Scriven & Preston
[2025] FedCFamC1F 178
•19 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scriven & Preston [2025] FedCFamC1F 178
File number(s): MLC 4891 of 2022 Judgment of: BENNETT J Date of judgment: 19 March 2025 Catchwords: FAMILY LAW – CHILDREN – leave to make application for strike out of report of family report writer – single expert witness – where application is without notice on the first day of trial which is estimated to take 8 days – where father submits the report is not compliant with rule 7.22 of the Federal Circuit and Family Court of Australia Rules 2021 and should be struck out – where procedure to clarify report not followed – where family report writer did not observe child with father – where family report writer explained this to the father at the time of both reports and father consented at the time – where child had not seen father for over a year and was aged 2 – where any errors in the report can be remedied by testing the report at final hearing – application dismissed.
FAMILY LAW – CHILDREN – application for interim time – where father seeks reintroduction to child on supervised basis prior to final hearing – where father has not seen child since December 2021 – where child is aged 5 – where child has autism spectrum diagnosis – where there are serious allegations of family violence – risk to psychological wellbeing of mother and indirect impact on child considered – where Court has not yet found that it is in the child’s best interests to have a relationship with the father – application dismissed.
Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Rules 2021 (Cth)
Cases cited: Bass & Bass (2008) FLC 93-366
DasreefPty Ltd v Hawchar (2011) 243 CLR 58
Fortnum & Fortnum (No 3) [2008] FamCAFC 133
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Paredes & Enfield [2022] FCWA 186
Tellam & Mariani [2012] FamCA 330
Division: Division 1 First Instance Number of paragraphs: 109 Date of hearing: 10 February 2025, 13 February 2025 Place: Melbourne Counsel for the Applicant: Ms Skinner Solicitor for the Applicant: Kennedy Guy Counsel for the Respondent: Ms Wheeler Solicitor for the Respondent: Rose Legal Barristers & Solicitors Counsel for the Independent Children's Lawyer: Mr Marchetti Solicitor for the Independent Children's Lawyer: Bowlen Dunstan and Associates ORDERS
MLC 4891 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SCRIVEN
Applicant
AND: MR PRESTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
19 MARCH 2025
THE COURT ORDERS THAT:
1.The father’s applications to strike out the reports of Ms B dated 20 January 2023 and 30 October 2023 be and is hereby dismissed.
2.The father’s application for interim time be and is hereby dismissed.
3.The mother’s costs of the applications are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J
INTRODUCTION
This parenting matter comes before me on the first day of the final hearing estimated to take 8 days. The father seeks leave to make an oral application to strike out two reports by a private Family Report Writer, Ms B (the “family report writer” or “single expert” or “Ms B”)) and for interim orders that he spend time with the child X born 2019 (“X” or the “child”). The mother alleges that the father has subjected her to serious family violence and the father denies having done so. The father alleges that the mother has perpetrated family violence against him. These allegations are denied and have not been tested.
X has not seen the father since December 2021 (when he was 2 years old) and the Court is yet to determine that it is in X’s best interests to spend any time with the father.
The proceedings had been set down as an 8-day trial for final parenting and property orders. Unfortunately, on the second day of the trial the Counsel for the father, an experienced and capable member of the Victorian Bar, was unwell. When the matter was able to proceed, on what would have been the fourth day of trial, it was clear that the hearing could not be completed within the allocated time and thus, was adjourned. The matter was notionally adjourned to the first available date before me, but I understand has now been allocated an earlier hearing by the Case Management Judge before another judge in Division 1.
The parents, Ms Scriven (the applicant mother in the substantive proceedings) and Mr Preston (the respondent father), commenced cohabitation in early 2017, married in mid-2018 and separated either on 26 April 2021 or 2 December 2021. They divorced in late 2023. I will refer to the parents as the mother and the father.
X is diagnosed with Autism Spectrum Disorder and a speech disorder.
The mother has one other child, Y, aged 14, who lives with the mother and X.
The father has four older children from three previous relationships, two of which are still children but do not live with him. The father has some contact with the elder of the children and a good relationship with that child’s mother, but no contact at all with the youngest.
X has not spent time with the father since 31 December 2021, when he was 2 years old. An order for ‘time as agreed’ was made but then suspended indefinitely pursuant to the orders of Senior Judicial Registrar Crocker on 10 March 2023 with the effect that no time took place.
X is now 5 years old.
RELEVANT PROCEDURAL HISTORY
This matter was commenced by way of an Application for Final Property Orders filed by the mother on 10 May 2022, which depending on which date of separation is adopted, was either 11 months or 5 months after separation. The father filed a Response on 7 June 2022 also seeking parenting orders. The initial interim parenting orders provided that the child spend time with the father “as agreed”.
By consent, on 8 December 2022 Senior Judicial Registrar Hoult ordered a short form family report to be prepared by a private practitioner, Ms B. The short form family report which was published on 20 January 2023 is annexed to an affidavit of Ms B sworn 31 January 2023. This order was not framed to be an order appointing a single expert witness by parties jointly (r 7.03) but the report was nonetheless prepared with reference to divisions 7.1.3-7.1.5 of the Rules and filed under cover of an affidavit of “a Single Expert Witness”.
On 28 August 2023, Judicial Registrar Taylor ordered a further short form Report be prepared by Ms B. The second report is dated 30 October 2023, annexed to an affidavit sworn 15 November 2023 and is styled as a full “family report”.
On 22 November 2023, Senior Judicial Registrar Sudholz ordered that supervised time could recommence if the father complied with hair follicle testing (HFT) for illicit drugs and consumption of alcohol. It is common ground that the father did not comply with the terms of the Order for hair follicle testing. When he did undergo a test, it was on a date of his choosing or, as the mother alleges, when his hair was compromised by bleaching. The mother submits that the closest result (which was completed on 1 December 2023, not before 30 November 2023 as ordered) was positive for amphetamines, and there was no testing for alcohol. Time was consequently not commenced. Further HFT results were produced which are the subject of evidence in the substantive proceedings. None are in compliance with an Order.
