Redmond and Redmond and Anor (No 2)

[2014] FamCA 836

FAMILY COURT OF AUSTRALIA

REDMOND & REDMOND & ANOR (NO 2) [2014] FamCA 836

FAMILY LAW – PROCEDURAL – Where Orders are made for the preparation of a report by a Forensic Psychiatrist for an upcoming trial – Where the parties are Ordered to bear the cost equally.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Mr Redmond

RESPONDENT: Mr Redmond

INTERVENER: Official Trustee in Bankruptcy, The Trustee of the Bankrupt Estate of Mr Redmond

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley

FILE NUMBER: BRC 4493 of 2011

DATE DELIVERED: 24 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 September 2014

REPRESENTATION

FOR THE APPLICANT: The Applicant in Person

FOR THE RESPONDENT: The Respondent in Person

SOLICITOR FOR THE INTERVENOR:

Mr Muller

Rodgers Barnes & Green Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley

Dooley Solicitors

Orders

1. That conditional upon each of the father and the mother paying the sum of four thousand dollars ($4,000) into the Trust Account of Firm Y by 4.00 pm on Wednesday, 1 October 2014, for the sole purpose of meeting the costs incurred in the preparation of the report and the giving of evidence at the trial in respect of the report, a report be prepared by Dr B, Forensic Psychiatrist, in respect of Mr Redmond, as to his mental health state, with particular attention to be given by the psychiatrist to the question of whether Mr Redmond is affected by or experiencing “querulous paranoia” and any implications that same may have for the safety of the child, E born … 2005. 

2. That the mother shall notify the Independent Children’s Lawyer, Mr Dooley, as soon as she and the father have each deposited the sum of four thousand dollars ($4,000) to the Firm Y Trust Account pursuant to these Orders, and as soon as possible after 4.00 pm on Wednesday, 1 October 2014, she shall notify Mr Dooley whether Mr Redmond, in particular, has or has not deposited his sum of four thousand dollars ($4,000) to that trust account.

3. That in the event that the sum of eight thousand dollars ($8,000) is not in the Firm Y Trust Account by 4.00 pm on Wednesday, 1 October 2014, then Dr B shall be informed by the Independent Children's Lawyer, Mr Dooley, that his report will not be required in this matter.

4. That the mother shall ensure that Firm Y pay funds out of that money held in trust pursuant to these Orders to pay any fees charged by Dr B as may be directed by the Independent Children's Lawyer, Mr Dooley.

5. That the sum of four thousand dollars ($4,000) to be paid by the mother pursuant to these Orders shall be paid out of the money currently held in the trust account of Firm Y pending further order of this Court and shall, if used to pay Dr B’s costs, be taken into account as partial property division already received by the wife in the s 79 property adjustment proceedings.

6. That should the father, Mr Redmond, fail to pay his sum of four thousand dollars ($4,000) into the Firm Y Trust Account by 4.00 pm on Wednesday, 1 October 2014, then the sum of $4,000 paid by the mother, Ms Redmond, shall be repaid to the trust account from where it came pending further order of the Court.

7. That should the sum of eight thousand dollars ($8,000) be paid by 4.00 pm on Wednesday, 1 October 2014, Mr Redmond shall attend upon Dr B at such time and on such dates as he shall be directed by the Independent Children's Lawyer, Mr Dooley, for the purposes of the preparation of the report to be prepared pursuant to these Orders.

8. That should Dr B prepare a report in accordance with these Orders, such report shall be attached to an affidavit prepared by the Independent Children's Lawyer and filed and served as soon as possible, but in any event on or before Friday, 17 October 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond and Redmond and Anor (No 2) has been approved by the Chief Justice pursuant to s121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4493 of 2011

Mr Redmond

Applicant

And

Ms Redmond

Respondent

And

Official Trustee In Bankruptcy, The Trustee Of The Bankrupt Estate Of Mr Redmond

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Currently listed for trial before me in this Court over three days, on 29, 30 and 31 October 2014, just over a month from today, is a parenting orders and property adjustment orders dispute.  The parties to the parenting orders dispute are the parents of the young girl, E, born in 2005, who is currently nine years of age; namely, her father, Mr Redmond, and her mother, Ms Redmond.  Another party to the proceedings is an Independent Children's Lawyer appointed through the processes of the Court for the appointment of such lawyers, who represents the best interests of E; namely, Mr Patrick Dooley, a solicitor from Region C.

