Prendergast and Parsons (No. 6)

[2007] FamCA 449

FAMILY COURT OF AUSTRALIA

PRENDERGAST & PARSONS (NO. 6) [2007] FamCA 449

FAMILY LAW - CHILDREN - PSYCHIATRIC REPORT – Application during trial for parties to attend upon psychiatrist for assessment – Dismissed with leave to re-open application.

APPLICANT: Mr Prendergast

RESPONDENT: Ms Parsons

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 28 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 28 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Eidelson

SOLICITOR FOR THE RESPONDENT: Berry Family Law

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Brewer

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Robert Halliday & Associates

Orders

1. That the oral application made by Mr Eidelson on behalf of the wife for an order that the husband undergo a psychiatric assessment be dismissed AND THAT Mr Eidelson and the Independent Children’s Lawyer be otherwise granted leave to renew the said application at such further time as may be appropriate.

2. I direct that my extempore judgment be transcribed, placed on the court file and made available to the parties. 

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 764  of 2004

Mr Prendergast

Applicant

And

Ms Parsons

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Early in the cross‑examination of the husband, Mr Eidelson made an oral application that a psychiatric assessment be made of the husband and for provision to the expert of relevant material tendered thus far in court.  He pointed out that given the proceedings could not be completed in the current sittings and would necessarily be adjourned, there would be ample time for such an assessment to be carried out.

2. This application followed a period of cross‑examination during which the husband presented himself in a somewhat unusual manner in the giving of his evidence.  A reading of the transcript thus far would lend support to this observation.  I observed him to be evasive at times, argumentative, and defensive of his stated position.  Furthermore, I observed that whilst giving answers to various questions asked of him he simultaneously made notes in a diary he had in the witness box as a result of which I was concerned that he may not have understood or listened carefully enough to the questions asked of him.  For this reason, I sought clarification and the husband assured me that he did follow the evidence. 

3. I observed that in the course of cross‑examination, the husband refused and or failed to explain a number of his writings which have been tendered in court.  On two occasions he simply rested on the refuge, "I stick to my words”.  I found this evidence to be unhelpful, albeit that I suspect it was not a deliberate ploy.  He was guardedly protective of his writings and quick to fall upon statements such as, "I didn't say that”, or words to that effect.  As time progressed my concern increased and I was obliged to censure him, I might say, in quite clear terms. 

4. The husband's highly defensive disposition and re-iteration to what he asserted were the “facts”, not “views”, about the wife was an extension, it appears to me, of much of his earlier writings condemning persons who held views contrary to his own.  There is already before the court considerable material underpinning this observation.  For example, the husband's trial affidavit, in its pristine and professionally unfiltered form included his commentary in respect of Mr P, Ms K, the former Child Representative, the Independent Children's Lawyer and the wife's former solicitor. 

5. Furthermore, there is before the court the husband's correspondence addressed to the Attorney‑General of the Commonwealth of Australia, the Prime Minister of Australia and the Chief Justice of the Family Court of Australia, all of which came to light in his application for my disqualification, which I dismissed.  My judgment in respect of that application is on the court file and has been made available to the parties.

6. Another document that bolsters my concerns thus far is the husband's Case Outline Document, which, it seems to me, is quite alarming in content but consistent with his long‑held personal views and which, I hasten to add, he claims are based on “facts”. There is also a lengthy response by the husband to the wife's solicitors concerning the application to strike out various parts of his affidavit that offend Rule 15.13 of the Family Law Rules 2004. The transcript will reveal that from time to time I expressed my disquiet about these documents and their reflection upon the husband’s personality, character and temperament.

7. What emerged this morning in the course of cross‑examination was another document, being a 30‑page, single‑spaced response to the report of the Mr P of January 2005 which was annexed by the husband to his affidavit filed on 21 January 2005.  It is the husband's own document and upon which he relies.  It is an extraordinarily detailed address to the court complaining about the report of Mr P and I took the opportunity of reading this document over the luncheon break. 

