of the expert’s assessment, that is also problematic because there were no submissions directed to their capacity to pay the costs involved and I know next to nothing about their financial circumstances.  In the result, I propose making an order that each are to contribute half of the estimated costs of the expert in the first instance and the ultimate responsibility for payment will be reserved to the trial and determined when further information will be available about their finances and about other matters that effect the discretion to determine where costs will lie. 

(iv) privilege

1. A claim of privilege is made by the husband for documents produced on subpoena, amongst others, by Dr R [marked MFI‘2’].  They are letters from the husband’s former lawyers, Watts McCray, sent to Dr R in September last year and a copy of Dr R’s reply.  The mother opposes the claim and says the privilege has been waived.  Little more was said on behalf of either party in submissions on the point. 

2. The court record indicates the return of the subpoena came before a Registrar on 25 March 2008 when all parties were legally represented, including the husband albeit not by his previous solicitors who had written the letter.  Leave was granted to all parties to inspect the documents.  As far as the court record indicates – and nothing was said in submission to the contrary - no claim of privilege was made for the husband at the time; nor so far as I am aware has any claim been made since, until today.  Indeed, all documents produced were subsequently inspected by the parties, including those to which the claim of privilege now relates. 

3. Rule 15.31 of the Family Law Rules 2004 requires written notice to be given of any objection to inspection or copying of any documents and that was not done here, but the Rules can be put to one side. Nor does the Evidence Act 1995 (Cth) [see Part 3.10] assist since this is an interlocutory application and not about evidence being adduced at a hearing. The answer to whether privilege applies or has been waived lies in the law and the key case on the point is the High Court decision in Mann v Carnell (1999) 201 CLR 1 [per Gleeson CJ, Gaudron, Gummow and Callinan JJ], the relevant passages being:

   ‘28.     At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege.  It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context.  Legal professional privilege exists to protect the confidentiality of communications between lawyer and client.  It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement.  It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.  Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.

   29.      Waiver may be express or implied.  Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.  When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law".  This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.  Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions.  She did not subjectively intend to abandon the privilege.  She may not even have turned her mind to the question.  However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication.  What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.’

4. This directs attention to any inconsistency between an assertion and maintaining the privilege.  The husband’s case has not been opened and he has not filed much in the way of evidence in chief and so the circumstances are not as plain here as this discussion contemplates.  But it is clear from what is presented of the husband’s case that his level of mental functioning is an issue in the case and the documents are relevant to that.  To that extent, therefore, there is an inconsistency between asserting his state of mind to be one thing [implicit in his case] while also asserting confidentiality of the communications between his former solicitors and the medical assessment made of his functioning, he cannot maintain the claim of privilege and must be taken to have waived it. 

5. Lest that be thought insufficient, there is also the fact that when he was legally represented on the return of the subpoena, his solicitor must be taken to have had knowledge of the exchange between his former solicitors and Dr R and failure to make the claim for privilege then or at any time since, including before the documents were inspected by all parties, must be taken to constitute a waiver of privilege. 

(v) letter of instruction to valuer

1. As for the dispute about the terms of instruction to be given to the single expert engaged to value the former family home, I have been provided with a draft prepared by each party’s solicitor.  The disputed passages revolve around what the valuer is told about renovations undertaken on the property over a number of years. 

2. Essentially, the husband’s letter of instruction advises that work according to an attached schedule was work he performed between 1996 and 2008 and attached photographs are said to depict before and after the work undertaken.  The valuer is then asked to ‘comment upon the work performed by [the husband] and whether said work has increased the value of the matrimonial home and if so to what extent.’  The wife’s letter of instruction, on the other hand, attaches a schedule of work carried out between 1996 and November 2007 and asks the expert to consider and comment upon whether renovations have increased the value of the home and if so to what extent. 

3. The letters ask the same core question but there are two areas of difference: the first identifies the husband as having been responsible for the work and the second attaches a schedule which deletes some of the work identified in the husband’s schedule. 

4. On the state of the evidence as it now exists, I do not know if there is dispute about who did the renovation work although the argument about the wording suggests it is contentious, but I see no point in involving the valuer in it and nor is that information relevant to his task.  For that reason I prefer the wife’s draft.  As for the difference in schedules, what has been deleted in the wife’s schedule does not impress as major work by any means and it strikes me there is nothing in the argument.  But, if that is wrong and to guard against any perception of unfairness, there is no reason the valuer cannot be given both schedules and asked to comment on each of them separately - if indeed the difference produces any variation in his opinion. 

Orders

1. For those reasons, orders will be made as set out earlier. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  6 May 2008