MANDES & BAMFORD

[2013] FamCA 189

FAMILY COURT OF AUSTRALIA

MANDES & BAMFORD [2013] FamCA 189

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of single expert under Chapter 15 of the Family Law Rules – where a single expert was appointed to report upon the mother’s current psychological state and its influence on her parenting capacity – where an existing forensic psychologist in other proceedings was appointed as the single expert for that purpose – where the father’s application for an updated report from another single expert was dismissed

FAMILY LAW – INJUNCTIONS – Rights of third parties – father restrained from communicating, other than through his lawyers, with the single experts appointed by the Court

FAMILY LAW – CHILDREN - Interim parenting orders – where the child’s residence with the mother is made conditional upon the mother’s compliance with an injunction against bringing the child into contact with the maternal grandfather – where the mother had contravened an existing injunction to that effect

Family Law Act 1975 (Cth) s 62B and s 65DA
Family Law Rules 2004 (Cth)

APPLICANT: Ms Mandes

RESPONDENT: Mr Bamford

INDEPENDENT CHILDREN’S LAWYER: Mr Hamilton

FILE NUMBER: NCC 1425 of 2012

DATE DELIVERED: 5 March 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 5 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr R. Haricharan, Hunter Family Law Centre Pty Ltd

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms T Petkovic, Armstrong Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P Hamilton, Peter Hamilton & Associates

Orders

1.The trial of these proceedings fixed to commence on Monday 18 March 2013 is vacated.

2.The proceedings are adjourned to 9.30am on Friday 19 April 2013 for further procedural orders.

3.Professor A is appointed as the single expert witness to prepare a report in relation to the following issues:

a.The current psychological or psychiatric state of the mother; and

b.The extent to which the mother’s psychological or psychiatric condition affects, if at all, her parenting capacity.

4.The parties must within seven days confer for the purpose of agreeing on the letter of instructions to be provided to Professor A.

5.If the parties do not agree on the letter of instructions to be provided to Professor A, then at a further procedural hearing before the court each party must provide to the court a draft letter of instructions.

6.Each party has liberty to apply to relist the matter on 7 days notice for further procedural orders.

7.The parties must appoint Professor A in writing within 14 days hereof, and in order to facilitate preparation of the single expert’s report:

a.The Independent Children’s Lawyer must provide to Professor A copies of Professor A’s report dated 8 November 2011, the family report dated 28 November 2012, and any other documents produced on subpoena which are agreed between the parties and Independent Children’s Lawyer;

b.The mother must attend upon Professor A for such interviews and observation sessions that the single expert requires at any reasonable time nominated by the single expert witness; and

c.The father shall pay the fees of Professor A.

8.The parties shall ensure that in the letter of instructions provided to Professor A, she is furnished with copies of, or has her attention drawn to, the provisions of Divisions 15.5.2 and 15.5.6 of the Family Law Rules.

9.The father is restrained from communicating other than through his lawyers in writing with:

a.Dr B; and

b.Professor A

10.Orders 3 and 8 made on 19 December 2012 are amended so that the child’s residence with the mother pursuant to Order 3 thereof is conditional upon her continuing observance of Order 8 thereof.

11.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

12.Leave is granted to the mother to issue a subpoena to Dr C.

13.Leave is granted to the Independent Children’s Lawyer to issue a subpoena to the D Health Service.

14.The Application in a Case filed on 4 March 2013 is dismissed.

15.The Response filed on 4 March 2013 is dismissed.

16.Any and all outstanding applications for interim orders are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1425 of 2012

Ms Mandes

Applicant

And

Mr Bamford

Respondent

And

Independent Children’s Lawyer

Ex tempore

REASONS FOR JUDGMENT

Introduction

1.It is with great regret that I again entertain an interim application in these proceedings between the applicant mother and the respondent father.  I last had occasion to determine an interim dispute between the parties in this litigation on 19 December 2012. On that occasion interim parenting orders were made restoring the child’s residence with the mother and making provision for the child to spend time with the father. Simultaneously, procedural orders were made to list the matter for trial on Monday, 18 March 2013. The appointment of that trial date was an attempt by the Court to give the litigation the earliest possible hearing, having regard to the extent of the conflict between the parties.

2.Since those orders were made, the documents produced on subpoena by Professor A concerning the mother’s psychological assessment were released and read by the parties. As a consequence of the release and the absorption of that material, the father filed an Application in a Case on 4 March 2013 seeking further interim orders. Because the final trial is so imminent and the orders now proposed by the father would potentially compromise the ability to retain the trial date, the matter was re-listed before me with urgency today, Tuesday, 5 March 2013. 

