King & King
[2014] FCCA 163
•7 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KING & KING | [2014] FCCA 163 |
| Catchwords: FAMILY LAW – Practice and procedure – application to reopen and adduce fresh evidence – application granted. |
| Legislation: Evidence Act 1995 (Cth), ss.79, 135 Family Law Act 1975 (Cth), ss.4AB, 60CC, 69ZN Family Law Rules2004 (Cth), rr.15.64B, 15.65, 15.54(3) |
| Bass & Bass [2008] FamCAFC 67 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Nepean & Treloar [2010] Fam CA 781 |
| Applicant: | MS KING |
| Respondent: | MR KING |
| File Number: | WOC 803 of 2012 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 13 September 2013 and 31 January 2014 |
| Date of Last Submission: | 31 January 2014 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Richardson SC |
| Solicitors for the Applicant: | Barkus Doolan |
| Counsel for the Respondent: | Mr J Levy |
| Solicitors for the Respondent: | Broun Abrahams Burreket |
| Solicitors for the Independent Children's Lawyer: | Tiyce & Associates |
THE COURT ORDERS:
That the mother’s application to reopen and adduce fresh evidence for the hearing of her Application in a Case filed 28 August 2013 (“the subject application”), as sought in her Application in a Case filed 12 December 2013, be granted.
That the subject application be dismissed.
That the parties arrange for Dr S to interview Mr J and any other person(s) as considered by Dr S to be appropriate and to provide a further report to the parties and the Court, following such interviews.
That a copy of these reasons be provided to Dr S by the Independent Children's Lawyer.
That any issue as to costs referable to the applications referred to in order 1 above be reserved to the final hearing.
The matter be listed for mention on 23 May 2014 at 9.30am.
The parties have liberty to restore the matter on 7 days notice if Dr S’s further report is available prior to the adjourned date.
Liberty to apply on 7 days notice.
IT IS NOTED that publication of this judgment under the pseudonym King & King is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 803 of 2012
| MS KING |
Applicant
And
| MR KING |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to both parenting and property proceedings between Ms King (“the mother”) and Mr King (“the father”). Within the context of the wider issues, the matter is before the Court today on a discrete issue, namely whether on the mother’s application in a case filed 28 August 2013, the Chapter 15 Expert Report of Dr S dated 19 July 2013 (“the Report”) should be struck out and Dr S discharged as the single expert witness, with a further single expert witness to be appointed and consequential orders to effect the same, together with costs being reserved to the final hearing. The father opposes the mother’s application and seeks its dismissal, together with costs pursuant to his response filed 9 September 2013.
The mother’s application is made on the following bases:
a)That the Report contains apprehended bias;
b)That Dr S relied on evidence provided by the paternal grandfather, Mr P, which given that Mr P was not then on affidavit and if was not to be called as a witness, could not be tested; and
c)That the Report should be rejected reliant on the Court’s general discretion under s.135 of the Evidence Act 1995 (Cth), in that its probative value was substantially outweighed by the danger that it may be unfairly prejudicial to a party, may be misleading and confusing or may cause or result in an undue waste of time.
Background
The mother was born on (omitted) 1971 and is currently 42 years of age.
The father was born on (omitted) 1976 and is currently 37 years of age.
The parties married on (omitted) 2002 (the mother asserting that the parties commenced cohabitation in 1996) and separated in late March 2011.
The parties have two children, X born (omitted) 2006, currently aged 7 years (“X”), and Y born (omitted) 2008, currently aged 5 years (“Y), herein after described as “the children”.
The proceedings were initiated by the mother on 3 September 2012 when she sought parenting orders and interim orders for overseas travel. The mother’s application was subsequently amended on 25 February 2013 whereby she sought much more extensive orders regarding parenting, property and child support.
The father filed a response on 14 March 2013.
Given the discrete issue now before the Court, the orders sought by the parties in the substantive proceedings are not set out in detail here.
The matter first came before Federal Magistrate Foster (as he then was) in Wollongong on 7 September 2012.
Given the discrete issue before the Court, the procedural history of the matter will not be detailed at length, other than to note the following matters insofar as they are relevant to the current application:
a)On 15 March 2013, the parties came to an agreement and detailed interim orders were made by consent which provided for the children to live with the mother and spend time with the father. Orders were also made for the appointment of an Independent Children’s Lawyer, that each party undergo urinalysis testing and relevantly, that Dr S be appointed as a Chapter 15 expert witness.
b)On 28 March 2013, further interim orders were made providing that the mother and the father have equal shared parental responsibility of the children.
c)On 24 June 2013, further interim orders were made by consent providing for the father to have further time with the children and permitting the mother to remove the children from Australia for a holiday.
d)On 26 July 2013, the Report was released to the parties.
The proceedings came before me on 12 August 2013 and on that occasion the mother’s current application regarding the discharge of Dr S was first foreshadowed.
On 28 August 2013, the mother filed her foreshadowed Application in a Case, which had been then made returnable 2 December 2013. That date was subsequently vacated and this discrete issue was listed for determination before me on 13 September 2013. The mother now seeks the following orders:
a)That Dr S be discharged;
b)That the Report be not admitted into evidence;
c)That an yet unnamed specialist psychiatrist be appointed as single expert witness; and
d)That only the parties, Ms P (the father’s new partner) and Ms T (the maternal grandmother) attend the interviews for the report, unless otherwise agreed in writing. (Although not specifically stated, implicit in this is that the paternal grandfather, Mr P should not be interviewed as part of the report process.)
On 13 September 2013, Mr Richardson of Senior Counsel appeared for the mother and Mr Levy of Counsel appeared for the father.
Dr S had produced documents in response to a subpoena being the documents identified in the body of her report as being provided by Mr P. Mr Levy confirmed that Mr P would be providing an affidavit on behalf of the father and as such would also be available to have his evidence tested. In those circumstances, Mr Richardson SC confirmed that ground (b) as set out in paragraph 2 above was not now pressed.
The mother relied on nearly every affidavit that she had filed to date in these proceedings, namely:
a)The affidavit of the mother sworn 30 August 2012 and filed 3 September 2012 (“the 30 August 2012 affidavit”).
b)The affidavit of the mother affirmed 28 February 2013 and filed 1 March 2013 (“the 28 February 2013 affidavit).
c)The affidavit of Ms T (the maternal grandmother) sworn and filed 13 March 2013 (“the Ms T 13 March 2013 affidavit”).
d)The affidavit of the mother affirmed and filed 15 March 2013 (“the 15 March 2013 affidavit”).
e)The affidavit of the mother affirmed and filed 14 May 2013 (“the 14 May 2013 affidavit”).
f)The affidavit of the mother affirmed and filed 11 June 2013 (“the 11 June 2013 affidavit”).
g)The affidavit of the mother affirmed 17 June 2013 and filed 18 June 2013 (“the 17 June 2013 affidavit”).
h)The affidavit of the mother affirmed and filed 24 June 2013 (“the 24 June 2013 affidavit”).
i)The affidavit of the mother affirmed and filed 28 August 2013 (“the 28 August 2013 affidavit”).
The Court gives no weight to the mother’s expression of her own feelings in relation to what she perceives as Dr S’s asserted bias, as clearly the mother’s view is not determinative of anything.
The relevant facts, matters and circumstances as identified from the above affidavit material (noting that in the material the references to “Mr L” are to the mother’s brother, to “Mr J” are to Mr J with whom the mother is in a relationship and to “Ms P” are to Ms P, the father’s partner) are as follows:
The 30 August 2012 affidavit.
a)"Recently on the 5th June 2012 Mr King showed up late and so intoxicated he was unable to care for the children as so they simply remained with me". (Paragraph 7)
b)"Mr King often refers to me as a “slut" and “fucking bitch” and “fucking hopeless mother” in front of the children.” (Paragraph 12(h))
c)After reporting assistance being provided by the father’s father: “Mr King has advised me on Thursday 23rd August 2012 that the money will only continue if I am happy with the access arrangements". On the 23, 25 and 28th August 2012 advised me by text he will not being paying X's or Y's school fees unless I pay half. (Paragraph 21)
d)“Immediately after the mediation on 13 August 2012 Mr King has called me and said to me in a threatening manner “that unless you immediately hand over the children on a week about basis I will take the children off you completely and frustrate any attempt for you to travel with the kids permanently.” (Paragraph 24)
e)On the 26th of August 2012, I had to wait an hour outside his apartment to collect the children. I texted him to advise I was outside his apartment to collect the children at 10am as is the arrangement and Mr King responded: “11am slut”. (Paragraph 25) (Annexure “F”).
f)I am instructed by my solicitor, Ms Campbell, that at 4.30pm on 23rd August 2012 she received a call from Mr King at 4.03pm. Ms Campbell called me after the call and said to me: “Mr King will withdraw his consent to go to Disneyland with the kids unless you sign the draft consent orders proposed by him for weekabout arrangements”. (Paragraph 28)
g)On Friday the 24th of August 2012 … my solicitor said to me: “Mr Remington [the father’s solicitor] has contacted our office at 2.00pm and advised that he has been unable to speak with his client and unable to confirm if Mr King has formally withdrawn his consent for you to travel to Disneyland on the 20th of September”. (Paragraph 30). The Court notes that this is somewhat different from that which was submitted by the mother, namely, that the father’s solicitor had advised that the father had, in fact, formally withdrawn his consent.
The 28 February 2013 affidavit.
a)I was the primary carer for the children and attended to most of their physical and emotional needs during their infancy. I attended to breastfeeding the children, feeding and introducing the children to the bottle and solids, changing the children’s nappies, bathing and dressing the children, attending upon the children when they woke at night, settling the children to sleep at nap times and in the evenings, caring for the children when they were sick and transporting the children to and from medical appointments for check-ups and immunisations. (Paragraph 25)
b)Mr King had very little involvement in the children and their upbringing. I do not recall any occasion when Mr King attended to the children during the night when they cried or were sick. I do not recall any occasion when he responded to them when the children were hurt or upset. I do not recall any occasion when Mr King put the children to bed or got up with them in the morning. (Paragraph 27)
c)Mr King rarely spent regular time with the children. He never arranged or attended to any regular activities with them. Mr King was mostly sleeping on the weekends. (Paragraph 28)
d)Mr King often became unreasonable, unexpectedly and disproportionately, as well as irrational and terrifying. He resorted to verbal threats or violence directed towards me. In some instances, he actually carried out the threat of physical violence on other people. Mr King has assaulted people on many occasions in the past. (Paragraph 39)
e)In May 2000, Mr King and my sister got into an argument. Mr King threatened to strangle my sister because she disagreed with him. (Paragraph 40)
f)In approximately November 2004 we were on holidays in (country omitted) with our friends … We were in a taxi and the taxi driver refused to speak English. Mr King threatened him and said to him: “If you won’t speak English, I am going to bash you”. (Paragraph 41)
g)Mr King then tried to drag the taxi driver out of the taxi. We intervened and stopped Mr King. (Paragraph 42). The Court notes that this is somewhat different from that which was submitted on behalf of the mother, namely, that the father had, in fact, dragged the taxi driver out of the vehicle.
h)In 2009, Mr King threatened to break my arm if I let in a real estate agent when she requested a routine inspection. (Paragraph 44)
i)Mr King often told me and others about techniques in beating people up and how he could then resuscitate them. (Paragraph 45)
j)Mr King is very aggressive as a driver and displayed many occasions of road rage. He routinely abused pedestrians if they stopped traffic by pushing the button to walk across crossings. (Paragraph 47)
k)In January 2013, … Y told me how frightened he was when Mr King abused a taxi driver when the children and he were recently in a taxi. Y said: “Daddy told the taxi driver to fucking pull the car over right now before I make you". (Paragraph 49)
l)Mr King was participating in weekly drinking, drug taking and the abuse got worse. When Mr King was at home, he slept most of Saturday and Sunday afternoon and rarely awoke unless there was a function that he was attending alone. (Paragraph 52)
m)Mr King slept from the time he came home, often between the hours of 3.00am and 6.00am, most weekends. Sometimes he started on a Thursday night and continued through the weekend. Mr King usually slept on the weekend approximately 14 hours or so, only to wake up to hydrate himself and then pass out again for most of Sunday. (Paragraph 53)
n)During the last years of our marriage, Mr King purposely woke me any night he came home late anywhere between 3.00am and 6.00am. He came to bed loudly, took a shower and changed, whispered abusive and insulting comments to me, shined his illuminated mobile telephone in my face and held the mobile telephone to my face, all to wake me up, saying: “I know you are not asleep”. (Paragraph 61)
o)Some of the regular comments Mr King said to me when he came home were:
i)“You are a slut.”
ii)“You are a pathetic excuse for a woman.”
iii)“You are a failure.”
iv)“You've got no option but to stay with me. You're the best you could have gotten."
v)“You're a failure in everything you set out to do.”
vi)“I will take the children off you.”
vii)“I’ve come from the first family and your family is nothing".
viii)“My family owns the legal system and they will arrange to have the children taken off you.”
ix)“Your family are just bogans and part of the general public.”
