Rees and Shaw
[2009] FMCAfam 178
•16 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REES & SHAW | [2009] FMCAfam 178 |
| FAMILY LAW – Procedural – whether mother reasonably held an apprehension of bias of the family report writer – apprehension of bias found – family reports not be relied upon. |
| Applicant: | MR REES |
| Respondent: | MS SHAW |
| File Number: | PAC 4010 of 2007 |
| Judgment of: | Henderson FM |
| Hearing date: | 16 February 2009 |
| Date of Last Submission: | 16 February 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 16 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Warwick |
| Solicitors for the Applicant: | Longman Hill |
| Counsel for the Respondent: | Ms Harris |
| Solicitors for the Respondent: | K L King & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Berry |
| Solicitors for the Independent Children’s Lawyer: | Boyd & Longhurst |
ORDERS
The Family Reports prepared by Dr H and released on 1 September 2008 and 13 February 2009 be placed in a sealed envelope and not be opened unless by Order of the Court due to a real and proper apprehension of bias.
Each of the parties and the Independent Children’s Lawyer are granted a certificate pursuant to s.10 of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court if would be appropriate for the Attorney-General to authorise a payment under that Act to him/her in respect of such part as the Attorney-General considers appropriate.
It is certified that this is a matter proper for the attendance of Counsel.
IT IS NOTED that publication of this judgment under the pseudonym Rees & Shaw is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4010 of 2007
| MR REES |
Applicant
And
| MS SHAW |
Respondent
REASONS FOR JUDGMENT
The mother has made an oral application that I to ought reject the reports prepared by Dr H, Family Consultant at the Parramatta Registry, released on 13 February 2009 and 1 September 2008 because of a reasonable apprehension of bias by Mr H held by the mother.
The substantive proceedings relate to the living arrangements for three children: [X], [Y] and [Z] who are the youngest children of the parties’ five children. With which parent the children should primarily live is in contest between them.
[X], [Y] and [Z] live with their father at Orange as a result of an order made by me in the proceedings commenced by the father consequent upon the mother’s unilateral relocation with the children to Queensland.
The final hearing was part heard on 3 October 2008 due to the father’s wife and the maternal grandmother not being on affidavit or having been interviewed by Dr H. These people assist the parents with the care of the children.
I stood the matter over to today's date and made what I believed to be an order for an updated family report. However the order on the Court file was merely to re-interview the family including the father's wife and maternal grandmother.
Ms King, the wife's solicitor, gave oral evidence to support the oral application of an apprehension of bias by the mother and was cross examined.
I asked Dr H if he wished his own legal advice and he declined. Dr H was present while Ms King gave her evidence. He then gave evidence and was cross examined.
Ms King recounted a conversation she had with Dr H on 28 January 2009. This date is now agreed.
Dr H told her he had been leaving messages for the mother on her mobile phone to return his call to make arrangements for interviews. He said he had made numerous calls and left messages but the mother had not returned his calls.
Ms King's evidence was given clearly and lucidly. She admitted that at the time her young son had undergone an operation and she was not as attentive in her office as she otherwise might have been due to his difficult recovery. She clearly recalled taking the call from Dr H, and both she and Dr H agreed he said words to the effect:
I've been trying to contact your client. I‘ve had no return calls. I'm not surprised she doesn't want to speak to me.
When Dr H was pressed on why he believed he was not surprised the mother did not want to speak to him, he said it was because she had left after the first family report, upset or angry. He had cut it short as he was concerned the mother was emotionally abusing the children and/or being difficult with them. When he cut the interview short the mother became angry and upset. So it did not surprise him that the mother did not want to speak to him.
It seems clear to me on Dr H’s evidence he had formed a view that the mother did not want to speak to him because he said those words to her solicitor and the lack of a reply from the mother confirmed his view. This is an inescapable finding. Otherwise why would he make such a comment to Ms King if that was not a view he had formed.