2. In the property adjustment proceedings, the parties are again the two parents of the child, Mr Redmond and Ms Redmond, but also, there is an Intervener in those proceedings, namely, the Official Trustee in Bankruptcy in the Bankrupt Estate of Mr Redmond. 

3. The proceedings have been before the family law courts now for some three years.  They have been protracted.  They have involved many, many appearances before the Courts in the first instance and on appeal from first instance decisions.  I understand also that there have been applications for special leave to appeal made to the High Court of Australia, and I am told that one such application for special leave to appeal from a decision of the Full Court of this Court is currently pending in the High Court.

4. That application for special leave relates to the appeal that Mr Redmond brought against an interim parenting Order made by me earlier this year where I varied existing parenting orders that provided for the child E to spend alternate weekends and half holidays with her father in his unsupervised care.  I varied the order to provide for the child to spend time with her further only in the environment of a children’s contact centre, supervised by staff of such a centre.  I made that decision and gave considered, written reasons at the time.  Essentially, I determined that the evidence that was before me satisfied me that the child was at an unacceptable risk of emotional and physical harm in the unsupervised care of her father at that time.  I varied the Order to reflect my satisfaction with the existence of that unacceptable risk. 

5. The father appealed against my Order on that occasion.  That appeal has been heard and determined by the Full Court of this Court.  It was dismissed.  It is against that dismissal, I am told, that the father has filed an application for special leave to appeal to the High Court. 

6. At the time that I heard and determined that application, the father was also pressing for an updated psychiatric report to be ordered to be prepared in the proceedings.  There had been two previous reports prepared by the consultant psychiatrist, Dr V.  The father was seeking an order that before the matter went to trial a further updated report be obtained from Dr V.  At the time, I determined not to make such an order but encouraged the Independent Children's Lawyer, Mr Dooley, to seriously consider the prospect of engaging Dr V to do a further report.  That, in fact, happened. 

7. On 12 August 2014, Dr V, at the instigation of the Independent Children's Lawyer, and paid for by the Legal Aid Office of Queensland, saw the mother Ms Redmond for an interview and the preparation of an updated psychiatric evaluation.  On 15 August 2014, Dr V saw the father, Mr Redmond, for an interview and the preparation of that updated report. 

8. Dr V prepared such a report. It bears the date of 15 September 2014 and is attached to his affidavit that was filed by the Independent Children's Lawyer in these proceedings on 17 September 2014.  At page 8 of that report, or page 11 of 15 of the affidavit and its exhibits, Dr V says this:

   With respect to the father, there is a significant gap between the information that emerges from the interviews, including the mental state examination and the information that emerges from the documentation with respect to his behaviour.  While there is often discrepancy between the interview data and the documentation in family law cases, the degree of disparity in this case is well beyond what I have experienced before.  In these circumstances I cannot help feeling that I missed something in the evaluation. 

   When the data does not make clinical sense and there are significant implications with respect to the outcome of a clinical evaluation with respect to the child’s relationship with a parent, let alone issues of safety, it is prudent to seek a second opinion.

   I would strongly urge that the father be evaluated by a forensic psychiatrist who is experienced in the evaluation of so-called “querulous paranoia” and any implications for safety.  I would recommend that the Court order such an examination of the father.  I do not believe that the mother needs to be evaluated again.  I would be happy to recommend the person who could assist the Court. 

9. On 17 September 2014, just after production of the report by Dr V, the father, Mr Redmond, filed an Application in a Case in these proceedings.  In that application he has sought one order, and it is as follows:

   That the Court order a forensic psychiatrist to undertake a report of the Father and the final hearing of the matter be adjourned until such time as this report is obtained. 

