Santoro and Santoro (No.2) - [2009] FMCAfam 196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SANTORO & SANTORO (No.2)

[2009] FMCAfam 196

FAMILY LAW – Parenting orders – application for an updated expert’s report – adjournment of proceedings pending receipt of report.

Family Law Act 1975, ss.69ZN, 69ZQ

Truman & Truman (2008) FamCAFC 4

Applicant:

MS SANTORO

Respondent:

MR SANTORO

File Number:

SYC 1574 of 2008

Judgment of:

Altobelli FM

Hearing date:

9 March 2009

Date of Last Submission:

9 March 2009

Delivered at:

Sydney

Delivered on:

9 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Schonell

Solicitors for the Applicant:

Karras Partners Lawyers

Counsel for the Respondent:

Mr Richardson

Solicitors for the Respondent:

York Family Law

Counsel for the Independent Children's Lawyer:

Mr Barry

Solicitors for the Independent Children's Lawyer:

Ross A Clarke & Associates

ORDERS

That the parties forthwith do all things necessary to cause Associate Professor Quadrio to prepare an updated report in this matter at her earliest convenience.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 1574 of 2008

MS SANTORO

Applicant

And

MR SANTORO

Respondent

REASONS FOR JUDGMENT

I provide the following extempore reasons in relation to an application that has been made for me to determine now whether I will make an order for an updated family report to be prepared. By way of background, these proceedings relate to two children: [X], who is nine years old, will be 10 years old in April this year, and [Y], who is seven years old and will be eight years old in April. Their mother is the applicant and their father is the respondent. There is an independent children's lawyer in this matter. The case had been set down before me commencing today for three days to deal with the parenting application. There are separate property proceedings that are under way and will be dealt with in due course.
It is counsel for the applicant mother who makes the application on behalf of the mother and it should be noted that the effect of the application is that if I do order an updated expert's report from Dr Quadrio who has already prepared a report, it must follow from the mother's perspective that I should adjourn the proceedings for reasons to which I will come to shortly.
I am satisfied in fact I have not ruled upon this application on a previous occasion. I am satisfied that a report could be prepared in a timely fashion. I accept that the interviews upon which the report by Dr Quadrio was prepared were conducted about eight months ago. I note, having read the affidavits of both parents, that there have been changes in the parenting arrangements that have taken place since the interviews with Dr Quadrio, though I note that some of these changes were clearly contemplated at the time of the interviews.
On 26 February 2009 when this issue was first aired before me, counsel for the mother asserted that at least part of the reason for an updated report was that the father's relationship with the children had deteriorated. However, on that occasion, and I infer since then, no correspondence could be produced which contained an assertion on behalf of the mother that that was the case in the period between July 2008 and February 2009. There is a strong flavour in the submissions that have been made on the mother's behalf that would lead I think to an inference by any objective bystander in these proceedings that she is not happy with the report that was prepared by Dr Quadrio, and if that is the case it is somewhat surprising in view of the recommendations that Dr Quadrio makes for the mother to be primarily responsible for the care of the children and it leads one to opine whether the mother is so stung by some of the comments that Dr Quadrio makes in the report that she cannot see that ultimately the recommendations could be seen at least on an objective basis as benefiting her.
Counsel for the mother contends that I should order the updated report and that if I do so it would be procedurally unfair to the mother to be cross‑examined on the basis of an incomplete report and this means that in effect the case would need to be adjourned. No explanation is offered as to why there was no application for an updated report or further interviews with the children before 26 February 2009 in a context where on the facts asserted by the mother which ground the present application and on the basis that the facts were well known to the mother at all times. So why was the application not made? Indeed the only factor the mother did not know about was that the family report would contain comments that perhaps she would consider to be adverse to her even though the recommendations are not necessarily. Curiously the application arises after the report was released to the parties. Counsel for the mother urges on me the potential benefits to the mother and father and the children of an updated report insofar as it provides a platform for discussions which might, depending on the report, give occasion for a sudden outbreak of cooperative parenting that has been so entirely absent in this case despite repeated pleas for the parents to start cooperating about parenting, including pleas that have been made from this Bench.