The matter was set down for final hearing on parenting and financial issues before Judge Young in Division 2 October 2024 and then subsequently transferred to Division 1.
On the first day of hearing, Ms B was made available for limited preliminary cross‑examination. The purpose of hearing from the report writer very early in the hearing is to allow the parties to ask questions early rather than wait until the end of the case about matters including proposals or ambiguities in the report. Ms B attended by way of Microsoft Teams and was cross-examined by Counsel for the father and then Counsel for the Independent Children’s Lawyer for a total of 1 hr and 17 minutes. This was arranged in addition to Ms B being scheduled as the final witness.
Following this brief evidence, I dealt with some objections to evidence by the mother. Counsel for the father then made an oral application that both of Ms B’s reports be struck out. This was not the first time that oral application had been sought. Counsel for the father had made an oral application for leave previously in a Case Management Hearing on 10 December 2024, but the application was dismissed without hearing the merits. Some preliminary submissions were included in the father’s Amended Case Outline filed 7 February 2025. They were (emphasis in original):
The report of [Ms B] alleging the father has been in Jail for breaches of orders is factually incorrect
The reports prepared for the children’s court that the ICL relies upon were not tested and are not evidence of the truth of the allegations contained therein
The husband says the reports of [Ms B] are biased, ignore evidence, rely upon the allegations of the mother, make wrong assertions of facts from police and other reports and are at odds with the report of [Dr C]
The reports of [Ms B] do not comply with the principles set out in Makita V Sprowles Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 and Dasreef V Hawchar. Dasreef Pty Limited v Hawchar [2011] HCA 21
The reports are fatally flawed. facts” [sic] and assumptions upon which the opinion of the expert MUST BE clear as MUST BE THE reasoning. See Dasreef at 91-101, 120 – 124,128 – 130. Those matters affect the ADMISSABLITY of the evidence not the weight attributed to it (see Dasreef at 42,94,98,129) and it is not a satisfactory answer to expect these matters to be “teased” out in cross examination See Dasreef at 91,93,98,101,123
If the court is against that proposition then the reports should have limited weight particularly when there is a complete refusal to even see the Husband with the child based upon the mothers allegations and a factually wrong assessment of the fathers history
The mother and the Independent Children’s Lawyer each oppose the father’s applications and were heard when the hearing resumed on 13 February 2025.
FAMILY CONSULANTS & PRIVATE REPORT WRITERS
It is as well to clarify some terms.
As set out in the courts’ website “Family Consultant FAQs”[1] from which I draw, family consultant is a role defined in the Act. “Family Consultants” have a statutory appointment issued by the Court’s Chief Executive Officer. To be appointed as a Family Consultant a practitioner must be a psychologist or social worker who has specialist knowledge in child and family issues after separation and divorce and must satisfy the Court administration that they have the necessary expertise to undertake the role as an expert witness in parenting matters before the Court. Family Consultants conduct child and family assessments for the purpose of preparing a report that has been ordered by the Court under specific sections of the Act, such as s 62G which provides that:
[1] by family consultants
(1)This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.
(2)The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.
(3)If the court makes a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.
(3A)A family consultant who is directed to give the court a report on a matter under subsection (2) must:
(a) ascertain the views of the child in relation to that matter; and
(b) include the views of the child on that matter in the report.
Note: A person cannot require a child to express his or her views in relation to any matter (see section 60CE).
(3B)Subsection (3A) does not apply if complying with that subsection would be inappropriate because of:
(a) the child's age or maturity; or
(b) some other special circumstance.
(4)The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.
(5)For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant).
Note:Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).
(6) If:
(a)a person fails to comply with an order or direction under subsection (5); or
(b)a child fails to attend an appointment with a family consultant as arranged in compliance with an order or direction under subsection (5)
the family consultant must report the failure to the court.
(7)On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate.
(8)A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.
There are two types of Family Consultants. Some Family Consultants are employees of the Court. They hold a position called Court Child Expert because, as well as having an appointment as a Family Consultant, they also carry out duties under other parts of the Act. When preparing a report for the Court, Court Child Experts are acting in their Family Consultant role. Other Family Consultants are not employees of the Court but are private practitioners who have satisfied the Court that they have the requisite qualifications and expertise to undertake the duties of a family consultant. This type of Family Consultant is appointed to the role under the Family Law Regulations 1984 (Cth) and is often referred to as a Regulation 7 Family Consultant.
Significantly for this case, there is a third category of expert who prepares reports for use in parenting proceedings. These are experts in private practice who are chosen, retained and paid by parties to assess and report on parenting matters. Parenting matters can range from a comprehensive “family report” which includes (but is not limited to) evidence as to childhood development and parenting capacity or can be a report confined to a specific issue such as a psychosexual assessment or the results of screening for illicit drugs or excessive consumption of alcohol. Ms B is a private report writer. Ms B was once a Family Consultant but retired from the court more than a decade ago. She is no longer a Family Consultant.
LAW IN RELATION TO REPORTS
Reports prepared pursuant to Section 62G
Section 62G(2) provides that the Court may direct a Court Child Expert to give the Court a report on such matters relevant to the proceedings as the Court thinks desirable. A report ordered under section 62G of the Act can only be undertaken by a practitioner acting under their statutory appointment as a Family Consultant. The Courts’ website “Reports prepared by Court Children’s Service”[2] includes information about different reports that can be ordered under s.62G. They are:
A Child Impact Report is a child focussed preliminary assessment report which provides guidance to parents and the Court about the needs and wellbeing of children. The purpose of a Child Impact Report is to support Interim Hearings and Dispute Resolution. A Child Impact Report involves a family consultant meeting with each party (usually remotely via Microsoft Teams), and then a subsequent meeting with children (unless it is decided by the court child expert that this is not appropriate). Assessments of children are generally conducted in-person and may involve an interview and/or a parent-child observation. The Child Impact Report is primarily focused on:
•obtaining insight about children’s views, needs and experiences, and
•the screening, identification and preliminary assessment of risk issues and other factors relevant for the children and family.
