Kettle and Baker (No 2)

[2010] FamCA 1164

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER (NO. 2) [2010] FamCA 1164

FAMILY LAW – CHILDREN – Which expert should prepare a report – Application to disqualify judge dismissed

Family Law Act 1975 (Cth)

Knibbs & Knibbs [2009] FamCA 840

APPLICANT: Mr Kettle

RESPONDENT: Ms Baker

INDEPENDENT CHILDREN’S LAWYER: Ms Berck

FILE NUMBER: BRC 6532 of 2009

DATE DELIVERED: 8 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 8 December 2010

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Ellis of Burchill & Horsey Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Berck of Berck & Associates

Orders

IT IS ORDERED THAT

1. Mr B is permitted to act today as a silent McKenzie Friend for the father.

2. Paragraphs 3 and 8 of the Application in a Case filed on 25 November 2010 are each dismissed.

3. Paragraphs 2, 4, 5, 6 and 7 of the Application in a Case filed on 25 November 2010 are each struck out.

4. The matter is set down for a five day final hearing commencing at 10.00am on … July 2011 in the Brisbane Registry of the Family Court of Australia.

5. The matter is adjourned to the Magellan Registrar at 12.00 noon on … March 2011 for the making of all such directions as might be necessary to prepare the matter for final hearing in July 2011.

6. The matter is further adjourned for a directions hearing to be listed before the trial judge, in the week commencing 16 May 2011 at a time and on a date to be advised, for the purpose of considering all matters relevant to the conduct of the final hearing.

7. Leave is granted to all parties to inspect and to the Independent Children's Lawyer alone to copy documents produced pursuant to subpoenae, save any document in respect of which objection to either inspection or copying is made, in which case an application is to be brought before Justice Murphy.

   AND IT IS NOTED THAT Mr B or any person other than a properly-qualified person admitted to practice as a legal practitioner in Queensland, is not permitted to assist the father with inspecting subpoena documents or acting as his agent to do so.

8. The costs of today be reserved.

IT IS FURTHER ORDERED THAT

1. A psychiatric report be prepared for the Court by Dr G, and for the purpose of completing the report:

   a.The report writer has permission to inspect the Court file and all documents/documents related to this matter.

   b.The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

   c.The Independent Children's Lawyer is requested to forward to Dr G, in consultation with both Ms Ellis and the father, all such documents considered relevant for Dr G’s consideration.

   d.The parties shall do all such things, sign all such documents, pay equally all such reasonable fees and attend all such appointments as are reasonably necessary for the preparation of the report.

   AND IT IS REQUESTED THAT Dr G express an opinion, if she considers it appropriate to do so, based on her interviews with the parties, and the material read by her, as to whether:

   (i)The child should be interviewed at all by anyone for the purposes of the upcoming trial; and

   (ii)If so, whether she has an opinion whether the person who interviews the child, and prepares a report in respect of same, should be her, or Ms S, or some other person.

   AND IT IS NOTED THAT interviews are available with Dr G for the mother on 8 April 2011 and for the father on 11 April 2011, with a report available approximately three weeks after such interviews, and it is anticipated that such report will be available to the trial judge at the directions hearing in the week commencing 16 May 2011.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6532 of 2009

MR KETTLE

Applicant

And

MS BAKER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. When this matter was before me on 2 November 2010, an application was foreshadowed by the father seeking to have a family report prepared by Dr G and, more specifically, to prevent a report being prepared by Ms S.

2. It seems to me that paragraph 2 of the orders sought in the Application in a Case filed by the father on 25 November 2010 is in the nature of an appeal from orders made by me on the last occasion. 

3. On that occasion, the father sought that I disqualify myself.  The basis upon which that submission was made, which, as I said during my reasons, was with great respect, a very confused one, was set out in those reasons and, as it seems to me, had four bases, which I have set out in those earlier reasons.  The father says that he renews the application today before me on the basis of further evidence. 

