Prentice & Maheris (No 3)

[2010] FamCA 1245

FAMILY COURT OF AUSTRALIA

PRENTICE & MAHERIS (NO. 3) [2010] FamCA 1245

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth)

Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705

APPLICANT: Mr Prentice

RESPONDENT: Ms Maheris

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11939 of 2007

DATE DELIVERED: 15 DECEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: JOHN GUTHRIE

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE & ASSOCIATES

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

Orders

1. That all outstanding applications be adjourned for final hearing before Justice Mushin on 18 April 2011 at 10 am.

2. That the husband has leave to file an affidavit by Professor MY.

3. That by 4 pm on 11 February 2011 the applicant husband file and serve:

   (a)   an amended application setting out with precision the orders to be sought; and

   (b)   the affidavits of evidence in chief of all witnesses relied upon.

4. That the applicant all required trial fees by 4 pm on 4 February 2011.

5. That by 4 pm on 25 February 2011 the respondent wife file and serve:

   (a)   an amended response setting out with precision what orders are being sought; and

   (b)   the affidavits of evidence in chief of all witnesses relied upon.

6. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

7. Should any party fail to comply with these orders, that registrar shall if both parties are in default, remove the case from its allocated place in the list and refer the case to the trial judge for directions as to its future management.

8. If one party fails to comply with these orders but the other has, the complying party may seek leave from the trial judge to proceed on an undefended basis without having to wait for the allocated trial date.

9. That the practitioners for the parties file and serve by 4 pm on 14 April 2011, the following:

   (a)   a concise set of orders to be sought if different from those already filed;

   (b)   a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon; and

   (c)   a bullet-point summary of argument in relation to the issues in dispute.

10. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

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

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. An application by Mr Prentice (the husband) came before me in the Judicial Duty List on 9 November 2010. Discussion apparently took place and agreement was reached between counsel that the husband’s application would be withdrawn, a further application would be filed along with written submissions, and I would determine the matters in issue on the written materials.

2. Apart from the husband, the other participants in the written submissions were Ms Maheris (the wife) and the Independent Children’s Lawyer.

3. This dispute is about the child who was born to the husband and wife in November 1999. At the age of 11, the child is embroiled in a bitter conflict.

4. There are four matters for determination on the papers. They are:

   (a)should the husband’s application be given priority for an expedited final hearing;

   (b)should the orders of Senior Registrar Fitzgibbon made on 5 July 2010 be discharged or varied so that previous final consent orders made on 2 December 2009 be re-instated;

   (c)should the Court permit an adversarial witness to file affidavit material in the parenting dispute when there is already a single expert witness; and

   (d)if there is to be another expert in the parenting proceedings should he become the reporter and for that task, interview all of the parties.

5. I am determining the matters above on the following materials:

   (a)the application of the husband filed 15 November 2010;

   (b)the comprehensive and lengthy submission of Mr Thompson of Counsel;

   (c)the response of the wife of 8 December 2010;

   (d)the written submission of the wife drawn by her solicitor; and

   (e)the two written submissions of Ms Smith who is the Independent Children’s Lawyer.

6. There may have been some dilemma about compliance with the filing times of all of this material but I have ignored the deadlines to ensure that I have fully understood the arguments of all parties.

7. First, there are the orders of the Senior Registrar in July 2010. These arose out of a dispute between the parties about what time should be spent by the husband with the child. I need to set out the orders from 2009.

8. The parties had been litigating over two years from 2007 when the matter finally came before Young J. Whilst there is a strongly put argument by the husband that the “system” created a delay in that initial period, which is strongly disputed by the wife, I have no evidence that that was the case. I have not endeavoured to examine the whole of the large court file and nor should I but it does not appear that the Court could be responsible for the delays here.

9. In any event, the parties compromised the parenting positions on 2 December 2009. All parties were represented and Young J was requested to make the orders on the assumption that they were in the best interests of the child.

10. Young J ordered so far as it is relevant that the husband spend time with the child during each alternate weekend from Friday through to Monday and then each alternate Wednesday through to the following morning. There was a variety of holiday orders as well.

11. It would seem that it was not long thereafter that problems occurred. Each party had a different view about what gave rise to the dilemma. There was some form of altercation between father and son which gave rise to an initial police intervention.

12. I have not read the reasons of the Senior Registrar but as I understand from the lengthy submissions, he had a lot of material all of which was not subjected to testing by cross-examination.

13. I think it is also important to note that I am not being asked to review the decision of the Senior Registrar and even if the husband’s application could be construed that way, it must be seen as out of time without any application for extension of time.

14. The orders sought by the husband are simply that the December 2009 orders be re-instated but to do that, leaving aside any argument about Rice v Asplund, I have not been asked to read and rely upon a plethora of affidavit material that would enable a court to at least contemplate that.

15. Accordingly, I do not see how I can apply the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) without evidence.

16. I turn then to the second matter which relates to the final hearing being expedited. Counsel for the husband set out succinctly all of the matters required for consideration under Rule 12.10A of the Family Law Rules 2004.

17. The fundamental issue here is that the child is not spending any time with the husband and that situation has continued virtually throughout all of 2010. That is most unfortunate for the child if the child is being deprived of the benefit of a meaningful relationship with his father. However, the Senior Registrar must have been taken to have concluded that the best interests of the child and specifically the protection of the child from harm must have overridden the entitlement to the meaningful relationship.