A Child Impact Addendum Report is a child-focused report which builds upon a previous Child Impact Report and is undertaken by the same family consultants within six months of the Child Impact Report’s release. A Child Impact Addendum Report offers an analysis and evaluation of the issues and needs identified for the children/family in the context of the proposals before the Court, and provides recommendations (wherever possible) to support Final Hearings. The Child Impact Addendum Report involves the family consultant undertaking limited and targeted enquiries to build upon the information they gathered in the Child Impact Report. The nature and scope of the additional enquiries undertaken will be determined by the court child expert on a case-by-case basis. The Child Impact Addendum Report cannot provide a comprehensive assessment of risk or other complex issues, and is best suited to matters that involve disputes about children’s relationships and/or development, rather than issues of disputed risk. The Child Impact Report is best suited to relatively new parenting matters where a range of issues (including risk, relationships, and developmental needs) need to be canvassed to support early decision-making. Due to its limited nature, the Child Impact Report does not provide an assessment suitable for final hearing or cross-examination.
A Specific Issues Report is a limited report which targets a particular issue or specific event (such as obtaining children’s views or conducting a parent/child observational assessment) identified by the Court. It offers a limited assessment and a concise report about the issue that has been specifically stipulated in the order and provides (wherever possible) social science opinion and conclusions related to the specific issue for the purpose of assisting a final hearing. The process for a Specific Issues Report is structured to obtain information relevant to the limited issues being assessed and will vary on a case-by-case basis to meet the specifications of the Court. A Specific Issues Report cannot provide a comprehensive assessment of relationships, risk and/or child wellbeing or recommendations that extend beyond the scope of the specific issue being assessed. A Specific Issues Report is best suited to matters where the scope of information sought is restricted to one or two narrow issues, or a limited assessment event. It is generally undertaken by a family consultant.
A Family Report is a comprehensive report which offers a detailed analysis and evaluation of 60CC factors, issues in dispute, and proposals before the Court. It involves an assessment and analysis of risk factors, family relationships, children’s functioning and wellbeing within the family context, and children’s needs, views and wishes. It provides recommendations, where possible, to support Final Hearings. The Family Report process generally includes interviews with parties (and other adults as relevant) and with children, as well as parent/ child observations where appropriate. A review of relevant file and subpoena material is also undertaken. A Family Report cannot provide a clinical assessment or diagnosis of any mental health or related issues. It is best suited to matters where a comprehensive assessment of the children’s and family’s circumstances, including considerations regarding risk, relationship and developmental factors is necessary to support final decision-making. A Court Child Services Family Report is undertaken by a family consultant or a Regulation 7 family consultant.
[2] type="1">
All work by Family Consultants (Court Child Experts or Regulation 7 Family Consultants) is overseen by Court Children’s Services. Reports prepared by Court Child Experts or Regulation 7 Family Consultants are paid for by the Court and at no financial cost to the parties (for the report or to attend Court for cross examination).
Ms B’s report was not a report prepared pursuant to s 62G. Ms B’s fees are negotiated and paid by the parties. Ms B is a single expert.
Single Expert Reports
Single Expert Reports, even in the form of Short Form or Family Reports, are not prepared pursuant to s 62G. They are instead governed by divisions 7.1.3-7.1.5 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth). Relevantly, rule 7.22 requires that:
Contents of expert's report
(1) An expert's report must:
(a) state the reasons for the expert witness's conclusions; and
(b)include a statement about the methodology used in the production of the report; and
(c)include the material referred to in subrule (2) in support of the expert witness's conclusions.
(2)For the purposes of paragraph (1)(c), an expert's report must include the following in support of the expert witness's conclusions:
(a) the expert witness's qualifications;
(b) the literature or other material used in making the report;
(c)the relevant facts, matters and assumptions on which the opinions in the report are based;
(d)a statement about the facts in the report that are within the expert witness's knowledge;
(e)details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person's qualifications and experience;
(f)if there is a range of opinion on the matters dealt with in the report--a summary of the range of opinion and the basis for the expert witness's opinion;
(g) a summary of the conclusions reached;
(h) if necessary, a disclosure that:
(i)a particular question or issue falls outside the expert witness's expertise; or
(ii)the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
(iii)the expert witness's opinion is not a concluded opinion because further research or data is required or because of any other reason.
Rule 7.23 provides that:
Consequences of non - compliance
If an expert witness does not comply with these Rules, the court may do any of the following:
(a)order the expert witness to attend court;
(b)refuse to allow the expert's report or any answers to questions to be relied on;
(c)allow the report to be relied on but take the non-compliance into account when considering the weight to be given to the expert witness's evidence;
(d)take the non-compliance into account when making orders for:
(i)an extension or abridgment of a time limit; or
(ii)a stay of the proceeding; or
(iii)interest payable on a sum ordered to be paid; or
(iv)costs.
Notably, Divisions 7.1.3-7.1.5 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) apply to private report writers but not to Family Consultants. Rule 7.01(1)(d) provides:
(1)This Part (other than rule 7.14) does not apply to any of the following:
[…]
(d) evidence from a family consultant employed by the Federal Circuit and Family Court or the Family Court of a State.
ORAL APPLICATION FOR THE STRIKE OUT OF MS B'S REPORTS
Ms B is social work trained and was a Family Consultant in the employ of the Court before entering into private practiceover a decade ago. Ms B was subsequently appointed as a Family Consultant under Regulation 7. In this matter, she is a private single expert witness (family report writer) and not a Family Consultant employed by the Court or appointed under the Regulations (s11B). The reports were prepared pursuant to Chapter 7 of the of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) and not pursuant to s 62G of the Act which relates only to Family Consultants. It is manifestly incorrect to refer to Ms B as a “Child Court Expert” or Family Consultant in this context.