4. The further evidence, taken together, relates to precisely the same bases agitated before me in the proceedings on 2 November 2010.  That being the case, paragraph 2 of the Application in a Case filed on 25 November 2010 is in the nature of an appeal, and I dismiss it. 

5. Paragraph 4 of the Application in a Case filed on 25 November 2010, seeks the following order:

   The father has leave to issue such subpoenae for production of documents as he determines are relevant, each with an early return date.  And further, a scope of such subpoenae as may be issued to the Queensland Police Service or Department of Child Safety may include the identity of departmental officers and informants and information given to those bodies.

6. The preservation of what might be described as confidentiality or privacy of information provided to each of those State instrumentalities is the subject of specific legislation passed by the State of Queensland.  As I apprehend it, I have no power to make orders, at least without hearing from each of those relevant departments, to make the orders sought by the father. 

7. There is no evidence before me that the Queensland Police Service or the Department of Child Safety have been served with the application.  They are not present here to answer it.  The father advances no evidence to suggest the basis upon which this court has power or jurisdiction to make the orders as contained in the second part of paragraph 4.  There is no basis for that order. I dismiss that part of paragraph 4. 

8. The order otherwise sought in paragraph 4 is so wide and non-specific as to be incapable of enforcement.  Further, and in any event, it would leave the issue of the relevance of a subpoena, and any documents to which the subpoena might relate, to a litigant, namely the father, when, in fact, the resolution of the issue of relevance in each such respect is a matter for the court. 

9. Accordingly, the first part of paragraph 4 of the Application in a Case is incompetent. I strike it out. 

10. On 2 November 2010, the father made application that a person, Mr B, who is not a properly qualified legal practitioner in the State of Queensland, accompany him for the purposes of inspecting documents produced pursuant to subpoenae.  I considered those submissions and gave reasons for rejecting the application made by the father at that time. 

11. At paragraph 5 of the Application in a Case filed subsequently on 25 November 2010, the father seeks an order that:

    The father has leave to inspect and copy such subpoenaed documents as he determines may be relevant to his case and may, in that inspection, have another person, namely, [Mr B], with him to lend legally qualified expertise to that forensically evaluative process PROVIDED THAT any material disclosed in that process is to be held as confidential and not disseminated or used, except for the purposes of hearing or preparation for hearing in this matter in a court of competent jurisdiction.

12. It seems to me that that order seeks, in effective terms, precisely the same order as was sought by the father on the last occasion. That issue was determined and reasons for it given. 

13. It is not suggested by the father that any fresh evidence should be considered by the court in respect of a fresh application in that respect.  Paragraph 5 is in the nature of an appeal against an order already made. I dismiss it. 

14. At paragraph 6 of the Application in a Case filed on 25 November 2010, the father seeks an order in the following terms:

    The father has leave to subpoena such witnesses as he may choose.

15. The provisions of Division 12A of the Act impose obligations upon a court to conduct parenting proceedings in a particular form and, specifically, to conduct those proceedings as expeditiously as possible and in a way which predominates the issues of direct relevance to the best interests of a child. 

16. The order sought by the father is, in my view, so broad and non-specific as to be meaningless. 

17. As indicated during the course of argument, the court must exercise control over the issue of subpoenae; they form part of a court’s process.  The court controls its process. It is necessary for the father, or, indeed, any other litigant in the court, to establish that the issue of an important document, such as a subpoena, and, specifically (it seems) a subpoena to give evidence, is necessary. The proposed evidence must be relevant to the issues in the proceedings. 

18. It also needs to be borne in mind that this is an affidavit court, and the primary obligation upon the father, and, indeed, any other litigant in this court, is to obtain an affidavit from any witness upon whom he would seek to rely. 

19. In the usual course of events, the father would need to satisfy the court that a subpoena needs to issue in respect of a relevant witness who has relevant evidence to provide to the proceedings, but in respect of whom he has been unable to obtain, or a witness is unwilling to provide, an affidavit.. 