(Paragraph 64)
p)I never went to the police in relation to these incidents. I was fearful of Mr King’s family and his family connections. He routinely said to me: “I will break you arms and legs.” (Paragraph 65)
q)If I ever mentioned to call the police, Mr King laughed and said: “(omitted) Police Station? What a joke. Bring it on. I got off last time, they can't touch me.” (Paragraph 66)
r)I recently discovered from my mother that Mr King was physically violent with our daughter X on the day I left. My mother was staying at our home to help Mr King look after the children. She told me: “X was crying and wanting you after you left. Mr King pulled her off the bed to the floor and kicked her.” (Paragraph 87)
s)On 30 March 2011, Mr King said to me in front of the children: “Your 21 – year old step-brother is not the best carer of an absent mother”. Mr King continued screaming at me and said: “You are a useless failure and now also as a mother for not being home.” He repeatedly said this in front of the children, whilst we were having dinner. Mr King then said: “I am going to kill the fucking little lying cunt.” Mr King was still screaming and yelling, refusing to sit down with us, adding: “I'm going to strangle your fucking brother.” (Paragraph 90)
t)Mr King walked down the hall and into our wardrobe. He then proceeded to throw out every piece of clothing, shoes and personal item of mine that he could get his hands on. He threw all the contents outside our front door, into the communal hallway of our unit. As he was doing this, he said to me, still calm: “When I have finished removing every trace of you, I will then throw you down the stairs, you pathetic excuse for a woman. I am going to break every bone in your body. You’re a fucking joke, you’re an embarrassment”. (Paragraph 92)
u)I begged Mr King to stop; he did not. The children were still in the kitchen. I said to him: “You’re destroying our children with this behaviour”. He replied: “I am going to ensure the children will know what kind of mother you are. I will ensure they will have nothing to do with you.” (Paragraph 93)
v)Over the next 10 to 15 minutes, Mr King continued to throw all of my belongings outside of our apartment. (Paragraph 94)
w)For some 2 to 3 months, the children and I were displaced, living with family and friends. Mr King refused to move out of the Property O property, which had been my and the children’s home. I have left our home with just the clothes I was wearing. I had no money other than my modest income. (Paragraph 102)
x)During this time, Mr King made many comments which were intended to frighten and intimidate me. He said: “I pity you. You have got nothing. We are going to destroy you. I warned you my family will ensure you will not have the children; it’s only a matter of time. You are a failure, a member of the general public. We own the legal system and you are gone. I will destroy you, financially and professionally. (Paragraph 103)
y)After separation, Mr King repeatedly threatened me each time I did not do what he said or wanted. He threatened not to pay the nanny, not pay the school fees, not take the children to school and pre-school, amongst other threats. He also threatened me professionally and physically. Mr King threatened to defame me to my CEO and clients of (employer omitted). (Paragraph 105)
z)There are many occasions when I am fearful of reading the text messages from him. Examples of the text messages are:
(i)“If you don't wish to answer my text you can pay the dentist bill. Fuck you”.
ii)“No, you're in breach of our agreement and I have halted all payments until a revised arrangement is in order”.
iii)“I am not paying this (omitted) School invoice until your surname is changed back.”
iv)“… please address all of the above, then we can talk seriously about the restarting my contributions to the children’s costs which is essentially all of it.”
v)“Have you changed your name yet? I am not paying (omitted) School until that's happened.”
vi)“Can you pay your half of the (omitted) School fees tomorrow? Or will I tell them we are pulling X out of the school?”
vii)“You are absolutely useless as a human being. You want me to pay ALL the children dental and yet o [sic] can even run it through health insurance because you're a spastic.”
viii)“Dad is going to withdraw your rental subsidy.”
ix)“You are a bimbo, you need to get help from people with brains.”
x)“I know I [sic] you are not passing my messages onto X. I expect a call from her shortly you disgraceful excuse for a mother.”
xi)“Useless woman.”
xii)“Go fuck yourself.”
xiii)“11.00am you slut.”
(Paragraph 107)
aa)Since commencing that relationship, Mr King has made the following comments to me. The comments are intended to frighten or intimidate me.
(i)“Ms P was selected and checked out to be the woman who could help my image in the eyes of Court.”
ii)“Ms P is cheaper than a nanny.”
iii)“Ms P’s mother and aunt had a degree and practice in child psychology. My lawyer had said to me that to strengthen my claim to gain more access to the children.”
iv)“You are only baby-sitting the children until I can get my affairs in order.”
v)“My family has run this country and legal system and you're nothing but a slut and a pathetic excuse as a mother – that you can even call yourself a woman.”
vi)“The less time they spend with you the better.”
vii)“I will reposition myself with money, partner and take the children off you.”
viii)“History is irrelevant now that Ms P and I are together.”
ix)“My father will withdraw the rental subsidy and child care and make it impossible for you to work. You have no means to pay for your flat and the children.”
(Paragraph 120)
bb)The children spent about 2 weeks with Mr King during the January 2013 school holidays. In that 2 week period, I telephoned Mr King almost daily to speak to the children. I sent numerous text messages to Mr King, asking that he make the children available to speak with me. Mr King did not respond to any of my messages. I was able to speak to Y once, on 12 January 2013. Y answered Mr King’s mobile telephone. I did not speak to X at all (she was not present). There was no other occasion in that 2 week period when the children or Mr King answered any of my telephone calls. Mr King did not at any time have the children telephone me. (Paragraphs 172 – 173)
cc)I have sought orders for the children to spend overnight time with Mr King. I still hold concerns about Mr King’s volatile and aggressive behaviour in the presence of and towards the children. I have carefully considered and weighed up the need for the children to have regular time with Mr King. The children love Mr King and wish to see him and spend some time with him. The children complain about Mr King being a “bully” and always “angry” and in a “bad mood”. This needs to be balanced with a regime that addresses Mr King’s behaviour and his inability to manage his anger. (Paragraph 186)
dd)X started crying again. I reached for her. Mr King grabbed X again and said to me: “You're a fucking stupid bitch. If the kids were not here, I would let the dog loose on you. You're a pathetic mother, you are unfit.” (Paragraph 194)
ee)Immediately after the mediation, Mr King called me and said in a threatening manner: “Unless you immediately hand over the children on a week about basis, I will take the children off you completely and frustrate any attempt for you to travel with the kids permanently.” (Paragraph 207)
ff)On Sunday, 2 September 2012, I spoke to X in the morning. The children had spent the night with Mr King. During the conversation, X said: “Last night, Ms P was crying because Daddy was a bit rough with her. So, yeah, she didn't want to stay in Daddy's bed so she went to stay with a friend. She and Daddy had a big fight and they said the “F” word.” (Paragraph 211)
gg)Notwithstanding that an agreement had been reached between Mr King and I as to the contact changeover, Mr King had sent me text messages requiring me to deliver the children to the police station for changeover on Boxing Day. I had never agreed to a changeover taking place at the police station. I have endeavoured to keep the children away from the conflict between Mr King and me. The text messages from Mr King stated:
i)“Can you please drop the children to the (omitted) police station for the 10.00am changeover on Boxing Day. The police wish to discuss a matter with you ...”
ii)“I will see you at 10.00am tomorrow at (omitted) police station. Ms P will look after the children while you are interviewed by the police.”
iii)“I told you to meet me at the police station!!!”
(Paragraphs 224 and 225)
hh)I am informed and verily believe my solicitor sent a letter to Mr King’s solicitor on 21 January 2013 notifying that I had requested my sister, Ms S, to collect the children from Mr King at 10.00am on Tuesday … . Close to 11pm that evening, Mr King sent a text message to Ms S which stated: “If you turn up at my property at 10am tomorrow, I will have you arrested.” (Paragraphs 232 to 233)
ii)Notwithstanding the contents of the letter from my solicitor, that same afternoon [20 December 2012], I received further text messages from Mr King to the following effect:
“I didn’t have to, you assumed!!! I will see them tomorrow at 9am or I will go to the police. As for your solicitor, and bullshit from her and I will go straight to the law society. My patience is fast running out.”
“BTW I just got a call from the newspaper...have to call them back from 5pm – anything you wish to tell me?”
(Paragraph 242)
jj)In the period from 23 December 2012, the text messages which I received from Mr King included the following:
i)“Can you please drop the children to the (omitted) police station for the 10.00am changeover on Boxing Day. The police wish to discuss a matter with you. As I told you previously, unilaterally running away with the children during my scheduled time is completely outrageous and totally unacceptable …”
ii)“Can you please limit the exposure of the children to your many perverted wog boyfriends.”
iii)“Today is Christmas Day...I now find you are in fact in Sydney and instead of dropping the children to me you take them to a pervert! You will have to give up custody of the children, you are not fit enough to care for them.”
iv)“I will see you at 10.00am tomorrow at (omitted) police station. Ms P will look after the children while you are interviewed by the police.”
v)“I told you to meet me at the police station!!!”
vi)“This is my scheduled day and you have taken the children so I can’t collect them. You absolute horror of a woman.”
vii)“Good luck explaining that to a magistrate.”
viii)“Can you have the children me [sic] and keep them away from the pervert.”
ix)“The police deal with many bitter and twisted ex-wive's like you everyday, the way you unfairly restrict the children's access to their parent is beyond disgusting, never mind the manipulation and abuse you also put the [sic] through.”
x)“I have already spoken to Sergeant (omitted), I will be picking up the children. There was no agreement amending my schedule. I did not agree to substitute the normal schedule for block time.”
xi)“I will be speaking to the police again and will be pressing charges on Mr L. You are the ‘outsourcing’ mother of Australia!”
xii)“Without orders, I don’t have to bother with your lawyer.”
xiii)“I can’t wait until you are in front of a magistrate.”
xiv)“I will make an example of you and your deadbeat bogan family.”
xv)“Why did Y arrive at my place with a black eye for Mr L? I still have the photo it [sic]?”
xvi)“Where does the prick live?”
xvii)“You know there are no orders and I can come and collect the children anytime.”
(Paragraph 245) (Annexure “M”)
Ms T’s 13 March 2013 affidavit.
a)In March 2011, Ms King travelled overseas for work. I stayed at their home for several days to look after and care for the children. I also understand that Ms King’s brother, Mr L, stayed at their home and cared for the children for the remainder of the time. (Paragraph 12)
b)“I walked past when Mr King and X were in the bedroom. The door was open. I saw Mr King scolding and berating X. X kicked out at Mr King. I then saw Mr King grab X's arm and pull her off the bed quickly. X fell to the ground. Mr King then kicked X and said to her: “Don't you ever kick me again.” (Paragraph 16)
c)X was crying, very upset and distressed. She was cowering. I said: “Mr King”. I did not say anything else. Mr King turned around, saw me and then walked away. (Paragraphs 17 and 18)
The 15 March 2013 affidavit.
a)The Court was not taken to any specific paragraph of that affidavit.
The 14 May 2013 affidavit.
a)In the evening on Monday, 29 April 2013, I telephoned Mr King to notify him of my dealings with the school … I then said: “Until this is resolved, I will need to drop X to you until either the fees are paid or I can make other arrangements including taking her out of school.” Mr King said to me: “Yes, that is fine, except I won’t be here on Thursday. I am going overseas for a couple of weeks.” I was in shock. I was not aware of any proposed overseas trip prior to that telephone conversation … Mr King said: “I was going to advise you through my lawyer, but I didn’t. I meant to but ran out of time.” I said: “So when would I have learned about it if I hadn’t happened to call you tonight. I would have expected you to collect the children from school on Friday?” He said: “Well, it is something I had had planned for a year and I have to do it.” I said: “It’s a holiday you’ve had planned.” He said: “Well, it is partly work. I need to go to (country omitted) for work.” I asked Mr King: “Are you planning to work in (country omitted)?” Mr King did not respond. He then said: “I will be back on May 15.” I then asked Mr King: “What are your plans regarding payment of the school fees?” He said: “There is nothing to discuss. “The matter is before the Court. I look forward to the process continuing to the end whereby I feel that the Magistrate will find 50/50 if not majority time in my favour. Until you agree, I will not be contributing further for X or Y.” … He repeated, continuously: “I want my day in Court. You will be defamed. You cannot prove anything in your affidavit.” (Paragraphs 14, 15 and 16)
b)At this point [Tuesday evening 30 April 2013], Mr King became enraged. He yelled at me: “No, you and your disgusting boyfriend think you can take the children off me". (Paragraph 20)
c)Mr King did not ever respond directly to my questions. He continued to yell at me and made threats and insults, saying comments such as:
i)"I can't wait to go the whole 9 rounds with you. It's my mission to decimate you.”
ii)“I haven't even started with you. When I am ready, I am going to provide the media with every bit of filth about you, your family and your disgusting boyfriend.”
iii)“I am also in the process of taking out your boyfriend. I have so much information on him I will destroy him.”
iv)“I know about his prostitution connections and the ATO frauds. I have accountants and many third parties ready to come forward to provide evidence and also of child molestation. I will ensure the children will not be allowed to go near him.”
v)“It's a tragedy you are the children's mother. You disgraceful filthy slut.”
vi)“Nothing will stop me, only a bullet will stop me from coming after you and Mr J.”
vii)“If the Magistrate wasn't involved, I would have already driven down to your father's place and bashed his skull in.”
viii)“I will go all the way. I am not a coward like other fathers. I will win and my lawyers say there is no reason why I can't get 50/50 and this will be the new era for fathers.”
ix)“The children hate Mr J.”
x)“I am not frightened of any heavy he sends over.”
(Paragraph 21)
d)In the course of what could only be described as Mr King’s tirade, he said to me repeatedly:
i)"I will treat you like the prostitute you are.”
ii)“My family and my voice are far bigger than yours. You can't prove anything in your affidavit and we will take you out. We are going to destroy you in Court. I will get my 50/50 and that's just to start with. Then I will get majority and then I will not stop until I show you for what a filthy slut you are. You are an embarrassment and a disgrace. You have brought me and my family such shame and you will be punished.”
