ROWE & HELBIG - [2014] FamCA 751

FAMILY COURT OF AUSTRALIA

ROWE & HELBIG

[2014] FamCA 751

FAMILY LAW – CHILDREN – Terms of reference for appointment of a single expert – Application made by the Independent Children’s Lawyer where parties were unable to agree – Single expert appointed.

FAMILY LAW – CHILDREN – Interim orders – Whether the father should spend time with the child – Where final orders previously made – Serious allegations of sexual abuse of one child made against the father by the mother – Contradictory JIRT reports – Where discrepancies in the children’s evidence – Where children expressed wishes to see the father – Where potential psychological harm in children having supervised time and in not having time at all – Children to spend supervised time with the father.

Evidence Act 1995 (Cth)

APPLICANT:

Independent Children’s Lawyer

FIRST RESPONDENT:	Mr Rowe
SECOND RESPONDENT:	Ms Helbig

FILE NUMBER:

(P)PAC

5421

2010

DATE DELIVERED:

30 July 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

11 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Legal Aid NSW
(Ms O’Reilly)

SOLICITOR FOR THE FIRST RESPONDENT:

Mr B O’Sullivan

COUNSEL FOR THE SECOND RESPONDENT:

Ms Haughton

SOLICITOR FOR THE RESPONDENT:

Not applicable

Orders

Pursuant to Division 15.5.2 of the Family Law Rules 2004 Dr B, Child and Family Psychiatrist, is appointed as a single expert witness to enquire into and report upon matters relating to the welfare of the children X born … 2005 and Y born …2008 (“the children”) and that in preparing his report to the Court, the single expert is requested to consider the following matters:
1.1the attitude of each of the parties towards their role as a parent and the extent to which any identified personality traits or beliefs inform that attitude;
1.2the nature of the relationship between the parties;
1.3the relationship of each of the children with each other and with each of their parents and any other relevant person;
1.4the allegations of sexual abuse and/or whether each of the children are at risk of sexual abuse in the father’s household; and if so, the nature of that risk;
1.5whether either of the children are at risk of physical or psychological harm in either household; and if so, the nature of that risk;
1.6the capacity of each party to facilitate and encourage a relationship between each of the children and other party;
1.7the likely effect of any changes in each of the children’s circumstances, including the likely effect on each of the children of any separation from either of the parties and any other relevant person;
1.8the parenting arrangements that are most likely to benefit the children based on the matters referred to in Orders 1.1 to 1.7 above (inclusive);
1.9any other matter the Court Expert considers relevant.
The parties do all things necessary to facilitate the preparation of the report, including attending upon the single expert witness and arranging for each of the children and other relevant persons sought to be examined by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ROWE & HELBIG

Details

AGLC: ROWE & HELBIG [2014] FamCA 751
Case: [2014] FamCA 751
Decision Date: 30 July 2014

CaseChat Overview and Summary

In the matter of *Rowe & Helbig*, Cleary J of the Family Court of Australia considered applications concerning the welfare of two children, X and Y. The dispute involved serious allegations of sexual abuse made by the mother against the father, which were contradicted by various reports and evidence presented to the court. The Independent Children’s Lawyer sought the appointment of a single expert witness due to the parties' inability to agree on the terms of reference.

The court was required to determine the terms of reference for the appointment of a single expert witness to investigate matters relating to the children's welfare, including the nature of the parental relationships, the children's relationships with each parent and each other, and the risk of sexual or other harm in either household. Additionally, the court had to consider whether the father should spend time with the children on an interim basis, despite the serious allegations and contradictory evidence, and the potential psychological harm to the children from either having supervised time or not having time with their father at all.

Cleary J applied principles of family law concerning the best interests of the child and the need for expert evidence in complex cases involving allegations of abuse. The court appointed Dr B, a Child and Family Psychiatrist, as the single expert witness, outlining specific matters for his report, including assessing the parents' attitudes, the nature of the relationships, the risk of harm, and the capacity of each parent to facilitate a relationship with the other. The court also addressed the costs of the expert report and the provision of relevant documents to the expert, with restrictions on direct communication from the parties.

Pending further orders, the court made interim orders for the children to spend supervised time with their father, facilitated by a specified counselling service. These orders detailed the arrangements for supervision, including the requirement for parents to arrange intake assessments, comply with the service's rules, and share the costs of supervision. The court also provided for the restoration of the matter if the nominated supervision service was unable or unwilling to provide the required supervision.

Orders

Orders of the court

Pursuant to Division 15.5.2 of the Family Law Rules 2004 Dr B, Child and Family Psychiatrist, is appointed as a single expert witness to enquire into and report upon matters relating to the welfare of the children X born … 2005 and Y born …2008 (“the children”) and that in preparing his report to the Court, the single expert is requested to consider the following matters:

1.1 the attitude of each of the parties towards their role as a parent and the extent to which any identified personality traits or beliefs inform that attitude;

1.2 the nature of the relationship between the parties;

1.3 the relationship of each of the children with each other and with each of their parents and any other relevant person;

1.4 the allegations of sexual abuse and/or whether each of the children are at risk of sexual abuse in the father’s household; and if so, the nature of that risk;

1.5 whether either of the children are at risk of physical or psychological harm in either household; and if so, the nature of that risk;

1.6 the capacity of each party to facilitate and encourage a relationship between each of the children and other party;

1.7 the likely effect of any changes in each of the children’s circumstances, including the likely effect on each of the children of any separation from either of the parties and any other relevant person;

1.8 the parenting arrangements that are most likely to benefit the children based on the matters referred to in Orders 1.1 to 1.7 above (inclusive);

1.9 any other matter the Court Expert considers relevant.

