Prendergast and Parsons (No. 7)

[2007] FamCA 538

FAMILY COURT OF AUSTRALIA

PRENDERGAST & PARSONS (NO. 7) [2007] FamCA 538

FAMILY LAW – CHILDREN - PSYCHIATRIC ASSESSMENT – Power to order a psychiatric assessment in circumstances where one party refuses to co-operate and opposes the order – Order made in the course of a final hearing to assist the court in the exercise of discretion to make final orders.

Family Law Act (1975) (as amended)
Family Law Amendment (Shared Parental Responsibility) Act 2006

Minagall v Ayres (1966) SASR 151 at 154
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313
Attorney-General For the Commonwealth of Australia and Others; Ex parte Skyring (1996) 70 ALJR 321
Neil v Nott (1994) 68 ALJR 509 at 510
P v P [2005] FamCA 678
Gilbert v Gilbert (1988) FLC 91-966
Schapel v Schapel (1991) FLC 92-240
L v T (1999) FLC 92-875
W & M and Anor [2006] FamCA 512
SR v SA [2006] FamCA 586
Jones v Dunkel (1959) 101 CLR 298 at 320-321
Fabre v Arenales (1992) 27 NSWLR 437 at 449
Hunt v Hunt (2001) FLC 93-064
H v W [2003] FamCA 725
Waugh v Waugh (2000) FLC 93-052
Browne v Pedersen (1988) FLC 91-967

APPLICANT: Mr Prendergast

RESPONDENT: Ms Parsons

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 18 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 18 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

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 both the husband and the wife do attend upon a psychiatrist nominated by the Independent Children’s Lawyer for the preparation of a psychiatric assessment and report AND THAT each of the husband and the wife do abide by the directions of the Independent Children’s Lawyer and the appointed psychiatrist in relation to the preparation of that report.

2. That the final determination of responsibility for payment of all costs associated with paragraph 1 hereof be reserved.

3. That the costs of the application be reserved.

(4) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

1. That the ex tempore judgment delivered this day be transcribed, placed on the court file and provided 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. Both Mr Eidelson, counsel for the wife and Mr Brewer, counsel for the Independent Children’s Lawyer have renewed, by way of oral application, that I order a psychiatric assessment of the husband.  Mr Eidelson made it clear in the course of his submissions that the wife would consent to such an order if she were required to do so.  I had already been informed by Mr Brewer that tentative appointments have been made for attendance upon Dr E on 26 and 28 June 2007. 

2. Given that the bitterly contested applications would not finish this week and having regard to my own court commitments, it is clear that the adjourned proceedings would not be resumed until August 2007, or thereabouts.  That would enable time for a psychiatric assessment to be undertaken were I disposed to make such an order.

3. In coming to my determination on this issue, I have regard to my extempore judgment delivered on 28 March 2007 when I ordered that an oral application made by Mr Eidelson for an order that the husband undergo a psychiatric assessment be dismissed.  However, I further ordered that both Mr Eidelson and Mr Brewer be otherwise granted leave to renew that application at such further time as may be appropriate.  I was seriously concerned at that time about a number of aspects concerning the husband's conduct and attitude extending over quite a long period, including his behaviour in court.  My concern was made quite clear in my judgment and upon which I rely as a factual base by way of background in further assisting me coming to my determination on the current application.

4. At this stage, I wish to make it clear that the observation of witnesses is an important tool for trial judges and a helpful aid in the decision-making process.  See, for example, Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J, Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313.

5. I am not asserting such a situation as a panacea in the quest for truth and accuracy, but as an aid to assist a trial judge, particularly when evidence in contest can be weighed against that of others.  My observation of the husband in court and his general demeanour is one of the matters I can take into account in the determination of this application, particularly given the issues in contest and the best interests of the child as the paramount consideration. 

6. Following my earlier judgment, the proceedings continued with the husband giving evidence.  He recurrently maintained his view that the wife was "ill" and that the child had been and was being "brainwashed" by her.  It became his constant mantra whilst at the same time denying at all times any negative aspects arising from his own behaviour.  At one stage he said that he wanted the wife "to be treated", that he was concerned with her condition and that she should now undertake psychiatric treatment, asserting however, when put to him, that there was no need for him to do so.

