KAPICIC & BAKAL

[2014] FamCA 236

FAMILY COURT OF AUSTRALIA

KAPICIC & BAKAL [2014] FamCA 236

FAMILY LAW – CHILDREN – Interim Orders – with whom a child spends time – mother sought to reduce the time the child spends with father pending updated Family Report – best interests of child – interim orders sought by mother dismissed

FAMILY LAW – COURTS AND JUDGES – Bias – Family Consultant – mother seeks to disqualify family report writer – single expert – apprehension of bias – orders sought by mother dismissed – writer undertook comprehensive investigation and prepared detailed report

Family Law Act 1975 (Cth) ss 60CC, 60CA, 64B
Family Law Rules 2004 (Cth) rr 15.44, 15.65

Ebner v The Official Trustee in Bankruptcy and Anor (2000) 176 ALR 644
Hall & Hall (1979) FLC 90-713
L & T [1999] FamCA 1699
Goode & Goode (2006) 36 Fam LR 422

APPLICANT: Mr Kapicic

RESPONDENT: Ms Bakal

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4291 of 2011

DATE DELIVERED: 11 April 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 8 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Father In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Birchall

SOLICITOR FOR THE RESPONDENT: Clelands

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That the interim orders sought in the Further Amended Response filed 3 October 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kapicic & Bakal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4291 of 2011

Mr Kapicic

Applicant

And

Ms Bakal

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings concern the parenting orders that each of the parties seek in respect of the infant child B born in 2005 (“the child”).  The proceedings were commenced by the father MR KAPICIC on 14 November 2011.  The father sought orders that the parties have equal shared parental responsibility for the child and that he live each alternate week with the parties.

2. The proceedings also involve orders for property settlement but that is not a consideration for the purpose of these reasons.

3. The mother MS BAKAL did not seek parenting orders in her Response filed 23 May 2013.

4. On 27 May 2013 the parties, represented by their solicitors, appeared before Judge Mead of the Federal Circuit Court and orders by consent were made finalising parenting issues between the parties (“the consent orders”). The order made by her Honour notes that final orders in respect of children’s issues were resolved by consent and that the proceedings for property settlement were adjourned for directions to enable the parties to attend a conciliation conference.

5. The parenting orders made on 27 May 2013 were comprehensive.  In summary, the orders provided as follows:-

   ·That the child spend time with the father each alternate Thursday from the conclusion of school until the commencement of school on the following Monday and that the holidays were effectively shared equally.

6. In addition, the orders provided for the time that the child would spend with each of the parties on special occasions and provided for a resolution of a number of matters that had troubled the parties namely:-

   (1)An agreement between the parties that the child would recommence treatment with Dr A for his night-time urinary incontinence.

   (2)Without any admission, the wife was to seek assistance to manage her alleged hoarding and to clean up her house without delay and that she would seek professional clinical psychological treatment for her alleged depression and any other mental health problems.

   (3)That the father would seek professional guidance to enhance his parenting practice in regards to age appropriate limits for the child.

   (4)That the parties would be restrained from abusing, criticising or denigrating the other party or their respective partners in the presence of or in the hearing of the child or allowing any other person to do so.

7. Clearly the orders were intended to be comprehensive of all outstanding matters.

8. By Amended Initiating Application filed 2 September 2013, the father sought orders that challenged the finality of the consent orders made on 27 May 2013.  The mother responded initially by an Amended Response filed 26 September 2013 where she sought orders that either the husband’s Amended Initiating Application so far as it relates to children’s orders be dismissed or in the alternative that the consent orders be discharged and she have orders that she have the sole parental responsibility for the child and that he shall live with her save as to the time with the father which is the subject of agreement or Court order.  There was some further amendment to those orders by a Further Amended Response filed 3 October 2013. 

9. The father filed an affidavit on 2 September 2013 which set out the events that he alleges occurred since the consent orders were made together with details of an intervention order that was served on him on 24 August 2013 that had been issued by the Magistrates Court on the instigation of the mother.

10. Importantly, the father annexes a detailed and lengthy Family Report prepared by Dr C dated 27 April 2013.

11. Under the heading of “Summary of Instructions” the report writer records:-

    A letter was received from lawyer Christopher Swan dated 11 February 2013 where I was instructed that both parties had agreed that I undertake a Family Assessment Report in this matter.