3.Consequently, the applications now under consideration are those contained in the Application in a Case filed by the father on 4 March 2013 and the Response to the Application in a Case filed by the mother on 4 March 2013. 

4.The proposal of the father is three-fold: 

i)He proposes the appointment of a particular single expert psychiatrist to offer further evidence in the proceedings;

ii)He proposes that an existing single expert witness prepare an update report; and

iii)In the event that the Court accedes to his first request and orders the appointment of another single expert witness, which would have the effect of causing the existing trial date to be vacated, the father seeks revision of the interim parenting orders, with such revision entailing a reversal of the orders last made on 19 December 2012.

5.The mother opposes the father’s application in all respects and simply seeks that the Application in the Case be dismissed with costs. 

6.The Independent Children’s Lawyer adopted a position more closely aligned with the mother than the father, but acknowledged in the course of his submissions the difficult position in which he finds himself. 

7.As I foreshadowed to the parties at the conclusion of submissions, I have determined to make a series of orders which, in part, suits them and which, in part, disappoints them.  These are my reasons for those orders.

The evidence

8.Before turning to consider and discuss the three discrete applications brought by the father, I should identify the evidence which the Court has been requested to read and take into account. 

9.The father relies upon his affidavit sworn on 4 March 2013 and the mother relies upon her affidavit filed on 5 March 2013. 

10.Besides that affidavit material, the parties tendered a number of exhibits.  Annexures A-C inclusive of the father’s affidavit were omitted from the filed copy and so those annexures were tendered as Exhibit F2. 

11.The report of Professor A dated 8 November 2011, commenting upon the mother’s psychological state as at that date, was tendered as Exhibit F3. 

12.The mother tendered police records in relation to an incident on 13 May 2012 as Exhibit M2 and her mental health assessment created at Bankstown Hospital on 30 May 2012 as Exhibit M3. 

13.The Independent Children’s Lawyer tendered a risk assessment in relation to the child dated 25 July 2012, created by the Department of Family and Community Services.  That document is Exhibit ICL1.

14.In the face of that evidence I therefore turn to discuss the three discrete applications.

Additional single expert witness

15.The first issue is the application for the appointment of a single expert witness.  The father proposes that Dr E, a forensic child psychiatrist, be appointed in these proceedings as another single expert witness and that he be furnished for that purpose with a variety of documents. 

16.The father also proposes that the cost of that report, which is substantial and estimated at around $12,000, be paid in part by the Independent Children’s Lawyer through access to a legal aid grant, and for the parties to share in the residue of that cost in the shares that the Court considers appropriate.

17.As I have already remarked, the proposal for the engagement of Dr E as a single expert witness arises from the father’s recent access to a report created by Professor A, a forensic psychologist, on 8 November 2011. The report was prepared apparently for the purpose of evidentiary support of a claim made by the mother for compensation from the Victims Compensation Tribunal in relation to a sexual assault to which she was, unfortunately, subjected at age 15 in or about 2005. The report of Professor A indicates at various points a diagnosis of the mother’s condition which diagnosis, self-evidently, was current as at the time the report was written in November 2011.  Throughout the report Professor A refers to the mother having become depressed after her sexual assault and having felt like she was still in a five year depression from it at the time she consulted with Professor A. 

18.Professor A opined that the mother suffers from symptoms consistent with moderately severe Post Traumatic Stress Disorder, severe depression, including suicidal behaviour, and severe anxiety disorder with panic attacks. Professor A observes that the mother has suffered from those disorders for five years since the sexual assault and that all of the disorders could, at that point in time, be regarded as chronic.  Although Professor A noted that the child in these proceedings was only four years of age at the time she created her report, and was within the care of the mother, she thought that the mother’s maladaptive lifestyle had so far probably not seriously affected the baby. 

19.However, Professor A went on to observe that she discussed with the mother that her psychological condition was not a sustainable situation and sooner or later she would have to engage with the outside world and engage the child in a play group or play school. Professor A also opined that the mother realised she needed to engage in counselling for the sake of the child’s future. Clearly, that report is now some 15 months old, but at the present time the Court is devoid of information about what the mother has done over that 15 month period in light of the advice provided to her by Professor A. 

20.The father is, understandably, concerned that if the mother still suffers from any of the psychological affectations diagnosed 15 months ago by Professor A, conceivably, that diagnosis may still adversely impinge upon her current parenting capacity. That seems to be something that Professor A specifically envisaged as a possibility at the time she compiled her report.