7. Mr Eidelson reminded the husband that on 7 August 2006 he was asked by the Independent Children's Lawyer to attend for a psychiatric assessment in order to assist in the proceedings.  He refused.  At that time, it was common ground the wife was quite prepared to attend for assessment so long as the husband also agreed to do so.

8. Given his refusal, it is my understanding that the issue was not then taken any further by the Independent Children's Lawyer.  Mr Eidelson again put to the husband that the wife would, if required, attend for assessment and in which circumstance, he asked whether he too would agree to attend for evaluation.  The husband plainly asserted that he would have no reason to do so and when asked whether or not he would do so if ordered by the court, he claimed that he would need to seek legal advice, asserting, "… my initial thoughts are that my history and occupation does not require it", or words to that effect.

9. I am satisfied that the husband is clearly unwilling to attend for a psychiatric assessment to assist me in my final determination of the contested applications and so much so has been made clear by his oral and written submissions of 17 April 2007.  I act on that basis.

10. My concern with the husband's mulish resistance to recognise any positive attributes in the wife's parenting of the child or her apparent presentation of wellbeing, expressed variously in my judgments delivered following the commencement of the trial (now five in all), has been maintained by his continued abnormal behaviour in the witness box and his sustained and unremitting denigration of the wife.  His abiding return in denunciating her mental health went so far as to asserting, at one stage, that the child was insufficiently mature to recognise her mother's "psychiatric illness", but that there would be a time when she will "understand" that her mother was "not well".  He said that the child "needs to be closely protected from the condition of her mother", or she will suffer "permanent damage" by being "subject to physical and emotional abuse".

11. An incident occurred on 28 March 2007 when the child was returned from spending time overnight with her father and which was reported by the wife through her counsel.  Evidence in relation to this event, upon the application of Mr Brewer, was given by the wife, the husband and his sister. It concerned an alleged complaint made by the child to her mother that events told by her in confidence to Mr Halliday, the Independent Children's Lawyer, and recorded in Exhibit “ICL1”, were made known to her father.  Both the husband and his sister denied the version of events sworn to by the wife and I am yet to determine the issue, albeit as matters presently stand, there is a sound evidentiary base to formulate a preliminary view. 

12. When cross‑examined by Mr Brewer, the husband, without a modicum of reasonable concession, maintained his thesis that the child was “brainwashed” by the wife.  In relation to the matters reported in Exhibit “ICL1”, he asserted that the child was "not telling the truth" and that she had been "brainwashed to say those things".  In the result, however, the husband accepted that the child informed Mr Halliday of those matters referred to in the exhibit, but repeated that she was “brainwashed” to act as she did.  As to the conversation the wife had with the child, the husband acceded to the proposition that the wife, if such was the case, had in effect manufactured her evidence.  He rationalised such a proposition by asserting that his past affidavits revealed a consistent history of the wife being “psychiatrically diagnosed” and that her evidence given in relation to the incident on 28 March 2007 was "part of her psychiatric condition". 

13. It is so patently clear from the husband's evidence in court and his writings, authenticated through the various exhibits, that he is of the immutable view that the wife suffers a severe psychiatric disturbance of some undefined nature.  He seems himself as a “victim” at the hand of the wife, expressed as such by him and clearly represented in his various writings.  As I said in earlier judgments in this matter, the husband is blindly resistant to the view of any person that is inconsistent with or contrary to his own.  His reflex or instinctive response has been to strike out in a manner evidenced in the exhibits currently tendered in court and seen otherwise in his affidavits. 

