RIGBY & ATTWOOD

[2016] FCCA 3482

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIGBY & ATTWOOD [2016] FCCA 3482

Catchwords:
FAMILY LAW – Chapter 15 Expert Report.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Cases cited:
Rice v Asplund (1979) FLC 90-725

Applicant: MS RIGBY

Respondent: MR ATTWOOD

File Number: NCC 131 of 2012

Judgment of: Judge Myers

Hearing date: 7 November 2016

Date of Last Submission: 7 November 2016

Delivered at: Newcastle

Delivered on: 7 November 2016

REPRESENTATION

Counsel for the Applicant: Mr Kelly

Solicitors for the Applicant: Derham Houston Lawyers

The Respondent: In person

THE COURT ORDERS BY CONSENT PENDING FURTHER ORDER THAT:

1. The father shall attend upon Dr C’s offices for the purposes of being interviewed on such date and at such times as nominated by Dr C.

2. The mother shall pay the costs of a single expert report prepared by Dr C

3. These orders shall operate as an authority to entitle Dr C to communicate with Dr T and Mr G about the father and the treatment provided to him and any diagnosis or prognosis they have made about the father.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. Dr C be appointed single expert witness to prepare a report in relation to the following issues:

   a)   The current psychological condition of the father if any and the extent to which, if at all, it affects his parenting capacity;

   b)   Has the father undertaken appropriate or sufficient counselling or treatment (particularly that of Dr T and/or Mr G) to cause Dr C to change his assessment of the father from that expressed in his report on 20 April 2013. If so, why or if not, why not. 

   c)   Has Dr C’s assessment of the father and his parenting capacity changed from that expressed in his report of 20 April 2013.

2. In order to facilitate the preparation of Dr C’s report:

   a)   The mother’s solicitor shall provide copies of the following documents to Dr C:

   i.The orders made on 2 October 2013;

   ii.All documents filed by the parties;

   iii.All documents produced on subpoena in the proceedings;

   iv.A report by Mr R in relation to the time the child has spent with the father since 2 October 2013.

3. The mother’s solicitor shall have leave to photocopy all of the subpoena material produced in this matter for the purposes of providing them to Dr C and shall not retain a copy of any such material.

4. The mother shall be at liberty of requesting a report from Mr R as to the time spent by the child with the father since the orders of 2 October 2013 and shall forward a copy of such report to Dr C.

5. The solicitor for the mother shall provide a copy of any report prepared by Mr R to the father at the time she forwards same to Dr C.

6. Upon the report of Dr C being released to the court the solicitor for the applicant is to cause a copy of the report to be provided to the family counselling section of the Federal Circuit Court of Australia, Newcastle registry for the purposes of the family consultant reviewing such report.

7. The hearing date of 17 March 2017 at 9.30am for directions hearing is confirmed.

THE COURT REQUESTS THAT:

A.The family consultant conduct the family report interviews but refrain from issuing a final report until such time that the family consultant has had an opportunity to read the single expert report being prepared by Dr C.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 131 of 2012

MS RIGBY

Applicant

And

MR ATTWOOD

Respondent

EX TEMPORE` REASONS FOR JUDGMENT

1. This is a matter that comes before the Court today in circumstances where the respondent mother has caused to be filed an application in a case.  The application in a case follows the Court having made a determination in respect of the father commencing proceedings, or better described as re-commencing new proceedings following final orders being made on 2 October 2013.  For the sake of clarity, the Court made orders allowing the father to commence proceedings following the consideration of the principles set out in the case of Rice & Asplund.

2. Orders were made at the time of that decision on 9 June 2016.  Those orders provided for the preparation of a family report.  The parties were given a further return date of 28 February 2017 bringing the matter back following the release of the family report. The application in a case was filed by the mother on 26 September 2016.