(Paragraph 22)
e)On 12 May 2013, Mother’s Day, I was playing with X and Y and X said: “Daddy says that if we want he will bash up Mr J.” Y then said: “Yeah. Daddy says that all the time. He also says every 5 minutes big fat Mr J and you are taking away his time.” (Paragraph 52)
The 11 June 2013 affidavit.
a)I collected the children from Mr King’s home on Sunday afternoon (19 May 2013). Immediately upon entering my car, X said to me: “Mummy, today Daddy hurt Y very badly and I was very scared.” (Paragraph 6)
b)X said: “Daddy got so angry at Y that he grabbed him very hard by the leg and arm and lifted him up so high then dragged him into our room and threw him on my bed. I ran after him and saw Daddy holding him on the bed so tightly with his very mean and angry face. I ran in the kitchen and was crying and told Ms P. I was frightened and said: “Daddy was hurting Y so badly.” Ms P went into the bedroom and told Daddy to “back up” but he didn't listen and Y was screaming.” (Paragraph 9)
c)Y then said to me: “I was just sitting on the couch watching tv when Daddy grabbed me. I think it is because I accidently stepped on (omitted) [Ms P's dog]. I tried so hard to push Daddy's finger off my heart but I could not get his fingers off me. I got into trouble because I didn't get dressed fast enough and my crying woke the baby.” (Paragraph 10)
d)I said to X: “Did Ms P see any of this? What was Ms P doing?” X said: “Ms P saw Daddy taking Y into our room and she tried to stop him in the hallway but he pushed her away and she went into the kitchen.” (Paragraph 12)
e)On Tuesday morning… [21 May 2013] … I sent Mr King the following message: “Mr King you need to speak to your solicitor. A letter was sent to them yesterday.” I then received 3 text messages from Mr King saying: “What letter? I am going to the police now.” And: “Where is Y being held so I can direct the police?” (Paragraphs 29 and 30)
The 17 June 2013 affidavit.
a)The Court was not taken to any specific paragraph of that affidavit.
The 24 June 2013 affidavit.
a)The Court was not taken to any specific paragraph of that affidavit.
The 28 August 2013 affidavit.
a)Whilst Dr S was meeting with X, Y and I sat in the reception area (after we left Dr S’s office). We were playing lego on the floor. At no time did I observe Dr S walk out from her office and observe Y and me. I did not during this period send any text messages or other messages on my telephone. As Dr S was not present it concerns me that she would record the contrary as a fact. If she was relying on what someone else told her, she did not discuss the issue with me. (Paragraph 13)
b)Whilst we were waiting whilst Y’s interview was being conducted, I did not say anything to X or make any suggestion or remind her to say anything to Dr S nor had I done so at any time prior to the meeting. X’s request to Dr S was not prompted by me in any manner. At no time did Dr S ask me about the topic or say anything to explore her concern that I had said or done anything to coach or otherwise influence either child. (Paragraph 15)
c)The interview process lasted for about 10 - 15 minutes. We were in a small room of about 4 metres by 4 metres. At no time during that process did Dr S face me or observe my facial expression. She was not in a location in the room that permitted her to do so. I deny her suggestion that I “didn’t smile at the children once”. I did and otherwise interacted with them in a warm and loving manner in what I perceived to be an awkward and contrived situation. (Paragraph 18)
d)During my interview with Dr S, I asked if she would like to interview Mr J. In response to that request, Dr S said: “That isn’t necessary”. At no time did Dr S raise with me any concern she may have had about my relationship with Mr J or his relationship with either of the children... (Paragraph 26)
e)Dr S only ever refers to the contact on Tuesday night and not the time Y spends with Mr King during the day (or did, prior to Mr King commencing employment on 22 May 2013).The Tuesday arrangements were implemented in February this year, at a time when I was working and Mr King was not working. It was my proposal to Mr King that he spend the day with Y. Mr King accepted that proposal and the orders made on 15 March 2013 refer to that time. Dr S does not ever refer to the time Y spent with Mr King on Tuesdays nor that this was a proposal that I had initiated. (Paragraph 31)
f)Dr S refers to my proposal as limiting the children are to spend time with Mr King to every second weekend.In the course of my interview with Dr S on 16 May 2013, I discussed my preference for blocked periods. I did not limit the block period to a weekend. I discussed with Dr S a proposal for a four night block period each fortnight. This is not ever mentioned or referred to in the report. Rather, Dr S notes several times of my proposal to reduce the time Mr King spends with the children. (Paragraph 32)
g)Dr S comments that there was no evidence that the children have been physically abused. There is no reference contained in her report of the event that my mother observed on 12 March 2011 … (Paragraph 33) … no mention of that incident ever been raised in the interview with Mr King. (Paragraph 34)
h)Dr S appears to be critical of me in that I had not sought treatment for X’s anxiety. I deny that is the position. I had sought Mr King’s consent to have the children meet with a psychiatrist … I provided those details to Mr King. Mr King refused his consent and did not permit the children to meet with the psychiatrist. (Paragraphs 35 and 36). I raised [this] with Dr S at the time of my interview … I also informed Dr S that Mr King had not consented to my proposal. I also informed Dr S I had raised my concerns with the school … In response to this, Dr S indicated she would call (omitted) School. Dr S makes no mention of this discussion. (Paragraph 37)
i)My attempts to have the children meet with a psychiatrist were also referred to in my affidavit affirmed and filed 11 June 2013.This and many other matters in Dr S’s report caused me to doubt that she had read my affidavits which are identified in the report, despite her claims to have done so. (Paragraph 38)
j)Dr S states that the children have been cared for by Mr J’s staff and family. This issue, being the care of the children when staying with Mr J, was not ever raised with me in my interview … (Paragraph 40).
k)Dr S seems to be critical of me as to the situation which occurred whereby X was not permitted to return to school for 2 days because of outstanding school fees. (Paragraph 41)
l)Dr S raised with both Mr King and his father direct enquiries as to whether they held the view that I had attempted to blackmail them. Her report suggests that she was the instigator of this suggestion. This suggests to me that Dr S, absent of any allegation to that effect, had formed a very dim view of me without any rational basis that is explained on the face of her report. Dr S did not raise the issue with me. (Paragraph 42)
m)The only suggestion of blackmail, which Dr S expresses no view about, is my contention that Mr King told me that unless I changed my surname to my maiden name he would not pay school fees. Dr S simply lets this issue pass, describing it as an “allegation” by me. It is not apparent on my reading of the report that Dr S ever raised this issue with Mr King. (Paragraph 43)
n)Dr S makes adverse observations about my actions in wishing to say goodbye to the children, seemingly suggesting that I was being manipulative in some way in doing so. She did not raise any view about this with me at the time. (Paragraph 44)
o)… Whilst it is a matter of small moment, she [Dr S] repeatedly attributes quotes to me referring to Mr King as “Mr King”. I never did so in the interview nor have I ever done so. Much of what she quotes me saying is inaccurate. (Paragraph 46)
All of the mother’s affidavits, save that of 28 August 2013, had been provided to Dr S prior to her preparing the Report. Mr Richardson SC submitted that the above material ought to have informed Dr S of particular things, yet the Report suggested the contrary of those matters.
The father relied on:
a)The affidavit of the father affirmed and filed 14 March 2013 (“the 14 March 2013 affidavit”).
b)The affidavit of the father affirmed and filed 21 June 2013 (“the 21 June 2013 affidavit”).
c)The affidavit of the father affirmed and filed 9 September 2013 (“the 9 September 2013 affidavit”).
A reference to “Ms King” is a reference to the mother and to “Z” is to the child of the father and his partner, Ms P.
The 14 March 2013 affidavit
a)The flexible care arrangement Ms King and I had implemented for the children after separation changed in the last quarter of 2011 when Ms King learned of my new relationship with Ms P. (Paragraph 8)
b)I have a very strong and loving relationship with Y and X. (Paragraph 12)
c)Ms P and I are due to have our first child at the end of March 2013. (Paragraph 13)
d)I have discussed with Ms P at length my proposal for having increased care of the children. She has always been supportive of that proposal… (Paragraph 33)
e)I have been a very active father right through starting from the pre-birth preparation… (Paragraph 34)
f)I am concerned that Ms King is trying to shut me out of the children’s lives… (Paragraph 39)
g)I am concerned about the lack of stability that Ms King provides for the children… (Paragraph 40)
h)I am concerned about the depth of Ms King’s care for the children’s physical and educational needs… (Paragraph 41)
i)The latest assessment records a child support income for me of $195,782.00 but my current income is nil… (Paragraph 51)
j)I did not threaten the taxi driver in January 2013 … I deny that I kicked X on or about March 2011. I have never kicked X ... I did not threaten Ms King’s brother Mr L on 30 March 2011 … I deny that I grabbed X on 12 March 2012. (Paragraph 69)
k)I have never threatened to break Ms King’s arm in 2009 or at any time … I have never threatened to break Ms King’s arms and legs. I deny that I shined my illuminated telephone in Ms King’s face … I deny that I repeatedly harassed and intimidated Ms King when I came home late or at all … I deny that I threatened and taunted the mother at all. I deny that I have withheld financial support of Ms King during our relationship or after separation … I deny that I repeatedly denigrate Ms King. (Paragraph 70)
The 21 June 2013 affidavit.
a)I have no faith that if Ms King is permitted to have the children on her proposed dates for the July school holidays that Ms King will provide me with make-up time with the children. (Paragraph 9)
b)Ms King had the children for the entire period I was overseas, did not offer me make-up time and now wants additional time during the school holidays. I am very concerned about the time I spend with the children being reduced as they have already been reduced … (Paragraph 12)
c)This holiday will allow X and Y to spend a block period of time with their step-brother, Z, [sic] is just 3 months old and both X and Y have shown such a strong connection to him… (Paragraph 16)
d)I am concerned that if the children travel overseas as Ms King proposes, that they will not be involved in many child focused activities... (Paragraph 17)
e)X has said to me in the last week or so: “Y and I will sit in the back of the plane with the nanny and mummy and Mr J (Mr J) will sit up the front”...(Paragraph 18)
The 9 September 2013 affidavit.
a)The Court was not taken to any specific paragraph of that affidavit.
All of the father’s affidavits, save that of 9 September 2013, had been provided to Dr S prior to her preparing the Report.
Exhibited at the time of the interlocutory hearing were a bundle of documents produced under a subpoena directed to Mr P (as Exhibit “A”) and a bundle of documents produced under a subpoena directed to Dr S (as Exhibit “B”).
Dr S provided the following recommendations in her report:
a)That parental responsibility be shared between both parents.
b)That the children should reside with the mother from Monday after school until Friday morning school drop-off, and live with the father from Friday afternoon school pick-up until Monday morning drop-off.
c)For long weekends, the children would remain with the father for the extra day(s).
d)For holidays, given that the parents are keen on overseas travel, the children could alternate the short holidays between one residence and the other. For example, they spent two weeks with the mother in the July holidays, so the September-October holidays could be spent with the father.
e)If the children went to schools with different durations of holidays, the extra week could be spent with the mother. For example, if Y goes to a public school and only gets two weeks off, then X would spend the extra week of her holidays with the mother each holiday period.
f)That the other parent should not be denigrated in front of the children.
g)That the children be allowed to call the other parent a maximum of once a day when resident with the other.
h)That special days, such as birthdays and Mother’s Day and Father’s Day, be divided in half, with the pickup time being about 2.00pm.
i)That the long Christmas holidays be split into two-week blocks, alternating each year. This means that one residence will have the children for Christmas one year, and the other the following year.
The Court refers to the following paragraphs of the Report, as referred to under various headings as described by the mother as being the bases for her application, as follows:
1.Repetitious reference to the former (occupation omitted) and deferential remarks to the King family.
(a)The children’s paternal grandfather is a past (occupation omitted), Mr P. (Page 3 – paragraph 2)
(b)The father in this case was the eldest child of the previous (omitted), Mr P. (Page 8 – paragraph 5)
(c)The paternal grandfather was (occupation omitted) from 1991 to 1996 and the father did his HSC in 1994. (Page 11 – paragraph 11, first sentence)
(d)The paternal grandfather was extremely accommodating and allowed me to interview him at his office in (omitted). After five minutes, it was as if he were any other paternal grandfather, not a VIP. (Page 30 – paragraph 7)
(e)This seemed to me a public humiliation of the King family. The school fees had been allowed to go unpaid to the extent that X was not permitted to attend for two days before the situation was attended to. (Page 37 – paragraph 12, last 2 sentences)
(f)The paternal grandfather being a past (occupation omitted), he remains a strong influence on the family and the children will benefit by having a close and warm relationship with all their 4 grandparents. (Page 40 – paragraph 2, last sentence)
(g)There was no record in the report as to how much time was spent with Mr P. (Page 1)
2.Evasive.
(a)I asked the father about the mother’s allegations that he had a bad temper. He said that her personal life was the cause of volatility, that she’d been with Mr A since September and by November she was dating Mr J. (Page 10 – paragraph 4, first and second sentences)
(b)When I asked him about his alleged threats of violence to the mother, he explained that he had been trained by the (omitted)’s bodyguards in self-defence and that he had continued training throughout his life and that the mother could use that as if he were an aggressor. (Page 10 – paragraph 5, first sentence)
(c)I asked him about his assault charge. He explained it thus: he was trying to protect the mother and the maternal grandfather. (Page 10 – paragraph 7, first and second sentences)
(d)He denied having an uncontrollable temper but was vague when I asked him if he was impulsive or moody, saying: “I don’t know what to say to you. Has she told you about her background?” (Page 11 – paragraph 2, last 2 sentences)
(e)He sometimes deflected direct questions by indicating the mother’s perceived deficiencies rather than answering about himself. (Page 13 – paragraph 4)
3.Serious fresh allegations not made before in affidavits provided to her.
(a)He indicated that he gets screened for health regularly and that the mother’s lifestyle involves indulgence in illicit drugs and cocaine with Mr J. (Page 10 – paragraph 4, last sentence)
(b)On the other hand, he said that she had been throwing objects – irons, telephones – and punched him in the head at other times. (Page 10 – paragraph 6)
(c)The father indicated that the mother was unfaithful with Mr A, which she overlooks as an inconvenient truth and that he [Mr A] played a part in the breakdown of their relationship. (Page 11 – paragraph 5)
4.Statements made by the children inconsistent with the father and Ms P.