The first report was prepared pursuant to an order of Senior Judicial Registrar Hoult on 8 December 2022 which was made by consent and provided:
3.The Mother and Father do all things necessary to attend and to facilitate [X’s] attendance upon [Ms B], Child Court Expert (“Ms B”) for a Short Form Family Report (“Short Form Report”) on the following basis:
a) The Mother and Father attend for interviews on 16 January 2022, or other date nominated by [Ms B] for interviews.
b) The Mother facilitate [X] attending upon [Ms B] on 20 January 2023, or other date nominated by [Ms B], for interviews with the Mother and Father, as directed by [Ms B].
c) the Father be responsible for the costs associated with the Short Form Report in the sum of $4,200.00 (inc GST), or other fee nominated by [Ms B].
[…]
The second report was prepared pursuant to an order of Judicial Registrar Taylor on 28 August 2023 which was made by consent. The father had previously attempted to appoint a different expert but nevertheless agreed on this occasion. The order provided:
10.The Mother and Father do all things necessary to attend and to facilitate [X’s] attendance upon [Ms B], Child Court Expert (“Ms B”) for a an Updated Short Form Family Report (“Updated Short Form Family Report”) on the following basis:
a) the Mother and Father attend for interviews on 11 September 2023, or other date/s nominated by [Ms B] for interviews (“first interview date”);
b) the Mother facilitate the child [X] born […] 2019 (“the child”) upon [Ms B] on 15 September 2023, or other date/s nominated by [Ms B], for interviews with the Mother and Father, as directed by [Ms B] (“second interview date”);
c) the Father be responsible for the costs associated with the Updated Short Form Family Report in the sum of $5,500.00 (inc GST), or other fee nominated by [Ms B], with the question of the Mother’s contribution to the costs associated with the Updated Short Form Report, being considered by a trial Judge, at any Final Hearing;
[…]
Counsel for the father submitted that sub-paragraph (b) of both orders required Ms B to observe the child with each parent. I do not accept that is the case. First the order refers to an “interview”. Children are not interviewed with their parents. Children and parents may be interviewed separately. Children may be observed with a parent, but an observation is not an interview. Second the submission by counsel for the father ignores the fact that the “interview” was to be “as directed by [Ms B]”. If Ms B does not direct that an “interview” take place, there will be no “interview”.
Counsel for the father submitted that s62G(2)(3A) of the Act required Ms B to ascertain and report on the views of the child which, it was submitted, could only be done if Ms B saw the child. Ms B did meet with X for the second report but not for the first report. However, as set out above and I reiterate below s 62G governs reports prepared by Family Consultants under Regulation 7 or Child Court Experts. It does not pertain to private report writers such as Ms B. In any event, s62G(3B) provides that:
(3B)Subsection (3A) does not apply if complying with that subsection would be inappropriate because of:
(a) the child's age or maturity; or
(b) some other special circumstance.
Counsel’s reference to s62G was misconceived but the gravamen of the complaint is that the child was not ever observed with the father, and I will deal with the complaint on that basis.
Ms B did not observe the father and child in the circumstances where the child, 3 years old at the time, had not seen the father since December 2021. In her January 2023 Short Form Report, Ms B records as a limitation of her assessment that:[3]
There were no observations sessions conducted between [X] and his parents due to his young age, the history of family violence between the parents, and the need for [X] to be introduced to his father in a systematic manner if a decision was made for [X] to re‑establish his relationship with his father.
[3] Short Form Report of Ms B dated January 2023, page 4.
Ms B in her reports justifies her decision to not observe the child with the father as follows:[4]
107.Due to [X] not having spent time nor communicated with [Mr Preston] for over 12 months, combined with his young age, the writer determined that parent/child observations in this matter would be inappropriate. During [Mr Preston's] interview, the writer informed him that in the event the Court Ordered for [X] to be reintroduced to him that it may be in [X's] best interests for time with [X] to occur on a regular basis with a regular supervisor who was familiar with him rather than be introduced to him during this brief assessment by the writer who is a stranger to him and will have no ongoing involvement with [X]. [Mr Preston] agreed with this position.
[4] Short Form Report of Ms B dated 20 January 2023, [107]; Family Report of Ms B dated 30 October 2023 [156].
I will provide more detail of Ms B's Short Form Report later in these reasons, suffice to say that Ms B’s recommendation was for any time to be supervised. No time occurred.
On 24 July 2024, an Order, also by consent, directed that Ms B prepare a further report. The wording of the Order with respect to facilitation of attendance of the child was identical to the Order made by Senior Judicial Registrar Hoult.
In her Family Report dated October 2023, Ms B repeated the above justification and limitation, adding that X was however observed by her for the purposes of the full Family Report. The fact that the same wording was used in both orders indicates to me that whoever drew the second order did not seek to compel Ms B to either see the chid or observe the child with the father. Put another way, if the father wanted a differently structured form of assessment, the second order could and should have been drawn on his behalf to provide for a differently structured assessment and any dispute relating to that be determined by Judicial Registrar Taylor on 28 August 2023.
The father’s application
Counsel for the father submitted that the Court may exclude the evidence on the basis of s135 and s136 of the Evidence Act 1995 (Cth), which are not excluded by s69ZT of the Act. Section 69ZT(1) provides that:
(1)These provisions of the Evidence Act 1995 do not apply to child - related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross - examination), other than sections 26, 30, 36 and 41;
Note:Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
Sections 135 and 136 of the Evidence Act provide that:
Section 135: General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Section 136: General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
Counsel for the father submitted that Ms B’s reports are unfairly prejudicial, misleading or confusing and that Ms B did not comply with the order of the Court. Further, she was not an “expert” in terms of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 and Dasreef Pt Limited v Hawchar (2011) 243 CLR 58.