The parties do all things necessary to facilitate the preparation of the report, including attending upon the single expert witness and arranging for each of the children and other relevant persons sought to be examined by the single expert witness, to attend upon the single expert witness.

Each of the parents are jointly liable for the single expert report and witness costs and within costs and within 7 days of these orders, each of the parties shall pay the sum of $7,500 into the trust account of Legal Aid NSW, being their respective contributions towards the costs of the Single Expert.

In the event that further contributions are required to meet any additional witness costs of the single expert, each of the parents are jointly liable for such additional witness costs and within 7 days of receiving a request for payment from the Independent Children’s Lawyer, each of the parties to pay such costs into the trust account of Legal Aid NSW, being their respective contributions towards the costs of the single expert.

Within 14 days of these orders, leave is granted to the Independent Children’s Lawyer to provide to the single expert copies of:

5.1 Amended Response to Initiating Application filed on behalf of father on 6 June 2014;

5.2 Amended Contravention Application filed on behalf of the father on 16 April 2014;

5.3 Application in a Case filed on behalf of the father on 21 May 2014;

5.4 Affidavit of the father filed 28 January 2014;

5.5 Affidavit of the father filed 27 February 2014;

5.6 Affidavit of the father filed 16 April 2014;

5.7 Affidavit of the father filed 21 May 2014;

5.8 Response to Application filed by father on 6 June 2014;

5.9 Affidavit of the father filed 6 June 2014;

5.10 Initiating Application filed on behalf of mother on 31 January 2014;

5.11 Notice of Child Abuse or Family Violence filed by mother on 31 January 2014 and 9 July 2014;

5.12 Affidavit of the mother filed 31 January 2014;

5.13 Affidavit of the mother filed 26 March 2014;

5.14 Affidavit of the mother filed 30 June 2014;

5.15 Application in a Case filed on behalf of Independent Children Lawyer on 10 June 2014;

5.16 Affidavit of Susannah Jane O’Reilly filed 10 June 2014;

5.17 Copy of Orders dated 14 June 2014 and ### (these orders);

5.18 Children’s and Parents Issues Assessment of family consultant dated 6 May 2014;

5.19 Exhibits in the current proceedings.

Leave is granted to the Independent Children’s Lawyer to provide to the single expert copies of material produced on subpoena during these current proceedings and for this purpose:

6.1 leave is granted to the Independent Children’s lawyer to have photocopy access to material produced on subpoena and the fees in respect of that photocopying are waived;

6.2 the parties and the Independent Children’s Lawyer are restrained from issuing subpoena to produce documents for the production of material that was viewed by Dr R in preparation of the family reports prepared by her dated 9 June 2011 and 1 May 2013.

With the exception of the provision of documents by the Independent Children’s lawyer pursuant to orders 5 and 6 the parties and their legal representatives are not to forward any documents to the single expert witness.

In the event either party is hereinafter granted legal aid in this matter, he or she may make a request to the Independent Children’s Lawyer to have their share of the single expert’s costs paid by Legal Aid NSW, although Legal Aid NSW may refuse such a request.

The Independent Children’s Lawyer is under no obligation to brief the single expert in terms of orders 5 and 6 until there has been compliance with order 3.

10.

The Independent Children’s Lawyer is under no obligation to make arrangements for the single expert to give evidence until there has been compliance with order 4.

11.

Leave is granted to the Independent Children’s Lawyer to communicate with the single expert before and after the release of his report.

12.

Further consideration of this matter is adjourned to 9.30 am on 17 September 2014.

PENDING FURTHER ORDER IT IS ORDERED:

13.

That the children X born … 2005 and Y born … 2008 (“the children”) shall spend time with their father supervised by PP Family and Counselling Services (“PP”) on one occasion each fortnight for two hours at a time and date as directed by PP and to facilitate such time, each parent must:

13.1 contact PP on … 556 within 7 days to arrange assessment and intake for the children’s time with their father pursuant to Order 12 to take place;

13.2 comply with any appointment made by Happenstance;

13.3 Comply with all reasonable rules of Happenstance;

13.4 Comply with all reasonable requests or directions of the staff of PP;

13.5 If PP following its intake procedure is unable or unwilling to provide supervision as set out in Order 12 then the parties shall have liberty to restore the matter to the list on 7 days written notice to the other party and the Court;

13.6 If the parties are accepted by PP following intake procedures then the time the children spend with their father is to be implemented by the mother delivering the children to PP at the start of the father’s time with the children; and

13.7 The parties are to equally share the costs of supervision and are to pay the fees as nominated by PP.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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