14. With the progress of the husband's evidence, I rapidly became increasingly concerned about what he had to say, accepting of course that he has been thus far, save for the interposed and discrete evidence of the wife and the husband’s sister, the only witness.  The wife is yet to give her evidence on the various issues for my determination.  For example, the wife in her trial affidavit filed 15 January 2007 at paragraphs 25 and 26 deposed as follows:

    “25:The Husband was frequently violent towards me during our cohabitation in Australia.  His actions included:

    (a) Striking me with his fists;

    (b) Physically picking me up and throwing me across the room;

    (c) Shoving me violently against walls or furniture;

    (d) Pulling my hair violently to compel me to move in a particular direction;

    (e) Spitting at or on me;

    (f) Violently grabbing and shaking my upper body;

    (g) Forcing me physically to engage in sexual intercourse with him.

    26:The violence did not abate during my pregnancy with [the child].  During this period of time, the Husband continued to punch me, to pull on my hair and spit at me.  After one particularly violent episode, the Husband stated that he had decided to divorce me and to ‘put you (me) in prison’.  This threat was to counter-act the possibility that I may leave the Husband.”

15. In relation to the allegations made by the wife, the husband at first made a blanket assertion that they were "unsubstantiated".  He denied that he ever struck his wife, and claimed that he had "stopped her from hitting herself".  He said that she engaged in “self-harm”, and it was she that broke furniture, not him.  He denied that he "pulled her" hair, asserting that she “pulled her own hair”.  He denied non‑consensual sexual intercourse. 

16. At paragraph 32 of the wife's affidavit, she deposed:

    “32:In December 2001, and for a period thereafter, I sought assistance from a service called “[S Organisation]”.  In particular, I attended an 18-week course with regard to Domestic Violence, in an attempt to change the ongoing cycle of violence which was occurring during my cohabitation with the Husband.  It is true that the workers at the service considered that I was suffering from some mild depression, but this was greatly assisted by the end of the relationship between myself and the Husband.  Now shown to me and marked with the letters “FP1” is a true copy of a letter from the [S Organisation] dated 30 June 2004.”

17. The husband agreed that the wife did attend [S Organisation].  However, in relation to the 18-week course on domestic violence, he claimed that the paragraph, as drawn "was misleading".  His evidence was that the wife's attendance was for "self-harm violence".  That is, she attended the course to assist herself in "not self-harming". 

18. Albeit that the wife is yet to give her evidence and doubtlessly will be cross‑examined by the husband on this issue, it appears to me, as matters presently stand, that his evidence will be subject to considerable scrutiny, particularly in the light of Annexure “FP1” to the wife's affidavit which comprises a letter from the women's group coordinator of S Organisation dated 30 June 2004.  As the contents have clearly been put in issue by the husband, it is plain that it will be incumbent upon the wife in the course of the proceedings to prove the contents of the document. 

19. In order to better place the husband's evidence in narrative context, and subject to my caveat, I set out the letter which is in the following terms:

    “To Whom it may concern 

    [The wife] has been receiving services from [S Organisation] since December 2001 until August 2003.  [The wife] requested our services for issues relating to isolation, mild depression and relationship problems. 

    [The wife] attended an eighteen week women's Domestic Violence support group to address issues of isolation, self-esteem, Assertive Behaviour and understanding the cycle of violence and male privilege. 

    [The wife] also received our Family support service which comprised of a worker visiting her home and discussing a variety of topics relating to parenting, connecting to community services, being linked into child care services, play groups and help with language difficulties.

    [The wife] was observed to be a very protective and loving mother at all times, her home was also extremely clean and well managed.  [The child] was provided with healthy home-cooked food, was always dressed beautifully and [the wife] appeared to have a good relationship with her. 

    The mild depression that [the wife] was suffering when she contacted our service seemed to be a result of her relationship problems with her husband, and greatly improved after she left the relationship. 

    I have found [the wife] to be honest, reliable, capable and a good parent.”

20. I have included this aspect of the husband's evidence and that of the wife, albeit untested, in this judgment for it sits somewhat seamlessly with the husband's impoverished view of the wife across the board, both as to her parenting and mental health. Is his set opinion such that it is reasonably foreseeable he would be unable to restrain himself, either deliberately or unconsciously, from permitting it to impact upon the child? Given all the issues to which I have referred and given the significant provision mandated in section 65AA of the Family Law Act 1975 (as amended), there are matters of real concern to me and upon which I require professional assistance.