21.It has been submitted, and I accept, that presently there is no evidence available to put before the Court about any link between the mother’s current psychological condition and the effect of that condition, if any, upon her present and future parenting capacity. It has also been submitted, and I accept, that offering evidence on that point would be beyond the expertise and possibly the experience of the Family Consultant who has already compiled a Family Report in these proceedings.  I accept that it will be necessary for the Court to make orders enabling the procurement of expert evidence about the mother’s current diagnosis and any link between it and her parenting capacity.

22.Given that I have reached that conclusion, the question arises as to who should be appointed. The father’s solution is for the appointment of Dr E and it has been submitted on his behalf that Dr E will be available at some time in May 2013 and will likely have his report available by late May or early June 2013.

23.There are two problems with the father’s proposal. The first is the delay in obtaining the report and the extent to which the trial will need to be delayed pending the receipt of that extra evidence, and secondly, it will introduce into the mix another expert witness. There are already a number of expert witnesses involved in these proceedings and the needless involvement of another will only serve to complicate the evidence and the progress of the trial. 

24.During the course of submissions the idea was raised that Professor A be appointed as the single expert witness for reasons which might readily be apparent. Professor A has never been the mother’s treating psychologist.  Professor A was only procured in her capacity as a forensic psychologist to prepare a report relating to the mother’s compensation claim. Accordingly, Professor A will have background material about the mother which will facilitate the preparation of an update supplementary report specifically designed to address the issues to which I have already adverted.

25.There is no evidence before the Court about the availability of Professor A but, given that she has previously consulted with the mother, I infer that delay in preparation of such a report would not be as long as if the mother was unknown to Professor A.

26.The father proposed in his Application in a Case that the single expert witness prepare a report of rather extraordinary breadth. As was discussed during submissions, that seems wholly inappropriate to me. There is already a comprehensive Family Report prepared for the Court’s use and one might reasonably think that the father’s proposal for such a broad ranging psychiatric report was designed to attain another report which he might hope would be more favourable in its comments about his prospects in these proceedings.

27.Although I have been persuaded by the father’s solicitor that a further expert report is required, it is only in respect of the narrow issue addressing the mother’s current diagnosis and the extent to which, if at all, any diagnosed condition in her affects her parenting capacity and I therefore intend to make orders addressing only that issue. 

28.Although I was originally troubled about the cost of the exercise in procuring a single expert report, the solicitor for the father indicated that the father would be willing to meet the costs of the procurement of the report, such was the importance of the evidence to him. 

29.The mother and the Independent Children’s Lawyer were against the procurement of a single expert report and there is no evidence before the Court about the mother’s capacity to pay any of the fees. On the contrary, her solicitor has informed the Court that he has appeared for her today on a pro bono basis and that the grant of legal aid, which has previously existed in her favour, is now at or near its end. Given the concession that has been made on behalf of the father and the apparent financial predicament of the mother, I am inclined to make an order which requires the father to meet the costs of the acquisition of the single expert report.

Update single expert evidence 

30.The second issue is the application for an update report from the existing single expert, Dr B. 

31.Dr B was appointed some time ago as the single expert witness to offer evidence about the child. His report dated 10 January 2013 was made available to the parties and the Independent Children’s Lawyer and it was previously noted by the Court that the contents of that report were uncontroversial. It was specifically noted on 14 February 2013 that no supplementary report was required from Dr B by either party or the Independent Children’s Lawyer and that Dr B was not required for cross-examination at the trial by either party or by the Independent Children’s Lawyer. 

32.Quite clearly, the father’s opinion has changed since those notations were made with his consent on 14 February 2013. What has apparently changed the father’s opinion is the child’s recent admission to hospital for a period of about one week. Coincidentally, Dr B was the child’s treating paediatrician upon her admission to hospital. It is the father’s proposal that an update report be procured from Dr B and for Dr B to be available for cross-examination at trial.

33.As was agitated during submissions, I have several concerns about the procurement of an update report from Dr B.

34.It is established beyond doubt that on 26 February 2013 Dr C, an adversarial medical expert the father wishes to call as a witness in these proceedings, wrote to Dr B. In the course of the judgment I delivered on 19 December 2012 I made some observations about the curious manner in which Dr C had come to be involved in these proceedings. All that need presently be said is that he was unilaterally procured by the father and the father was strenuously desirous of relying upon Dr C’s opinions in the course of these proceedings, notwithstanding that, at the time Dr C had been retained by the father, the Court had not been approached about the appointment of a single expert and the father had not even consulted the mother about his appointment.

