PRENTICE & MAHERIS

[2011] FamCA 261

FAMILY COURT OF AUSTRALIA

PRENTICE & MAHERIS [2011] FamCA 261

FAMILY LAW - PRACTICE AND PROCEDURE – Adjournments - matter not able to proceed

Family Law Act 1975 (Cth)

APPLICANT: Mr Prentice

RESPONDENT: Ms Maheris

FILE NUMBER: MLC 11939 of 2007

DATE DELIVERED: 23 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 23 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thompson

SOLICITOR FOR THE APPLICANT: John Guthrie

COUNSEL FOR THE RESPONDENT: Mr Puckey

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

IT IS ORDERED THAT

1. All applications be removed from the list for trial before Justice Mushin commencing on 18 April 2011 with an estimated duration of 4 days.

2. The applications be referred to the Docket Registrar for the making of all orders and directions as may be necessary to prepare it for trial with as much expedition granted to it as practicable and with an estimated duration of approximately 8 days.

3. The wife’s costs of the appearance this day and on 17 March 2011 be fixed in the sum of $2500 and be paid by the husband with a stay of 60 days.

4. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Prentice & Maheris is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11939 of 2007

Mr Prentice

Applicant

And

Ms Maheris

Respondent

REASONS FOR JUDGMENT

1. This is an application by the husband seeking orders to spend time with the child of the parties, E who was born in November 1999 and is presently aged 11 years.  There were proceedings before Young J in 2009 pursuant to which orders were made for the husband to spend time with E.  It appears that early last year the wife made allegations against the husband of abusing the child and those allegations have brought about a situation in which the husband has not seen the child since at least late 2009.

2. The proceedings are listed before me for final trial for four days commencing on Monday 18 April 2011.  It is quite clear on what I will find shortly that the matter cannot proceed at that time because they will take much longer than the four days provided and as a result will need to be removed from the list for hearing on that day. 

3. As part of the preparation of these proceedings Dr L was engaged as the single expert to prepare a family report on all issues relevant to E’s best interests.  Dr L has delivered several reports.  The latest of which appears to be that E is highly resistant to spending time with his father and that therefore he should not be required to do so. 

4. The attack on that report has achieved dimensions which I have seldom seen in this Court by way of affidavit material sworn by Professor MY.  The attack is centred on Dr L’s methodology and at least in part, on his alleged failure to consider various factual matters which are asserted on behalf of the husband to go to the heart of his application.  Without seeking to discard other potential issues it is clear that one of the fundamental issues agitated by and on behalf of the husband is that of the alleged alienation of the child from his father by his mother.  That appears to be at the heart of these proceedings.  They are not necessarily exclusively so. 

5. At a mention of this matter last week it became clear that there was significant doubt that it could be restricted to four days of hearing time and I accordingly re-listed it for further mention today.  The solicitor who appeared on behalf of the husband at that previous mention informed me that further significant volumes of material were to be filed on behalf of the husband and that has now been done.  That material is contained in two very voluminous folders which at this stage I have only skimmed.  It seeks to put into evidence large volumes of correspondence, other affidavit material and like matters which are alleged in parts at least to be material which Dr L should have taken into account and has not done. 

6. Counsel who will conduct the trial on behalf of the husband, who has appeared at today’s mention has informed me of his intention to call as witnesses in the trial the husband, Professor MY, the husband’s brother and the husband’s mother.  Further, it is a proposed part of the husband’s case that three medical witnesses will be called, who are or have been treating doctors of the wife.  As a result of the filing of the two volumes of material to which I have referred on behalf of the husband counsel for the wife has submitted that consideration needs to be given to whether the wife will need to call other evidence to rebut any of the material in those two folders.  Assuming that the contents of those folders are in whole or in part admitted as evidence in these proceedings that raises yet a further dimension with regard to the length of this trial which takes it well beyond the previously estimated four days. 

7. There is then a further issue.  In the event that during the trial the Court were to determine that the evidence of Dr L is to be disregarded it is possible that the trial would need to be adjourned to enable other expert evidence to be obtained.  That adjournment would presumably be on the basis of the application being part heard.  Accordingly both because of the estimate of this case being in my view approximately eight rather than four days and my impending retirement resulting in my being unable to take the risk of having a case part heard for any significant period of time, I have determined that I will be unable to hear the applications.

8. As a result of the submissions made to me today which have included most helpful submissions by the Independent Children's Lawyer I have raised a further issue.  It seems to me that the greater part, if not the entire part, of the attack on Dr L focuses on his methodology which it is said then fundamentally adversely affects his substantive views and recommendations.  It seems to me to be open to remove that methodological attack if there were to be an order made for a further single expert to prepare another family report.  Having raised that issue with all counsel today and considered their submissions I have determined against that process.  My reasons are first the considerable risk of harm to the child of having another expert involved and secondly the fact that the issue has been considered on two previous occasions. 

9. I have been made aware of statements by Dr L with regard to the child’s reluctance to submit to interview and I could only conclude that that reluctance would be greater given the passage of time.  The issue was raised initially before the Senior Registrar who refused a further expert and more recently was raised before Cronin J.  On 15 December 2010 his Honour delivered reasons for judgment and made orders as a result of considering written submissions from all parties.  His Honour detailed the issues which he needed to consider as being first the question of priority, secondly the question of discharge or variation of certain orders and the reinstatement of earlier orders, thirdly the question of the adversarial witness being Professor MY and fourthly whether there is to be another expert at the parenting proceedings should he become the reporter and for that task interview all of the parties.

10. At paragraph 36 of his reasons for judgment his Honour held:

    I would be very concerned to introduce another psychologist into the life of [E].  I see no reason why the facts cannot be tested in cross-examination including what [Dr L] heard and saw and [Professor MY] can give his opinion if appropriately qualified on that evidence.  I would not be prepared to put [E] through another round interviews without expert evidence that he is not likely to be adversely affected as of consequence.

    37. Accordingly I reject the request to have [Professor MY] as the family report writer.

11. While I understand the potential criticism of Dr L I am satisfied on the evidence to this point from Dr L and by way of a submission of the independent children's lawyer that the best interests of E may be adversely affected by being submitted to further interview and assessment.  Having raised the question of another expert witness I find that it would be contrary to E’s best interests to so order and I have determined against it.  The proceedings will be removed from the list for hearing on 18 April and will be referred to the Docket Registrar for the making of further orders and directions to prepare it for trial.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin delivered on 23 March 2011.

Associate: 

Date:  14 April 2011