21. The further application that both parties be assessed by a psychiatrist was made at the conclusion of the fifth day of the trial on 29 March 2007.  In order to gain assistance on the issue of funding and at my request, Ms Z from Legal Aid (Victoria) attended court.  Following further submissions, I adjourned the application to 9.30 am on 17 April 2007 in order to give Legal Aid (Victoria) time to assess the issue of funding a psychiatric assessment of both parties and an order for the husband to seek legal advice, as he indicated he would, on the issue for my determination.

22. I have carefully considered the husband's written submissions which I have marked Exhibit “H5”.  With due respect, they are of marginal assistance to me and I do not make that remark by way of criticism, acknowledging that he is self-represented.  The submissions stridently address his various complaints of others within the proceedings, his overall perception of victimisation and otherwise blameworthiness which he attaches to others who challenge or contradict his own position.  He reverts to his constant theme concerning the wife's psychiatric disposition and makes reference to quite inadmissible material, so obvious on the face of the documents.

23. The husband opposes an order that he be psychiatrically assessed, relying upon his educational achievements and a number of references, now aged far in time.  He annexed a letter from a Dr S dated 13 April 2007, who reported that the husband had attended upon him over the past four years, mainly in relation to back pain and issues relating to the child.  Dr S said “… there have been no indications over this time that he requires psychiatric assessment”.

24. It is proper for me to comment that it would be most unlikely Dr S would be seized with all the information I have to hand, and further, given his qualifications (cited after his name on the letterhead) he arguably is not qualified to provide the opinion he purports to offer.  Be that as it may, I take his note into account in a general sort of way as untested evidence.

25. Before considering the legal basis for such an order, a matter upon which the husband, despite consultation with a firm of solicitors and his submission that he desired to take advice on the issue, had nothing to say, I wish to make it clear that I have read and considered all the relevant material currently before me, including the many exhibits tendered thus far.  In so doing, I am mindful of the observation made by Kirby J in Attorney-General For the Commonwealth of Australia and Others; Ex parte Skyring (1996) 70 ALJR 321, that:

    “… it is always important for every judge to keep an open mind in case a person … may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit.  Vigilance, and not impatience, are especially required where that person is not legally represented.”

26. I also bear in mind what the High Court had to say in Neil v Nott (1994) 68 ALJR 509 at 510, namely:

    “… a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.”

27. It is a combination of all the material contained in the exhibits tendered thus far, together with the trial affidavits of the parties, including the paragraphs unfiltered by legal representation that have now been struck out and the oral evidence of the husband, including my observations of his overall general demeanour that leads me to my determination. 

28. This is an issue upon which I need professional assistance from an independent expert such as Dr E, given that I am dealing with the best interests of the child in a situation where each of her parents seek an order that she live with them. In considering her best interests, I also have to take into account the time to be spent with the other parent.  In addition, I am to pay regard to the “Additional Considerations” prescribed in section 60CC of the amending legislation, and in particular paragraphs (c), (f), (i) and (j).  I regard the attitude and conduct of the husband to which I have variously referred in this judgment and those preceding as of real and present concern to me, that I can only be assisted by gaining further insight from an independent expert witness. 

29. Furthermore, given the husband's constant exhortation concerning the wife's mental health, an assessment of her may put to rest, alternatively enliven, his fears and in so doing, either way also be of assistance to me in my determination.  As the Full Court observed in the course of its judgment in these proceedings on 21 June 2005, following an earlier appeal brought by the husband against orders of Watt J:

    “… the father asserted that the mother effectively was quite incapable of caring for the child and indeed represented a danger to the child, as well as being a person that had operated from ulterior motives in many aspects of the relationship of the father in the ongoing litigation.” [P v P [2005] FamCA 678 per Kay, Warnick and May JJ.]