20. For those reasons, paragraph 6 of the Application in a Case is, in my view, incompetent. It is struck out. 

21. In paragraph 7 of the application in a case filed on 25 November 2010, the father seeks an order in the following terms:

    The dismissal in order 4 made on 2 November 2010 of the father’s application in a case filed on 20 August 2010 is reversed, and that application be listed before this court on the next occasion.

22. It is plain that, on its face, that order is in the nature of an appeal. 

23. When asked to explain the basis for the order, the father, in effect, conceded that it is in the nature of the appeal, because he says that the application is applicable only in circumstances where I would disqualify myself from the hearing of these proceedings, such that (implicitly) the same application that was made before me could be made before another judge. 

24. In my view, the order sought in the application is incompetent.  It is struck out.

25. In paragraph 8 of the application in a case filed 25 November 2010, the father seeks the following order:

    The father has leave to obtain from Auscript, at his own expense, such audio copies of hearings in this court, or in the court below, as he may require.

26. Again, the very broad terms of that unparticularised order will be noted.  I have asked the father to refer me to any parts of the four affidavits filed by him in support of his Application in a Case that contain evidence in support of that application. He has been unable to do so.  For my own part, I cannot see any evidence that pertains directly to that application. 

27. The father first submits that the order should be made, in effect, by way of either further direction or further enforcement of an order made by O’Reilly J over three years ago, on 7 September 2007.  That order provides, at paragraph 9:

    The Regional Registry Manager of the Brisbane Registry of the Family Court of Australia make all necessary arrangements with the National Transcription Service (NTS) for [the father] to purchase from it audio CDs of any proceedings in which [the father] is or has been a party, which [the father] may in writing request, the cost of such purchase or purchases to be paid by the father] to NTS.

28. Reference to the box of files in this matter reveals that the father has been involved in proceedings of one sort or another in this court now for some years.  “The proceedings” to which O’Reilly J refers have been completed.  I cannot imagine that her Honour purported in that order to bind a future court in respect of that issue in any future proceedings.  It seems to me that, to the extent that her Honour purported to do so (and I do not for one moment suggest that her Honour did), the order would be beyond power, the power of the court being only to make orders in “proceedings” before it. 

29. Accordingly, it seems to me that paragraph 9 of the orders made by her Honour on 7 September 2007 affords no assistance to the father. 

30. Be that as it may, it is plain, and the father makes it clear in submissions, that, whatever the effect of the order just referred to, he, in any event, seeks the order in the broad terms that have just been referred to. 

31. In light of the fact that no evidence, is given or produced by the father in support of that order, and given its generalised and broad terms, I sought from him particulars of the reasons for the order and its intended purpose.  The father informs me that he intends to seek “judicial review” of, I gather, two orders made by Jarrett FM in the Federal Magistrates Court. 

32. Further inquiry reveals that the father seeks “judicial review” of those orders in the High Court of Australia.  I asked the father whether a Notice of Appeal had been filed. I received no direct answer to my question. 

33. Doing the best I can, it seems that there is a current (or intended) application for special leave to the High Court of Australia which has, or will have, as its foundation the “judicial review” referred to by the father.  It is said that, in order to properly prosecute that application for judicial review in the High Court of Australia, the father needs the audio of earlier proceedings. 

34. When I asked the father to identify the proceedings in which the audio recordings were sought, he replied by saying, “All that are relevant to the intended application to the High Court.”  The father indicated that he had some difficulty in properly preparing his case to the High Court by reference to the materials that he already had. 

35. When I asked him why that could not be effected by reference to a written transcript, his response was that he “could not afford” to obtain a written transcript. 

36. It seems to me that the only purpose for which the father requires the relevant audio records, is for the purposes of preparing an application for special leave (in one form or another) to a different court, namely, the High Court of Australia. 

37. Whether or not a written transcript is sufficient for the purposes of preparing any such application for special leave (or other application to that court) or whether in fact reference to audio recordings is necessary for that purpose is, as it seems to me, integrally connected with the appeal process governed by the rules and procedures of the High Court of Australia. 

38. It seems to me that any application that the father makes for the purpose for which he says it is made, is a matter to be taken up with the High Court in accordance with that court’s rules and procedures. 

