Norfolk and Mervin (No 2)

[2011] FamCA 762

FAMILY COURT OF AUSTRALIA

NORFOLK & MERVIN (NO 2) [2011] FamCA 762

FAMILY LAW – CHILDREN – Oral application for no further expert reports dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Norfolk

RESPONDENT: Mr Mervin

INDEPENDENT CHILDREN’S LAWYER: Mr Carter

FILE NUMBER: BRC 7348 of 2007

DATE DELIVERED: 15 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 15 September 2011

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steel

SOLICITOR FOR THE RESPONDENT: Biggs Fitzgerald Pike

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Carter of Carter Farquar Lawyers

Orders

IT IS ORDERED THAT

1. The matter be adjourned to the Magellan Registrar at 10.00am on 14 December 2011 for the making of directions to progress the matter to final hearing and that unless otherwise ordered by the Registrar, such hearing shall be conducted by telephone.

2. The hearing of the Application in a Case filed by the mother on 22 August 2011 be listed for hearing in the judicial duty list at 10.00am on 19 September 2011 in the Brisbane Registry of the Family Court of Australia.

3. The oral application by counsel for the Respondent that no further investigations (or reports) should take place with respect to the children the subject of these proceedings is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Mervin & Norfolk 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 BRISBANE

FILE NUMBER:  BRC 7348 of 2007

Ms Norfolk

Applicant

And

Mr Mervin

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter, which comes before me on the callover of matters in the Magellan list, has a lengthy history that involves, among other things, allegations of sexual impropriety. It also involves the intersection of a number of reports provided by experts of one form or another exacerbated by the fact that one of the children the subject of these proceedings, C, has Downs Syndrome and other difficulties and is plainly what might conveniently be described as a child with special needs.

2. Mr Carter appears as the Independent Children’s Lawyer and points to a report from a family consultant, Ms F, filed 1 September 2011 and in particular paragraph 70 of that report.  In pointing to that paragraph, Mr Carter emphasises the lengthy history of this matter and the fact that allegations of the type currently made have, in effect, been live now for some considerable period of time. 

3. Mr Linklater-Steel, who appears as counsel for the father, says, in effect, that when one considers the lengthy history of this matter and in particular the period of time over which allegations of a very similar type have been made and the fact that allegations of that type have earlier been dealt with by one authority or another, that no further investigation should take place insofar as it exposes a child or children to further investigation.

4. Mr Linklater-Steel gives the specific example of the repeated allegations of sexual impropriety and exposure of the children to child pornography. This was categorically denied by a child who is now 16 and a police investigation, in which the hard drive of the husband’s computer was seized revealed, I am told, no material of an improper nature at all.  In essence, Mr Linklater-Steel submits that enough is enough. 

5. His submission has, as I understand it, two bases.  The first might be seen to relate to his client, who has been a party to these proceedings and allegations of this type for a considerable period of time.  The other part of the submission is more central to the concerns of this Court; Mr Linklater-Steel says that enough is enough in respect of exposing C, in particular, to further investigation. 

6. It is plain that in cases of this type, the Court must have regard to what is sometimes conveniently described as “systems abuse”, a term which conveniently describes the exposure of children to investigations which of themselves have the potential to be harmful to children.  It is, in my view, clear that systems abuse can in fact be a form of child abuse, and it is axiomatic that the Court ought not countenance any form of child abuse. 

7. Having said that, the Court also has obligations to bring inter partes disputes to an end, including inter partes disputes that have at their heart very serious allegations in respect of children and allegations which have at their heart concerns about very serious forms of abuse to those children.  That results in the necessity for the Court to balance the need for appropriate information, and in particular expert information, with any concerns that the Court must properly have about the impact of that process of investigation upon the child or children. 

8. The balance is a fine one, distinctions are not easy to draw, and the concerns are appropriately acute. 

9. In one sense, the difficulty here is moot.  It is clear that this matter should proceed to a determination as soon as the Court can properly facilitate that occurring. It is also plain that each of the parties has the right, and the capacity, to produce such admissible evidence in those proceedings as they might choose.  That applies to the Independent Children’s Lawyer no less than either of the other parties. 