1. This was despite the report of Mr P to which the husband has penned his 30-page single-spaced criticism, being a view maintained to this day despite the report of Ms K, which has also merited his denunciation. 

2. I am quite satisfied, that even at this stage of the proceedings, it would not be possible for me to fulfil the onerous responsibility I have in finally determining what is in [the child’s] best interests and in accordance with the provisions of the amending legislation without the assistance of such a report.  I have made it quite clear thus far that, for the purpose of this application, only the husband has been tested by cross‑examination but that is sufficient, along with the plethora of material I have received in all the circumstances, to agitate my concern.  Albeit the wife has not yet given evidence, she consents, as I said, to the orders sought.

3. It was the submission of Mr Eidelson, having considered Gilbert v Gilbert (1988) FLC 91-966, Schapel v Schapel (1991) FLC 92-240, L v T (1999) FLC 92-875, W and M & Anor [2006] FamCA 512, and SR v SA [2006] FamCA 586 that it would be "impossible to imagine" that the welfare of the child would not encompass the attitude of the husband to time spent by the wife with the child and the psychiatric state of the husband.  He submitted there was power for me to make the orders sought.  Regrettably, although I understand Mr Brewer agrees with the written submissions of Mr Eidelson, he provided none of his own for my assistance, despite the orders I made on 17 April 2007. 

4. Whilst the Full Court in L v T (supra, at paragraphs 57 and 60) has clearly found that a final order can be made for a psychiatric assessment of a party if it is a condition of that party having contact with the child, it is arguably so that the position is less certain as to the validity of an order on an interim basis. Such a situation, however, hardly assists me at the stage of the proceedings in which I now find myself and would in any event, having regard to one possible scenario, more likely than not result in further proceedings.

5. With that said, it is plain, however, that should a party refuse a psychiatric assessment or otherwise fail to lead evidence of their psychiatric condition where it is a matter in issue, an adverse inference may justifiably be drawn.  See Jones v Dunkel (1959) 101 CLR 298 per Windeyer J at 320-321; Fabre v Arenales (1992) 27 NSWLR 437 at 449 per Mahoney JA.

6. In Gilbert v Gilbert (supra) being property proceedings, Nicholson CJ concluded that there was jurisdiction for him to make an order that the wife (in that case) attend for a psychiatric examination on the basis (inter alia) that the court had additional power such as to enable him to exercise statutory jurisdiction with justice and efficiency.  In particular, the court had inherent jurisdiction to control and regulate the proceedings before it and to avoid injustice.  It makes no difference, in my view, that I am dealing with a child welfare issue, for I am satisfied that such an order is an exercise of power ancillary to the power I have to make a parenting order.  The power to do so may be drawn by way of an order under section 68B, section 65D(1), section 67ZC or indeed section 114 of the Act.

7. In Hunt v Hunt (2001) FLC 93-064, Barlow J, when dealing with a financial matter at an interim level, distinguished L v T (supra) where he had this to say:

   “I am of the view that L v T's case may be distinguished.  In that case the Court was concerned about the power of the Court to make a stand-alone order for a medical examination and possible treatment of a party as a final order in proceedings relating to a child, in circumstances where the Court had exercised its jurisdiction and made final parenting orders.  In this case the orders sought are interlocutory orders relating to the exercise of the jurisdiction yet to be exercised in relation to alteration of property interests and spousal maintenance.  In my view the power to make the order arises as being incidental and necessary to the exercise of that jurisdiction.” (par 19)

8. In the course of his judgment, Barlow J expressly accepted the conclusion of Nicholson CJ in Gilbert (supra at par 18), wherein the former Chief Justice was faced with a similar situation in a financial case, and expressed a view that the court had an inherent jurisdiction to control and regulate the proceedings before it and to make such an order, with such power being limited to that which would enable the court to exercise its statutory jurisdiction with justice and efficiency.  I agree with his Honour's argument.