8. I do not propose by any measure to record it in its entirety, for time does not permit me to do so, but I will refer to some isolated extracts that appear to reflect the husband’s unwavering and rigidly held view of the wife.  For example, he complained:

   “I can't see the judgment in this report to be just and faithful to the matter.  I reject the judgment in it, and I am in a position to challenge many aspects of it.  I believe this report is extremely unjust.” (page 1.)  (Note:  that although the pages to the document are not numbered, I have, for ease of reference, numbered them)

9. Let me pause there.  It is the fundamental right of any litigant to disagree or join issue with that which they believe to be incorrect and which fails to properly record events underpinning a professional report.  It seems to me, however, upon a reading of this particular document, and when considered against others presented at the hand of the husband that there arguably emerges a picture of concern.  In the course of his commentary upon Mr P the husband wrote:

   “… It's extremely false that [Mr P] suggest that [the daughter] was telling me that she wanted some space, this has never happened, and [the daughter] was interacting extremely well with me.”  (page 1)

   [Later]

   “Here is the full response to [Mr P] that I really request of him, to reconsider his report, I have no other option if his report remains the same is to seek other venue to claim my rights in this matter against the writer.  Mind you, I have a life, and taking my rights and minor issues, is the last thing I want to be distracted in my life, however, it should be realised, seriously, that this matter is fundamental, and I will have no rest, until justice is prevailed, for [the daughter’s] protection and right to be protected, and have affair (sic) and living arrangements tailoring to her safety.”  (p. 1-2)

10. These two paragraphs were brought to the attention of the husband in the course of cross‑examination by Mr Eidelson.  At one stage, although it took some time to gain a direct answer, the husband made it clear to me that such was his view at that time and which he maintains to this day. 

11. Variously in the course of this document, the husband would descend into minutiae, it seems to me, by rejecting a simple word, such as "allege" or "react".  That however is of small moment, but it is the overriding impact of its totality that may shed some light upon the husband's personality, character and temperament.  He writes, for example, that the report of Mr P is “selective”, the imputation of which is quite clear.  He resorts to matters historical and aged in time yet re-ignites them as of significance in support of his rigid views.

12. It appears to me that the husband was quite disturbed by Mr P’s report and that his response, arguably, is devoid of objectivity and the ability to disseminate material that may assist in understanding in a sensible and dignified manner the best interests of the daughter.  The document is difficult to read.  Nonetheless, when read as a whole, it does give rise to concern on my part.  For example, in the course of the document the husband records:

    “… It is unbelievable how [the mother] was interested in twisting all my friends and the priest I knew to her side and giving no real ability to recognise the problem she had in the marriage.”  (p 12)

    [Later]

    “It is unbelievable how [the mother] denies the passing me the herpes virus and her illogical sentence at the end of the paragraph stating, "who has refused to have blood tests”.  Has [Mr P] asked or concluded at least how I would have known if I didn't have a blood test in the first place.” (p 12)

13. This later comment was an issue upon which the husband was cross‑examined, and I will, in the fullness of time, I daresay, be asked to form conclusions about his evidence on these particular topics and about which I will retain an open mind until such time as all of the evidence has been completed.  However, as matters presently stand, his evidence on this topic was unconvincing yet and reflective of the beggarly view he holds of the wife.  It is hard to find any comment relative to the wife that is positive as his condemnation of her pervades his analysis of Mr P’s report.  He addresses a “warning” given to Mr P of the wife and her deceit (“deceiving factor”), that the daughter shows “many signs of fear and brainwash”, and is “becoming gradually a victim to the unseen abuse” of the wife (p 17-18) and which abuse is perpetrated “in a very hidden settled way”. (p 18)

14. Another example arises where the husband writes:

    “It is one major themes in my argument that information been selective and extremely bias and unfunded (sic) and with no specific details of examples”. (p 20)

    [Later]