10. The Independent Children’s Lawyer will, then, have the opportunity to assess all such information at his disposal and to make a decision about whether he requests the parties, as those who have parental responsibility for the child or children, to consent to any form of investigation, including a report process, that involves the children.

11. Mr Linklater-Steel says that the father would not deny his consent to any such request by the Independent Children’s Lawyer, but raises, nevertheless – properly, as it seems to me – a concern about whether that further investigation might expose C or, indeed, the other children to what I have conveniently called systems abuse. 

12. To the extent that the husband objects to a further report being obtained by the Independent Children’s Lawyer from Dr H or such other appropriately qualified medical expert who might give an opinion in relation to the matters referred to at paragraph 70 of Ms F’s family report, it seems to me that I ought permit such process to occur.  

13. In arriving at a decision in the balance of the matters earlier referred to, I am particularly persuaded by two things. 

14. The first is that, although the history of this matter and the various investigations that it has prompted, is appropriately a source of exasperation to the father, who has, I am told, had no findings of untoward behaviour made in respect of him) and is also of significant concern for the children.  Mr Carter says that there is the potential for opinion of the type referred to at paragraph 70 of Ms F’s report to inform the mother’s belief system. That same report itself indicates that the mother might be informed by other factors personal to her, so as to allow her to admit of explanations alternative to those which she fears.  The mother, who represents herself, also acknowledges this.

15. That seems to me to be a highly relevant matter, particularly when the experience of this Court in cases of this type is that parental belief systems can form a very important part of the ultimate decision to be made. 

16. Secondly, the Court is bound to apply principles in and about the conduct of child-related proceedings by reference to section 69ZN of the Act.  Mr Carter is an officer of the Court and owes particular obligations to the Court by reason of his position as an Independent Children’s Lawyer. All legal practitioners (and parties), but, in particular, an Independent Children’s Lawyer, must have those mandatory statutory principles very squarely in mind in and about the preparation of any case.  Indeed, I would be distraught to hear that any Independent Children’s Lawyer would not have those principles in mind in and about the preparation of a case, given that they are mandatory statutory principles which bind the Court in the determination of those proceedings. 

17. In particular, the first principle enunciated in that section 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. It seems to me that this principle, and perhaps others as well, is squarely raised in the circumstance before me today.

18. It seems to me that the principle to which I have just referred is one of general application.  It is in that respect necessary, I think, to observe that Mr Carter is an experienced Independent Children’s Lawyer, and I have no doubt and, indeed, at the conclusion of these reasons will seek from him confirmation on the record, that he is acutely aware of those principles and of the broader obligations upon him to conduct proceedings and investigations in respect of proceedings in a manner which seeks in every respect to have the minimum impact upon the child or children the subject of them. 

19. As I’ve said, it’s a fine balance.  

20. I conclude, though, that the circumstances of this particular case point to the necessity of that report being received on the assumption that firstly, Mr Carter, as the Independent Children’s Lawyer, will conduct himself in the manner to which I’ve just referred, and secondly, that there is in fact a person or persons with appropriate expertise who might be able to provide that evidence.

21. Finally, in that respect, the Court does and, it seems to me should, repose significant trust in people properly described as experts, and in particular experts versed in the care of children, to conduct all such treatment, investigations and the like by them in a manner sensitive to the needs of children, and in particular children with special needs. 

22. I do not know Dr H.  I’m told he or she is a paediatrician. Paediatricians, as it seems to me, axiomatically fall within the category to which I’ve just made reference. 

23. For all of those reasons, then, to the extent that the husband objects to the Independent Children’s Lawyer obtaining an assessment from an appropriately qualified expert as foreshadowed in paragraph 70 of Ms F’s report, that application is refused.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 15 September 2011.

Associate:

Date:  26 September 2011