Counsel for the father submitted that it is unsafe to rely on either of the reports. Counsel for the father submitted that Ms B had not observed the child in the presence of the father nor made any assessment of the child’s relationship with his father. It was submitted on behalf of the father that Ms B’s report is biased against the father and that Ms B presumes, in the absence of evidence, that there is no relationship between the child and the father.
Counsel for the father asserted that Ms B incorrectly stated that the father’s criminal history shows that the father had been incarcerated. Ms B readily conceded in Court that she could have interpreted the father’s police file, of 108 pages, erroneously. In particular that she could have misread a sentence where time in gaol was actually a penalty in default of payment of a fine.
Counsel referred to the cases of Fortnum & Fortnum (No 3) [2008] FamCAFC 133, Tellam & Mariani [2012] FamCA 330 and Makita v Sprowles. Counsel also took issue with a purported lack of methodology in Ms B’s reports and submitted that the reports are, in effect, not in compliance with Rule 7.22(1)(b) of the Rules. Counsel submitted that the reports should not be admitted and, if they are, that they can only have very little weight attributed to them, and that Ms B has not assisted the Court in accordance with Rule 7.18, which provides:
(1)An expert witness has a duty to assist the court with matters that are within the expert witness's knowledge and capability.
(2)The expert witness's duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness.
(3) The expert witness has the following duties:
(a)to give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness's knowledge and capability;
(b) to conduct the expert witness's functions in a timely way;
(c)to avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;
(d)to consider all material facts, including those that may detract from the expert witness's opinion;
(e) to tell the court:
(i)if a particular question or issue falls outside the expert witness's expertise; and
(ii)if the expert witness believes that the report prepared by the expert witness is based on incomplete research or inaccurate or incomplete information, or is incomplete or may be inaccurate, for any reason;
(f)to produce a written report that complies with rules 7.21 and 7.22.
(4) The expert witness's duty to the court arises when the expert witness:
(a) receives instructions under rule 7.13; or
(b)is informed by a party that the expert witness may be called to give evidence in a proceeding.
(5)An expert witness who changes an opinion after the preparation of a report must give written notice to that effect:
(a)if the expert witness is appointed by a party--to the instructing party; or
(b)if the expert witness is appointed by the court--to the Registry Manager and each party.
(6) A notice under subrule (5) is taken to be part of the expert's report.
Counsel for the father submitted that as there was no direct observation at all of the child and the father, there could be no consideration of whether introduction of time on an interim basis, even supervised time, is in X’s best interests.
Counsel for the father submitted that it was a fait accompli that the observation did not occur at the time of the second report, as Ms B had refused to reunite the father and child for the purposes of the Short Form Report.
Counsel relied on DasreefPty Ltd v Hawchar (2011) 243 CLR 58 at [91]–[101], [120]–[124] and [128]–[130]) which stands for the proposition that for expert opinion evidence to be admissible, the facts and assumptions upon which the opinion are based must be proven and the expert’s reasoning must be transparently exposed. This authority is effectively replicated in r 7.22 and r 7.23 which provide the Court has power to refuse to allow the expert’s report if it does not comply with the requirements of r 7.22 but may also allow the report to be relied upon, taking non-compliance into account (r 7.23(c)).
Counsel also referred to the case of Tellam & Mariani [2012] FamCA 330 at 179, where Austin J observed that:
[179]The single expert offered no explanation as to why she selected 12 months as a trial period for supervision, which consequently appears entirely arbitrary. On the face of it, for example, periods of 6 or 18 months duration are just as feasible. The failure of the single expert to explain her selection of 12 months as the appropriate period of supervision impugns the reliability of her bare opinion. The Court is not bound to accept or reject the whole or any part of the evidence of a Family Consultant (see U v U (2002) 211 CLR 238 at 261). The same is true in respect of the evidence of a single expert. The Court is always at liberty to accept all, some or none of the evidence given by a witness (see McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9).
Counsel relied on Fortnum & Fortnum (No 3) [2008] FamCAFC 133 applying Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 in this Court:
[115]For the reasons which Heydon JA explained in Makita, if the trial Judge did not accept the substance of Ms Fortnum’s allegations of fact, the foundation for attaching weight to Ms W’s expert opinion evidence that Ms Fortnum’s presentation was consistent with her allegations of abuse would have dissolved, and no affirmative finding in terms of Ms Fortnum’s allegations would then have been reasonably open to his Honour. The extent to which Ms Ms W having demonstrated expertise which entitled her to express the opinion that Ms Fortnum’s presentation or “symptoms” were “consistent” with her allegations of sexual abuse was in our view, a matter to which the trial Judge as the ultimate trier of fact, could have regard. There could be little doubt that if Ms W’s evidence had been that Ms Fortnum’s “symptoms” were inconsistent with her allegations of sexual abuse, the husband would have been entitled to the benefit of that expert opinion evidence. We see no reason in principle why the converse does not apply. It has not been established before us that Ms W’s opinion evidence was tainted or otherwise rendered inadmissible in any of the ways discussed by Heydon JA in Makita. Fortnum’s presentation was consistent, or inconsistent, with the allegations of rape and abuse made by her, was in our view a matter upon to which, there being admissible expert opinion evidence, the trial Judge could have regard in determining whether the substance of the allegations was made out. As is apparent from his material, the husband relies significantly upon alleged inconsistencies of various kinds in support of his assertion that the trial Judge could not reasonably accept the substance of Ms Fortnum’s allegations. At the very least, Ms W’s evidence could have been relied upon by the trial Judge to rebut the husband’s assertions in reliance upon alleged inconsistencies.
[116]Ms W’s recounting, or acceptance, of Ms Fortnum’s allegations could not have been admissible as truth of the proof of those allegation.