3. The orders sought in the application in a case are that Dr C be appointed single expert to prepare a report in relation to the following issues: 

   a) The matter of care, welfare and development of the child X, born (omitted) 2009.

   b)The current psychological condition of the father the extent to which if, at all, it affects his parenting capacity.

   c)Whether any counselling and treatment undertaken by the father has addressed the issues identified in the expert report of Dr C dated 20 April 2013.

   d)In order to facilitate the preparation of the report each party is to provide copies of the following documents to the appointed single expert:

   i)      Orders made the Family Court 2 October 2013.

   ii)     All documents filed in the proceedings by that party.

   iii)Each party is to attend upon a single expert witness, to such interviews and observation sessions as the expert required at any reasonable time nominated by the single expert witness.

   iv)The mother to ensure the attendance of X, born (omitted) 2009, at such interviews or observation sessions and at such times and places as the single expert witness reasonably requires.

   v)Permission is granted of the single expert witness to inspect the Court file and all documents produced on subpoena in the proceedings by any person, party, or institution since September 2015.  Each party is to pay one half of the appointed single expert’s fees.

4. The father made submissions this morning with respect to paying Dr C’s fee, in response the mother offered by consent to pay the whole of the costs of Dr C’s.  There were some discussions between the Court, counsel for the mother, and the father with respect to the appointment of Dr C.  The father made some concessions and agreed that a report should be prepared by Dr C but that it be limited to issues relating to the notations contained in the final orders made on 2 October.

5. For the sake of clarity those notations are as follows:

   Notation E:  The father now accepts that on reflection the allegations of abuse against the mother’s partner, Mr S, were incorrect and the statements made by the child were misinterpreted by him in the context of his hypersensitivity to the incidence of child abuse by stepfathers, in the context of his highly conflictual relationship with the mother, and he acknowledges that evidence would not satisfy the Court that the child was or is being exposed to an unacceptable risk of abuse;

   That the father is to undertake counselling and therapy with Mr G or some other suitably qualified professional to address his psychological issues such as his hypersensitivity or allegations of abuse by stepfathers and other issues set out in the report of Dr C dated 20 April 2013, and in particular any prevalence to behave in a manipulating and controlling manner;

   That upon the father being advised by his therapist that he has in part or whole addressed the issue as set out above, and upon his providing to the mother a report of his therapist setting out his present presenting symptoms, his treatment and his prognosis, the father intends to make application to the Court to extend the time that he spends with X and remove the supervision of such time.

6. It is noted that the previous proceedings were finalised by way of consent orders being made by the Family Court before Cleary J on 2 October 2013.  A feature of notation F is that of the father obtaining therapy relating to a report of Dr C dated 20 April 2013.  The Court encouraged the parties to consider drafting some minutes appointing Dr C to provide a report that go towards those issues.  Following the luncheon adjournment the matter came back before the Court.  The court was provided with a minute of order that the Court received into evidence as exhibit F.  It should be made clear for the purposes of these proceedings that whilst counsel for the mother prepared the minute, the mother does not consent to it being made and simply seeks the Court make orders in accordance with the terms set out in her application in a case.

7. Mr Kelly of counsel advised the Court that he sought to orally amend the orders sought in the application in a case to include an order discharging the previous order for the preparation of a family report made on 21 July 2016. 

   The notations made in the orders of the Family Court go towards a particular issue in the proceedings with respect to the father’s behaviour.  The notations “talk” about the father’s hypersensitivity.  Notation E suggests that the father reflected upon his allegations made in those proceedings and then having moved away from those allegations.  The notations indicated that the father might in the future address issues contained within Dr C’s report.

8. It is the view of the Court that the issue in these proceedings is limited, to some extent, to that of the father’s hypersensitivity to the occurance of child sexual abuse and whether he has done things to address that hypersensitivity; whether or not the father will make further complaints that are of a frivolous or vexatious type or nature, and otherwise whether the father will be controlling of the mother or manipulating; whether the father’s hypersensitivity might lead him to make allegations that would ordinarily be without foundation.  The report of Dr C dated 20 April 2013 particularly goes towards that issue.

