Killen and Spriggs

[2019] FamCA 701

FAMILY COURT OF AUSTRALIA

KILLEN & SPRIGGS [2019] FamCA 701

FAMILY LAW – EVIDENCE – admissibility of Affidavit which unrepresented father asserts is an expert opinion – order made that father cannot rely on Affidavit.

Family Law Act 1975 (Cth) ss. 102NA
Family Law Rules 2004 rr. 15.51, 15.52

APPLICANT: Ms Killen

RESPONDENT: Mr Spriggs

FILE NUMBER: TVC 1263 of 2012

DATE DELIVERED: 1 October 2019

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Baumann J

HEARING DATE: 30 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Fellows

SOLICITOR FOR THE APPLICANT: Wallace & Wallace Lawyers

THE RESPONDENT APPEARED IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr A Collins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: M. M. Meehan, Solicitor

Orders

1. That the Respondent father cannot rely on the Affidavit of Dr E filed 5 September 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 1263 of 2012

Ms Killen

Applicant

And

Mr Spriggs

Respondent

REASONS FOR JUDGMENT

Introduction

1. Regrettably a trial listed in these proceedings to commence on 30 September 2018 has been adjourned, principally because of the declaration made today under Section 102NA, and the 12 weeks that Legal Aid Queensland requires to arrange legal representation for the father, who wishes to cross examine the mother.

2. On 2 July 2019, the C Town Magistrates Court made an order under the Domestic and Family Violence Protection Act 2012 (Qld) which continues in full force and effect to and including 2 July 2024. Such order clearly triggers s 102NA(1)(c)(ii).

3. Despite the need to adjourn the trial, it was expedient for the Court to determine whether evidence relied upon by the unrepresented father in a report attached to the Affidavit of Psychologist Dr E filed 5 September 2019 was admissible.

4. In that regard Counsel for the mother Mr Fellows and Counsel for the Independent Children’s Lawyer (“ICL”) Mr Collins both provided written submissions (supplemented by brief oral submissions) contending that the report in its current form is not admissible.  The father seeks to rely, at the adjourned trial, on the report.

5. In respect of this discrete issue, I make the following observations:

   a)The father identified Dr E on the internet as an “expert” on issues arising from “hostile aggressive parenting”, sometime prior to May 2018;

   b)Dr E is a registered Psychologist with (according to his curriculum vitae) a long history in counselling and some time in academia both in Australia and Country G and was awarded a PHD by F University in 1998;

   c)The father confirms he has not met Dr E personally, but did complete some form of electronically generated Risk Protocol comprising over 60 pages to enable Dr E to “examine allegations by Mr Spriggs that a process is at work in his Family Law matter whereby his relationship with his daughter B is being actively undermined by the mother.”

   d)The sole source of factual information relied upon by Dr E appears to be the father’s answers to the “Risk Protocol”.  Dr E has not had access to the family report of Mr H (dated 8 November 2018) arising from interviews and observations of the mother, the father and the child B (aged seven years) conducted 2 November 2018.  Mr H also had access to “court documents”, although these are not identified with any precision in his family report;

   e)Dr E has not had access to a “Risk Assessment” of the father performed on the father by Forensic Psychologist Mr J, and dated 26 March 2018;

   f)Dr E has not had access, or has not been informed it seems of:

   i)the observations made by Mr H and recorded at paragraph 121 of his report, that her time with the father “could be described as relaxed and familiar” and that B seemed pleased to see her father and greeted him “with a lingering hug”; and

   ii)the observations made by officers at the C Town Children’s Contact Centre for a period over two years, summarised by Counsel for the ICL as revealing a happy engagement consistently between the father and B; and

   iii)any collateral information including Department assessments or information from the father’s counsellor Mr L, who the father has been consulting for over two years.

6. It is in these circumstances concerning that, based solely on some self-reported Risk Protocol (which seems to originate from Family Services, Town K, Country G in 2005 after drawing on over 200 items taken from high-conflict divorce cases in Country G), Dr E would offer an expert opinion that:

   a)on the evidence of the father, the “items” score of 4,686 is significant and exceeds a score over 1,000 which “constitutes extreme risk of harm to a child”; and

   b)this score, in this case, “warrants immediate intervention, most likely in the form of care of the child being removed from the subject parent and transferred (through a therapeutic programme with a practitioner aware of these problems) to the target parent”.

7. Having paid for this report (and the follow up analysis by Dr E marked Exhibit 1), and considering the opinions expressed, it is hardly surprising that the father seeks to rely on the report.

Discussion

1. Although, wrongly but not through any attempt by the father to mislead the Court, the coversheet for the Affidavit refers to the evidence as being that of a single expert witness – even the father conceded that Dr E is his witness, not an expert witness procured under the Family Law Rules 2004.  No compliance with Rule 15.51 and 15.52 is revealed.

2. In any event, even if generously accepted, the unrepresented father believes it is an “adversarial expert” report – it does not engage in any way with the opinions expressed by the Court Expert Mr H – simply because it was prepared before the family report of Mr H and Dr E has not even seen the opinions expressed by the Court Expert and the foundations for that opinion.

3. I could attach little weight to the opinion expressed by Dr E, where his opinion has been created in the manner set out, and where he has had no real opportunity to see collateral information.  At certain times in his report Dr E alludes to the limitations that arose from having to accept only one version of the history, but unfortunately his robust conclusion does not make it clear that is a limitation.

4. Even if Dr E can demonstrate that he has specialised knowledge in the field of “Hostile Aggressive Parenting” (and the written submissions of the ICL contends the curriculum vitae establishes such specialised knowledge), the tenor of the report from such little objective information makes the opinion of little assistance to the Court in its current form.  Dr E’s report identifies a range of literature and critical analysis of the issue and/or “parental alienation” generally, which Court experts in the Family Law jurisdiction (like Mr H) are usually aware of and alert to such discussions.

5. For the reasons given, the report of Dr E is of little probative value and the father cannot rely upon it at the hearing.

6. I note that the trial directions made by Tree J on 19 February 2019 includes a trial plan (“A”) in which Dr E is named as a witness.  The father’s recollection is that this meant that Tree J had determined that the evidence of Dr E was admissible and relevant.  I am not satisfied that any such determination was made by his Honour, and note that the Affidavit of Dr E (attaching his report), was not filed until 5 September 2019 when the contents of the report first became clear.

7. In having to adjourn the hearing (because of the mandatory prohibitions created by s 102NA), the Court is conscious that the unresolved issue of whether the father presents as an unacceptable risk to B, remains undetermined.  I accept the delay is likely to be having a significant effect upon the father’s level of frustration and sense of injustice.  Noting that his counsellor Mr L is offering therapy to him, I propose to direct that the ICL have liberty to provide Mr L with a copy of the sexual risk assessment by Mr J and the family report of Mr H.  This might assist the therapist in better understanding the pressures the father faces.

8. During submissions, the Court also discussed whether any therapeutic benefit might flow for the father in permitting him to show Dr E the family report.  However as the father sensibly expressed, if the evidence of Dr E is not able to be relied upon, then there is little point in him seeing the family report.  I agree.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 1 October 2019.

Associate:

Date:  1 October 2019