39. Accordingly, in my view, paragraph 8 of the application is incompetent. I strike it out.

40. Paragraph 1 of the Application in a Case filed by the father on 25 November 2010 seeks an order in the following terms:

    That Dr [G] be appointed to prepare a further family report with a special reference to the further evidence of sexual abuse of the child, [B], by the respondent mother and her considerations to include interviews with the parties and [Mr H], if he is available. 

41. Ms Berck, who appears as the Independent Children's Lawyer (ICL) this morning, indicates that it is her intention to obtain a psychiatric report from Dr G. 

42. Dr G is a specialist psychiatrist, and the preparation of a report by her is not, as such, opposed by the father, as can be seen from the order sought by him.  The issue is whether Dr G should prepare a “further family report”, as the father styles it in the application, or whether Dr G’s report should, as the ICL envisages, be confined to the preparation of a psychiatric report. 

43. If the latter, a further issue arises as to whether B, the child the subject of these proceedings, should be made the subject of further interviews by Dr G. 

44. Separate to that order is, as the material filed by the father makes clear, opposition by him to the preparation of any further report by Ms S.  Ms S is a family consultant who, when these proceedings commenced in the Federal Magistrates Court, prepared a short report for the purposes of then interim proceedings in that court. 

45. Ms S is, then, the expert to have most recently spoken to B.  Dr G prepared an earlier report, during the interviews for which she saw the child, but that report was prepared by her in 2006. 

46. The father objects to Ms S preparing a further report, by reason of a number of matters deposed to by him (and witnesses who have filed affidavits on his behalf).  The father points to a number of specific matters, by which he says Ms S is unsuitable as a report writer. 

47. First, he says, Ms S “lied about what [B] said” during the interviews with her.  The father makes it clear that this assertion that an independent expert writer has told lies to a court, is based upon what the child is alleged to have said to the father (and, I gather, others) subsequent to the report interviews. 

48. Secondly, it is said that Ms S “gave no credibility to the evidence of a witness in [the father’s] case, [Mr H], who personally witnessed the mother engaged in a sexual act with [B] (then aged nine years) and made recommendations in complete disregard of the [allegedly] unrebutted evidence that [the child] was not safe in his natural mother’s care”. 

49. Thirdly, the father points to a number of matters deposed to in the affidavit, that might be broadly described as the process and procedures employed by Ms S in the preparation of the report to the Federal Magistrates Court.  Examples occur at paragraphs 6 through 9 of the affidavit of thef ather filed on 25 November 2010. 

50. In those paragraphs, it is asserted, for example, that:

    [Ms S] then became very agitated and aggressive, saying angrily, “But you were told to bring [the child] back.  Go and get him back here.  I will have to tell the magistrate what you have done.  He won’t be pleased.”

51. The next matter which the father says ought disqualify Ms S from further involvement in the proceedings as a report writer is said to be “how she handled herself before she went into court”. An example given is the passage of the father’s affidavit to which I have just made reference. 

52. The affidavit material reveals a further basis upon which the father says Ms S ought not be further involved, namely:

    I know that [Ms S], in writing her so-called report to the court, included statements of alleged fact which I know are just not true. She attributed statements and attitudes to [B] which were totally inconsistent with what [the child] had been saying to my wife and I for the previous three weeks whilst in our care. He was in our care to protect him, as authorised by section 70NAE(4)(e) of the Family Law Act. During that time, [B] was very settled and clearly relieved to be in our care.

53. The final basis upon which the father specifically relies is, to me at least, a little more mysterious.  It is asserted that Ms S asked the father whether the father would object to Ms W (another family consultant) doing a further report.  The father says that he made it very clear that he was adamantly opposed to Ms W doing a further report.  She, too, he says, had, apparently misrepresented things said to her and had arrived at, as he has it, biased or incorrect opinions. 

1. It is not entirely clear to me what the basis of the objection to Ms S is in that respect, but I gathered that the suggestion is that, because Ms W was being proposed by Ms S in circumstances where the father made it very clear that he did not want her, then that, too, indicates some form of bias or improper process on Ms S’s part.