    “Once again it is unbelievable that [Mr P] says that [the daughter] has a good relationship with both parents, but primary dependence and reliance upon her mother.  I believe this is extraordinary!  Where did that come from?  How did he find out about that?  Where are specific examples and back‑up to show that?  What is the transition to primary school has anything to do with the nature of this application?  The history and nature of the allegations as [Mr P] stated needs to be fully tested and yet he is basing his conclusion on the history and nature of allegations.  It is also contradictory that he doesn't see how at least a shared resident agreement could possibly work denying the fact that it has worked already since June 03 until current.  [Mr P] did not make a reference on the respect of the mother moving into the father's area given there are property settlement to be agreed upon which makes at  least a shared agreement even easier.” (p 20-21)

    [Later]

    “… [Mr P] gives no empathy or respect to the father given the history of how much the father has sacrificed and suffered upon the treatment of [the mother].”

15. Later, in the course of this document after having criticised Mr P for allegedly failing to take into account many factors and, it could be said, extolling his own virtues, he had this to say:

    “… I have never said to her she is ‘mad’ or used this word, it is obvious that her claim is let go with all hurt and abuse she was exposed to, and now I am the victim, because it is me who brought her to this country, and this country is different to where she was, she can have the freedom to explore her past abusive childhood with no threat or restriction, something she could never do in the tyranny and dictatorship of her mother, but nevertheless now I am and [the daughter] are victims of her uncontrollable exploration.” (p 24)

16. Having asserted the wife’s condition as destructive and her determination “to ruin everything that is good and beautiful”, that she had a “deceptive nature and different personalities” and various other negative aspects (p 26) he said:

    “It is obvious that his [[Mr P]] report has been conducted and written in the way that it will deliberately serve, the outcome of the report, and not the opposite, meaning justly all these references and material should have been written faithfully, fairly, truly and as I have outlines, then the conclusion would follow accordingly.  I believe, by the omission that is so evident in this report and the misrepresented information, was done for the purpose to support already conceived decision.  Unfortunately, not many possibilities leave to another conclusion.”  (p 28) 

    [Later]

    “I have a strong suspect that some sort of influence have been written and passed prior to the appointment to the psychologist about this.  No response to what exactly [Mr P] read and accessed of documents.  I recall that I waited about 15‑20 minutes before [Mr P] starting seeing me on that day, and he explained later, that he had just received a thick pile of information from the child rep and he wants to read it.  As I was on his office, I saw from distance also letters of MBC sent to him as well, recognised by the RED sign that I think he received very shortly before the interview.  The interview was at 9.00 am,  Why at least child rep file or what ever contained in that to arrive in that morning right before the interview, and why [Mr P] had to read it before interviewing me, is in it the interview should be completely separate from any influence. 

    I also recall very well, that while I was at the conjoint meetings, that the interpreter had arrived that had been talking to [the mother] all this time, I mentioned that to [Mr P], and my concerns that the Interpreter be impartial, and should not have been influenced by [the mother] prior to the interview, which will affect the representation.  I told him I studied interpreting, and this is ethically unacceptable, and the interpreter should only introduce her self, and not sit and talk for 20‑30 min at least with [the mother] before the interview.  [Mr P] made no note or any suggestions about it. 

    No reference, to the fact, of marrying [the mother] is such a quick time and that me and [the daughter] were the victims that her well established condition sustained from her past abuse and control by her mother. …” (p 29)

    [Later]

    “If [the daughter] ends up in the proposed situation, she will suffer a long term and future consequences beyond believe, and it will be too late to fix the problem while it manifest itself in her teen and adult life, and parents will suffer again consequently.  It is not fair to any body that this proposal of this report, in the present and future, and it gives no respect and acknowledgment to the already proved caring father.”  (p 30)

17. It transpired in the course of cross‑examination this morning that the husband complained about Mr P to what I assume is the Psychologists Board or the administering professional authority about the report.  Curiously, in the course of his evidence the husband sought to make a distinction without a difference, namely when asked if Mr P “was biased” he, in a round‑about way but ultimately, said that the “contents were biased”, not Mr P.  When one has regard to that which the husband has addressed in his lengthy letter to a Complaint made to the Psychologists Board and the references already deposed to in his trial affidavits, such a distinction is ludicrous. 

