Nardini and Nardini

[2018] FamCA 289

FAMILY COURT OF AUSTRALIA

NARDINI & NARDINI [2018] FamCA 289

FAMILY LAW – EVIDENCE – Expert Evidence – Where the final hearing is adjourned part heard – Where the mother applies to have the parties and their children reinterviewed for the purposes of  an updated expert report – Where causing the children to be reinterviewed would create a risk to their emotional wellbeing – Where extra delay could be caused by having to recommence cross examining the mother – Where the expert has enough information from the parties that there is no need to reinterview them – Mother’s application is dismissed.

Family Law Act 1975 (Cth) ss 11B, 43, 62G, 69ZN, 69ZX
Family Law Rules 2004 (Cth) rr 15.46

APPLICANT: Ms Nardini

RESPONDENT: Mr Nardini

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: SYC 6095 of 2016

DATE DELIVERED: 1 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 1 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodgson

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

Orders

1. The mother’s application for orders requiring Dr E to interview the parties and the children is dismissed.

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 Nardini & Nardini 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 SYDNEY

FILE NUMBER: SYC 6095 of 2016

Ms Nardini

Applicant

And

Mr Nardini

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Pursuant to orders made on 13 April 2018, Dr E the single expert appointed to provide a report in respect to parenting matters, was requested to provide an updated report. To facilitate that occurring Dr E is to be provided with transcript and documents filed and tendered in these proceedings. The mother has exercised her right of liberty to apply to request that the orders be made for the parties and the children to attend a further interview with Dr E before he provides his updated report.

2. The orders sought by the mother are as follows;

   1.That the father, the mother and the children of the marriage, [B] born … 2008 and [C] born … 2012 attend upon the single expert, [Dr E] on 2 May 2018 or on such other date as may be appointed by [Dr E] for the purpose of preparation of the single experts updated report in accordance with the orders made on 13 April 2018.

   2.That the father and mother shall attend all appointments with [Dr E] and shall ensure that any other member of their household or other relative as [Dr E] may request as well as the subject children attend all appointments with [Dr E], as requested by him and do all acts and things to provide [Dr E] any further records and documents which may be requested by him for the purpose of preparing his updated report.

3. As noted, the orders sought by the mother would supplement the orders made on 13 April 2018 which, relevantly, are as follows;

   3    That the single expert, Dr. [E], be requested to prepare an updated report in these proceedings and that for the purposes of this report, the ICL shall forward to Dr. [E]:

   a)Supervised contact reports prepared by [F Group] dated from 3 March 2018;

   b)The transcript of these proceedings on 9, 10, 11, 12 and 13 April 2018 with the cost of these transcript to be met by the father.

   c)The transcript of these proceedings of the father when it is available and the costs of these transcript to be met by the mother

   d)Copy of Professor [J’s] affidavit filed 14 March 2018 including amendments made after determination of objections.

   3A.      That Dr. [E] be requested to provide an opinion in his updated report in relation to the mother’s mental state and any other issue relevant to the welfare of the children.

   4.That the Father shall bear the cost of the update report by Dr. [E] initially, and that the mother shall reimburse him for her half share at the conclusion of the property proceedings.

4. The mother’s primary submission as to why orders should be made, in the terms of her application, is based on 62G of the Family Law Act 1975 (Cth) (“the Act”). That section relevantly provides;

   Reports by family consultants

   (1)  This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.

   (2)  The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.

   (3)  If the court makes a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.

   (3A)  A family consultant who is directed to give the court a report on a matter under subsection (2) must:

   (a)  ascertain the views of the child in relation to that matter; and

   (b)  include the views of the child on that matter in the report.

   Note:          A person cannot require a child to express his or her views in relation to any matter (see section 60CE).

   (3B)  Subsection (3A) does not apply if complying with that subsection would be inappropriate because of:

   (a)  the child's age or maturity; or

   (b)  some other special circumstance.

   (4)  The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.

   (5)  For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant).

Note:          Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).

(6)  If:

(a)  a person fails to comply with an order or direction under subsection (5); or

(b)  a child fails to attend an appointment with a family consultant as arranged in compliance with an order or direction under subsection (5);

the family consultant must report the failure to the court.

(7)  On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate.

(8)  A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.

1. Section 11B of the Act defines a Family Consultant as a person who is:

   (a)appointed as a family consultant under section 18ZH of the Federal Court of Australia Act 1976 ; or

   (b)appointed as a family consultant under the regulations; or

   (d)appointed under a law of a State as a family consultant in relation to a Family Court of that State

2. Dr E is not a Family Consultant. He is a single expert appointed Pursuant to Part 15.5 of the Family Law Rules by orders made by his Honour Justice Le Poer Trench on 14 June 2017. When this was pointed out to Counsel for the wife he nonetheless argued that the Court should, by way of analogy, apply the principles set out in section 62G. That is, it was contended that what has been requested of Dr E is a full report, not simply an addendum to his existing report. The mother submitted that can only properly be done by Dr E reinterviewing the mother, the father and the children.