2. Finally, it is said that that some impropriety of process and procedure is indicated by the fact that, as the father has it, the mother’s parents, Mr and Mrs Baker Senior, were spoken to by Ms S and “taken into the room with her”, and the father says that they are not parties to the court action. 

3. All of the matters raised by the father are matters which, plainly enough, can be put to Ms S in the witness box, including the specific assertion that she has lied to a court about what a child has said to her during the process of interviews conducted for a report process. 

4. I am not satisfied that any of the matters referred to by the father form a sufficient foundation to preclude an otherwise trained, experienced and well known report writer providing a report to the court. 

5. Each and all of the matters raised by the father can, as it seems to me, be directed to Ms S whilst in the witness box, and findings made by a trial judge about credit. 

6. A separate issue emerges. It is, though, perhaps interestingly, not a matter mentioned at all by the father. 

7. It is said by both Ms Ellis, who appears for the mother, and by Ms Berck, the Independent Children's Lawyer, that, in the long history of proceedings in this court, insofar as they relate to B, he has been exposed to and seen various report writers. He has expressed various views to them. Each of Ms Ellis and Ms Berck (properly, as it seems to me) refer to the involvement of the child in court processes and the potential for those processes to have an impact upon him.

8. In that respect, Ms Berck submits that Ms S is the last person to have spoken to B and, thus, she might be seen to be more familiar to him than Dr G, who has not seen him now for almost four years.  There is, as it seems to me, merit in that submission. 

9. However, more troubling to me is the broader issue raised by both Ms Ellis and Ms Berck; namely the nature and extent of the interviews, per se, to which the child has been subjected as a result of these court proceedings.  It is an issue that always troubles this court, and troubles me specifically, in these particular proceedings. 

10. On the last occasion that B saw Ms S he indicated to her in words to the effect that he was sick of these proceedings and simply wanted them to come to an end.  In that, he expresses greater wisdom than many of the adults in this case.  In any event, I am very troubled by statements of that type by a child of his age. 

11. The facts and circumstances of this case, including, not least, its very long history, and the issues that have been raised by each of the parties during that long history, make it plain that the court should have available to it a psychiatric assessment of each of the parties to these parenting proceedings.  Dr G is suggested, including by the father, as a psychiatrist who should see each of the parties, and I see no reason why Dr G ought not prepare a psychiatric report.

12. What I propose to do, in order to balance the considerations to which I have just made reference, is this:  I propose that Dr G see each of the parties and to conduct all such interviews as she might consider necessary, so as to provide an appropriate psychiatric opinion about each of them.  Further, I will direct the Independent Children's Lawyer to forward to Dr G, in consultation with both Ms Ellis and the father, all such documents considered relevant for Dr G’s consideration. 

13. I will direct the ICL to request that Dr G express an opinion, if she considers it appropriate to do so, based on her interviews with the parties and the material read by her, as to whether:

    (a)    B should be interviewed at all by anyone for the purposes of the upcoming trial; and

    (b)    If so, whether she has an opinion whether the person who interviews the child, and prepares a report in respect of same, should be her, or alternatively Ms S, or other appropriately qualified expert.

14. I note in that respect that– if past experience and her indications to Ms Berck are a guide – Dr G can be relied upon to conduct interviews and provide a report within an approximate three week timeframe.  Dr G is away from her rooms for periods of time in February and between May and July next year. 

15. I have determined to set this matter down for trial for five days commencing in July 2011.  The matter will be heard by a judge yet to be allocated once the listing requirements of this court have been ascertained for the new year.

16. I propose that the trial judge conduct a directions hearing at which all matters relevant to the conduct of the trial will be considered at a time, and on a date, to be advised, but in the week commencing 16 May 2011. 

17. It is noted in that respect that Dr G is able to see the mother on 8 April 2011 and the father on 11 April 2011, and anticipates being in a position to produce a report some two weeks after that.  It is accordingly anticipated that the trial judge will have available to him or her the report from Dr G at the directions hearing. 