9. In these proceedings, it is the view of the Court that the Dr C report is one that would be best be limited to addressing the issues relating to the father as opposed to providing what might be described as an alternate family report. The Court had previously ordered a family report. It is the view of the Court that the family counselling section of the Court is able to interview the parties and the child and provide to the Court evidence about the nature of the relationships of the child, and otherwise those matters that the Court must consider set out at section 60CC, section 61DA and section 65DAA of the Family Law Act 1975. The orders sought by the mother in her application in a case with respect to the appointment of Dr C do not touch upon the specific orders made by the Court particularly that the family consultant considered, particularly those matters set out at section 60CC, section 61DA and section 65DAA.

10. If the Court made the orders sought by counsel for the mother as amended in her application in a case, discharging the earlier order for the family report, the Court would be left in a position where the report prepared by Dr C would simply address issues of “care, welfare and development of the child”. The Court made specific orders for the preparation of the family report as follows: to consider the factors in section 60CC, section 61DA and section 65DAA of the Family Law Act; to profile the parties; to assess the parties interactions; to assess the child’s development and emotional state; to assess the relationship of the child to the parties and other significant persons in the child’s household; to ascertain the wishes of the child unless inappropriate by reason of age or special circumstance; to assess the proposed home environments; to assess the proposal of each of the parties as to the child’s future.

11. It is the view of the Court that if it acceded to the orders sought by the mother, where she seeks the discharge the order for the family report the Court would be left in a position where the report of Dr C may fall well short of the type of information the court would receive in the family report the Court asked the counselling section of the court prepare. If the court made the orders sought by the mother the Court could not be satisfied, for instance, that Dr C would take into account or consider those matters set out at section 60CC, section 61DA or section 65DAA, nor would the court be confident Dr C would assess the parties’ interactions, or assess the child’s developmental and emotional state, or assess the proposed and actual home environments, or ascertain the wishes of the child unless inappropriate by reason of age, or assess the relationship of the child to the parties and other significant persons in the child’s household. The Court would be left with a report that goes towards what was framed in the orders sought by the mother as “issues of care, welfare, and development”.

12. It is the view of the Court that the Court should not discharge the earlier orders for the preparation of the family report.  The orders for a family report cover a much broader range of issues than that sought by the mother in the application in a case.  It is also the view of the Court that the child should not be interviewed twice.  The court is on notice the report of Dr C will be used in the proceedings for a specific purpose address the issues contained in notation F of the orders made by consent before Cleary J on 2 October 2013.  It is the finding of this Court that there is a legitimate forensic purpose for the preparation of the report by Dr C in that it will provide evidence that goes towards whether the father has addressed the issues arising from the earlier report of Dr C.

13. Exhibit F provides for a set of orders that Dr C be appointed the single expert to prepare a report in relation to the following issues:

    a)Recurrent psychological condition of the father, if any, and the extent to which it at all affect his parenting capacity.

    b)Has the father undertaking appropriate or sufficient counselling, from in particular that of Dr T, and/or Mr G, to cause Dr C to change his assessment of the father from that expressed in his report of 20 April 2013.  If so, why, if not, why not.

    c)Has Dr C’s assessment of the father and his parenting capacity changed from that expressed in his report of 20 April 2013.

14. It is the view of the Court that the minutes of orders found in exhibit F are appropriate.  They are in the best interests of the child in that the Court will be able to obtain information that go towards those matters set out in notations E, F and G of the orders made on a final basis by Cleary J on 2 October 2013.  The questions that are asked are relevant to the questions the Court must consider when determining the proceedings.  The scope of the material to be provided to Dr C will allow Dr C to form some opinion. 

15. Having considered the terms of the orders sought in the application in a case, having considered the order made by the Court ordering a family report, the scope of the orders made for the preparation of a family report and those matters that would be addressed in the family report and the limited scope of the matters contained within order 1(a) of the application in a case, it is the view of the Court that the Court should prefer the minutes contained within exhibit F as opposed to making orders in accordance with the application in a case, including an order for the discharge of the earlier order for the family report.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 26 April 2017.