MADDISON & WENTWORTH

[2018] FamCA 220

FAMILY COURT OF AUSTRALIA

MADDISON & WENTWORTH [2018] FamCA 220

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father applied to have the updated family report prepared by a psychologist – Where it was held the existing family report writer is experienced and qualified – Where the application was dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father applied to have additional issues considered at trial – Where the issues for trial were sufficiently set out at a case management hearing – Where the application was dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Maddison

RESPONDENT: Ms Wentworth

INDEPENDENT CHILDREN’S LAWYER: Berck Solicitors

FILE NUMBER: BRC 9068 of 2009

DATE DELIVERED: 16 March 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 16 March 2018

REPRESENTATION

FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Ms Parry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Berck

Orders

1. The Application in a Case filed 9 March 2018 be dismissed.

2. The costs of the Mother and the Independent Children’s Lawyer be reserved.

3. All parties and their legal representatives be granted leave to inspect the documents produced by subpoena from the Department of Education, Training and Employment and the Independent Children’s Lawyer be granted leave to copy those documents.

4. The Independent Children’s Lawyer be granted leave to issue subpoena to B School at C Town.

5. The Independent Children’s Lawyer be granted leave to provide copies of the subpoena material that is to form the tender bundle at trial to the parties and their legal representatives on the condition that all such documents are returned to the Independent Children’s Lawyer at the conclusion of the trial.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9068  of 2009

Mr Maddison

Applicant

And

Ms Wentworth

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application brought by the father by way of an application in a case filed on 9 March 2018, in which he seeks the following orders:

   (1)Engage the services of a family report writer with qualifications in the science of psychology in pursuit of a more in depth and updated family report.

   (2)Include the following matters in the list of issues to be resolved by the Court:

   (i)The mother’s use of false allegations and misuse of the justice system to hurt and inhibit the child’s ability to have a meaningful relationship with the father.

   (ii)Address the consistent unilateral behaviour of the mother.

   (iii)Address the mother’s inability to make sound judgment regarding the child’s developmental and educational needs.

2. This is a matter that was before me for a case management hearing on 18 January 2018, when I set it down for trial for three days, commencing 28 May 2018 and as part of that Order an updated family report from Mr D was ordered to be undertaken. These proceedings concern one child, E (the child), who is now nine and he lives with his mother and currently spends supervised time with his father. The allegations at the trial concern a number of serious matters relating to possible sexual abuse of the child. The father denies any impropriety of that nature with the child and accuses the mother of raising such allegations in an attempt to minimise his relationship with his son.

3. Mr D prepared a report on 1 April 2016, having conducted interviews with the parents and the child on 4 December 2015. Mr D’s curriculum vitae is before me in Exhibit one. He is certainly a very experienced social worker who has considerable experience in the preparation of family reports in this and other Courts exercising the family law jurisdiction and in appearing as an expert witness in such cases.

4. The basis of the father’s application that a psychologist rather than a social worker prepare the report are set out in his affidavit. He says that the mother suffered from an:

   1.… undiagnosed mental health condition in the lead-up to our separation and I believe that this condition has impacted significantly upon her reasoning, motivation, decision making and behaviour in reference to the time that our son, the child, has been able to spend with me since the separation.

5. The parties separated on 30 June 2009. Apart from that assertion as to the state of the mother’s mental health, there is nothing else in the father’s affidavit relating to her behaviour or anything else that might cause me to be persuaded that a psychiatric or other psychological assessment would be required of her. Of course, that’s not what’s proposed by the father, but his submission is that given that assertion that he has made, a psychologist would be a better qualified person to provide the updated family report. Mr Maddison also raises some criticisms of the report already prepared by Mr D and points out what he submits are some deficiencies in that report and the way it was prepared.

6. He submits that a family report should be prepared by either Mr F, Ms G or Ms H, all psychologists, and I’m sure that each of them would be able to prepare a report if retained to do so. However, this matter has been set down for trial, as I’ve indicated, and it seems that certainly Mr F and Ms G would be unable to have a report available in the time required to permit this trial to proceed on the allocated dates.

7. Ms H has indicated to the father by email that she and a Dr J would be able to conduct what she refers to as an ‘initial evaluation’ interview on 29 March 2018. It seems that Ms H would propose to work with Dr J, who is referred to as a recognised Family Court consultant in the preparation of the report. I cannot be satisfied on the material that Ms H and/or Dr J would be able to complete a report in time for the trial that has already been allocated. Quite apart from that though, the matters raised in submissions by the father today and in his affidavit are all matters, in my view, that can either be addressed by Mr D in his updated report or during cross-examination at the trial.

8. The child has been consulting his own psychologist and a report will be available for trial and if that report is not available to Mr D, I would anticipate that as part of the preparation of his report, Mr D would communicate with the child psychologist. It would probably be preferable to have the psychologist’s report available to Mr D for the purposes of his updated report, but as I say, if that cannot be attended to, then I would expect Mr D to speak with the psychologist.

9. One of the criticisms that seems to be made of Mr D’s last report by the father is that the maternal grandmother was not interviewed by Mr D. If Mr D considers that the maternal grandmother is a person who may be able to provide information relevant to the preparation of his report, then he, of course, has the option of including her in his report process.

10. I note that the child has already seen a number of people. The independent children’s lawyer has some concern about him being introduced to yet two further experts and that is a legitimate concern to have in such circumstances.

11. I am not satisfied that the updated family report should not be undertaken by Mr D. He is a very experienced and well qualified person to prepare the family report in a case such as this and I am not persuaded that a psychologist is necessary for this particular case.

12. Accordingly, I will dismiss the father’s application.

13. I do not see a need to add to the list of issues that will be considered at trial. If it was not already, it is now clear to everybody in the court room that the father considers that the allegations made against him are untrue and that the condition of supervision of his time with the child is unjustified. These will be matters traversed at trial.

14. Accordingly, I will also that application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 March 2018.

Associate: 

Date:  10.04.2018