9. In circumstances somewhat analogous to my own but at a point far earlier in the proceedings, Carter J in H v W [2003] FamCA 725 considered Gilbert (supra), L v T (supra) and Hunt (supra) and in a most helpful analysis was of the view that there was no power to make such an order. Her Honour concluded (at paragraphs 27 and 28) that even if there were power to do so, on the information provided (which, as I understand it, was at quite an early stage in the proceedings) she would not be prepared to exercise such power as, in her view, the Full Court in L v T (supra) "… said all that needs be said".

10. In the course of her judgment, Carter J considered what I understand to be the paucity of evidence relied upon at that time in the course of the litigation pathway in support of the orders sought, finding that one required, "…  cogent evidence … to support such an application," drawing by way of analogy upon the principles expressed in Waugh v Waugh (2000) FLC 93-052. It was correctly acknowledged by her Honour, however, that such a case involved the preservation of property.

11. With great respect to her Honour, I do not agree that such an express test as suggested would be appropriate in welfare proceedings, but rather there be a general requirement for a sufficient evidentiary base to warrant the making of such an order.  I do not see it is helpful to creatively blueprint a test by definition as each case must depend upon the particular varied facts and circumstances before the court, particularly given the vagaries of human behaviour.  In the result, it involves the exercise of judicial discretion, predicated upon the facts revealed in each individual case for, like fingerprints, no two set of circumstances are the same.  If I am to adopt her Honour's words (paragraph 29), I am satisfied on all the material I have before me and in the exercise of my discretion that there is "a significant and genuine issue" in these proceedings such as to justify the making of the order sought. 

12. In his submissions, Mr Eidelson referred me to Schapel v Schapel (supra) where Murray J considered whether there was power to make an order for the psychiatric examination of one of the parties pending final hearing. The applicant in that case relied upon section 64(1) of the Family Law Act (as it then was) and drew comfort from the decision in Browne v Pedersen (1988) FLC 91-967, where the court held that section 64(1) provided authority to order a child be examined by a psychiatrist for the purpose of preparing a report and that a parent could be ordered to deliver up the child for that purpose.

13. Murray J held that the jurisdiction of the court to make orders in relation to the welfare of the child could encompass a court order for a party (in that case the wife) to undergo psychiatric assessment in respect of her attitude to “access”, (now, “spend time with”), by the husband, finding, that in her view:

    “… if the purpose of the order is to safeguard and advance or assist in safeguarding and advancing the physical or emotional well-being of a child, it is an order “in relation to the welfare of … a child”.  It must not, however, diminish in any way the obligations cast on the Court by paragraphs (a), (b), (ba) and (bb). 

    In the circumstances of this case, it is impossible to imagine that the welfare of the child would not encompass the attitude of the wife to access by the husband and, if thought necessary by the Court, the psychiatric state of the wife's mind.  I find that there is a clear relationship between the second application of the husband and the welfare of the child, and that the order sought may assist in advancing the welfare of the child.  Whether in fact I should exercise my discretion in granting the application is another matter altogether”.  (page 78-633)  (My emphasis)

14. As a matter of observation only, the Full Court in W v M and W (supra) saw no reason to comment upon the efficacy of an order made earlier in the proceedings requiring a party to attend upon a psychiatrist for assessment or even suggest that it was one made without power.

15. In SR v SA (supra), the Full Court had before it an appeal brought by the husband against certain orders made by Young J.  In the course of the appeal, the husband raised, as a significant matter, an interim order made by Morgan J earlier in the proceedings suspending his “contact” with his daughter and ordering that both he and the wife attend upon a psychiatrist for assessment.  In the course of her helpful extempore reasons for judgment, Morgan J had this to say:

    “5.… I am abundantly satisfied that in the circumstances of this case I could not fulfil my responsibilities to consider the best interests of this very young child without the assistance of a report prepared by an independent expert.

    6.…

    7.More difficult is the question of whether I should make an order for a psychiatric assessment.  As I understand it, [Dr L] has indicated to the Child Representative that she would be unable to prepare a report to her satisfaction without the availability of either a psychiatric or psychological report ….”