10. He filed an affidavit that he swore on 17 September 2014 in support.  This is the evidence that he deposed to in support of the application for that order:

    1.I am the applicant.  I received the report from [Dr V] on 15 September 2014.  Attached to this document and marked “CER1” is a true copy of the report.

    2.[Dr V] has suggested that a second opinion be obtained.

    3.[Dr V] has “strongly urged that the father be evaluated by a forensic psychiatrist who is experienced in the evaluation of the so-called “querulous paranoia” and any implications for safety.

    4.[Dr V] recommended that the Court order such an examination of the father.

    5.[Dr V] is a significant expert witness in these proceedings and I believe proceedings will be hampered if this report is not obtained.  If the court proceeds without this report I believe justice will not be served.

11. It is clear from evidence that was filed by the mother in support of her Response to the Application in a Case filed on 22 September 2014 that some serious communication in respect of the obtaining of such a report as recommended by Dr V was had between the mother herself, Mr Dooley the Independent Children's Lawyer, and the father in and around the days immediately following the production of the report, around about the same time that Mr Redmond was preparing and filing this Application in a Case and his supporting affidavit.  It seems that in the first instance, Ms Redmond, Mr Dooley and Mr Redmond all accepted the recommendation of Dr V and arrived at a position where they agreed that such a report should be obtained in the proceedings.

12. Mr Dooley set about organising, as quickly as possible it seems, for a forensic psychiatrist named Dr B to be able to see Mr Redmond at fairly short notice in the circumstances and prepare the report, again at fairly short notice in the circumstances, so that the existing trial dates would not be lost.  He was able to organise for Dr B to see Mr Redmond at 11.00 am on Friday, 3 October to prepare a report and provide that report a little over a week later, and then to attend and give evidence during the three day trial set later in October.

13. It seems, though, that notwithstanding his efforts, Mr Dooley was not able to secure an agreement from the Legal Aid Office of Queensland to fund the preparation of that report, even though in the first instance it seemed as if he was being informed that Dr B was prepared to undertake the report at Legal Aid rates, which are of course notoriously significantly less than the market rates that forensic psychiatrists such as Dr B otherwise charge. 

14. It became clear fairly quickly through the correspondence that Mr Redmond was not offering to contribute in any way to the cost of the preparation of the report.  As I mentioned during the course of discussion between bar and bench during the hearing of the application this morning, I considered that the documentary evidence before me supported a view that Mr Redmond took a fairly intemperate position in respect of this matter right from the start.  Indeed, in an email that he sent to Mr Dooley on Wednesday, 17 September 2014, seemingly after he had filed his Application in a Case, because it was sent at 5.18 pm, he says this:

    I cannot afford to fund any report.  Therefore that is not an option.

    Mr Dooley, you created this problem, you must sort it out. 

    I have filed an application in a case today to get directions to try and sort out your mess. 

    [Mr Redmond].

15. The email communication attached to the affidavit of the mother reflects a more temperate approach being taken by her, I must say.  Her emails to Mr Dooley reflect, apparently, a willingness, even if it is not a desire, to contribute towards the cost of the report.  Indeed, as I understand her evidence, initially she was prepared to pay for the entirety of the report when Dr B was apparently indicating that he was willing to do the report at legal aid rates, even if paid privately. 

16. It seems, and I accept the mother’s position that that was a position adopted by her, believing that Mr Redmond would not contribute to the cost of the report and being most concerned that the trial dates set for later in October not be lost to the parties at this particular stage.  Her concern around that is based, she says, on the history of Mr Redmond’s behaviour in the litigation, suggesting that he is not as keen as she is for this matter to proceed to conclusion and, ultimately, to final orders. 

17. That, of course, is contrary to what Mr Redmond informs the Court.  Indeed, this morning, he informed the Court that he really does not seek to have the trial adjourned and is, indeed, very keen himself for the matter to proceed to finality and conclusion by way of final orders as soon as possible.  Indeed, he indicated to the Court that he was not seeking an adjournment of the trial.  That left for determination in the Application in a Case before me this morning the question of whether Dr B’s report should, indeed, be ordered at all and, if so, the question of how the costs of that report are to be paid for. 