18. So as to ensure that the matter remains on track, such that it can be heard properly and expeditiously and otherwise in accordance with the mandatory provisions of Division 12A of the Act, I will order that a directions hearing also take place before a Registrar at 12 noon on Wednesday, 30 March 2011.

19. Finally, the father seeks an order at paragraph 3 of the Application filed on 25 November 2010 in these terms:

    (a)    The Independent Children's Lawyer be discharged;  but

    (b)    the father have access to copies of any subpoenae issued by her whilst she may act. 

20. The submission that the ICL should be discharged is interesting, in the first instance, because she has only recently been appointed.  The affidavit material filed in support of that part of the application refers to a number of matters, some of which can, as I suggested to the father during argument, be described by way of summary as saying that earlier ICL have been crook, and therefore this one should be presumed to be crook as well.  To the extent that this assertion is made in the affidavit material, I reject it. 

21. Secondly, it is said by the father that Ms Berck has said that she cannot, or will not, speak to him because he is not a lawyer.  Noting that factual issues between the parties cannot be determined in procedural hearings such as the one today, I note that Ms Berck denies that conversation. She suggests, instead, that she indicated that she would not speak to Mr B, because she did not regard him as being the father’s lawyer. 

22. Secondly, it is said by the father that he has not been informed of the subpoenae issued by Ms Berck.  Ms Berck tenders a letter, exhibit ICL1 in these proceedings, dated 25 November 2010, addressed to the father, in which she encloses by way of service copies of subpoenae addressed to the Director General of the Department of Communities and the Commissioner of Police. She advises there that the subpoenae are for the production of documents and are returnable before the court on 8 December. 

23. There seems, then, on the basis of uncontradicted written evidence, to be little foundation for the assertion that Ms Berck has not advised the father of subpoenae issued by her. 

24. The other matters asserted by thef ather to be relevant to the dismissal of the ICL are contained in the affidavit material earlier referred to.  He refers to a conversation, the substantive contents of which are again denied by Ms Berck, in which:

    Ms Berck came over to where we were waiting an announced to me, “I do not have to speak with you,” before saying, “[Ms S] will be doing the family report.  I have arranged it with her.”  I said:  “I don’t want [Ms S] to do the report.”  Mr [B] then asked her, “Why do you want her to do that?”  Ms Berck said nothing at all by way of reply and rudely and instantly just stormed off, saying as she went, “[Ms S] will be doing the report no matter what.”

25. The father goes on to assert in that affidavit that, “Ms Berck has already formed an opinion without any input from me.” He then asserts, without any evidentiary or factual foundation to support it, that:

    It is clear that she does not intend to make any inquiries or do any investigating before trying to railroad me in court into things she might, in complete ignorance of the facts, choose to advocate.  She has already refused to hear of any input from myself or my family.

26. A number of responses should be made in respect of that assertion and the submission inherent in it.  First, and most importantly of all, whilst ICLs are, in these proceedings, and in all parenting proceedings, an important part of them, the opinions of ICLs do not dictate the outcomes of cases, nor do the opinions of ICLs, as such, have any more weight than any other opinion in this court. 

27. I have set out these matters, and a number of other matters directly relevant to the issues relating to ICLs in an earlier decision, Knibbs & Knibbs [2009] FamCA 840.

28. I rely on the principles there espoused and, again, make the point I sought to make in that decision, that ICLs operate independently and are expected by the court to do so appropriately and vigorously in the pursuit of what they consider to be the best interests of children, whether, ultimately, their actions and opinions are judged right or wrong. 

29. The fact that one or both parties may disagree with the views and opinions expressed by an ICL is, insofar as no proper allegation is made of impropriety, irrelevant. 

30. I dismiss the application for the order sought at paragraph 3 of the orders sought in an Application in a Case filed 25 November 2010.

31. I otherwise order as previously indicated.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 8 December 2010.

Associate: 

Date:  22 December 2010