Counsel for the father submitted that Ms B has become “the arbiter of fact in relation to allegations of domestic violence and allegations of whether or not the father, in fact, has a relationship or did have a relationship with his son”. In this context it is accepted that the child and the father have a genetic relationship. Counsel for the father was referring to a psychological relationship.
Counsel for the father referred to the precise wording of the consent order of 8 December 2022 which stated that:
3(b).The mother facilitate [X] attending upon [Ms B] on 20 January 2023, or other date nominated by [Ms B], for interviews with the Mother and Father, as directed by [Ms B].
The same words appear in the consent orders of 28 August 2023 in relation to the second report:
10(b).The mother facilitate the child [X] born […] 2019 (“the child”) upon [Ms B] on 15 September 2023, or other date/s nominated by [Ms B], for interviews with the Mother and Father, as directed by [Ms B] (“second interview date”).
Counsel for the father submitted that the proper interpretation is that an observation was ordered to occur and in not doing so the report is not compliant for this reason in addition to missing information pursuant to Rule 7.22(1)(b).
Response of the mother
Counsel for the mother opposed the father’s application and submitted that the reports should not be struck out.
Counsel submitted that the Orders recounted above at [51]-[52] provide that the child be observed with the father at Ms B’s direction and, therefore, it was within Ms B’s remit not to observe the child with the father. Further, that the father indicated his understanding of, and agreement to, the child not being observed with him at the time of the first report, without subsequent complaint. Ms B was not cross-examined on this point.
Both orders for an assessment and report were made by consent. The father had previously objected to Ms B preparing a further report (see Notation A of the Orders of Judicial Registrar Taylor on 24 July 2023) but nevertheless agreed on the later occasion. It follows that, had the father had concerns about the lack of observation at the time of the first report, his practitioners would have sought an alternative wording for the order for preparation of the second report, which wording could have put beyond doubt that the child must be seen with the father. Of course, it is unlikely that the father would have succeeded in getting an order in such absolute terms, but the point is sound. That is, there was no observation for the first report and there was no apparent effort on the father’s part to change the order and, therefore, the assessment arrangements, conditions or requirements when the second report was ordered to be prepared.
Counsel for the mother also pointed out that no complaint was made by the father at the interim defended hearing before Senior Judicial Registrar Sudholz on 22 November 2023 following release of the full family report. Also, the father had not asked the expert any specific questions (r 7.26).
Counsel for the mother submitted that any Makita issue should in this matter go to weight rather than admissibility. I do not accept that submission, neither do I find that the father has made out his arguments framed in terms of Makita.
Counsel for the mother submitted that the highest Ms B takes her opinion regarding the relationship between the child and father is that “there may not be a relationship at present” and that the report is centred instead about the risk posed to the child by family violence perpetrated by the father directed to the mother and incidentally, to the child. Counsel for the mother submitted that in cross-examination Ms B explained that her opinion was that it would be harmful or not helpful to have reintroduced the child and father on a one-off basis. The report is properly construed as an assessment of each parents’ characteristics and capacities and what, if any, risk exists in the case and this must be considered against the benefit to X of a relationship with his father. Counsel submitted that Ms B very clearly articulated the link between what she has observed, the information she has been provided and considered and provides the reason why she makes that conclusion.
Response of the Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer also opposed the father’s application to strike out the reports. Counsel submitted that the father had accepted Ms B’s decision not to facilitate an observation on a number of occasions, including in his own material at paragraph 228:
228.[Ms B] informed me that [X] should be re-introduced to me by way of regular basis with a regular supervisor. I have not been opposed to how [X] and I reconnect. I understand that I will need to start with supervision and move to unsupervised time as [X] is now almost five years old and he understands.
Analysis
I am satisfied that the Court has the power to discharge a single expert or strike out the reports.[5]
[5] For example, Saller & Danell (No 2) [2017] FamCA 712 (McClelland J (as His Honour then was)) Swefford & Tarbell (No 4) [2012] FamCA 888 (Watts J), which was upheld by the Full Court on appeal in Swefford & Tarbell [2013] FamCAFC 50.
Counsel for the father argues that Ms B’s reports are unfairly prejudicial, misleading or confusing and non-compliant with r 7.22(1)(b) due to a lack of inclusion as to methodology and reasoning.
The salient aspects of Ms B’s short form report are as follows:
·Ms B recorded the serious allegations raised by the mother and the father’s responses to those allegations. The alleged family violence is summarised at paragraph [91] of these reasons.
·With respect to the incident where the father admitted to assaulting and choking Ms Scriven with X present, Ms B noted that the father repeated on multiple occasions: “this was all avoidable” if Ms Scriven had just complied with his wishes, and that the incident had a “zero per cent impact on [X]. He was just a baby”. She recorded that:
93.While [Mr Preston] acknowledged that this incident "is family violence,” he emphasised that he was "not charged over this” and that there was “no Court case over this.” [Mr Preston] reiterated “all you've got me on is me grabbing her, and I'm truthful about that, every other bit is lies”. To emphasise his absence of family violence during his interview, [Mr Preston] stated, "I'm a big man […] and 1 lift 100kg of meat. I'm sure il’ T punched a woman, she’d be nearly dead. I can’t do that. You can’t do that”
·Ms B recorded that Mr Preston did not demonstrate any remorse, insight or understanding into the impact of his behaviours, instead viewing himself as a victim. She further observed that social-education courses would not be helpful.
·Ms B recorded that Ms Scriven was fearful for herself and her children.
·Ms B assessed that the future risk Mr Preston may pose harm to both the mother and the child is significant and provisions need to be made for their ongoing safety and protection.
·Ms B observed that Mr Preston’s wishes to immediately see X and move to a week‑about arrangement quickly were self-focussed rather than child focussed.
·Ms B strongly suggested that time remain suspended.
In addition to comments that substantially repeat those from the first report, salient features of Ms B’s second report are as follows:
·At the time of the assessment, the child was 3 years old. Ms B met X for the purposes of the second report and observed that he was a happy and healthy boy who is described by the mother as displaying many traits consistent with autism spectrum disorder and perhaps mild dyspraxia.
