Robertson & Chin

[2007] FamCA 1459

FAMILY COURT OF AUSTRALIA

ROBERTSON & CHIN [2007] FamCA 1459

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of single joint expert – exercise of discretion – interlocutory issue whilst hearing part-heard

Family Law Act 1975 (Cth)

APPLICANT: Ms Robertson

RESPONDENT: Mr Chin

FILE NUMBER: SYF 2987 of 2004

DATE DELIVERED: 17 December 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE:	15 October 2007
ORDERS:	15 October 2007; 26 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT

Mr Madden SC with Mr Thomas

SOLICITOR FOR THE

RESPONDENT

Ross A Clarke & Associates

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  SYF 2987 of 2004

MS ROBERTSON

Applicant

And

MR CHIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings each of the parties seeks parenting orders in respect of their child, born in October 2002 (“the child”).

2. The mother seeks an order that the child live with her and her husband on the Gold Coast and that she and the child be able to relocate from Sydney for that purpose.  That application is opposed by the father who seeks orders, inter alia, that the child live with him.

3. On 1^st February 2006 parenting orders were made by O’Ryan J in relation to the child of the parties in defended proceedings between them.  Those orders provided that the child live with the mother and have contact with the father.

4. On 13^th June 2007 application was made by the mother in the pending proceedings before me.

5. On 9^th August 2007 a Response was filed on behalf of the father setting out the orders sought by him.

6. On 15^th October 2007 I conducted the first day of hearing between the parties in accordance with the Less Adversarial Trial procedure.  The parties were represented by counsel and solicitors.

7. After each of the parties gave evidence followed by expert evidence given by Ms G family consultant (“the family consultant”), counsel made submissions in relation to a number of issues.  One of the issues was whether or not Dr W psychiatrist be appointed as the single joint expert, or alternatively the family consultant, or another single joint expert.

8. I accepted the submission made by counsel for the father that I should read the reports of Dr W dated 10^th December 2004, 27^th March 2005 and 8^th January 2006 (“Dr W’s reports”) before making orders in Chambers.  Dr W’s reports were in evidence during the previous parenting proceedings between the parties.

9. In view of the apparent difficulties in communication between the parties in relation to matters affecting the child and the desirability in the child’s best interests for steps to be immediately taken to improve communication between them, I made the following order:-

   “1.That the legal representatives for the parties forward to the associate by 5.00pm 16 October 2007 their respective proposals for counselling to improve communication between the parties.”

10. On 26^th November 2007 I made the following orders in Chambers after having read Dr W’s reports and considered further the submissions made by counsel on 15^th October 2007:-

    “1.That Family Consultant Ms [G] prepare a Family Report in relation to the matters identified in the attached form in respect of the child of the parties […] born […] October 2002.

    2.That Ms [G] Family Consultant expedite the preparation of the Family Report and ensure that the parties are notified of the earliest available dates and times for interviews with her.

    3.That the parties do all things necessary to promptly comply with the interview process put by Ms [G] Family Consultant including using their best endeavours to ensure that their respective partners and the child are available for such interviews.

    4.That following the expiration of fourteen (14) days from the release of the Family Report the legal representatives for the parties shall liaise with the Associate to Rose J for the purpose of fixing a date and time for Directions.

    NOTATIONS:

    AThat the parties and/or their legal representatives have failed to comply with Order 1 made 15^th October 2007.

    BThe “Minute of Order” in respect of counselling to improve communication between the parties was received by email on 23^rd November 2007 approximately five (5) weeks out of time.

    CThe submissions of Counsel in relation to the appointment of either Dr [W] Psychiatrist or Ms [G] Family Consultant or another single joint expert were considered in Chambers in accordance with the notation made by consent on 15^th October 2007 resulting in Order 1 made this day.”

11. On 28^th November 2007 my associate emailed the solicitors for the parties informing them that the family consultant was not available to undertake interviews for the family report until 31^st January 2008, with an expectation that the report would then be available for release by mid-February 2008.  However, a different family consultant was available to undertake interviews on an earlier date namely 11^th December 2007 with an expectation that the family report would be available by 24^th December 2007.  The parties’ solicitors were also informed that I would hear submissions in relation to the possible change of family consultant at 9.30am Tuesday 4^th December 2007.

12. On 4^th December 2007 counsel for the parties appeared.  Counsel for the father informed me that he was without instructions.  Accordingly, in order to give him additional time to obtain instructions, I stood the matter over for mention to 9.00am 5^th December 2007.