The mother's solicitor said the conversation continued and he said something like:
I don't know why I'm redoing this interview, I've already done a family report. I don't know what I'm meant to do.
I accept, from the order I made, that as the words "updated family report" were not included and his task was made more difficult. No clarification was sought from the Court by Dr H but I make no further comment on this. The error was mine and I was on leave when it was time for him to re-do the report.
Both Dr H and Ms King agree those words were said.
Ms King then said Dr H continued with the words:
I don't know why I'm doing this again, nothing the mother could say could help her or change my mind.
Dr H did not positively agree he said these words. Neither did he deny he may have said something like that.
Ms King said she was horrified by the conversation. She described herself as being stunned. She was so stunned she spoke to her staff, a friend of hers who is a family consultant, and Ms Harris of Counsel. Ms King’s evidence was that in twenty years as a family lawyer she had never heard a family consultant or court expert say such a thing.
Ms King confirmed with Dr H in that conversation that her client either did not have a voicemail message on her mobile or that she did not access it due to cost, that she was seeing her client the next day and after her appointment she would call Dr H to make arrangements for a further interview with her mother.
Ms King said, and Dr H confirmed, he would not leave his contact number but would call the solicitor’s office the next day. His reasons for not leaving his direct telephone number were that he did not want the client to incur expense in calling him. I do not understand that evidence. He was on the one hand complaining that the mother had not returned his calls yet would not leave his number with her solicitor.
I do not understand his motives. He was having difficulty contacting the mother and failed to make it easier for her.
Be that as it may Dr H did ring the solicitor's office the next day. The solicitor was not in the Office but caring for her sick child. A message was left but again no telephone number given. It is agreed Dr H rang Ms King’s office each day of the week of 2 to 6 February 2009. Not even an email address was given. It was not until 6 February 2009 that Dr H left a telephone number to enable the mother's solicitor to contact him.
Ms King’s evidence was that she had instructed her staff to telephone Dr H through the public channels during that week and that they had been unsuccessful in so doing.
Organisations like the Family Court and my Court are notoriously difficult for the public to contact a specific individual. The failure by Dr H to leave his direct contact details and Ms King’s son’s illness compounded these difficulties.
Once Ms King had Dr H’s direct number she said she rang but was unable to speak to him. As a consequence the mother and maternal grandmother were not part of the re-interview process.
The mother’s solicitor repeated her conversation with Dr H to the mother as was her obligation as a legal practitioner. It caused the mother real concern that Dr H believed the mother did not want to speak to him and that nothing she said at a re-interview would help her or change his mind.
Despite the submissions by the father's Counsel that such conversation would not raise in a reasonable person an apprehension of bias, I disagree.
I, like the mother's solicitor, was horrified by the conversation as reported by Ms King and not denied by Dr H. If those words had been spoken to me on the telephone by a family consultant, preparing a report concerning important and serious issues relating to with which parent children should live, I would have formed a view that there was a real possibility of Dr H being biased against the mother.
I do not know what else one would take from those words, other than the existence of an apprehension of bias. The mother knowing the conversation and then reading paragraphs two and three of Dr H's report could only have formed a view of bias against her.
Those paragraphs of the Family Report read:
The reporter was unable to interview the children’s mother and the maternal grandmother. He unsuccessfully called Ms Shaw on her mobile telephone several times. Once he was able to leave a message for her to call him to arrange a mutually suitable time for the interview. She did not return his call. The reporter then called Ms Shaw’s solicitor, King& Associates. When the solicitor indicated that she was meeting with Ms Shaw the following day, the reporter said that he would telephone after the meeting to learn what would be a suitable time for Ms Shaw and her mother. Subsequent daily telephone calls to the solicitor's office proved fruitless. She, too, did not return his calls as requested.
On 6 February, the reporter wrote to Ms Shaw [address omitted], indicating that he could interview her and her mother by telephone on either the afternoon of 12 February or the morning of 13 February. He asked her to telephone him to indicate which of the times would be suitable. Ms Shaw did not telephone.