·Ms B had reliance on a psychological report by Dr C that indicated that Mr Preston posed low to moderate risk and had limited insight into personality vulnerabilities resulting in him being unlikely to engage effectively in treatment. Dr C had further suggested that there should be limits around interaction between the parents and the time move from initially supervised, to substantial attendance, to unsupervised. Dr C concluded that the father is unlikely to engage effectively in treatment.
·Ms B observed that while the father claimed to have completed an anger management course and counselling, he continued to deny he had perpetrated family violence while simultaneously denigrating Ms Scriven and Ms B throughout his interviews. She records his behaviour as “bizarre”. She records that Victoria Police were investigating a complaint as recent as late 2023 where the father is alleged to have continued acting in a manner designed to harass and intimidate the mother and her family. Ms B assesses that the father is engaging in persistent family violence while simultaneously blame‑shifting which is consistent with her observations of his behaviour during the assessment. After Ms B terminated the first attempt at interview due to the father’s bad behaviour and communicated this to the father, at the second attempted interview, the father asked Ms B if she had recovered from her “mental breakdown”.
·Ms B evaluates that X has no relationship with or memory of his father given his young age and the time which has passed since X has been in the presence of the father.
·Ms B’s recommendation was that, if the Court found it to be in X’s best interest to have a relationship, she did not anticipate time moving to an unsupervised basis. She recommends a regime of once a month supervised visits for six months thereafter reduced to six times a year (“identity contact”).
Are the reports unfairly prejudicial, misleading or confusing?
I understand Counsel has two grounds for this objection – first, that by failing to observe the child with his father, allegedly in contradiction with Court orders, Ms B had no grounds in which to draw her conclusions and that the report has limited probative value outweighed by the prejudicial effect of the conclusions reached (s 136 Evidence Act). Second, the reliance of Ms B on incorrect information, such as the non-existent incarceration of the father, coloured her views of the father and made the conclusions in report unsound.
The first ground is premised on the belief of the father that Ms B was bound to observe the father interact with X and that Ms B should have done so. That is incorrect. Section 62G(3A) of the Act does not apply to a private report writer. Further, Ms B explained to the father why it was inappropriate to observe him with X Ms B, in both of her reports, explained that a limitation of the report was the lack of observation between the child and parent but it was her judgment that such a reintroduction was not appropriate due to the time since the last meeting and the child’s age. That is a valid view that can be tested in cross examination at the final hearing.
The wording of Ms B’s recommendation as to time is that:
In the event the Court considers it is in the best interests of [X] to develop a relationship with his father, it is suggested that [X’s] time with his father commences in a supervised environment once a month for the next six (6) months.
Ms B clearly contemplates that the Court may or may not make an order for time to be spent. This is entirely appropriate. The Court receives more evidence than would is reviewable by a report writer, who sees the family at a snapshot in time. The consequences of a reintroduction outside of a therapeutic setting where there is no guarantee of upcoming spend-time between the father and child, could be potentially harmful to the child directly as well as for the mother and, through the mother, indirectly to the child. The priority of the report writer must be at all times to keep the child safe.
I note the wording of the precise order is somewhat ambiguous in relation to the child being “interviewed”. It would have been fairer on the family report writer to specify that the child should not be brought into contact with the father for the purposes of the family report. I note that the order was drafted by practitioners
As to erroneous reliance on history of incarceration, Ms B records the following with respect to the father’s criminal history, which she attributes to the subpoena documents produced by Victoria Police:
80.[…] 2017 - imprisoned for default unpaid work Order and failure to pay fines from the convictions in 2016 for [multiple offences].
It was put to Ms B that the father had not been imprisoned and Ms B accepted that that was her mistake, and she had misread the material. To the extent that this short period of alleged incarceration colours her views can be put to her in cross-examination at the final hearing. It does not undermine the value of the report as a whole in the circumstances where the father nevertheless has a criminal history.
Counsel for the father submitted that due to 7.22 of the Rules, an expert of this Court must state the reasons for the conclusions, must include a statement about methodology and must include the literature or other material used in making that report. I do not accept that Ms B has failed to give reasons for her conclusions or lacks methodology . It is clear to me why the child was not observed with the father and why Ms B could not be satisfied that re-introducing the child to the father in a vacuum would be a responsible and safe action to take let alone be in the child’s best interests.
Ms B, in her reports, clearly saw that a reintroduction between the child and the father was a possibility but, rightfully in my view, that any reintroduction should be in a safe therapeutic environment with a practitioner with an ongoing role in the reintroduction process. Importantly, re-introduction should not occur until the court is satisfied that the child should have a psychological relationship with the father on an ongoing basis because it is in the child’s best interests to do so. Ms B clearly envisaged that future contact could be limited to no contact or identity contact only, and by the time of her second report took the view “this assessment does not foresee [X’s] time with his father progressing to unsupervised time in the future”.[6]
[6] Affidavit of Ms B sworn 15 November 2023, p. 41.
In Bass & Bass (2008) FLC 93-366, the Full Court comprised of Finn, Warnick and Thackray JJ made the following comments (with which I respectfully agree), with respect to an appeal against a first instance decision not to discharge a single expert witness and adduce further evidence from a further expert witness who was not the single expert:
[49]First, Division 15.5.6 of Part 15.5 provides a procedure for clarifying matters contained in a report prepared by a single expert witness. It was confirmed before us that that procedure had not so far been employed in this case. While we acknowledge that procedure may only be of limited assistance to the father given the nature of his complaints, we are nevertheless, of the opinion that that procedure ought to have been attempted before the application was made to Steele J, or to this Court.
[50]Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings, as indeed was recognised by Steele J. Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial Judge. It is not particularly unusual, in our combined experience, for trial Judges not to accept, or to only give limited weight to, the opinion of a single expert in a children’s case.