    [Her Honour then considered matters she was told that supported an order for a psychiatric assessment and went on to say]:

    “9.None of those matters have been tested by cross‑examination.  However, I am satisfied that there is sufficient material before the court to support the submission for the wife and the child representative that this is a matter which requires psychiatric assessment ...”

16. It was in relation to those aspects of her Honour's judgment that the Full Court observed:

    “20.Two points worthy of note are that the orders required attendances by both the father and of the mother upon a psychiatrist and secondly, her Honour specifically noted that assertions had not been tested by cross‑examination and that the purpose of the orders were simply to gain professional assistance before determination of whether contact orders should be made and if so, in what terms.”  (Emphasis added)

17. It is to be observed that the Full Court made no suggestion or adverse comment that her Honour's order was made without power, despite observing, (at paragraph 22) that the husband's particular point of contention concerned the order he undergo a psychiatric examination and suspension of contact until that examination occurred.

18. Do the amendments affected by the Family Law Amendment (Shared Parental Responsibility) Act 2006 have the effect of distinguishing L v T (supra)?  Section 65D(1) has subsequently been amended from:

    “In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper,

    to provide that:

    “In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, makes such parenting order as it thinks proper.”

19. Section 64B has also been amended.  Whilst the section previously made provision for a “parenting order” to include an order that deals with "any other aspect of parental responsibility for a child", the definition has been expanded and the new "catch-all" aspect of the definition appears at s 64B(2)(i):

    “(i)any aspect of the care, welfare or development of a child or any other aspect of parental responsibility for a child.”

20. Having regard to the discussion in L v T (supra) in relation to the need for a connection between the orders sought and the welfare of the child, it would not appear that the amendments to sections 65DA or 64B alter the position set out by the Full Court in L v T (supra).  Section 68B was amended to reflect the changes in terminology brought about by the amending Act (for example, “live with”, “spend time with”).  Section 114 and section 67ZC were unaffected by the most recent amendments to the Act.  Section 67ZC provides that:

    “In addition to the jurisdiction that a court under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.”

21. Thus, in my view, the recent amendments do not appear to provide any basis for departure from the Full Court's position expressed in L v T (supra).

22. In conclusion, I agree with the submission of Mr Eidelson that it would be quite unjust in relation to the proper control and regulation of the current proceedings if an issue which, having regard to all the information I have to hand and in the exercise of my discretion is fundamental to the child’s best interests and upon which I need assistance, was denied to me.  It is a rudimentary aspect of the husband's case that the wife is psychiatrically unwell.  With unwavering purpose, he has now maintained that view, despite the reports of Mr P and Ms K.  His writings, his evidence and his general attitude and demeanour in court agitate my concern.  He seeks a sharing arrangement, but is his attitude and rancour towards the wife is so deeply embedded that it will necessarily and adversely impact upon the best interests of the child. 

23. There is, in my view, arguably a direct connection between the welfare of the child and the attitude of the husband to the wife's care of the child and the psychiatric state of mind of the husband.  The making of the orders sought can only assist me in the exercise of my discretion to make final parenting orders pursuant to s 65DA(1) of the Act.  It is an order relating to the welfare of the child.  Like Morgan J in SR v SA (supra), I do not believe that I can properly fulfil the onerous responsibility I have and with which I am charged in considering the best interests of the child and formulate appropriate parenting orders without the assistance of a report from an independent expert witness.  In my view, I have the jurisdiction to do so, being one ancillary to the power I have to make a parenting order. 

24. The orders of the court will be:

    (1)That both the husband and the wife do attend upon a psychiatrist nominated by the Independent Children’s Lawyer for the preparation of a psychiatric assessment and report AND THAT each of the husband and the wife do abide by the directions of the Independent Children’s Lawyer and the appointed psychiatrist in relation to the preparation of that report.

    (2)That the final determination of responsibility for payment of all costs associated with paragraph 1 hereof be reserved.

    (3)That the costs of the application be reserved.

    (4) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

    (5)That the ex tempore judgment delivered this day be transcribed, placed on the court file and provided to the parties.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  6 June 2007

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