18. As was pointed out by the wife, contrary to the assertion of the husband’s counsel that the Senior Registrar determined the matter on the flawed assessment of Dr L, there was significant other affidavit material. I do not know what basis was used to decide to suspend the extant orders.

19. The matters that need to be established to elevate this case above others are set out in rule 12.10A. I turn to them.

20. The husband seems to have acted reasonably however, as I previously, noted, I am not dealing with a review.

21. There is no prejudice to the wife in expediting the hearing because it is in her interests to have the matter concluded. There are no apparent evidentiary matters that she cannot gather together for a trial in 2011.

22. What relevant circumstances therefore can be pointed to which would justify giving this case priority to the clear detriment of other cases. It is particularly important to bear in mind that these parties have had significant judicial resources throughout 2009 and now 2010 when the Court’s resources are stretched. That has to be considered in the light of the husband not seeing his 11 year old son.

23. Turning to rule 12.10A(4), there are no issues of availability of witnesses. There is a very large dispute about whether the husband’s conduct gave rise to the child’s reaction or whether the wife has orchestrated the alienation of the child from his father. That evidence all needs to be tested.

24. There are economic issues in this case but they seem to revolve around the legal costs that the parties have and continue to incur.

25. On the assumption that the Senior Registrar’s orders were determined to be in the best interests of the child on all of the evidence, I must conclude that the continuation of the interim orders is not causing the child hardship even if it is causing the husband that. However, it is again important not to lose sight of the fact that the child is not enjoying the benefit that all Australian children should be having which is reflected in the various objects and principles in s 60B of the Act.

26. This case involves allegations of child abuse. That justifies the Court in pushing aside other cases so that it can be heard. Abuse is a fundamental matter to be determined in the primary considerations in s 60CC. It is also a matter that Parliament has directed the Court to deal with expeditiously by s 60K of the Act. In this case, the Senior Registrar has done what was required by the Act albeit that I am unaware of whether a notice of risk of child abuse was formally filed. The difficulty arises where abuse is alleged and a determination is made on untested evidence even if it appears overwhelming. The Court in those cases has an obligation to ensure that the evidence is properly tested just in case the persuasive but incorrect evidence has formed the basis for the decision. To blindly accept the assertions of abuse could mean that the child was being deprived of the other benefits that I earlier mentioned.

27. The other matter that a court must consider in an application for an expedited hearing relates to whether an expedited hearing could avoid serious emotional and psychological trauma for the child. I do not know what the evidence would be in this case but I do have the submission of the Independent Children’s Lawyer arguing that the matter needs to be determined.

28. I find therefore that weighing up those considerations, on balance this is a case that warrants being elevated over other cases and to their detriment to be heard.

29. I turn then to the argument about Professor MY. I have read all of that material. I am not in a position to make any findings about the dispute because the evidence is not being tested. The allegations of Professor MY are interesting and challenging. Although he surmises that the Court may be uncomfortable about doing something different from its historical path, I am not at all concerned. In Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705, Heydon JA with whom Priestly JA and Powell JA agreed, said that the primary duty of an expert in giving an opinion was to furnish the court with criteria that enabled a determination to be made as to the validity of the opinion.

30. In this case, reading the affidavit of Professor MY, it is clear he doubts the expertise of Dr L. That is a fundamental starting point in the expert evidence issue. I do not know what view a court might take of the challenge to Dr L’s expertise. Without that expertise being qualified, the evidence of the opinion is inadmissible.

31. There was considerable debate in the submissions about whether there was a body of opinion contrary to that of Dr L. All I have is the affidavit of Professor MY which doubts the capacity of the single expert witness to give evidence that is admissible if his expertise to give the opinion is rejected.

32. Evidence of the nature that affects judgments arising out of Part VII proceedings, can sometimes be given as a result of experience as well as research and qualifications. All of that should be tested. The question appropriately raised by counsel for the husband is what happens if the evidence is rejected?

33. There are a number of matters that assist in the determination of the issue. First, the matter seems to be complex because the relationship between father and child is strained whether by reason of the husband’s conduct or the wife’s manipulation. Second, rule 15.42(e) looks at the interests of justice. Justice must be seen from both the child’s perspective and that of the husband and the longer this dispute festers, the harder the resumption of any relationship will be. The husband may have just cause for complaint if he could not call evidence about the nature of the relationship and its future. The simple rejection of Dr L’s evidence would not resolve the issue in dispute and the evidence of Dr MY is limited to questioning the conclusions reached.

34. I see no reason why the husband should not have the opportunity to call an adversarial witness.

35. That leads to the final issue which relates to whether Professor MY should be the expert who prepares a family report.  He is accused by the wife’s side as being the advocate of the husband because he dealt directly with the husband and his legal practitioners. That is not a basis to reject him as an expert witness because all of his evidence as to objectivity can be tested. The more important issue is whether the child should be put through another set of examinations and tests when he has been through interviews with Dr L.

36. I would be very concerned to introduce another psychologist into the life of the child. 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 the child through another round of interviews without expert evidence that he is not likely to be adversely affected as a consequence.

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

I certify that the preceding Thirty Seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 December 2010.

Associate: 

Date:  15 December 2010