(a)The worst thing was: “He says the ‘f’ word to us and his girlfriend.” I asked him if Dad gets cross at him, and he said: “Yes, at both of us.” I asked what Dad said. Y said: “The ‘f’ word.” (Page 17 – paragraph 3, last 4 sentences)
(b)There was evidence that there were some nasty SMS messages that went to the mother and Y told me that his father uses the ‘f’ word. (Page 37 – paragraph 4)
5.Implication of coaching by the mother – yet never put to the mother.
(a)X then bounced onto the couch and asked me to do more questions and answers. This led me to think that she’d been reminded by the mother to tell me something in particular while in the waiting room alone, so I redirected her back to playing on the floor with the mother. (Page 17 – paragraph 8, last 2 sentences)
(b)The mother alleged that the father was asking questions about the mother when the children were at contact with him and I got the impression that Y had been coached to tell me that his father says the ‘f’ word. (Page 34 – paragraph 1, first sentence)
(c)When he said in Best and Worst that there was nothing good about his Dad and that his father said the ‘f’ word, it sounded to me as if he had been coached, presumably by the mother. This was despite X’s evidence saying that Mr J gets cross with Y. (Page 38 – paragraph 4)
(d)The mother’s case seemed to hinge on the children’s assertion that the father was swearing and was angry and this was consistent with the maternal grandmother’s story, but it was not consistent with the children’s behaviour towards their father, which displayed no fear or reluctance. This implied that the mother had coached the children to support her case. (Page 39 – paragraph 2)
(e)Children of five and seven are very poor reporters. They are easily coerced and manipulated. They could easily be encouraged to inform on the father by the mother asking direct questions. (Page 40 – paragraph 7, fourth, fifth and sixth sentences)
6.Inconsistencies with the father’s case not traversed.
(a)The maternal grandmother told me that the children had said that the father calls Mr J “the fat ogre” and asked Y if he wanted him to beat Mr J up. (Page 26 – paragraph 8)
7.The grandfather’s corroboration for the father – attack on the mother’s veracity / personality / mothering – mother no notice.
(a)The paternal grandfather told me at great length about his financial support to the mother following separation and he appeared to have the financial documentation to support this. (Page 27 – paragraph 7)
(b)He told me that when the parents first separated the mother went to stay with friends and left the children with the father. (Page 27 – paragraph 8, first sentence)
(c)The paternal grandfather told me that he spent about $60,000 renovating their apartment, replacing some of the kitchen appliances, but that this didn’t make the mother happy, the place never felt like a home and that she rarely cooked and regularly fed the children takeaway. (Pages 27-28 – paragraph 9)
(d)I understand that the mother and father agreed to alter the living arrangements so that the mother could move back into the Property O apartment, the paternal grandfather would pay half the rent, the father would live nearby and the children would be able to visit both the paternal grandfather in the mornings or after school and the father on the second weekend and Tuesday nights. (Pages 28 – paragraph 3)
(e)The paternal grandfather told me that when the mother eventually moved to (omitted) at the beginning of 2012, the apartment was left in a terrible state. At other times, when he had visited, there were suitcases not unpacked from previous trips, there were clothes and shoes everywhere and nothing in the fridge. (Page 28 – paragraph 4)
(f)He told me that the mother and the paternal grandfather had a conversation on New Year’s Eve 2011 to the effect that the mother would continue to bring them to visit him if he continued to pay; however, the next thing he heard was that the mother had moved to (omitted) leaving no forwarding address to him; that she didn’t discharge Ms G and the self-storage hadn’t been paid for. (Page 28 – paragraph 5)
(g)I understand that the paternal grandfather had a (omitted) Mercedes returned to him by the mother; that her solicitor had suggested that the mother believed the car to be unencumbered when she knew that there was a lease still standing on it. He went on to say that the mother knew perfectly well that he was paying for the lease repayments and he seemed to have documents that attested to this fact. (Page 28 – paragraph 6)
(h)He also went on to indicate that he had paid the registration for the vehicle and also $6,000 worth of parking fines on it. (Page 28 – paragraph 7)
(i)The paternal grandfather drew my attention to point 129 of the mother’s affidavit where she requested $1,680 to pay for Y's Kindergarten fees in January. He showed me a text message where he had answered the mother’s SMS, making it clear that he was not going to start paying for the children’s school fees but that he would continue to support her and the children for their rent, which he did apparently do. (Page 28 – paragraph 8)
(j)He felt that the mother pumps the children for information and that, because X is a child who is very tuned in emotionally to others, she is also more vulnerable than other children. (Page 29 – paragraph 2, last sentence)
(k)He would occasionally go out to drink with friends, sometimes he would go out to avoid the mother. He was not a person who was affected by habitual taking of drugs or alcohol or the appearance of it. (Page 29 – paragraph 8)
(l)He found out that the mother then followed him there within a few weeks. (Page 29 – paragraph 10, last sentence)
(m)He was concerned that the mother was putting the children under undue pressure, asking them questions about what happened at contact with the father and that this was bad for them. (Page 30 – paragraph 1, last sentence)
(n)He felt that the children would have more equilibrium over the week and that the home that the father and the stepmother had set up was much more stable than any the mother had ever provided. (Page 30 – paragraph 2)
(o)He said that the stepmother kept a very neat and tidy home, that she cooked nutritious meals from scratch and that it was a pleasant household. (Page 30 – paragraph 3)
(p)He believed that the mother had the children going between (omitted) and Mr J’s house and that this was not as good a situation as the consistent family that the father and stepmother would be able to provide. He didn’t believe that there was the same level of interest from the mother and Mr J and he believed that every second weekend with the father would be a very poor outcome. (Page 30 – paragraph 4)
(q)The paternal grandfather told me that the mother was not a warm, affectionate woman. He said that she was good at teaching the children manners but didn’t give them hugs or cuddles. (Page 30 – paragraph 5, first and second sentences)
(r)Despite that, the paternal grandfather told me that the mother tended to buy prepared food or takeaway rather than making food from scratch, whereas the stepmother would make the children’s meals healthy, nutritious and well-balanced. (Page 36 – paragraph 7)
(s)The father and the paternal grandfather told me that, when the parents separated on 30 March 2011, the mother left the unit and the father had the full responsibility of the children for around three months while the mother was staying with various different friends. The mother’s Affidavit seems to suggest that she took the children with her when she separated, although I was told that this was not the case. (Page 36 – paragraph 8)
8.Introduction of a blackmail suggestion
(a)I asked if he [the father] felt blackmailed. He said: “Absolutely. The media are gagging for anything, she’d say anything.” (Page 11 – paragraph 4, last 2 sentences)
(b)I asked whether he [the paternal grandfather] felt that he was being blackmailed by the mother, which he firmly denied. (Page 28 – paragraph 9, first sentence)
9.How could this be so if Dr S had read affidavits unless rejecting the mother’s story.
(a)The mother wished to reduce the father’s contact time for the convenience of the children to every second weekend, without the Tuesday night, and to have sole parental responsibility. The father wished for equally shared parental responsibility and for week about contact. (Page 3 – paragraph 4)
(b)However, it appeared that, since the father had repartnered, he had settled and that his anger and frustration were particular toward the mother and in relation to contact and financial settlement issues. (Page 31 – paragraph 10, last sentence)
(c)There was no unbiased evidence to suggest that the father was abusive in any way towards the children. On the contrary, he appeared to become angry when his time with them was limited by the mother or used as leverage for the mother. (Page 31 – paragraph 11)
(d)At the beginning of the children’s lives, the father was the primary breadwinner; however, he was proud of the fact that he was a hands-on parent and contributed to the usual day-to-day tasks of child care while he was at home. (Page 32 – paragraph 9)
(e)The mother appeared to be trying to reduce the children’s time with the father, using the excuse that the father was potentially dangerous, or to use time with the children to leverage extra financial support from the father. (Page 34 – paragraph 2)
(f)The father and stepmother have apparently set up a warm and happy household with the half-brother, Z, and it would be important to maximise the children’s contact with Z. (Page 34 – paragraph 8, first sentence)
(g)The mother gave me the impression that the children would have to fit in with her social activities, choice of partner and place of residence, even if this meant seeing less of their father. She also at one time was considering moving to (country omitted), I presume prior to the September/October school holidays in 2012, but a short time after her return, she started a relationship with Mr J, whom she says she has known for 10 years. (Page 36 – paragraph 5, first and second sentences)
(h)There was no evidence in this case of any physical violence enacted on the children or the mother. The mother alleged that the father was verbally abusive towards her, which the children may have witnessed. (Page 37 – paragraph 3)
(i)The father’s impulsive text messages to the mother show his impulsive anger at times and if the Court were to find that he was lying and not fulfilling his financial obligations, then he too would fit the criteria for Anti-Social Personality Traits. (Page 39 – paragraph 4)
(j)Both the parents admit to using party drugs when they were younger; however, there was no current regular or heavy use of illicit substances found. (Page 39 – paragraph 8)
(k)The father’s financial records show that he spends between about $40 and $120 dollars a week at the bottle shop, which probably does not add up to excessive use. (Page 39 – paragraph 10)
10.A completely unbalanced consideration.
(a)The mother’s material attitude to the world flavoured her parenting style and I got the impression that the children were supplementary to her primary relationship. Evidence of this was that the mother took the children to (country omitted) in October 2012 to visit one boyfriend, and two months later was starting a relationship with Mr J [Mr J] in December 2012, regardless of their confusion. (Page 32 – paragraph 8)
(b)If the mother were to enter into a co-habiting relationship with Mr J, then they would presumably live in his house in the (omitted) Suburbs. This would be close to both the children’s schools; however, it would not take in X’s concerns about Mr J. Of the three houses, X put Mr J in the house far away, and her discomfort hearing Mr J discipline her brother was an issue for her. (Pages 34-35 – paragraph 9)
(c)There was evidence that there were some nasty SMS messages that went to the mother and Y told me that his father uses the ‘f’ word. (Page 37 – paragraph 4)
(d)This seemed to me a public humiliation of the King family. The school fees had been allowed to go unpaid to the extent that X was not permitted to attend for two days before the situation was attended to. (Page 37 – paragraph 12, last 2 sentences)
(e)The mother saw the father as entitled and preoccupied with his own self-importance and exploiting others; however, she has recently become involved with Mr J [Mr J], who is a wealthy, high-profile businessman, who very likely displays some of these characteristics. (Page 39 – paragraph 1)
(f)The mother denied any current regular use of alcohol due to her Meniere’s disease; however, there was no objective evidence given that she is not currently living with anyone. (Page 39 – paragraph 11)
(g)If the mother were to marry Mr J, the Court might find it helpful to look into his background and lifestyle to mitigate further risk to the children. (Page 40 – paragraph 6)
(h)It is inappropriate for a five-year-old child to dictate when or when not to attend contact with the father. (Page 40 – paragraph 8, second sentence)
(i)The mother taking the children to (country omitted) with a nanny shows her attitude towards the children that she would only parent them at her own convenience. It was clear from the evidence that she and Mr J [Mr J] were travelling first class and the children were travelling economy with the nanny. This was consistent with her leaving the children with Mr J’s staff in Sydney as well. (Page 41 – paragraph 1) The Court notes that the mother’s evidence was that the children travel business rather than economy.
(j)While it is important for children to fit in with the parents’ working hours, I do not think it is appropriate that the children be left with babysitters for long periods of time on the weekend or during school holidays. (Page 41 – paragraph 3, last sentence)
(k)The mother’s case appears to be trying to show that the father has an impulsive temper. If this were the case, then there would be more evidence of this causing problems elsewhere in his life. I have been shown no objective evidence, such as Police reports, substantiating this. (Page 41 – paragraph 6, first, second and third sentences)
11.Contrary to the mother’s evidence of what she told Dr S and what she says happened.
(a)While I interviewed X alone, Y played quietly at the mother’s feet while she was texting. (Page 17 – paragraph 5, last sentence)
(b)She seemed to recognise that X had an Anxiety Disorder; however, no treatment has been sought for this and no particular arrangements have been made for the child, given the change in living arrangements, contact time and the mother’s boyfriends over the past six months. The child has been expected to fit in with the mother’s wishes. (Page 35 – paragraph 7)
(c)The mother has not seen fit to have this Anxiety treated and actually allowed X’s anxiety to increase to demonstrate to me what would happen when she separates from X in support of her case in reducing the time with the father. (Page 38 – paragraph 8)
(d)I was led to understand that the mother is seeing a counsellor called Ms M for the treatment of her own Anxiety with regard to the Family Court case. When I rang Ms M, she told me that she was a life coach and had seen the mother twice on a gift certificate. (Page 38 – paragraph 10)
The Law
Section 15.06A of the Federal Circuit Court Rules 2001 provides as follows:
15.06A Definition
In this Division:
expert, in relation to a question, means a person (other than a family and child counsellor or a welfare officer) who has specialised knowledge about matters relevant to the question based on that person’s training, study or experience.
Section 15.07 of the Federal Circuit Court Rules 2001 provides as follows:
15.07 Duty to Court and form of expert evidence
For an expert’s duty to the Court and for the form of expert evidence, an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses.
Note:While not intended to address all aspects of an expert’s duties, the key points in the guidelines are:
·an expert witness has a duty to assist the Court on matters relevant to the expert’s area of expertise
·an expert witness is not an advocate for a party
·the overriding duty of an expert witness is to the Court and not to the person retaining the expert
·if expert witnesses confer at the direction of the Court it would be improper for an expert to be given or to accept instructions not to reach agreement.