3. I do not accept that section 62G of the Act has any relevance to this matter.

4. Section 69ZX of the Act sets out the court’s general duties and powers relating to evidence in respect to parenting matters. Section 69ZX(1)(d)(i) provides;

   (d)  if the court considers that expert evidence is required--give directions or make orders about:

   (i)  the matters in relation to which an expert is to provide evidence

5. Further Rule 15.46(f) provides;

   15.46 The court may, in relation to the appointment of, instruction of, or conduct of a case involving, a single expert witness make an order, including an order

   …

   (f)  settling the instructions to be given to the expert.

6. The orders of 13 April 2018 set out the matters in relation to which Dr E was requested to provide an updated report and provided instructions as to the material he is to consider in doing so.

7. I have had regard to the father’s written submissions which are Exhibit B in this application. I agree to the characterisation of the orders of 13 April 2018 as essentially being to provide Dr E with information that would have been available to him had he been able to sit as an observer in the rear of the Court during the course of these proceedings.

8. I invited Counsel for the mother to address me on three particular concerns that I had regarding the mother’s application. Those concerns are;

   1.Firstly, the impact on the children of requiring them to attend a further interview with Dr E,

   2.Secondly, the impact of delay on the proceedings, and

   3.Thirdly, what additional benefit or utility there would be in Dr E providing a report after he has interviewed the mother and the father and the children. 

9. In dealing with that first issue, counsel for the mother submitted that the Court is without evidence that the children would be harmed by attending a further interview with Dr E. It was further submitted that any such harm would be mitigated by the fact that their mother would be in attendance. It was submitted that, in the absence of compelling evidence that the children would be harmed by the process, an order should be made for the parties to take the children for a further interview with Dr E.

10. I do not agree with that submission. In this matter I am required to have regard to the principles for conducting child related proceedings which are set out in section 69ZN. Most relevantly, principle 1 states 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.

11. In this matter, the children have attended a number of examinations with experts and counsellors. These include attending upon;

(a)       Ms D, a family consultant, on 11 May 2017 for the purposes of preparing a child responsive program memorandum

(b)       Attending upon Dr E for the preparation of a report on 20 June 2017. 

(c)       The children are also currently attending a clinical psychologist, Ms BB, for ongoing treatment of issues arising following the breakdown of the parent’s relationship.

1. In her report dated 12 February 2018 Ms BB stated;

   I do have concerns for the children’s emotional wellbeing should they be subjected to parental conflict. The degree of parental conflict is a major risk factor associated with the children’s adjustment to separation.  In addition, according to the Australian Psychological Society, recent research has also raised the risk that litigation may present to the mental health of a child.

2. In circumstances where there is evidence before the Court regarding the impact of the parents’ separation and, significantly, the litigation itself potentially harming the children’s health, it is my view that the Court should be reluctant to require the children to attend yet a further interview unless there is significant additional utility to be obtained from that occurring. For reasons which I will discuss, I’m not satisfied that will be the case.

3. In respect to the second issue that I invited Counsel for the mother to address, that is the question of delay, I have regard to principle 5, as set out in section 69ZN of the Act. That principle is that proceedings are to be conducted without undue delay and with as little formality, legal technicality and form as possible. My emphasis is on the issue of delay.

4. I accept and agree with the respondent’s written submission that, in the event of the parents attending for further interviews with Dr E, further examination and cross examination of the mother is likely to be required. Additional cross examination of the maternal grandmother is also a possibly.

5. In circumstances where the proceedings have already been adjourned part heard, to reopen the mother’s evidence would, in my view, contribute to additional delay, with the prospect that the proceedings may not be concluded in the remaining time that has been allocated. 

6. The third and final issue that Counsel for the mother was invited to address was what additional benefit or utility would be gained from requiring Dr E to re-interview the parents and the children before providing his updated report.

7. I am satisfied that the extensive questioning of the mother, as reported in transcript, together with additional documentation that is being provided to him, which includes the reports of F Group, provides Dr E with ample opportunity to examine and prepare an updated report on issues that have arisen in these proceedings.

8. Counsel for the mother indicated concerns that, if Dr E is only provided with the transcript of the proceedings thus far, Dr E will only be given access to the oral evidence of the mother and not the father.

9. However, as I indicated on 13 April 2018, at the conclusion of the father’s evidence, if necessary, steps can be taken to facilitate Dr E having access to the evidence given by the husband. I am therefore satisfied that Dr E will be able to provide informed and appropriate evidence to the Court in his role as a single expert.

10. As noted above, the children’s clinical psychologist, Ms BB, expressed concern for the emotional wellbeing of the children should they be subjected to further issues arising out of their parent’s conflict and this litigation. It is my view that forcing the children to attend a further interview with Dr E presents a risk to their emotional well-being. That risk out ways any possible benefit gained by requiring Dr E to conduct further interviews with the children.

11. Further any such additional benefit to be gained by such interviews does not justify the additional delay in the proceedings that is likely to result from the mother being recalled to give evidence.

12. In summary it is my view that the additional utility to be gained by the parents and the children attending for further interviews with Dr E does not justify the detriments to which I have referred. On that basis I dismiss the mother’s application.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 1 May 2018.

Associate: 

Date:  04 May 2018