13. On 5^th December 2007 the solicitors for the parties informed me that their instructions were to proceed with the proposed interviews with the family consultant rather than a different family consultant being appointed in her stead.

14. By letter dated 5^th December 2007 addressed to my associate the solicitor for the father sought my reasons for judgment which led to the orders that were made in Chambers on 26^th November 2007.  I had not previously provided such reasons.  It is well established that reasons for judgment do not have to be given in relation to interlocutory matters, particularly matters of practice and procedure.  The interlocutory issue arose during the continuous hearing in accordance with the less adversarial practice and procedure.  The hearing is part-heard.  I rely upon the Judgment of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd.[1]  It must be emphasised that the order that I made on 26^th November 2007 was not an order made following the conclusion of a trial or indeed even an interim order such as an interim parenting order.

    [1] (1983) 3 NSW LR 378 at 386; followed in Soulenezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247 at 260.

Submissions

1. Counsel for the father submitted that it was appropriate to appoint Dr W as the single joint expert for the purpose of preparing a family report.  It was submitted by counsel that Dr W was familiar with the history of past parenting issues as between the parties in relation to the child.  He had conducted a number of interviews with the parties and provided extensive reports to which I have earlier referred.

2. It was further submitted by counsel for the father that in those circumstances it was in the best interests of the child that there be continuity of Dr W’s expertise and implicitly that would be of assistance to not only the parties but also the Court.

3. Counsel for the mother made submissions in opposition to the appointment of Dr W.  In that regard it was submitted that the mother had lost confidence in Dr W.  It was further submitted that it would assist both the parties and the Court should a different expert be appointed, such as the family consultant, as it would avoid the report being informed by “pre-conceived ideas.” 

Conclusion

1. As previously referred to, on 26^th November 2007 an order was made by me appointing the family consultant, rather than Dr W for the purpose of preparation of a family report in these proceedings.  My Reasons are as follows.

2. Cogent submissions were made by counsel for the parties.  There is an obvious advantage in maintaining continuity of child related expertise by the appointment of Dr W.  That is especially in this case where he has previously conducted lengthy interviews of the parties in 2004 and 2005 in relation to issues which were the subject of the previously determined proceedings on 1^st February 2006.

3. There is no issue taken with the qualification and experience of either Dr W or Ms G.

4. However, in a finely balanced decision in the exercise of my discretion, I have concluded that the family consultant be appointed for the purpose of preparation of the family report.

5. It is notorious that parenting proceedings create much anxiety and stress for the parties and at times indirectly for a child who is the subject of the proceedings. 

6. That is especially so in a defended hearing in what is often described as “a relocation case.”  That is largely due to potential orders which may adversely affect the relationship between the child and the parent who is unable to spend more frequent periods of time with the child due to the child living with the other parent who is able to relocate.  Conversely, significant stress may be experienced by the parent who is not permitted to relocate with the child and as a result the child may continue to live with an unhappy parent who as a result may be unable to provide the quality parenting which it would be in the child’s best interests to receive.

7. It was not submitted on behalf of the father that there is or may be a psychiatric issue which would therefore require the expertise of a psychiatrist for the purpose of the preparation of the family report.

8. I have approached this matter cautiously on the basis that an expert witness should not be chosen simply because a party purports to lack confidence in a particular expert.  However, this issue cannot be disposed of on such a simplified or superficial basis.

9. Neither of the parties submits that the family consultant is other than an independent, experienced expert.  It is important that both parties in proceedings such as these difficult proceedings perceive the proposed expert witness in that light.  It is especially so when the expert is to be the single joint expert, rather than there being adversarial experts as was a common feature for many years in the past in parenting proceedings in this Court.

10. Where parties have already engaged in defended parenting proceedings in relation to the child and are unfortunately opposed again in fresh parenting proceedings and the complexities attendant upon a “relocation case” to which I have previously referred, I consider “perception” is as important as “substance” so far as the significant role that the single joint expert witness will perform.  It is similar to, but not the same as, the perception that justice will be done on an impartial basis so far as a trial judge is concerned.

11. It is important that no suggestion of substance can be made that the independent child expert may be influenced by his/her previous conclusions even on a subconscious basis.  Such a suggestion could not be made so far as the family consultant is concerned.

12. I have also taken into account that there is no evidence, let alone a submission, that either of the parties lacks bona fides so far as the position that each has taken in respect of the issue of the appointment of the single joint expert witness.

13. I have also taken into account that the family consultant represents continuity of expertise as she has previously conducted a counselling session with the parties.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated: 17 December 2007