Practice Note CM7 of the Federal Court of Australia as at 3 June 2013 provides as follows:
Expert witnesses in proceedings in the Federal Court of Australia
Commencement
1. Omitted.
Introduction
2. Rule 23.12 of the Federal Court Rules 2011 requires a party to give a copy of the following guidelines to any witness they propose to retain for the purpose of preparing a report or giving evidence in a proceeding as to an opinion held by the witness that is wholly or substantially based on the specialised knowledge of the witness (see Part 3.3 - Opinion of the Evidence Act 1995 (Cth)).
3. The guidelines are not intended to address all aspects of an expert witness’s duties, but are intended to facilitate the admission of opinion evidence, and to assist experts to understand in general terms what the Court expects of them. Additionally, it is hoped that the guidelines will assist individual expert witnesses to avoid the criticism that is sometimes made (whether rightly or wrongly) that expert witnesses lack objectivity, or have coloured their evidence in favour of the party calling them.
Guidelines
1.General Duty to the Court
1.1 An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.
1.2 An expert witness is not an advocate for a party even when giving testimony that is necessarily evaluative rather than inferential.
1.3 An expert witness’s paramount duty is to the Court and not to the person retaining the expert.
2.The Form of the Expert’s Report
2.1 An expert’s written report must comply with Rule 23.13 and therefore must
(a) be signed by the expert who prepared the report; and
(b)contain an acknowledgement at the beginning of the report that the expert has read, understood and complied with the Practice Note; and
(c) contain particulars of the training, study or experience by which the expert has acquired specialised knowledge; and
(d) identify the questions that the expert was asked to address; and
(e) set out separately each of the factual findings or assumptions on which the expert’s opinion is based; and
(f) set out separately from the factual findings or assumptions each of the expert’s opinions; and
(g) set out the reasons for each of the expert’s opinions; and
(ga) contain an acknowledgment that the expert’s opinions are based wholly or substantially on the specialised knowledge mentioned in paragraph (c) above[4]; and
(h) comply with the Practice Note.
2.2 At the end of the report the expert should declare that "[the expert] has made all the inquiries that [the expert]believes are desirable and appropriate and that no matters of significance that [the expert] regards as relevant have, to [the expert’s] knowledge, been withheld from the Court."
2.3 There should be included in or attached to the report the documents and other materials that the expert has been instructed to consider.
2.4 If, after exchange of reports or at any other stage, an expert witness changes the expert’s opinion, having read another expert’s report or for any other reason, the change should be communicated as soon as practicable (through the party’s lawyers) to each party to whom the expert witness’s report has been provided and, when appropriate, to the Court.
2.5 If an expert’s opinion is not fully researched because the expert considers that insufficient data are available, or for any other reason, this must be stated with an indication that the opinion is no more than a provisional one. Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.
2.6 The expert should make it clear if a particular question or issue falls outside the relevant field of expertise.
2.7 Where an expert’s report refers to photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter, these must be provided to the opposite party at the same time as the exchange of reports.
3. Experts’ Conference
3.1Omitted.
Mr Richardson SC submits that paragraph 2.2 above is particularly relevant to the current application in light of the submission that certain material identified as emerging from Dr S’s notes should have been provided to the Court.
Section 4AB of the Family Law Act 1975 provides as follows:
Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Mr Richardson SC submits that his client’s application should be considered having regard to the same principals as those applied to an application that a judicial officer should disqualify him or herself. The measure being whether a reasonable observer appraised of all relevant material would form the view of an apprehension of bias or prejudgment. Mr Richardson SC contends that it would be assumed that a reasonable observer would take into account all of the material placed before the Court on this application.
Mr Richardson SC also submits that his client’s application has a second limb pursuant to the provisions of s.135 of the Evidence Act 1995 which he said would have a “conjunctive life over and above the apprehension of bias” to exclude the Report. In this regard, it should be noted that the relevant section provides:
Section 135 - General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
An expert’s report is only admissible to the extent that the expert has the relevant specialised knowledge required and that the opinion contained in the report is wholly or substantially based on that knowledge. An expert’s report must adequately set out the considerations upon which the expert’s opinion is based and this must be done in a way which appropriately demonstrates that the opinion is relevantly based upon the expert’s expertise. See Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705. In that case, it was held that an expert witness had to furnish the trier of fact with criteria which enabled it to evaluate the validity of the expert's conclusions. The expert in that case had not done so.
If an expert’s report is otherwise admissible within s.79 of the Evidence Act 1995 any apprehended partiality of that expert witness does not (subject to any possible exercise of a discretion under s.135 of the Evidence Act 1995) provide a separate basis to exclude that evidence. See Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485.
In Kirch Communications Pty Ltd v Gene Engineering Pty Ltd, Campbell J followed the decision of Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454. Justice Campbell, in referring to that decision, stated:
“…that, at least at the stage at which his Honour needed to consider the question, it was not necessary for him to apply a similar principle to exclude evidence in that case. The decision of Pagone J related to valuation evidence produced by the brother-in-law of one of the parties.
His Honour said:
An expert witness has a special and important role in judicial proceedings to assist the Court by provision of objective and unbiased opinions about matters that bear upon the determination which the Court is called upon to make.
The exclusion of an expert's evidence should only occur when the Court is satisfied that the evidence to be led by the expert is unsound and cannot provide probative material of value to the court's task of determining the issues in the proceedings.
The possibility of a witness having a bias in favour of a party (directly or indirectly) is undoubtedly a matter to be taken into account by a court when deciding what weight to give to the expert evidence, but it is not a ground for rejecting evidence that may be of assistance to the Court in reaching the correct result".
His Honour went on to say that,
While it is undoubtedly the task of the Court to do justice between the parties, and necessary for the court to be not only independent, but perceived to be independent, a biased witness does not impugn the independence of the decision-maker. Rather, any bias is a matter to be taken into account as a matter of weight in assessing the evidence, not as a matter of admissibility".
The authorities on the apprehension of bias are well known and the Court will for succinctness reproduce the remarks of the High Court of Australia in Johnson & Johnson (No.3) (2000) FLC 93-039 where the majority stated:
“… that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
Although this case considered whether the trial Judge should have been disqualified by reason of apprehended bias, the Court accepts that any consideration of whether the single expert should be discharged by reason of apprehended bias, should progress using similar principles (see eg. Kernot & Matson [2008] FamCA 756 at 16; Nepean & Treloar [2010] FamCA781 at 12). Although it must be noted that in the case of an assertion of an apprehension of bias against a decision maker, in contrast to that of an expert witness, there is no opportunity for that decision maker to be the subject of any cross-examination.
The Full Court of the Family Court of Australia in Bass & Bass [2008] FamCAFC 67 dealt with an appeal from a single Judge who had refused a father’s application to discharge a single expert witness and to permit there to be evidence from a second expert. In dismissing the application for leave to appeal, the Full Court found that there were two alternative paths that the parties could take to clarify perceived deficiencies or bias in the expert’s report rather than discharging the single expert, namely that:
a)first, the report could be clarified in accordance with Division 15.5.6 of Part 15.5 of the Family Law Rules. The Full Court noted that even if this course may be of limited assistance, given the nature of the father’s complaints in that case, it was still a course that was open to the parties and “ought to have been attempted” before the father’s application was brought. Clarification about an expert’s report may be obtained at a conference held under rule 15.64B or by means of questions administered under rule 15.65 of the Family Law Rules and in both cases these matter may be the subject of directions from the Court.
b)Secondly, and as the Full Court said:
“… more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings… Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial Judge. It is not particularly unusual, in our combined experience, for trial Judges not to accept, or to only give limited weight to, the opinion of a single expert in a children’s case.”
In the matter of Kernot & Matson [2008] FamCA 756, Justice Watts considered whether objectionable material could be “trimmed” from a report. His Honour stated that he was “not satisfied, if there is objectionable material in the report, that it is so intertwined that it cannot be readily separated”. His Honour found that the opinions of the report writer “cannot … be said to be based upon entirely inadmissible evidence. On the face of the report it seems that, at least in part, the report writer has reached conclusions based on observations of the parties, observations of the children, statements made by the children and other secondary material read by her. The report writer’s opinions should not be dismissed out of hand. Those opinions of course can be tested in cross-examination. The weight to be placed on these opinions will be a matter for another day”.
This position appears to be consistent with the Full Court’s decision in Bass & Bass as referred to above.
The matter of Nepean & Treloar [2010] Fam CA 781 was a decision by Justice Fowler. In that case, the single expert had considered material that was provided to the expert by the mother without the consent of both parties, in breach of Rule 15.54(3) of the Family Law Rules. The document as put by the mother contained allegations of “fact”, which were not truthfully in agreement between the parties. Given that the father was not aware of the document, he was unable to reply to the allegations contained therein. The father submitted that the single expert’s evidence was “contaminated” by that material and that, therefore, the single expert should be discharged. Justice Fowler considered Kernot & Matson, however his Honour was of the view that the course whereby objectionable material could be “trimmed” from a report was not appropriate if the trimming of such material then rendered the report unhelpful to both the parties and the Court.
His Honour came to the conclusion that there was “…sufficient reasonable reference to the unchallenged assertions made in the submission document in the report to give rise to a reasonable apprehension that the report is the product, at least in part, of a breach of the Rules and the influence of the document referred to”. Although it was still open to his Honour to permit the admission of the report into evidence, his Honour considered that it was “not only the doing of justice, but also the perception of it being done appropriately” that was “important for the longevity of result and the welfare of the child” and that as such, “reports should be made in proceedings where parties can accept that the process is beyond reproach, even if the result is not to their liking. It was suggested that in this case the father was simply seeking to reject a report which he saw as unfavourable to him. There is however, in my view, sufficient cause to grant the application, which I propose to do” and, therefore, the single expert was discharged.
There is no question that Dr S received from any party documents which had not been provided to her by the parties’ legal representatives. Dr S’s own enquiries elicited documents from Mr P, copies of which have now been produced under subpoena. There is no question that either party sought to put to Dr S material which the other party was unaware of.
Senior counsel for the mother submitted that:
a)The matters set out in the mother’s affidavits referred to in paragraph 16 above and specifically to paragraphs (a), (b), (c), (e), (f) and (g) of the affidavit of 30 August 2012 (see paragraph 19 above) and paragraph (d), (e), (f), (g), (h), (j), (k) and (l) of the affidavit of 28 February 2013 (see paragraph 20 above) provided a background which Dr S “describes in a very forgiving sense”.
b)While Dr S stated that “there was no evidence in this case of any physical violence enacted on the children or the mother”, she was obligated to acknowledge that there was evidence in the form of the mother’s affidavit to that effect and her mother’s affidavit (including referenced in a Notice of Abuse filed in these proceedings, a copy of which is identified on page 2 of Dr S’s report) and that it was ultimately a matter for this Court to determine matters of disputed fact. Mr Richardson SC acknowledged that Dr S does not, in fact, say that she has determined these facts. However, Mr Richardson SC submits that for Dr S to state what she did, she has either not read the affidavits or has read them and dismissed them or she has been convinced that the facts were somewhat different. Mr Richardson SC also referred the Court to Dr S’s notes concerning X at Tab 8 on page 41 of Exhibit “B” which state: “One time dad smacked mother. I got put in my room.” Dr S refers in her notes at tab number 5 on page 27 of Exhibit “B” that there was an assertion that the mother threw objects including irons and telephones and punches at the father.
c)The matters set out in paragraph (o) of the affidavit of 28 February 2013 (see paragraph 20 above) together with her knowledge of the personalities involved in this case should have put Dr S on notice of the need to carefully deal with the parties and their families in a balanced way.
d)That Dr S in deciding, without notice to the mother or her solicitor, to embark upon a process of engaging with the father’s father, who at that point had never been a witness in the case and to describe him as she repeatedly does through the report (see paragraph 36(1) above) and to then avail herself of completely different arrangements in relation to the interview of him, were at the least insensitive to an issue that was already in the mother’s mind as a result of the statements she alleges had been made by the father (see paragraph 20(o)(vii); (viii), (q), (x) and paragraph 23(d)(ii) above).
e)That the mother’s evidence as to a series of threats directed to her brother (paragraph (s) and (z), (aa), (dd), (ff), (jj) of the affidavit of 28 February 2013 (see paragraph 20 above), and a series of threats and offensive statements referred to in paragraphs (d) and (e) of the affidavit of 14 May 2013 (see paragraph 23 above), and paragraph (b) of the affidavit of 11 June 2013(see paragraph 24 above)) draws no comment from Dr S. Mr Richardson SC submitted that Dr S should have provided a statement to the effect that if the Court accepted that these things had happened in the way the mother described then her recommendation could be affected in some way or the other.
f)That Dr S had inferred from various things that the children had been coached with the mother but did not raise this issue or suggest that proposition to her (paragraph (b) of the affidavit of 28 August 2013) (see paragraph 27 above).
g)That Dr S had observed the mother sending text messages when Dr S was not present in that room at any point to enable that observation to be made (paragraph (a) of the affidavit of 28 August 2013) (see paragraph 27 above).
h)That Dr S had observed that the mother did not smile at any time when Dr S was sitting in the room in a position where she could not have reasonably observed the mother (paragraph (c) of the affidavit 28 August 2013) (see paragraph 27 above).