12. The report was comprehensive in that it involved interviews with each of the parties, home visits to each of the parties, observation of interaction between the parties and the child and separate input from Dr A (child therapist) and Ms D (school support officer).  This report had not previously been filed and whilst the parties were in the possession of the report at the time of the consent orders, there was no need for the report to be filed in the absence of any ongoing dispute.

13. Ultimately, the mother withdrew her challenge to the consent orders but the father continued with his application to have the orders set aside.

14. The matter was dealt with by Judge Mead and ultimately the question of the “Rice & Asplund” threshold was listed for argument on 28 January 2014.  Her Honour also appointed an Independent Children’s Lawyer (“ICL”) with a notation that the Court had not yet determined the progress of the father’s amended application and that it was considered of assistance to the Court if an ICL was present and could be heard.

15. On 28 January 2014 it appears that her Honour found favour with the application of the father and all extant applications were transferred to the Family Court of Australia on the basis that the children’s issue was “complex”.

16. The mother filed a Further Amended Response on 26 March 2014 and sought the following interim orders:-

    (1)That the order dated 27 March 2013 be discharged.

    (2)That the respondent mother have sole parental responsibility for the child of the marriage [B] born … 2005.

    (3)That the child live with the mother.

    (4)That pending a fresh Family Assessment and Report the child spend time with the applicant father as follows:-

    4.1Each alternate weekend from the conclusion of school Friday until 5pm Sunday;

    4.2At such other times as the parties may agree.

    (5)That a fresh Family Assessment and Report be conducted by a new child psychologist to be agreed or in the absence of agreement as shall be ordered by the Court.

    (6)Both parties undergo a psychiatric assessment by the same psychiatrist the identity of whom shall be agreed and in the absence of agreement as shall be ordered by the Court.

    (7)That the child undergo confidential and non-reportable counselling with a child psychologist the identity of whom shall be agreed and in the absence of agreement as shall be ordered by the Court.

1. The father opposes the orders sought by the mother but in reality the focus of the hearing before me was as to whether there should be a change to the current parenting arrangements and whether there should be a further Family Assessment Report prepared by a different family consultant.

2. The father appeared as a self-represented litigant and sought to rely upon his affidavit filed 2 September 2013 and a further affidavit filed 4 April 2014.

3. The mother was represented by counsel and sought to rely upon her affidavit of 26 September 2013 and a more recent affidavit filed 26 March 2014.

4. The ICL was represented by counsel who strongly submitted that there should be no change to the current orders, that there was a need for an updated Family Report and that there was no reason at this stage why Dr C should not remain as the report writer and finally, that the parties should undergo a psychiatric assessment.

BASIS UPON WHICH THE MOTHER SEEKS THAT THE FAMILY REPORT WRITER BE DISQUALIFIED

1. Counsel for the mother relied upon the matters raised in paragraph 18 of her affidavit.  It should also be noted that at least some of these complaints were raised in the mother’s earlier affidavit filed 26 September 2013, in particular at paragraph 9.

2. The distillation of the matters of concern to the mother is that whilst the report had been published on 27 April 2013 and that the parties had the advantage of being able to consider it prior to the consent orders, she strongly disagrees with the findings of the report writer.

3. The mother rejects the various contentions and findings of Dr C but in particular considers that she may have formed an adverse view of the mother evidenced by her presentation.  In particular, the following are but a few examples of the numerous allegations made:-

   ·That the mother received a warning that the report writer could tell “if a child had been coached”.

   ·That the report writer did not appear to be interested in the concerns expressed by the mother about the father and his history.

   ·That the report writer appeared not to believe the mother in respect of an assertion that the father had been speaking to the child directly about parenting issues.

   ·That the mother felt the report writer demonstrated “apparent indifference to the serious topics raised”.

   ·That the report writer appeared to be unnecessarily dismissive of the mother.

   ·That the report writer did not appear sufficiently concerned at the allegations of the mother that allude to the possibility that the child may have been the subject of sexual abuse in the care of the father.

4. In addition, the mother was critical of the report writer undertaking part of the assessment during the Easter period in 2013 and was perfunctory in terms of allowing the mother to demonstrate the extent of the relationship that she had with the child.

5. The mother considers that “Dr [C’s] observations of [the child] and I and her reporting are completely misleading”.

6. In order for the issues that the mother raises to be sufficient to either have the report writer disqualified or that her report be excluded from evidence, the mother would need to demonstrate that there was an apprehension of the report writer’s bias.

7. Before I come to that consideration it is necessary to resolve the status of the report writer.

8. The issue of whether the report writer can be considered a single expert needs to be considered. Rule 15.44(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides as follows:-

   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.