18. I am satisfied on the evidence before me, namely the opinion evidence of Dr V, that the obtaining of a second opinion is desirable in this matter, particularly given Dr V’s strongly urging the Court that such a report be obtained.  Mr Dooley’s position in the case certainly accords with the notion that such a report, on the recommendation of Dr V, would desirably be obtained to potentially further assist the Court in the determination of the parenting orders part of this case. 

19. However, there is a serious issue in respect of every family report or psychiatric report that is ordered to be obtained in this Court, particularly when it is ordered to be obtained by an Independent Children’s Lawyer in the form of an independent expert report to be put before the Court to assist the Court in its deliberation.  That is, namely, the issue of the funding of the preparation and the provision of that report.  In this case, like in every case, it is a very serious issue.  In many cases before this Court the Legal Aid Office is willing to and does fund the preparation of such reports. 

20. However, in this particular case I am told by the Independent Children’s Lawyer, and I accept, that the Legal Aid Office is not prepared to fund the preparation and provision of this further report in these proceedings.  That is not surprising, given that their position is that they have already spent a significant amount of money in this case, far more than is spent in many cases.  I expect that is the case.  The Legal Aid Office has funded already three psychiatric reports in the case and, as I understand it, other family reports prepared by experts. 

21. So I am left with circumstances where it is desirable to obtain this further report but the Legal Aid Office will not pay for it.  I know, of course, that this Court, in its current situation of relative financial stress, is simply not in a position to fund the cost of obtaining the further report that Dr V has recommended and that Mr Dooley has himself put in train.  That leaves, of course, then, the question of who is to pay for it if it is to be obtained.  That leaves really only the parties, that is the parents themselves, to whom the Court can look if it is that the further expert report is to be obtained and put into evidence before the Court.

22. Ms Redmond, the mother, has submitted to the Court and put evidence before the Court that she says supports her position that she is really not in a financial position to solely fund the cost of this report.  It seems clear that the report will cost at least, in the minimum, something like $4,200 – $4,300, being eight hours work at $480 an hour plus GST.  But that cost may indeed increase, having regard to the amount of material that Dr B will be required to read to properly do his report and having regard to his attendance at court for the purposes of cross-examination on his report.  It seems the ICL and Ms Redmond agree on a position that ultimately the cost of the report and the giving of evidence might end up somewhere around $8,000. 

23. I am faced, at the same time, with an assertion by Mr Redmond that he simply cannot contribute towards the cost of the report.  That becomes problematic, because I simply do not regard it, in respect of the determination of how the costs of this report are to be paid, to be just and/or equitable to order Ms Redmond to meet the entirety of the costs of the report.   

24. The evidence before me satisfies me of three things in respect of Mr Redmond’s capacity to be able to contribute the amount of $4,000 to go towards an equal share of the ultimate costs of Dr B’s report.  Dr V reported that he was told by Mr Redmond that he was supporting himself with a pension and “savings”.  No further detail was given about that and there has been no further detail in evidence or even in submissions given by Mr Redmond in respect of that this morning. 

25. There is evidence before the Court that he has a motor car.  Ms Redmond proffers the lay opinion that that motor car is worth about $15,000.  Mr Redmond does not proffer any opinion about what the car might be worth, but certainly concedes that he has got a car.  In addition, there is evidence before the Court that some time in February, just prior to a sequestration order making him bankrupt was issued, Mr Redmond bought some $14,000 worth of computer and information technology equipment through a credit card that subsequently went unpaid and was one of the debts that has fallen into his bankruptcy.

26. Mr Redmond asserted, from the bar table when asked, that that equipment had gone.  A couple of times when asked where and how it had gone, he continued just to assert that it had gone.  Ultimately, he said that when he separated from his former de facto partner, Ms M, she retained that equipment.  As was pointed out to me by Ms Redmond in her submissions, that assertion by Mr Redmond from the bar table is prima facie incorrect and cannot be true.  That is because the separation from Ms M took place on or around Christmas in 2013. 