i)That the mother had raised with Dr S whether her partner, Mr J, should be interviewed and Dr S had advised that that would not be necessary (paragraph (d) of the affidavit of 28 August 2013) (see paragraph 27 above). However, Dr S records a number of things adverse to Mr J and then goes onto suggest that if Mr J was going to be involved then he might be assessed and the Court should assess the risk arising from his lifestyle (page 40 paragraph 6 of her report). Mr Richardson SC submitted that this was an extraordinary suggestion to make, given those circumstances. At Tab 5 on page 27 of Exhibit “B”, Dr S records an allegation put that Mr J has had some involvement with cocaine and at Tab 11 on page 56, that Mr J had had a motor accident while driving and falling asleep at the wheel and then at Tab 12 on page 56 that Mr J had a separate entrance to his house to enable “pros” [prostitutes] to attend. Mr Richardson SC submits that at Tab 13 on page 68 Dr S records: “Don’t go there re Mr J. Need to show cause. Wd die in the water”. Mr Richardson SC submits that Dr S’s recording of this may give some explanation as to why some of the father’s allegations raised about Mr J were not put in her report. He says, further, that this may give rise to further concern given that the objective observer becoming aware of that would be concerned as to why it was not raised in her report, other than to protect Mr P in some way.
j)That Dr S misunderstood the mother’s proposal as being to limit or reduce the time the children were spending with the father rather than, as the mother suggested, as being to consider block time.
k)That Dr S had concluded that the mother had never sought any treatment for X’s anxiety notwithstanding that the mother’s evidence was that she had and that she had sought the consent of the father to engage somebody but that the father had rejected this.
l)That Dr S was critical of the mother with respect to matters relating to her relationship with Mr J, her trip overseas and the involvement of a nanny in the care of the children, yet discussed none of these with the mother.
m)That Dr S had raised without any allegation having been made by a party that there had been some blackmail and that this had been raised with both the father and Mr P. Mr Richardson SC says that this suggestion of blackmail was rejected by the paternal grandfather but that the father responded: “Absolutely”. In the absence of such an allegation being raised, Mr Richardson SC submits that her inquiry and inference that the mother had sought to embarrass the King family should have been taken up with the mother. Mr Richardson SC says that this is so given that the mother asserted that the father had made statements that unless she changed her surname and stopped using the name “King” he would not agree to pay school fees and the father had asserted that he was the one to pay the school fees and had paid them in the past. The mother said that she had then paid half of the fees when confronted with the prospect of the child being excluded from school. While Mr Richardson SC conceded that interviews cannot run forever he submitted that this was a matter of some significance, which should have been taken up by Dr S.
n)That Dr S had recorded in her notes (Tab 16 at page 77 of Exhibit “B”) that the mother had a “callous disregard for children” and an “interest in superficial things: fashion; status; dollars; appearances. Failure to honour financial obligations” and a “Lack of remorse”, when such matters were not presented in her report. Her reference in her notes to “had children coached and the maternal grandmother all giving consistent story” was also not raised with the mother.
o)That Dr S had reached a conclusion to the father’s advantage without pressing the father when she said she had asked him about the mother’s allegations that he had a bad temper. The mother’s assertions being that he had an uncontrollable temper and that she had alleged violent behaviour thereafter. Mr Richardson SC conceded that Dr S had concluded that the father was somewhat evasive when he said that which was set out at paragraph 36(2)(d) and (e) above.
p)That Dr S did not take the matters up at paragraph 36(3)(a), (b) and (c) with the father about his source of knowledge and why these matters had not been raised earlier.
q)That Dr S did not explore the matters of coaching, notwithstanding that they appear to figure significantly in her mind as set out in paragraph 36 (5) above with the mother and that she had provided a slanted assessment in terms of paragraph 36(5)(e) which did not provide room for a fair assessment of the position/possibility being found against the father.
r)That Dr S’s use of the words “no unbiased evidence” in paragraph 36(9)(c) does not take into account the mother’s evidence and the evidence of her mother which did not appear on its face to be limited to the father’s frustration over the mother limiting his time with the children or using them as leverage.
s)That Dr S undertakes what appears to be a fact-finding process about allegations as to the father’s drinking by conducting her own examination of some of his financial records. Mr Richardson SC submits that Dr S was embarking upon a fact-finding enquiry being an exercise that had little utility given that she wouldn’t know whether she had all of the records, she wouldn’t know whether there was expenditure in the name of the father or his partner or somebody else and that this enquiry appeared to have nothing to do with her expertise.
t)That Dr S at paragraphs 36(10)(b), (e) and (g) had stated matters of some concern which she had not taken up the opportunity to address with Mr J and that those matters were simply speculation by her. The Court accepts those submissions but will provide a mechanism for that issue to be properly dealt with as discussed below.
u)That Dr S’s statement at paragraph 36(10)(f) was indicative of her view that the mother’s credit had been so damaged that she could not be convinced by the mother’s own evidence as it was not “unbiased” evidence.
v)That, similarly, Dr S’s statement at paragraph 36(10)(k) was indicative of her view that the mother’s view of the father’s “impulsive temper” was not supported by the objective evidence such as police reports. Further, that if the Court was to find a long history of impulsive violence since adolescence and continuing throughout adulthood, then the mother’s case would be more believable. Mr Richardson SC says that Dr S did not then go on to say, that if that was the case, what her recommendations would be. Mr Richardson SC submitted that her failure to do so implied that she had formed a view contrary to the mother and in support of the father.
w)That Dr S’s report fails to identify any recommendations if the mother’s allegations were to be accepted by the Court.
x)That Dr S’s statement at paragraph 36(7)(g) was not supported by the documents produced by Mr P, being part of Exhibit “A”. The mother conceded that she had believed wrongly that Mr P had paid out the residual on the lease of a motor vehicle registered in the mother’s name but with the lease in Mr P’s name in about August 2010 and that the vehicle was then unencumbered but that, in fact, the residual had been paid out by the entry into a fresh lease agreement with an amount still outstanding. Some 4 months prior to the lease expiring the mother notified Mr P that one option to consider was for her own mother to pay any new negotiated car lease payments. Dr S refers in her notes (part of Exhibit “B”) to the following:
“Residual paid by Mr P. She th[ough]t unencumbered. She th[ough]t it was hers! I’m meeting lease. She knew. Patently untrue.” (Exhibit “B”, Tab 15, page 71)
Dr S records in her notes, without any reference in her report to the following words: “Lie … Note: she knew it was financed”. (Exhibit “B”, Tab 15 page 71)
Mr Richardson SC submits that Dr S’s view that the mother had lied was the basis for her preparedness to infer that she was prepared to extract financial advantage for herself from the proceedings, without any reference to this being made in her report.
y)That at Tab 2 on page 21 of Exhibit “B”, Dr S records Mr P as saying to her: “We recommended you to the FCA (being a reference to the Family Court of Australia). We were the party who wanted to give you the job.” Mr Richardson SC submits that this statement was not referred to in her report and appeared on its face simply to be an endeavour on Mr P’s part to ingratiate himself to Dr S.
z)That the recommendations actually made by Dr S were not linked in any way to her reasoning, save that she states that:
“..if the father’s wish for week-about contact were to be implemented by the Court, then the children would have to adjust to becoming gypsies and living at one house for a week and then at another, which may work alright, but for children this young, a week is a long time and they would likely miss the other parent and feel sad at every changeover.”
aa)That the failure by Dr S to show the path of her reasoning ought make the opinion inadmissible or alternatively would make it subject to a discretion to exclude the same under s.135 of the Evidence Act 1995 as there would be an undue waste and expense at trial to proceed as there would necessarily be a very extensive examination of Dr S to deal with this matter together with the other matters referred to above.
bb)That the recorded notes of Dr S referred to above linked to the deferential treatment afforded to the King family, a concern for their embarrassment and the attribution of blame to the mother amounts to not only bias but misconduct by Dr S.
cc)That given the matters raised, the Court could not be confident that cross-examination of Dr S would permit it to hive out one or two issues so as to conclude that Dr S’s views had not been inappropriately permeated by an incorrect approach.
dd)That while a further interview of the children should be avoided and in this case it is conceded that X suffers from an anxiety condition that that has to be balanced against the gravity of the outcome of the proceedings based on Dr S’s report. Mr Richardson SC submits that from an examination of the report itself X appears to present no distress and asked for more questions and answers.
Counsel for the father submitted that:
a)That the mother’s criticism of Dr S’s failure to advise her that Mr P would be interviewed is without substance as there was no obligation on her to do so. The Court accepts that submission.
b)That the issue as to whether the mother was texting or not and whether she was smiling or not or touching the children or not are factual issues which could only be determined after hearing both the mother and Dr S cross‑examined. The Court accepts that submission. Mr Levy went on to submit that not every expert gets every fact correct. Further, that Dr S’s evidence as to whether the mother failed to smile or texted on her mobile phone could be taken up in cross-examination and that an explanation may be simply that she had relied on something told to her, by say, her receptionist. The Court does not accept Mr Richardson SC’s submission that some warning sign would need to be provided to the effect that there may be cameras or staff in her office reporting upon which any assessment would be made. The Court is well aware that family consultants and experts often observe parents interact with children behind one-way screens. This is an inquisitive process. At this point in time, the Court accepts that the basis of Dr S’s observation can be the subject of cross-examination.
c)The mother’s reference to the shortened term “Mr King” for “Mr King” is of no moment, given that Dr S clearly used a number of abbreviations in her notes.
d)The mother was offered the opportunity that if she considered Mr J to be her partner at the time, she was informed by Dr S to have him attend the interview. Mr Levy submits that at the time of the interview the mother was asserting that she was not cohabiting with Mr J. Mr Levy, further, submitted that the father had been given no indication by the mother’s legal representatives that Mr J would give evidence in these proceedings with the mother’s residence at the time being described as (omitted). If there is a disputed fact as to whether Dr S told the mother that an interview with Mr J was not necessary, then that will need to be determined after hearing both the mother and Dr S. Notwithstanding that, Dr S refers to the advantages of the mother residing with Mr J as set out at paragraph 36(10)(b) above, this was also indicative of her forming the view that the mother and Mr J were not then in a cohabiting relationship but dealt with the possibility that that might occur in the future. Similarly, at paragraph 36(10)(f) above, Dr S states that there was no objective evidence, given that the mother was not currently living with anyone.
e)That as there was no dispute about X saying the words to the effect that she liked being asked questions, there was then a conclusion open to Dr S in exercising her professional expertise arising directly from an observation of what had occurred. Any testing of this conclusion can be taken up with Dr S in cross-examination.
f)That Dr S has accurately recorded that the mother was unhappy with the current arrangements concerning the father spending Tuesdays with the younger child and accurately records the mother being unhappy with the children having mid-week time and that Dr S’s notes refer to the mother saying she preferred block periods.
g)That whether Dr S read all of the mother’s material can only be determined after cross-examination of Dr S. The Court accepts that position. Mr Levy submits that Dr S’s report dealt with the mother’s allegations in a generalized way but, nevertheless, comprehensively. Mr Levy further submitted that Dr S was able to observe the children in the presence of the father when there was nothing to indicate any fear or reluctance to spend time with him. Certainly, the mother says as much in her affidavit material, namely, that the children love the father and wish to spend time with him.
h)That none of the mother’s complaints concerning Dr S’s report go to any issue that there was an unacceptable risk to these children spending time with the father and that the mother’s case is that it is in their interests to have a full relationship with the father and spend time with him.
i)That the mother’s complaint concerning Dr S’s finding that no arrangements had been made in relation to the obtaining of some treatment for X cannot stand as the mother had not made a relevant request until 28 May 2013, being after the date of the interviews.
j)That the mother’s complaint that Dr S had, herself, raised the blackmail issue cannot stand as the mother raised that subject because she had spoken to Dr S about her complaint concerning what the father had said about her continued use of the “King” name. Further, given that the mother’s thoughts of moving to the (omitted), as being based on financial reasons, would have materially negatively impacted on the amount of the father’s time and as such could be argued to be some form of “financial leverage”. In any event, the Court accepts that these are matters which can be specifically taken up with Dr S in cross-examination.
k)That the mother’s complaint about Dr S drawing conclusions about the mother wishing to say goodbye to the children in circumstances where Dr S had agreed to that and allowed that matter to proceed, were matters upon which Dr S could make her observations and provide her opinion. That matter again could be taken up with Dr S in cross-examination.
l)That to refer to the paternal grandfather as the former (occupation omitted) was an accurate description and that in concluding that he found it easier to show affection to his grandchildren than to his own children was a finding that was not “particularly flattering” and “hardly deferential” to him.
m)That the mother in simply referring to a huge volume of complaints concerning Dr S did not make all of them, or any of them, true.
n)That any expert does not need to recite verbatim every allegation (whether made orally in interview or contained in affidavits) in the written report produced. The Court accepts this submission given not only that reports must be succinct but that they have to be produced within certain cost parameters.
o)That far from Dr S failing to deal with the mother’s affidavit material received by her on 5 July 2013 (being the 11 June 2013 affidavit, the 17 June 2013 affidavit and the 24 June 2013 affidavit), Dr S refers to that material at the beginning of paragraph (o) of page 40 of her report where she states that “the mother’s affidavit alleged that the father was abusive towards Y on the weekend of 17 and 18 May 2013, the weekend after the assessment in my office”. Dr S specifically headed that paragraph as “Comment on extra documents received 5 July 2013”. Mr Levy submits that Dr S not only refers to the material but deals with it in the context of the observations made. Any comment has to be made in terms of the exercise of some expertise. The Court accepts that Dr S has made observations during the course of and following the interviews and has drawn conclusions based on her observations utilising that expertise. Again, those are all matters which the mother can ask questions of Dr S. The Court accepts that if an expert considers a matter at the point of, say, the interviews and further material comes in, the expert is entitled to consider that further material in light of the matters considered earlier, provided those matters are suitably identified.
p)Further, given that Dr S is tasked with the responsibility of assessing relationship issues that, necessarily, requires her to form views. Those views may be adverse to a party and may be robustly held. Such a position, of itself, does not mean that she is biased or that there is any reasonable apprehension of bias. Mr Levy conceded that while Dr S may have said some adverse things about the mother, he submitted that she had made no adverse recommendation against her. The Court accepts that it can find no recommendation made by Dr S which is specifically grounded in any adverse view of the mother.
q)That for the purposes of the test in Makita, Dr S had considered both of the parties’ proposals, considered that the children should have no less time with the father and after making specific reference to their ages, recommended, that week about time would not be appropriate. Her recommendation being linked to the children, the subject of her observations and those recommendations arising out of her analysis as set out in sub-paragraphs (a) through to (o) on pages 31 to 42 of her report, which deal specifically with a number of the s.60CC factors.
r)That the mere fact that the report of Dr S does not refer to every detail in every affidavit nor to every matter contained within her own notes is not a matter of criticism. The Court accepts that submission.
s)That in order to assess any apprehension of bias, one has to specifically examine the opinion and issues for consideration by Dr S and ask oneself whether they, in themselves, indicate any bias or could indicate such bias. While Dr S reports under the heading “Childhood physical abuse” that “there was no evidence that the children had been physically abused in this case”, she had further recorded that there was “no unbiased evidence to suggest the father was abusive”. What the Court understands Dr S to be saying was that there were allegations made. Those allegations were made by the mother and by the mother’s mother on her behalf. In any event, this is a matter which could be raised and tested with Dr S in cross-examination.
t)That the matters reported, namely, that the mother did not kiss, cuddle or repeatedly touch the children, that she insisted on seeing the children, that the mother sought a reduction in the father’s time, were based on her observations and understanding from the material placed before her and that those are all matters upon which she can be relevantly cross-examined.
u)Finally, as there is no objective evidence to corroborate any assertion of bias and provided Dr S’s conclusions are open on the matters that she read, saw or heard then that is simply a matter of opinion about which the Doctor can be cross-examined.
