Munro and Simpson

[2013] FamCA 79

FAMILY COURT OF AUSTRALIA

MUNRO & SIMPSON [2013] FamCA 79

FAMILY LAW – CHILDREN - parenting matter – updated private expert report commissioned by parents – apparent irregularity in preparation and delivery of updated report – family report ordered pursuant to s62G over objection of father.

APPLICANT: Mr Munro

RESPONDENT: Ms Simpson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Maree Casey

FILE NUMBER: MLC 2361 of 2011

DATE DELIVERED: 22 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 22 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Indivino

SOLICITOR FOR THE APPLICANT: Kliger Partners

COUNSEL FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE RESPONDENT: Aughtersons

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN ‘S LAWYER Victoria Legal Aid

Orders

IT IS ORDERED THAT

1.Subject to paragraph 10 of this Order, this matter be listed for mention before me on 26 March 2013 at 9.00 am for directions for trial.

2.Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared.  For that purpose the parties and children T born … January 2003, B born … January 2005 and S born … December 2007 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be commenced not before 21 February 2013 and be released by not later than 8 March 2013.

3.The family report deal with the following matters:-

a)      any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s60CC of the Family Law Act;

c)      an assessment of the extent to which substantial time or shared care may meet the needs of the parents (or one of them) in preference to the real needs of the children;

d)     an assessment of the impact on the children’s emotional development in the short, medium and long term of the parental conflict in this case and how the children can best be insulated from the high conflict;

e)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

f)      an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);

g)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible.

4.The independent children’s lawyer forthwith ensure that the family consultant appointed by the Director of Court Counselling of this Registry of the Court has a copy of any other document which the independent children’s lawyer considers would assist the family consultant to give evidence in these proceedings and in respect of which the other parties do not raise an objection.

5.For the purpose of the family report in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

6.A transcript be prepared of the telephone conversation between myself and Ms R today and, when transcribed, a copy be placed on the Court file and be made available to the parties AND IT IS NOTED that the amendments and additions to the report of Ms R dated 21 January 2013 appear to exceed the alterations identified by Ms R in conversation.

7.The reports of Ms R be marked as Exhibits as follows:-

a)     The report dated 22 January 2012 be marked “C1”;

b)     The report dated 15 January 2013 be marked “C2”;

c)     The report dated 21 January 2013 be marked “C3”;

and remain on the Court file.

8.The orders made by Senior Registrar FitzGibbon on 22 January 2012 continue in full force and effect until further order NOTING THAT the parties do not propose that the separate arrangements for S continue as she will commence school this year.

9.That the mother and the father participate, by themselves and their legal advisers, in any round table conference which the independent children’s lawyer appoints, through Victoria Legal Aid, and the independent children’s lawyer notify my Associate, …, ( …,email …, as soon as possible of the date and time of the conference, once appointed.

10.If the parties do participate in a round table conference the matter be listed before me on the afternoon of the day of such conference in lieu of 26 March 2013.

11.IT IS REQUESTED that the designated family consultant be available to discuss the matter by telephone with the independent children’s lawyer on the day of any round table conference appointed pursuant to paragraph 10 of this Order.

12.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

13.The reasons for decision this day be transcribed and when settled copies be made available to the parties.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Munro & Simpson 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 MELBOURNE

FILE NUMBER: MLC 2361 of 2011

Mr Munro

Applicant

And

Ms Simpson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me as the first day of hearing of parenting matters concerning the three children T born in January 2003, B born in January 2005 and S born in December 2007.  These reasons explain why I have ordered pursuant to Section 62G that a family consultant of this Registry of the Court now prepare a family report at no monetary cost to the parties.

2. When the matter was allocated to my docket in early December 2012, I convened by telephone link a directions hearing.  After hearing the submissions of the parties I requested the appointment of an independent children’s lawyer. The parties consented to the preparation of an updated report by a private psychologist, Ms R, who had previously seen the family and prepared a report in January 2012.  The parents were equally responsible for the costs associated with the updated report.

3. Since that mention:-

   a)Ms Casey of Victoria Legal Aid has been appointed independent children’s lawyer, and

   b)Ms R had done not one, but two, updated reports in the matter.

4. Ms R published an updated report dated 15 January 2013 in which she made recommendations for the children to spend roughly five out of fourteen nights in the care of the father.  Then, on 21 January 2013, without explanation or recourse to the parties or the independent children’s lawyer, Ms R purported to publish a further updated report in which there appeared recommendations that the children spend equal time with each parent.

5. I have, today, been informed by Ms R of the circumstances in which a further report was published.  I have ordered that that discussion, which was conducted by telephone link in open court, be transcribed and a copy of the transcript be placed on the court file.

6. The wife and the independent children’s lawyer are of the view that a further family report ought to be prepared by an appropriately qualified person other than Ms R.  Counsel for the wife, Ms Stewart, makes that application orally. It is submitted that the mother’s confidence in Ms R’s methodology and recommendation has been shaken in the extreme.  The husband, on the other hand, says that he could proceed to a hearing with Ms R’s two reports and he opposes preparation of yet a further report.

7. Whilst I have reservations about Ms R’s explanation for, in effect, altering her updated report, I make no finding of unsatisfactory conduct on her part such as would impugn her expertise.  I have suggested to the parties that they refrain from recriminations about the actions of practitioners, such as the husband’s lawyer, who may have led Ms R to act as she has.  No doubt, these matters will be examined at the final hearing and, that being the case, it is unproductive to do so now.  I am, however, satisfied that the confidence of the mother in Ms R’s expertise and impartiality has been shaken to a genuine degree and that this situation is likely to be unsalvageable without a thorough testing of Ms R’s evidence.

8. I am mindful that the children, who are young, have already been seen by Ms R over a two-year period and as recently as in December 2012.  It’s not a good thing for children or for the accuracy of the evidence gleaned therefrom for children to be seen repeatedly for assessments.  However, in my view, it is a worse outcome for the children to deprive both parents of an expert social science report in which they can have confidence and to require them to proceed to a hearing with Ms R’s reports being the only social science evidence available to the court.

9. After giving the matter careful consideration, I am satisfied on balance the children’s best interests are served by there being a further report.  It should be prepared by a family consultant in the employ of the Court under the direction of the Manager of Child Dispute Services.  It will be at no cost to the parties.

10. Ms R’s reports (3), such as they are, will be on the court file and will be available to be read by the family consultant as will these reasons and a transcript of my discussion with Ms R.

11. The family consultant appointed to prepare the report will see the parties in late February 2013 and publish his report on or about 8 March 2013.  The interview date will be notified to the parties directly by the Manager of Child Dispute Services or by her nominee.  The matter will come before me for mention on 26 March 2013 by which time the parents and the independent children’s lawyer should have had sufficient time to consider the s62G family report.  If they reasonably require more time or seek to participate with an RDM Conference convened through Victoria Legal Aid, the parties have the ability to obtain an administrative adjournment of the mention through my Associate and should not hesitate to do so, jointly.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 22 January 2013.

Associate: 

Date:  20 February 2013