The letter Mr H sent to the mother was returned unopened. The address which Dr H wrote to the mother was incorrectly entered on the Courts computer system. This was unknown to Dr H.
Those paragraphs, combined with what the mother had been told, would cause an apprehension of bias in a reasonable person.
In his cross examination Dr H told Ms Harris that he made no recommendations or observations, he had merely re-interviewed. Nothing could be further from the truth. Paragraphs 23 through to paragraph 29 are his recommendations and observations. He talks in his report of how the mother and [X]'s relationship can be repaired, the pros and cons of various living arrangements for the children, what should occur in the future and the like.
That this occurred despite the poor order made by me is not surprising and bespeaks positively of Dr H’s extensive training and professional expertise over a long period of 20 years or so. Dr H is trained to assist the Court by recommending a course of action following an observation of families.
The report prepared and produced by Dr H was a family report as it should have been despite the poor order I issued and his evidence it was merely a re-interview was not correct.
However the most concerning evidence is that which fell from
Dr H's lips in answer to a series of questions from Ms Harris:
Do you, with all your training as a highly skilled family consultant for many years, and with now knowing what the mother's lawyer told her of the conversation between you and she and then reading paragraphs 2 and 3 of your report, and not having received your letter, do you think the mother would have had an apprehension or bias or unfairness?
Dr H said:
I am unable to say. I cannot know what was going on in the mother’s mind.
Ms Harris said to him:
Come now Dr H your skill, training and education enable you to give your professional opinion on what people are emotionally experiencing. You do this all the time in your report. You report on the emotional responses of people to a given situation. You must be able to give your opinion on what was going through he mother’s mind with these facts being now known.
Dr H said:
I cannot say what was in the mother’s mind. I am just here to save my own skin as the mother’s solicitor was here to save her skin.
Dr H was not in Court to save his skin. He was here to give his opinion based upon his many years of training, experience and education of the mother’s reaction to the combination of facts which lead to a report being prepared without her being interviewed and her view that there was a reasonable apprehension of bias towards her by Dr H.
The question Ms Harris asked him is one squarely within his capacity to answer having regard to his training, education and experience. Yet he would not. His answer was he was here to save his own skin. I take it then that his answer using his skill and training would, if given in his professional capacity, have been contrary to saving his own skin. It then follows that the mother reasonably held her apprehension of bias by him against her.
The enquiry I was conducting was whether the mother could reasonably hold an apprehension of bias. There was never an issue of actual bias, merely an apprehension of bias. Dr H satisfied me on his own evidence that the mother’s apprehension was not merely reasonably held but was an inescapable conclusion.
As a consequence of this evidence I am unable to rely upon any of the reports prepared by Dr H as I am not satisfied he has approached the matter in an objective and professional manner. His focus was on saving his own skin, that is, his professional integrity and in so doing he lost the confidence of the mother and the Court that he would honestly answer questions within his expertise and training in an objective manner with the best interests of the child as his paramount consideration.
The evidence given by Dr H is now tainted. The evidence in his reports is germane to the question of with which parent ought these children primarily live. It is crucial evidence. It is an expert's opinion concerning the nature of the relationship between the children and parents, the capacity of parents to allow a relationship, wishes of children, an attitude to each other as parents and the like. In the colloquial vernacular, who is the better parent?
I could not possibly do justice nor be seen to do justice to the children, the parties, and in particular the mother, if I relied upon reports prepared by a professional witness where I have found a reasonably held apprehension of bias against the mother.
On the basis of all the evidence the mother has made out her case of an apprehension of bias by Dr H against her.
I order that the reports prepared by Dr H, released on 1 September 2008 and 13 February 2008, be placed in a sealed envelope on the Court file not to be opened unless by order of the Court.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: A. Morris
Date: 9 March 2009
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