The Independent Children’s Lawyer submitted that:
a)That Dr S’s appointment as the Court expert should not be discharged.
b)That far from being deferential to the King family, Dr S had provided at page 12 of her report what could only be described as a very negative description of Mr P in terms of the father having been the victim of some abuse perpetrated against him.
c)Further, that a reading of Dr S’s report provides no “gloss over” of any of the mother’s allegations with respect to the father’s asserted violence as against her or the child, Y. Mr Tiyce further submitted that both the mother and her mother’s affidavit material could not be described as “unbiased evidence”.
d)Further, that all of the mother’s complaints could properly be the subject of cross-examination of Dr S at the final hearing.
e)Finally, given that the child, X, has some anxiety issues to have her assessed again by another expert should be an act of last resort and potentially may amount to systems abuse of a child.
The application to reopen
The Court had informed the parties that its orders would be made and its reasons published at 2.00pm on Friday 13 December 2013. On 10 December 2013, my Associate received an email from the mother’s solicitors requesting that the Court’s decision not be handed down pending the filing of an application for leave to reopen the evidence. The application together with an affidavit from the mother was filed on 12 December 2013, although it was not given any formal return date by the Registry. The application was referred to my Chambers and the parties informed that the Court would deal with the application by way of first return date/mention at 2.00pm on 13 December 2013.
On 13 December 2013, Mr Richardson SC attended for the mother. Mr Fernie as city agent appeared for the Independent Children's Lawyer and Ms Slat appeared for the father.
The Court made some directions for the hearing of the mother’s application to reopen the evidence, listing it for 10am on 31 January 2014. The Court directed that any response of the father be filed by 10 January 2014. The Court further directed that the father provide a written response to the letters from the Independent Children's Lawyer dated 5 and 9 December 2013 which were in the following terms:
a)5 December 2013 (Exhibit “B”):
We refer to a number of letters which have been provided by the solicitors for the mother to your office to which no reply has been made which copies in the Independent Children's Lawyer.
Your client would be well aware that there has been media speculation as to the state of his relationship with Ms P who is referred to within the recent expert’s report as someone with whom the children have a very positive relationship and who appears heavily involved in their parenting.
While we understand that might present its own set of problems for your client, uncertainty over the upcoming care arrangements for them having regard to the holidays which commence this week cannot in any way be seen in the best interests of the children. Your client’s early response would be most appreciated.
b)9 December 2013 (Exhibit “A”):
Thank you for your correspondence of 6 December 2013.
We note we have not received a response to our correspondence to your office of 5 December 2013.
In circumstances where your client has given evidence that he is engaged in full time employment please advise who will assist with the care of the children while the children are in your client’s care.
The father was directed to file and serve an[y] affidavit material detailing the current status of his relationship with Ms P and the facts, matters and circumstances in relation to his employment and current care of the children whilst spending time with him, by no later than 10 January 2014. The father was also ordered to notify the mother as to whether he intends to call Ms P as a witness in the substantive proceedings and file and serve an[y] affidavit by her on or before 24 January 2014. The parties were directed to provide short written submissions 2 working days prior to the adjourned date.
The father filed his response on 19 December 2013 which simply sought that the mother’s application in a case filed on 12 December 2013 be dismissed with an order that she pay his costs.
The father relied on an affidavit affirmed 19 December 2013 and filed on that day, which attached a letter from his solicitors, Broun Abrahams Burreket to the Independent Children's Lawyer, Mr Michael Tiyce dated 18 December 2013 confirming the accuracy of that letter. That letter stated that the father and Ms P are “still in a relationship” and that Ms P spent time with her parents in Queensland in November 2013 as her father had been unwell and that she then spent time at a family unit in (omitted) with their child, Z. The father confirmed that Ms P would be spending time with her family over the Christmas holidays and that it was anticipated that she would be returning to their home in (omitted), but at present, there was no set date for her return. The father’s solicitors also confirmed that the father would be on holidays when the children came into his care and would not be returning to work until after the children were returned to the care of the mother and that he would be supervising them while they were with him during the upcoming holidays. The father also confirmed that if there were any occasions when he would be absent for a particular appointment or social event the children would be cared for by his mother, Ms A and/or his sister Ms C, who both reside in (omitted), or by his father, Mr P and/or Ms J and/or her daughter, Ms G.
The mother’s affidavit affirmed on 12 December 2013 seeks to reopen her evidence on the basis of her understanding that the relationship between the father and Ms P had concluded but that she had not been formally advised of this by the father. Her understanding was based on observations during October and November 2013 that Ms P, who had previously been present at the father’s home when she delivered the children there, had been absent and that she had not observed Ms P’s dog at the home and that, further, the children had informed her that Ms P and Z were not present when they had been spending time with the father. The mother also stated that the children confirmed that the father was no longer driving an Audi (omitted), which the mother understood was registered in the name of (P) Pty Ltd (a company of which Ms P was the sole director and shareholder) and that he was now driving a Mercedes, previously owned by the mother. The mother raised concerns that correspondence from Mr Tiyce dated 5 and 9 December 2013 had not been answered by the father’s solicitors. The mother also stated that she and the children were now living with Mr J and had moved into his home and that Dr S had not interviewed Mr J.
While no formal order was made, the mother filed a further affidavit affirmed 29 January 2014 upon which she sought leave to rely. That affidavit confirmed that the children had spent time with the father during the Christmas 2013 holiday period from 9.00am 10 December 2013 to 5.00pm 25 December 2013 and from 5.00pm 2 January 2014 to 5.30pm 12 January 2014. The mother says that she delivered and collected the children to and from the father and did not observe Ms P, the child Z or Ms P’s dog at any of those times and deposes to a conversation with the children which she says indicates that the relationship between the father and Ms P had ceased. The conversations being to the effect that Ms P had left, taken items of property and that she no longer liked the children, that both children liked someone called “Ms M”, who Y stated was a “new girlfriend”, although the father had said that it was “too early to call her his girlfriend yet”. Further, Y stated that “we stay at Ms M’s house. We sleep on her couch. Daddy stays in her bed”. The mother said that she was unable to reconcile the children’s comments with the father’s account of his relationship with Ms P, as referred to in paragraph 61 above. The mother stated that the father had not notified her as to whether he intended to call Ms P as a witness in the substantive proceedings and file and serve an[y] affidavit by her by 24 January 2014, as was ordered by this Court on 13 December 2013.
On 31 January 2014, the Court heard the mother’s application to reopen the evidence. Mr Richardson SC’s written and oral submissions were to the following effect:
a)The determination of an application to reopen and adduce further evidence is a matter of discretion for the trial Judge and that the sole criteria to determine such an application is to have regard to the interests of justice: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471.
b)Whilst the discretion is broad, ordinarily it has been recognised in such applications that an applicant should demonstrate that the contended need to reopen arises from the discovery of facts that would not have been available to the applicant when conducting her case with reasonable diligence at the time of the hearing. For example, cases where evidence has been withheld for tactical reasons give rise to considerations contrary to granting the application: see Smith v NSW Bar Association (1992) 176 CLR 256.
c)The criteria for the grant of the relief has been met as the additional facts, which the mother contends go directly to the pending application and are comprised by events that occurred subsequent to the hearing on 13 September 2013. This falls into what Kenny J described as the first of four recognised classes of cases in which a Court may grant leave to re-open: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at pa. 24 – referred to with approval by the Victorian Court of Appeal in Spotlight Pty Ltd v NCON Australia Limited [2012] VSCA 232.
d)Further, that granting the mother’s application will impose no discernible material prejudice to the father.
e)That Dr S’s report contained no less than 7 references that Ms P was seen by her as being a very positive part of the father's case and an important element of what she perceived as being provided within his household in respect of the children’s care.
f)That the mother has adduced evidence in her affidavits which suggest that Ms P is no longer a member of the father's household, that he is spending limited time with the child of that relationship (Z), that the children no longer spend time with Ms P and that the father has embarked upon a new romantic association, with someone called “Ms M”.
g)That whilst the Court made directions on 13 December 2013, which were clearly intended to require the father to fully and frankly reveal the present nature and circumstances of his relationship with Ms P, his response to that had been less than fulsome and in those terms he had not been frank.
h)That the father’s solicitor's letter contends that the father and Ms P are "still in a relationship". The term "relationship" can mean many things and whilst that might be read to suggest that their relationship was continuing (as it had prior to the meetings with Dr S), this was soon dispelled. A further reading of the letter makes it clear that, consistent with the contentions of the mother, Ms P was not living with the father although there was some contended anticipation that she "will be returning to (omitted) but at present there is no set date for her return".
i)Whatever the relationship presently is, it is clearly different and the father is not assisting the Court to understand its nature.
j)The evidence of the mother is consistent only with a complete breakdown of the father’s relationship with Ms P. Whatever the true position is, it is clear that factors taken into account by Dr S such as "the father and step-mother have apparently set up a warm and happy household with the half-brother, Z, and it would be important to maximise the children's contact with Z" was no longer something provided by that relationship.
k)Similarly, the fulfilment of Dr S’s significant view that "of all the adults interviewed, the step-mother showed the most attunement [sic] to the children and that she was most child-focused" was a dynamic no longer referable to the father’s household.
l)Further, that the mother and the children now live permanently in the home of Mr J and that such a circumstance did not exist at the time of the interviews with Dr S and that Mr J, who now features more prominently in the mother’s proposals for the future care of the children, becomes a more significant character in the proceedings and that he was not a participant in the interviews with Dr S and should now be included.
m)That prior to any final hearing of this matter, a further extensive expert report will be required and that this much was conceded by Ms Slat, who appeared for the father on 13 December 2013, when she said: “…things have moved on in both households and things change. Obviously, a further report will be required”. Mr Richardson SC submitted that this was a position put, arising out of a change in circumstances and not simply the passing of time.
n)That this conceded conclusion becomes significant to the mother’s application to discharge and replace Dr S. One of the considerations raised on the hearing of that application was the generally recognised proposition that it would be undesirable to have the children subjected to a further interview process (which would be necessitated by the order sought by the mother for a new expert) and that that was one of the matters that the Court was invited to take into account in determining the application, particularly by the Independent Children's Lawyer, noting also that there was no evidence to explain X’s anxiety as referred to by Mr Tiyce (see paragraph 56(e) above). If it is the case that the changes relevant to the children are so substantial that a further report would be required, then this negates the thrust of that argument and it matters little in terms of any likely consequence to the children whether the further report be undertaken by Dr S or a new expert and it was, therefore, hard to imagine that it would reasonably be expected that the involvement of the latter would be more onerous.
o)On 13 December 2013, the mother sought and obtained a direction requiring the father to advise whether he intends to call Ms P as a witness in the substantive proceedings and, further, requiring an[y] affidavit by her to be filed and served on or before 24 January 2014. As no affidavit of Ms P had been filed and served on or before 24 January 2014 and given the significance that Dr S had placed upon the content of her involvement in the interview process, then in the face of an objection, the Court would, in accordance with principles discussed in Pownall and Anor v Conlan Management Pty Limitedas Trustee for the Kalbarri Trust (1995) 12 WAR 370 rule at hearing that the report was inadmissible, or subject to a discretionary order for exclusion, pursuant to s.135 of the Evidence Act 1995, or, failing those matters, would have such diminished weight as to leave its status as evidence unhelpful. In that case, Justice Ipp (part of the appellate bench with Malcolm CJ and Anderson J) stated:
In my opinion, expert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it …
On the other hand, where the expert opinion is based only partly on inadmissible testimony and that inadmissible testimony can readily be ascertained and discarded, the opinion should be admitted subject to weight…
Where the expert opinion is based on a combination of admissible and inadmissible material, and it is impossible to determine what conclusions are based on the expert's own observations and what conclusions are based on what he has been told, or to what degree the expert has been influenced by the hearsay material, the evidence should be excluded: Steffen v Ruban [1966] 2 NSWLR 623.