9. The parties clearly agreed to the appointment of Dr C in order to assist in the better consideration and hopefully the resolution of the parenting dispute between them.  Notwithstanding the issues raised by the mother in terms of her begrudging acceptance of the report, I find that the parties instructed the report writer, a report was prepared pursuant to those instructions and based upon all of the information available to the parties but in particular the report, agreement was reached.  The fact that the mother did not like the report is not a matter germane to whether the report writer can be designated as a “single expert”.

10. Of course the proceedings were resolved by consent on 27 May 2013. As a result of the orders made by Judge Mead leave was given for the father to seek a variation of the final orders.  That is in effect a fresh application and depending upon the circumstances of the case, a different process including the need or otherwise to appoint a Family Consultant or if the circumstances were so significantly different from that which were present as at 27 May 2013, then a Family Consultant or other expert with a different skill set might be an important consideration.

11. In this case however, it is clear from the report that the report writer undertook a detailed and comprehensive assessment involving multiple interviews of the parties, the child and input from at least Dr A (child therapist) and Ms D (school support officer).

12. Accordingly, I consider that the circumstances that may be the subject of focus by a Family Consultant or a report writer and in this case Dr C, were not so different that would justify the child engaging in further unnecessary assessment and observation.

13. Accordingly, the application of the mother goes forward on the basis that until she is discharged or her evidence is found unreliable, it is proper that the report writer be considered to have been the subject of an appointment as a single expert by the parties pursuant to the Rules.

APPREHENSION OF BIAS

1. The question then is whether there is an apprehension of bias on the part of the report writer.

2. The issue was not raised by counsel for either of the parties but I consider that the test or principles to be applied in determining the matter are not dissimilar to the considerations that would be applied on an application that a judicial officer be disqualified.

3. In Ebner v The Official Trustee in Bankruptcy and Anor (2000) 176 ALR 644 at page 647, the High Court said that a judge should disqualify him or herself:-

   If a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question a judge is to decide.

4. It seems to me that whilst the mother might not agree with the matters raised by the report writer or indeed the recommendations, that does not in and of itself suggest apprehended bias.  There are a number of options available to an aggrieved party who disagrees with the assertions of a report writer.  Either party has the ability to require the report writer to answer questions (Rule 15.65) and if unsatisfactory, then to seek orders from the Court in respect of matters that arise from the process.

5. It must be remembered that there is “no magic” in a family report.  “Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusion”. (See the comments of Evatt CJ, Fogarty and Yuill JJ in the Full Court decision of Hall & Hall (1979) FLC 90-713. It is not a matter where a Court is obliged to accept the recommendations of a report writer or place unquestioning faith in the factual foundation as asserted by the author. It may be that a Court will find the views of the report writer in this case to be of assistance and obviously if those views and recommendations are consistent with other evidence that might be heard, this may enable the Court to attribute more weight to those findings.

6. Equally, however helpful her report may be together with the subsequent evidence of the report writer, it is only part of the matters that need to be considered.  The report writer is able to be cross examined and she can be challenged on any of the matters that are of concern to the mother.

7. It cannot be the case that the mere fact that the mother has lost faith (if she ever had any) in the report writer is in and of itself the basis for a claim of apprehended bias.

8. At this stage and notwithstanding that the report writer may even have expressed opinion outside of her expertise, that does not render inadmissible the entirety of the report.  It may well be that an objection could possibly be made in respect of parts of the report but that there may well be observations and reporting that are not objectionable.  The submissions were not approached on the basis of an attempt to identify with precision the objectionable material and then to consider whether, if that material was objectionable and inadmissible, it would be so entwined with the admissible evidence that it was not capable of effective separation.

9. There has been no challenge to the report writer’s expertise and accordingly I conclude that there is nothing in the body of the report that would commend itself to a level of bias sufficient for me to make a finding of apprehended bias and therefore that the report writer should be discharged and the report excluded in its entirety from evidence.

THAT THE PARTIES UNDERGO PSYCHIATRIC ASSESSMENT

1. There are allegations that each of the party present with a compromised psychiatric presentation.  The mother seeks orders that each of the parties undergo a psychiatric assessment.  I am uncertain as to whether the father consents to such an order.  It may be the case that the Court would be assisted in a better understanding of the psychiatric and/or psychological functioning of the parties in terms of how that would impact upon parenting orders.  I am not satisfied however that I have jurisdiction to make the order.  In the decision of L & T [1999] FamCA 1699 the Full Court allowed an appeal against a decision to require a wife to attend upon a psychiatrist for assessment of her present psychiatric state and thereafter abide by such therapy program as is recommended by such psychiatrist. On appeal the Court held:-

   Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order.  The Court’s power to make any order in circumstances such as these has to be found within the confines of Section 65D (1), 67ZC, 68B or Section 114.