18. It is with that background that Mr Eidelson made this application.  It was early in the cross‑examination, as I said, and particularly following his questioning the husband on the issue of bias on the part of Mr P, and his response, “I did not use that word”.  When further matters were put to him, seeking an explanation of what he did mean by various of the sentences in his document, the husband baldly said, “I stick to my words”.  When asked again about another entry, he again repeated, “I stick to my words”.  I observed the husband’s demeanour and he appeared to be staring vacantly away from Mr Eidelson.

19. It was at that stage that Mr Eidelson made the application and submitted that there were “real issues” as to the “husband's competence” and whether or not there is an “undiagnosed disturbance”.  It was his submission that a qualified person should read all of the material and offer an opinion.  He submitted that the husband had a “distorted view of reality” and that he ignored "fundamental reality". 

20. Mr Eidelson made the observation that I, as the trial judge, must already be very concerned.  He said that the various documents (of which there were many) went to the husband's “fundamental psychiatric condition” and his perception of reality.  Mr Eidelson submitted that from all that has been read thus far and what I have heard in the course of the husband's evidence, I would have little confidence as to his parenting skills.  He made it clear that the wife was also most concerned.  Mr Brewer supported the application. 

21. I called upon [the husband] who immediately set into a lengthy speech which will be recorded in the transcript certainly as evidencing his inability to direct himself to the central issue of the application.  This is not the first time that I have made an observation of that nature, for it appears in my earlier judgments in these proceedings of which there are already four.

22. The husband said defensively and consistent with his antithetical position against anyone who offers a view inconsistent with his own, that “… this is another example of the offensive language the other party is accusing me of”.  He complained that he was forced to say "Yes" or "No" in response to questions asked of him and for which reason he “stuck” to his words.  He then said, “I have never accused the other party of such words”, and “I stick to the facts” followed by “I am trying to protect what I have to say rather than being forced to use his words”.

23. The husband submitted that Mr Eidelson was not qualified to "say these words”, which were, as he submitted to me, “offensive to his (the husband’s) personality”.  I was a little confused as to what he meant by the phrase, "other party" used on the two occasions to which I have already referred in my short summary of some of the matters raised by him the course of his submissions.  When I earlier referred to the husband having said “This was another example of the offensive language of the other party” of which he was accused, he said that he meant “Mr Eidelson”, when using the phrase, “the other party”.  When I sought clarification as to who the “other party” was when he said "I have never accused the other party of such words", he said that he was referring to the wife.

24. I do have some concern as to the husband's presentation in the witness box, as he constantly resorted to note taking in a diary.  As I said, I find it difficult to understand how one can write so intensively, and yet allegedly comprehend the narrative flow of questions asked and answers to be given.  However, that is simply an observation on my part at this stage.

25. I do not propose to accede to the application at this stage but I do not close the door to it being re‑ventilated should it be appropriate to do so.  It is clear that the husband loves his daughter and I have a preliminary view that he certainly has the child's best interests at heart.  But my concern is the intensity, indeed potency of his rigid, unyielding, negativity addressed to the wife concerning her parenting skills, her personality, character and mental state and its possible effect upon the daughter.  He resurrects the past as constituting the present.  His various detailed responses to any criticism levelled against him accompanied by his numerous letters to those I have mentioned earlier in this judgment arguably demonstrate a victimised view of himself.

26. There has already been an application by the Independent Children's Lawyer to suspend the time he spends with the daughter.  I have dealt with and dismissed that application and my judgment will remain on the court file.  I will, however, remain alert to any further developments, and at this stage the proceedings shall continue. 

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  16 May, 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PRENDERGAST & PARSONS