35.In any event, back to the present. On 26 February 2013 Dr C wrote to Dr B explaining how he had been called by the father and the father had expressed concerns to him about the mother. Dr C conceded he had never met the mother, but notwithstanding that concession, he curiously went on to express “serious concerns” about her mental state. Even more curiously, Dr C thought that she was “incapable of caring and she has a vindictive vendetta against the father”. Even more curiously again, Dr C was “surprised that the Court had decreed that the mother is capable”. He went on to express to Dr B his view that the child would fail to thrive and would be physically harmed by the mother.

36.Presently, there is no evidence as to what instigated Dr C’s letter to Dr B. No doubt that will be explored at the final trial. The evidence on that issue will be interesting. In any event, it is undeniable that an adversarial medical witness of the father has had direct involvement with the single expert witness appointed by the Court in relation to the child in an apparent attempt to influence the views of that single expert witness. That is not to say that Dr B has been influenced, but the manner in which he has been approached by Dr C as an advocate for the cause of the father is very unsatisfying. 

37.The Independent Children’s Lawyer has also reported to the Court, without contradiction, that he has spoken directly with Dr B and been informed by Dr B that he has been approached by the father on a frequent basis for the purposes of being shown video footage and pictures of the child. I pause here to acknowledge that it may be the case that the father spoke with Dr B in the context of Dr B being the treating doctor of the child while she was recently admitted to hospital. There would obviously be no problem in the father approaching the single expert witness on that basis. However, if it proved to be the case that the father had been approaching Dr B, not in that context, but for the purposes of exerting pressure on the single expert to try and influence his opinion in his favour and against the mother in relation to this litigation that would be a matter of serious concern and I expect that also will be a matter explored in cross-examination at the trial.

38.Those reasons cause me to have concern about inviting or ordering Dr B to prepare an update report.

39.I am also troubled by the father’s proposal that Dr B’s update report not simply deal with the progress of the child since the last report was compiled six weeks ago, but that the report address “observations of the child including her interactions and feeding habits in both parents care”. An instruction of that nature to the single expert would go well beyond what I understood to be the remit of the single expert at first instance, which led to the provision of the first report dated 10 January 2013.

40.Because Professor A is now to be retained as a single expert witness it would be impossible for her report to be prepared and provided to the parties in advance of the trial on 18 March 2013 and so the trial date will, necessarily, be lost. 

41.Given that the trial will, therefore, now be delayed for several months, it would be futile presently ordering Dr B to update his report when only six weeks has elapsed since his last report. By the time we get to trial any update report will itself have become stale. 

42.Presently, I intend to reject and dismiss the father’s proposal for an update report from Dr B, but my mind will remain open to the procurement of an update report from him at a later stage. I should report, however, that I am still inclined towards the view that it would simply be better to enable Dr B to be called for cross-examination at the final trial, at which time he could be cross-examined upon not only the contents of his report dated 10 January 2013, but any events concerning the child that occurred between then and the final trial.

Revision of interim parenting orders

43.I turn to the third issue which is the revision of parenting orders. 

44.As I have already remarked, the fifth set of parenting orders were made between the parties on 19 December 2012 and a comprehensive set of reasons were provided for the orders then made. This is now the sixth interim event between the parties who separated less than a year ago.

45.The solicitor for the father asserted that the basis for a revision of the last set of orders made only months ago were changed circumstances in the interim, which were said to encompass the diagnosis of Professor A, which is now available, the recent hospitalisation of the child, the breach of an injunctive order by the mother, and the existence of more bruises to the child.

46.I will deal with each of those reasons in seriatim, during which it will become apparent that, except in one respect, I see no weight in any of the arguments. 

47.The diagnosis of Professor A concerning the mother’s psychological condition in November 2011 is, for the purposes of these proceedings, meaningless in the absence of a single expert opinion linking any current diagnosis to the mother’s current and future parenting capacity. That must be accepted by the father because it is the very reason I was persuaded of the need for the appointment of Professor A to provide an update report as a single expert witness. Given the father accepts that proposition, it is duplicitous for him to suggest that the Court should now, in the absence of such evidence, act on a whim and assume that a diagnosis of the mother’s psychological condition some 15 months ago necessarily adversely impinges upon her parenting capacity. It might or it might not, but the Court is not inclined to act on speculation.

48.It is common ground that the child was recently hospitalised for a period of about a week. There is, however, no evidence upon which to reasonably infer that such hospitalisation reflects adversely upon the level of care afforded by the mother to the child. All that is presently known from the evidence put before the Court and the submissions made is that the child was hospitalised and her flagging weight was problematic. Beyond that, nothing is known and, in the absence of a proper evidentiary foundation, despite urging by the father to the contrary, I am not prepared to impute that the child’s condition was due to some act or omission on the part of the mother.