2. At paragraph 57 her Honour’s held:-

   In our view, whatever the limits of the ward-ship power are, a parent cannot be required to partake in a course of conduct or cease an activity merely because it would be in the child’s interests that the parent so do. It may clearly be demonstrated that it is in a child’s interests that a parent remain healthy and to that end give up smoking.  Some would say it is essential that all adults undergo regular exercise, eat only health foods, and refrain from consuming alcohol.  It would not be, in our view, a proper exercise of the welfare power for a Court to place limits on a parent’s conduct unless it could be demonstrated that those limits are necessary for the welfare of the child.  Even then, careful consideration would need to be given to the right of the parent to conduct their life as they see fit.

3. Accordingly, whilst I do not consider that I have the jurisdiction to make the order sought by the mother, it may well be the case that some evidence of the psychiatric functioning of the parties would be of substantial assistance.  If it should transpire that the evidence is suggestive of that then the failure to present such evidence may well be a matter of relevant consideration.

THAT THE CHILD UNDERGO CONFIDENTIAL AND NON-REPORTABLE COUNSELLING

1. This issue was not strongly pressed.  At this stage it is not clear whether there are any behavioural or other issues affecting the child which would require the intervention of a child psychologist.  If there is a suggestion that the Court should intervene to the extent of ordering that a child undergo counselling in the absence of agreement of the parties, then there would need to be significantly more information presented as to the focus of such counselling and the manner in which it could be monitored in order to establish when any particular goal has been met.

2. I am not satisfied that it is beyond the ability of the parties to put aside their differences in order to agree upon counselling and/or professional intervention should the child genuinely and demonstrably require it.

3. I raised with counsel for the mother that certain matters raised by her in her affidavit are strongly suggestive of an allegation of sexual abuse.  Under the heading “[The child’s] behaviour” the following is stated:-

   [2][The child] has continued to display disturbing sexualised behaviour towards me and generally including pushing his bottom into my face and rubbing it across my face, gyrating his bottom in front of my fact, lying in front of me on his back, then lifting his legs up and smacking his bottom with his hand a number of times.  This behaviour is done when I am sitting down on the couch or the carpet.

4. The mother also complains when the child comes back from the care of the father he is “constantly hostile and aggressive towards me, both verbally and physically”.

5. The issue of sexualised behaviour and the potential for abuse is raised more directly in the affidavit of the mother of 26 September 2013.  At paragraph 9.13 the mother says:-

   I informed Dr [C] that I feel physically sick having to let [the child] spend time and in particular overnight time with [the father].  This is due to the extremely unsafe environment that [the father] allows [the child] to be exposed to and the very real concern I have about [the child’s] highly sexualised behaviour and the possibility that he has been sexually abused by [the father].  I do not make these assertions lightly and I make them in full knowledge of the fact that I do not know whether this behaviour of [the child] is being caused by anything that [the father] is doing or not.  I accept that there may be other explanations but I do not know what other explanation there could be.

6. I challenged counsel for the mother to explain how if the mother genuinely considered that the sexualised behaviour was properly indicative of the distinct possibility that the father had or was sexually abusing the child, how this could be reconciled with the parenting orders sought by the mother that reduced the time that the child would spend with the father but was nonetheless extensive (each alternate weekend from the conclusion of school Friday until 5pm Sunday and at such other times as may be agreed) but also not the subject of supervision.

7. Whilst it is difficult to reconcile the mother’s allegations and the orders that she seeks notwithstanding they represent a substantial reduction from the consent orders, nonetheless I am satisfied that the mother’s application is to be considered at this stage without there being any substantial emphasis on the allegations made by the mother in the earlier affidavit and hinted at in the most recent affidavit that the child was at risk in the care of the father.  The issue of abuse and the resultant risk were not pressed and whilst I am obliged to give these matters proper consideration, I am satisfied that I am not being asked to determine the mother’s application on the basis of any risk of abuse being pressed.

8. Accordingly, counselling of the child without direction and clear purpose may be unnecessary at best and emotionally challenging at worst.