Counsel for the respondent father opposes the ordering of an updated family report and points out that Dr Quadrio has not seen the affidavit material that was filed in preparation for the final hearing and that therefore that material cannot be the basis for her willingness to see the family again. Hence, Dr Quadrio's availability to do an update does not necessarily endorse the proposition of the necessity to do so. Counsel for the respondent father wants to proceed with the trial with the mother and all of her witnesses giving evidence first but could not in my opinion, and with great respect to him, articulate a good reason why I should not limit the evidence to just the mother and the father in the remaining period available to the Court.
Counsel for the respondent mother is opposed to the idea of a trial proceeding with just the evidence of the mother and the father because of the perceived unfairness to the mother, particularly in terms of being cross‑examined on a family report which would be incomplete if, for example, I decided to order an updated report.
Counsel for the independent children's lawyer, I think, sees the benefit of an updated report but seems quite concerned about the impact of a continued trial on the parents, especially the capacity of these proceedings to interfere with cooperative parenting.
These proceedings of course are covered by div.12A of the Family Law Act, div.12A of ptVII, and I think it is important to perhaps revisit some of the principles for conducing child-related proceedings that are set out in s.69ZN. Sub-s.(1) says:
The Court must give effect to the principles in this section.
And the Full Court's decision in Truman & Truman (2008) FamCAFC 4 says at para. 12 in the last sentence that:
The Court must give effect to the principles set out in s.69ZN.
In other words, I do not have an option. It is quite mandatory. Sub‑section(2) of s.69ZN sets out principles:
The first principle is that the Court is to consider the needs of the children concerned and the impact that the conduct of the proceedings may have on them.
Secondly:
That the Court is to actively direct, control and manage the conduct of the proceedings.
Thirdly:
That the proceedings are to be conducted in a way that safeguards children against any concerns about violence, abuse and neglect; and the parties to the proceedings against family violence.
Nextly:
The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting.
And fifthly:
The proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
I note that s.69ZQ then sets out some general duties.
Dr Quadrio says in her report that the resolution of the conflict is in the best interests of these children and indeed she refers implicitly, if not expressly, to the risk of not bringing these proceedings to a close and indeed she refers to the risk of the children being further alienated from their father.
The dilemma in this case of course is trying to fashion proceedings that are procedurally fair to both the parents and which also give them the opportunity to conduct a cooperative and child‑focused parenting. The principle about proceedings being conducted in a way that will promote cooperative and child‑focused parenting is one of five principles. It is apparent in this case that the matter will proceed part‑heard into the second half of this year. Indeed, there could be a delay of as much as six months, perhaps even more, before the matter can be revisited. Everybody concedes in this case that this is a case of very high conflict between the parents and I must say it is sobering indeed when that is the description used by counsel for the parents themselves in describing this case. To balance the need of the children against the need of the parents for procedural fairness as well as the need for proceedings that promote cooperative and child-focused parenting is a very difficult balance indeed. In this case I think the balance falls in favour of trying to deal with these proceedings in the interests of the children as efficiently as possible whilst at the same time putting in train a process that leads to further evidence from the expert.
I do propose to order that the expert's report by Dr Quadrio be updated at the earliest possible time. However, I propose to direct that these proceedings continue but on the following basis.
I direct that the mother is to give her evidence first, followed immediately by the evidence of the father but each counsel will have about the same time to conduct their cross-examination and that time will be limited, at least in the first instance, to about six hours. However, the cross-examination is not to be based on the report that was prepared by Prof Quadrio.
I am satisfied that this is a way in which a significant step can be taken towards resolving these proceedings. After I have heard the evidence from the parents during the course of the rest of today and over the next two days, it may well be that I will be in a position to make a further interim order in these proceedings. So therefore the order will be that a further report be prepared. However, the trial is to continue. There will be about six hours available for cross-examination. Counsel is not to cross examine on the basis of Dr Quadrio's report.

I certify that the preceding (sixteen) (16) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: Anthony Thompson

Date: 10 March 2009