27. Further, Ms Redmond pointed to evidence attached to her affidavit that is part of a page of a decision made by the Social Security Appeals Tribunal on 29 July 2014, in respect of what I understand is an appeal to or an application to the Social Security Appeals Tribunal for review of a child support assessment or objection.  Ms Redmond took me to paragraph 21, which is on page 5 out of 9 of the reasons for the decision (page 43 of 52 of the affidavit and its annexures).  I will read that paragraph into my Reasons, it says:

    The statements show a wide variety of discretionary expenditure.  In particular, between the beginning of 2014 and the date of the sequestration order (just over a month), the statements show over $14,000 in expenditure at the “Apple Store”.  When questioned by the Tribunal during the hearing about these expenses Mr Redmond stated that he purchased the sophisticated computer equipment and software necessary for his participation in his university studies.  He stated that he retained that equipment.  The Tribunal notes that the vast majority of this expenditure was in the three days prior to the sequestration order being made. 

1. The rest of that paragraph is not relevant.  It seems clear that what is recorded in that decision as having been told to the Social Security Appeals Tribunal by Mr Redmond is completely at odds with what he asserted to me from the bar table, albeit not under oath, this morning in his submissions.  Whilst I appreciate that having to sell his car and/or his computer equipment that he says he uses as part of his university studies and to have to resort to any savings that he may have might make things a little bit harder for Mr Redmond than they currently are, those facts at least satisfy me that he would very well have access to at least $4,000 if he sold some of that equipment and/or his motor car and used some of his savings.

2. In the circumstances, particularly given Mr Redmond’s strongly worded submissions this morning that the report is something that the Court really should have before it, I would expect Mr Redmond will go to whatever lengths he can to contribute towards an equal share, which I regard as a fair share, of the potential costs, albeit at the outer end, as I understand it, of the report.  And that is why I ordered it to be prepared, conditional upon the amount of $4,000 being contributed by Wednesday of next week by each of the parents.

3. I am satisfied, having regard to Rule 1.04 of the Family Law Rules 2004 (Cth) that Ms Redmond took me to in her submissions, that it is most definitely in the interests of the little girl in this case, as well as all the parties, for the trial dates not to be lost and for these proceedings to be resolved in as timely a manner and at a cost to the parties that is reasonable in all the circumstances.

4. Having regard to the fact that Dr B is able to see Mr Redmond next week, get a report done, and have it filed and ready in time for the trial dates not to be lost, I made the Orders that I did.  I consider that there should be absolutely no doubt in this case that if indeed, Mr Redmond does not put the sum of $4,000 in the trust account of Firm Y, as I provided for in my Orders, by just over a week from now, then there should be an end to the question of whether or not the report is to be obtained, there should be an end to the question of whether there is any doubt about whether the trial is going to proceed, and Dr B, being the professional and no doubt busy doctor that he is, needs to be advised as quickly as possible that his appointment times that he is keeping reserved are not needed, and for the matter then to proceed to trial in circumstances where, if Mr Redmond and/or Ms Redmond have not contributed their $4,000 each, the report simply will not be able to be obtained and put into evidence.

5. As disappointing as that might be for the parties, particularly Mr Redmond, the responsibility for that now will lie quite clearly in his hands, as I am quite satisfied that the $4,000 that Ms Redmond is required to contribute towards it will be paid because of the other Orders that I made in respect to where it comes from and how it is to be taken into account in the property division at the end of the day.

6. If Mr Redmond does not pay the $4,000 by 4.00 pm Wednesday next week, then, of course, Ms Redmond will be entitled for that $4,000 to go back into the trust account from where it came, as I ordered.  That, I consider, is appropriate, and Dr B should be told straight away that his services will no longer be required and all parties can then work towards preparing for the trial that will proceed without the benefit of the further report of Dr B.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest J delivered on 24 September 2014.

Associate: 

Date:  2 October 2014