49.The father, in his affidavit material (at para 30), complained that since the last parenting orders were made on 19 December 2012 he has continued to observe the child with bruises on her body when he collects her. He deposed that the child had a bruise on her head on Christmas Eve, on Saturday 2 February 2013, and on Saturday 16 February 2013. He also deposed the child had not put on any weight since she had been living with the mother and that the child appeared to be tired.

50.In the absence of much more compelling evidence, I am not presently prepared to infer that the bruises the father alleged he saw on the child on three separate occasions were deliberately inflicted by the mother. If that was what the father expected the Court to impute, it will need to be explained to him that the Court will require significantly more cogent evidence than that. 

51.Nor am I concerned about the father’s observation that the child had not put on any weight since she had been living with the mother. She has only been living with the mother since 19 December 2012 and a failure to gain weight in that period is, of itself, meaningless. As I have already said, the child was hospitalised recently and her flagging weight was apparently a matter of concern to the medical authorities. In the absence of any indication as to the origin of that problem, I am certainly not prepared to accept, on the strength of only the father’s apprehension, that the child’s failure to gain weight in the last six or so weeks is attributable to some inferior parenting capacity exhibited by the mother. Similarly, the fact that the child appears tired when she is collected by the father is underwhelming evidence.

52.Lastly, the father referred to the mother’s breach of an injunctive order. The injunctive order of interest was Order 8 made on 19 December 2012. That order restrained the mother from causing or permitting the child to be brought into contact with the maternal grandfather. That order was made in those terms on that date because it replicated an order that had been made by consent between the parties on several previous occasions. The genesis for such an order is a suggestion that the maternal grandfather was in some way adversely involved in the past in child prostitution and that, in such circumstances, the child should not be permitted to have any interaction with him. 

53.In his affidavit the father explained that several weeks ago the mother telephoned the father and told him that she was in Sydney. The father apparently suspected that she might therefore go to the maternal grandfather’s home. At approximately 4.50 pm on 10 February 2013 the father drove past the maternal grandfather’s home in Suburb F and noticed the mother’s car parked out the front of his home. He suspected that both the mother and the child were inside the maternal grandfather’s home at the time and so he called police. He saw the police attend the maternal grandfather’s home only 20 minutes later and he departed the scene after he saw the police arrive. The father later telephoned the police station and was told by a constable, who was apparently one of the officers who had attended the maternal grandfather’s home, that the mother had answered the front door with the child in her arms and that the maternal grandfather was also present at the home. Clearly, such evidence establishes a breach of the injunctive order by the mother. 

54.In response, the mother deposed in her affidavit that she usually stops by to visit the maternal grandfather on her way to the McDonald’s restaurant at Suburb G prior to her collection of the child from the father. On 10 February 2013 she had done just that and stopped at the maternal grandfather’s home, but upon her departure she had discovered she had left her bank card at his home because she had been using a computer at his home to carry out internet banking transactions. As a consequence, once she collected the child from the father, she returned with the child to the maternal grandfather’s home to recover her bank card. She took the child with her into the house of the maternal grandfather and collected the card and, as she was about to leave, the police arrived and asked whether the maternal grandfather was present. The mother said that he was. A conversation ensued between one of the police officers and the maternal grandfather and police then left.

55.The mother deposed that, at the time she went to the house of the maternal grandfather with the child to collect the bank card, she was under the mistaken belief that would not breach the Court orders as she understood the orders to mean the maternal grandfather must not have any physical contact with the child and on that occasion she did not bring the child into physical contact with the maternal grandfather. She furthermore deposed that, with the benefit of hindsight and legal advice, she now realises that she had breached the orders.  She denied the suggestion her car was still parked at the maternal grandfather’s home much later in the evening, as had been reported by some person to the father. 

56.There can be no doubt that what the mother did with the child on that day was in clear breach of the injunction. While I am not satisfied that that is a reason to alter the parenting orders in such a significant way as is proposed by the father, it is a serious enough breach of the orders, in my view, to warrant some form of change to the parenting orders. That change will be to make the child’s continued residence with the mother conditional upon her future compliance with that injunction. 

57.For those reasons I make the following orders.

ORDERS DELIVERED

RECORDED:  NOT TRANSCRIBED

PROCEDURAL ORDERS DELIVERED

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 5 March 2013.

Associate: 

Date:  22 March 2013