TIME SPENT BETWEEN FATHER AND CHILD

1. Whilst the application of the mother seeks a significant reduction in the time that the child is to spend with the father pending a fresh Family Assessment report, I am prepared to take a more generous approach to the presentation of the mother’s application and to consider whether in the circumstances before the court the parenting orders should be the subject of change.

2. Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides a framework within which parenting orders can be made on both final and interim basis. Specifically, Section 64B (1) (a) of the Act empowers me to make a parenting order “until further order”.

3. The child’s best interests are the paramount consideration in the making of any parenting orders (Section 60CA), with a list of considerations of how the best interests of the child are to be determined as provided for in Section 60CC of the Act. That list includes both primary considerations, section 60CC (2), and additional considerations, section 60CC (3).

4. The Full Court of the Family Court of Australia in Goode v Goode (2006) 36 Fam LR 422 at 442 commented on the appropriate manner in which interim parenting disputes should be conducted:-

   The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is significantly curtained.  Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court looks also to the less contentious matters, such as the agreed facts and the issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties respective proposals for the future.

5. I have before me the affidavits of each of the parties which make significant allegation and counter-allegation.  I also have the report of Dr C being a document comprehensively undertaken and published in April 2013.

6. For various reasons the parties determined that they should compromise their differences and a consent order was reached on 27 May 2013.

7. That represents a significant step in the process.  At this stage I am not satisfied that the issues raised by the mother in her affidavit are such that would see those orders needing to be changed.

8. As indicated, the issue of any sexualised behaviour was not pressed before me and indeed it would have been significantly inconsistent against the backdrop of the orders that the mother seeks.

9. The mother complains that the child returns from care with the father in an aggressive manner.  The father’s position is that when the child is with him he has a demonstrably loving relationship with the child and there is no display of adverse, troubled or sexualised behaviour.  The mother complains that the child continues to have “unexplained memory loss”.  Without evidence as to an explanation, if such a condition exists, I give that matter little weight.

10. The mother complains that the child has of recent date been “deliberately disobedient, disruptive and annoying in class and has even hit another student”.  This is against an alleged history of the child being extremely polite and a good student at his school.

11. I do not know whether those observations are consistent with the experience that the staff at the child’s school might have but again at this stage I do not consider that the matter has reached a level that would justify the orders that the mother seeks in circumstances where it is hard to reconcile why a reduction in the time would necessarily bring the improvement in behaviour the mother asserts is required.

12. A matter of some concern is dispute between the parties as to the health care of the child.  On 6 March 2014 the father took the child to a dentist and it resulted in the extraction of one of the child’s teeth.  I am satisfied that the mother was not consulted by the father and he would do well to accept that whilst a proactive approach may have some preliminary attraction to him, significant issues relating to the care of the child are matters that must be the subject of agreement between the parties and in the absence of agreement and the matter being of sufficient importance, an application then may need to be made to the Court.

13. I note that both parties rely upon a report from Dr A of 22 January 2013.  Whilst this report pre-dates the consent orders, the parties had agreed that Dr A would assist in resolving the child’s poor bowel control and his night-time incontinence.

14. I am not entirely clear as to the extent to which the child has moved on from these difficulties, but I think the following extracts from the report are of assistance noting that the report being “Annexure MAK01” to the father’s affidavit was a document originally directed to the mother dated 22 January 2013:-

    The other, and more worrying issue you raise with me, relates to your concerns about [the child’s] relationship with his father and fear that he has been subjected to sexual abuse during contact periods with his father.  You provided me with comprehensive notes about highly sexualised comments and behaviour [the child] had exhibited following contact periods with his father.  You also expressed concern about the father’s personality and mental health.

    When I met with [the child] he presented as a highly intelligent and articulate seven year old.  He told me he visits his father on Sundays and during this time they go cycling, he plays with his father’s partner’s child and in general terms he enjoyed these contact periods.  He expressed a view that his father is nice and he denied that his father or his father’s partner did anything nasty to him.  He stated that at his father’s house he had his own bed in his own room and he denied watching any adult television.  He expressed a view that he would like to spend more time with his father including overnight stays on the weekend.

CONCLUSION

1. Accordingly, I decline to make orders in terms of the interim orders sought in the Further Amended Response of the mother filed 26 March 2014 and I note that the matter is listed for a directions hearing before Registrar Paxton on 29 April 2014 at 2.30pm.

2. Accordingly, I make orders that appear at the commencement of these reasons.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 April 2014.

Associate: 

Date:  11 April 2014