p)Mr Richardson SC took the Court specifically to a number of paragraphs of Dr S’s report referable to Ms P including the father’s statement that “my life with Ms P [is] a normal family life. We have a beautiful little boy, Z, who’s seven weeks old. It’s a great environment. A stable, warm, loving home” (page 9), 3 pages of her report referable to an interview with Ms P who confirmed a number of matters concerning the father’s behaviour including that he was “gentle, compassionate and fun and that he was heartbroken and frustrated at the situation and angry with [the mother], but not at the children”, that she had “never seen him in a temper…”, that she had “never seen any problems…” and that he was “a wonderful parent and he wants to be there for the children to keep them safe, healthy and happy and that he prioritises them all the time”. The report writer also made positive observations of Ms P including that she and the father had “set up a warm and happy household” and that she “of all the adults interviewed… showed the most attunement [sic] to the children and that she was most child-focussed”.
q)Mr Richardson SC submitted that Ms P was not a peripheral bystander but was a very important part of the father’s household and that Dr S had placed weight on what Ms P had said about the father’s family, the allegations that the mother had made about the father in the past and the family dynamics. These were received not only in an evidentiary way, but appeared “woven” into her report ending with a conclusion, where one couldn’t simply say you could exclude the paragraphs which referred to Ms P and still feel comfortable that the conclusions would still be valid and would be maintained by the expert. Mr Richardson SC submitted that if the material referable to Ms P was, otherwise, so connected to Dr S’s process of reasoning to reach her conclusions so that it could not be trimmed or excluded then, the whole report would be inadmissible. A second report from Dr S which draws views from the first report may also be vulnerable to this type of objection. In those circumstances, it would serve the interests of nobody in this case, to reach a position where all or parts of her evidence were excluded. Those risks could be avoided by the mother’s present application for a fresh expert. This, in turn, gives rise to the question whether there is any utility in keeping the earlier report, if there is to be a new report and fresh interviews. Mr Richardson SC submitted that any utility would be minimal given that, in a strict sense, any fresh report may become inadmissible because of the existence of interwoven hearsay, particularly, if Ms P was not to be called as a witness. Mr Richardson SC levelled some criticism at the father’s failure to comply with the Court’s order whereby the Court should infer that Ms P would not be available to give such evidence. Notwithstanding the issue of hearsay material, if her evidence could not be tested its receipt was also likely to be unfair and likely to cause an undue waste of time and money, falling foul of s.135 of the Evidence Act 1995. Mr Richardson SC said the ultimate question was whether there was any real value in keeping Dr S as opposed to letting a new report writer start from scratch. The Court is of the view, however, that having heard from Mr Levy that Ms P will give evidence, any change in the dynamics in the father’s household would be best reviewed by Dr S, who had an understanding of that position and had placed weight on the matters referred to in her report to ground her original recommendations. The Court would be assisted by Dr S reviewing that position and, of course, she will be available to be tested.
r)Finally, if the Court exercised its discretion to grant leave to re-open and adduce the further evidence then the submissions advanced above would stand as “the additional submissions to be put about that evidence in relation to the application to exclude Dr S”.
The father did not file his written submissions within the 2 days of the adjourned hearing of the mother’s application to reopen the evidence, as was ordered. The father’s submissions were filed at 4.30pm the evening before the matter was listed. The Court accepted Mr Levy’s apology and explanation in that regard. The father’s written and oral submissions as provided by Mr Levy were as follows:
a)That in accordance with Mr Richardson SC’s summation of the law, which the Court accepts, that the discretion of the Court to reopen a hearing after judgment had been reserved should be determined considering whether “the interests of justice are better served by allowing the application or rejecting it”. See the Full Court of the Family Court of Australia (May, Boland & O’Ryan JJ) in Stephens & Stephens & Anor (Enforcement) at 83,947-948, and in particular noting the following paragraphs:
[273] We observe that in Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 Austin J set out at 593 what he described as a “useful statement of relevant discretionary factors” to the exercise of discretion to permit a beginning party in a civil penalty proceeding to adduce further evidence after it had closed its case. The factors included:
•The nature of the proceeding;
•Whether the occasion for calling further evidence ought reasonably to have been foreseen;
•The importance of the issue on which the further evidence is sought to be adduced;
•The degree of relevance and probative value of the further evidence;
•The prejudice to the other party;
•The public interest in the timely conclusion of litigation;
•The explanation offered for not having called the evidence.
It may also be relevant to consider what the High Court recently said in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
[274] The authorities also make clear that if the application to reopen is to call evidence which was not called earlier because of a deliberate tactical decision that factor will ordinarily be relevant: see Smith v New South Wales Bar Association (No 2) at 266 and Joyce v GIO (NSW) (unreported, Supreme Court of New South Wales, Sheppard J, 21 July 1976).
b)That in reality, the mother’s application was not an application to reopen at all. The Court does not accept that submission.
c)That the fresh evidence sought to be led was irrelevant to the issues upon which the Court had currently reserved its judgment and were, in fact issues, for a final hearing. The Court does not accept that submission.
d)That the mother sought to force the father to file further evidence in circumstances where there were no final hearing dates allocated and in circumstances where the only possible purpose served by making such an order was to gain for the mother what she perceived was a forensic advantage in the case to the disadvantage of the father. Mr Richardson SC submitted that while his client had promoted such an order, it was an order made by the Court, which the father had not complied with. The Court accepts this submission. As Mr Richardson SC stated, while Mr Levy stated “what we are talking about are assertions about changes” in the father’s relationship with Ms P, it appeared that the father still wanted to play a game informally or formally about his relationship and he queried why he wanted to be “so coy about the subject of orders breached”. This was raised by the Court directly with Mr Levy who apologised for not advising the Court earlier (in accordance with orders), but confirmed that his client’s instructions were that Ms P would be available to give evidence in this matter. The Court relies on that position now confirmed by counsel.
e)That the change in the mother’s living arrangements and any alleged change in the father’s living arrangements could not go to the contentions made as to the expert’s bias, contentions made pursuant to s.135 of the Evidence Act 1995 and a lack of a path of reasoning. However, the Court accepts Mr Richardson SC’s submission that these matters may go to the ultimate admissibility of Dr S’s report in its present form, but, at this stage, it is the Court’s view that they are not determinative of its exclusion.
f)The mother had not filed any application seeking to vary the current parenting orders.
g)The proceedings had already been heard on all relevant issues.
h)The issue now raised was of no importance to the reserved matter.
i)The evidence relied upon was irrelevant to the reserved matter.
j)There was prejudice to the father.
k)There will be a further delay to the timely conclusion of the matter.
l)That at no time in the September 2013 hearing did Mr Richardson SC make any submission that Dr S should be discharged based on any change in the personal relationships of the parties and nor could it have been made. Mr Levy confirmed that while a concession had been made for a further report that was simply a matter which arose by virtue of the effluxion of time and that matter would have been an issue for consideration by the Court, in any event, at the hearing in September 2013. The Court agreed that this matter would have been considered, but that the concession itself could not have been. The concession was not proffered until 13 December 2013 and indeed Mr Tiyce’s concession as to the need for an updated report was not proffered until 31 January 2014, on the hearing of this application itself. It is those concessions which are, themselves, new and the Court accepts, now relevant to its determination. The evidence of those concessions would support the application to reopen being granted.
m)Mr Levy referred to section 69ZN of the Act:
Principles for conducting child-related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b) in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.Mr Levy argued that it would be an offence against a number of those principles and a distraction from the real task that this Court faces, diverting it from attending to the children and possibly, imposing an undue delay. Further, it moves away from the desire of imposing as little formality and technicality as possible. Mr Levy submitted that if those matters were taken into account, leave to reopen would not be permitted.
n)That parenting cases are dynamic and circumstances constantly change. Experts are cross-examined in most of these cases and changes which occur post a report are able to be put to an expert in that process. One of the things that may be covered would be if one party was of the view that the other had not accurately portrayed their position to the expert. That position supports the general practice of having the expert give evidence last. Although the Court notes that it is not unusual for such an expert to give evidence on the first day of the hearing to enable the parties the opportunity of resolving the matter, without necessarily being the subject of examination and cross-examination which can also be very destructive to on-going parenting relationships. In those circumstances, the expert is still available to give further evidence, with leave, at the conclusion of the parties’ cross-examination. Mr Levy explained that his client’s position and concession as to an updated report was a simple acknowledgment of the delay between interviews and report and then hearing dates. While the Court accepts that the issue of a change in circumstances in the mother’s household and an asserted change in the father’s household, are not matters, in themselves, which dictate that any reopening be granted, the issue of a further report is a matter which impacts on the question of the reopening in circumstances where submissions were made at the time of the hearing that no further report would be required.
o)The Court accepts Mr Levy’s submission that simply because there is a potential objection based on hearsay (or indeed the interwoven nature of a report), in the circumstances of an updated report, to rule in advance of such an update would only invite serial applications to discharge.
Mr Tiyce did not wish to be heard as he said it would be unusual for an Independent Children's Lawyer to oppose any evidence coming before the Court. Mr Tiyce confirmed that it was now his position that an updated report was required, based on not only matters arguably in the father’s household, but also matters in the mother’s household. The Independent Children's Lawyer accepted that such matters were not those which should be put to Dr S in cross-examination, but rather that they be put to her as part of the process of a further report and the Court agrees with this position.
The Court is satisfied that, in the interests of justice, leave should be given to the mother to reopen, noting that no real prejudice to the father has been articulated and that the evidence and relevant submissions flowing from that reopening are not extensive and are limited to the matters set out in paragraph 64(r) above. Mr Levy, further, confirmed that his client did not seek to introduce any other evidence.
Conclusion
As to the mother’s first limb of her argument, namely that the report should be struck out on the basis of a reasonable apprehension of bias, the Court is not satisfied that a reasonable lay person would conclude that the report is tarnished by bias. One of the mother’s primary concerns appeared to be about deferential references to the King family. The reality is that the paternal grandfather was the (occupation omitted) and the Court is not convinced that the simple repetition of this fact amounts to a form of, or apprehension of, bias. Further, although the mother focusses on the ways in which the report is critical of her, the report is also critical of the father, and indeed, contains information that is unfavourable to Mr P.
Neither Counsel submitted in this case that Dr S’s report could be “trimmed” to remove any objectionable material. While the Court accepts that there may have been some repetition of matters in Dr S’s report, that repetition has to be considered in light of three factors. The first being that the Court is well aware that experts often generate their reports using word processing facilities, which enable a “cut and pasting” of text. This has the capacity to lead to the duplication or repetition of text. Secondly, the Court is also aware that experts are often under time pressure to produce their reports and as expressed by the well-known American author and poet, Mark Twain, often do not have sufficient time to write a shorter, rather than a longer, report. Thirdly, the legislative framework under s.60CC of the Act mandates, to some extent, the repetition of factual matters under different factor headings to which the Court must have regard and, accordingly, to which reports prepared for the Court are focussed.
The Court accepts that whilst Dr S’s report makes recommendations, those recommendations do not bind the Court. Dr S does not act in the role of a decision maker. As an expert, she must fulfil her duty to the Court but that duty is not to make a binding decision. Dr S must provide an opinion within her expertise based on facts which are either, proved and determined (agreed) or based on assumptions made as to those facts. The expert cannot determine disputed matters of fact. Dr S can be cross-examined. The judicial officer making the decision must determine disputed matters of fact and is not subject to cross-examination. Therein lies a pragmatic difference. The Court accepts the analysis provided by Justice Campbell, as referred to in paragraph 46 above, and accordingly, the issue of any asserted bias in Dr S has to be considered by the decision maker at trial, giving appropriate consideration to the issue of the weight to be applied, at that time.
The Court further accepts that the mother’s complaints can be dealt with in two ways, namely by the interviewing of Mr J (and others) and a further report and by the cross-examination of Dr S.
The Court is of the view that any fair minded lay observer reading Dr S’s report would not reasonably apprehend that Dr S would not be able to bring an impartial and un-prejudicial mind to the matters upon which she is providing her expert opinion. The Court is also of the view that the mother’s concerns can be dealt with in cross-examination, at less expense to the parties and without potentially further engaging the children.
Mr Richardson SC finally submitted that the Court is involved in a cumulative assessment as to how Dr S went about her task. One is left with the impression that as the colloquial expression goes, “if you throw enough mud, some of it will stick”. One is also left with the distinct impression that cross-examination will act like the fire hose to clean up and expose what is really at issue, providing an opportunity for the expert to explain matters which, at this point in time, have not been brought specifically to her attention and to which if considered to be of some criticism could, at this stage, only be the subject of speculation.
In light of that opportunity, the Court is of the view that it could not presently determine that Dr S’s report’s probative value could be said to be substantially outweighed by any danger that it may unfairly prejudice a party or be misleading and or confusing. The cross-examination of Dr S, while likely to take some time must be balanced against the time expended to obtain a completely fresh report and the potential for any further expert to be, similarly, the subject of cross-examination. The Court is of the view that at this point it could not determine that there will be any undue waste of time arising out of Dr S’s engagement to produce a further report.
Further, the Court is of the view that in the way matters have developed since Dr S’s report, it is important that Dr S interview Mr J and any other person(s) as considered by her to be appropriate, so as to provide that further report arising out of that interview(s) and assessment. Whether the children are engaged and how is a matter for Dr S. That will be so ordered.
Further, the Court is of the view that the position of the father’s relationship with Ms P can also be taken up with Dr S in that further interview process.
Further, the Court is of the view that there will be a reduction in expense and time issues at hearing if Dr S is provided with a copy of these reasons. The Independent Children's Lawyer is directed to do so.
The Court is, therefore, of the view that the mother’s application for the discharge of Dr S as a single joint expert should be refused and that any issue as to the costs of her applications should be reserved to the final hearing and the Court will so order.
The matter will be adjourned to 23 May 2014 with leave to the parties to restore the matter on 7 days notice if Dr S’s further report is available prior to the adjourned date. The parties will have liberty to apply generally on 7 days notice.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 7 February 2014
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