Division 7.1.6 of the Rules (where Division 15.5.6 is now located) provides for the process for the clarification of single expert witnesses reports. No steps were taken by the father to seek clarification in respect to methodology or Ms B’s therapeutic decision not to reintroduce the father and child for the purposes of observation. Furthermore, no complaint was raised at the time of release of either report, nor, indeed, between the first report (where the child was not observed with the father and the father informed of this) and the Orders of Judicial Registrar Taylor requiring the production of a further report. These orders were made by Consent. The father has had the same practitioners throughout the Court hearing – there is no question that this issue could have been overlooked if it was a genuine concern of the father at the time.
Further, I consider the impact of striking out the reports on the proceedings. This is not a matter that should proceed to final hearing without evidence from a family report writer. Striking out the reports of Ms B would require a new Full Family Report be completed, including further interviews and delay of a matter that was ready to proceed at the first instance as early as 21 October 2024 (before being transferred late to Division 1). Notably, the father does not seek that a report be prepared by another report writer. Even if he did, I note the comments of Tyson J in Paredes & Enfield [2022] FCWA 186:
[59][…] If convenience, and the promise of a faster report from a different expert, was a broadly applicable criteria for discharge of a Single Expert Witness, such discharges would occur on a regular basis. Such an outcome would have a detrimental impact on the proper conduct of parenting proceedings, and would not be consistent with the Rules.
Accordingly, even if a further Family Report from a different writer could be successfully completed before the trial recommences in August, it would not be a factor in favour of striking out the reports.
For these reasons, I refuse the father’s application to strike out the reports of the family report writer and single expert witness, Ms B.
SUPERVISED TIME ON AN INTERIM BASIS
Counsel for the father pressed a further application that there be interim time between the child and father on a supervised basis. The application is contained in the father’s response dated 14 October 2024 as an interlocutory order sought. He seeks that he be allowed to spend supervised time for four hours twice per week for 3 months, moving then to four hours three times per week for a further 3 months, then to 6 hours three times per week unsupervised for 1 month, thereafter extending to overnights in a staggered progression outlined in the response.
The father comments that supervision would be at his sole expense and would be provided by either D Family Services or Ms E of G Family Services. Of the two services, he prefers the latter as there is no waiting period. However, he proposes other alternate supervisors including Ms F, Mr H, Mr J and Mr K, all of whom are friends of the father. Ms F, Mr J and Mr K have made affidavits in support of the father. The Court heard from Counsel for the mother that on one of the adjourned dates between 10 and 13 February, the first and second day of hearing, Mr K had attended the mother’s workplace where she worked in the office. Counsel recorded that Mr K, his brother and two other women sat no more than five metres away from the office in an otherwise empty room. It was submitted that this event caused the mother to feel fearful. In response, the father says Mr K was attending the location with his mother for her birthday, thinking the mother would not be in attendance as there was Court scheduled for that day. This is a matter for the final hearing but demonstrates that evidence must be tested.
Counsel for the father submitted it was appropriate that the father have some supervised time so that there is some evidence before the Court as to the nature of the relationship between the child and father. I do not agree. Time to be spent is ordered if it is considered to be in the best interests of the child. It is not ordered as an experiment or to bolster a party’s case.
Counsel for the mother opposed any time between the father and child. Counsel pointed to significant acts of family violence perpetrated against the mother and the child on at least two occasions (see below at [91]).
The father has also allegedly engaged in abuse of staff at the Department of Families, Fairness and Housing including leaving text messages such as:
7 September 2021: “Theres no police charges because what you think happened didn’t you fuckwits, the black cunt […] who caused more problems couldn't Evan [sic] stay the course and finish it off to see what damage he has caused so what do you think you fucking know” [7]
[7] Affidavit of the applicant mother sworn 25 September 2024, [123(iv)].
The father allegedly left abusive voicemail on the mother’s phone (which were played in Court) and included expletives and insults. The trial judge will need to hear the recording.
Separate to family violence, Counsel for the mother submits that there may be a multitude of different reactions and psychological impacts that the reintroduction of time may have the child and that this risk is heightened by the child’s special needs. Further, if time was introduced and then ceased at final hearing this could be very disturbing for the child and his attachments with his primary caregiver and others into the future.
Counsel pointed to the conclusion of Dr C that the father is resistant to treatment. The relevant extract of the report is:[8]
84. Although he has engaged in a variety of programs in the past, [Mr Preston]’s insight into his psychological vulnerabilities is limited and he is unlikely to engage effectively in treatment.
85. As such, it may be of assistance that time between the father and child that the Court considers appropriate is initially supervised and/or then in substantial attendance and move to unsupervised time when with positive time with the child is identified. There should be limits around the interactions between the parents, and parallel parenting will likely be appropriate.
[8] Psychological Report of Dr C dated 1 May 2023 [84]-[85].
The report of Dr C was completed on 1 May 2023. Dr C performed a risk evaluation relating to the father utilising a structured clinical interview and evaluative tools including the Mental Status Examination, Paulhus Deceptive Scale, Personality Assessment Inventory, parenting Stress Index, Family Strengths & Needs Assessment and Spousal Assault Risk Assessment. The salient conclusions of his report are:
·A likely history of unstable interpersonal relationships with partners in particular, with difficulties with control and feeling controlled as well as alcohol use;
·Personality evaluation points to issues with anger, mood modulation and emotional control and difficulty with interpersonal relationships, particularly close interpersonal relationships.
·Parenting risk was estimated at “low-moderate” as was risk of violence within relationships.
·The evaluation did not point to problems in the relationship with the child (but Dr C notes this should be addressed in the family report). The evaluation did not exclude that relationships with the mother could be affected by the father’s personality vulnerabilities and it is highly likely that only parallel parenting would be appropriate, and unlikely that the father could negotiate effectively with the mother.
·The father’s insight into his psychological vulnerabilities is limited and he is unlikely to engage effectively in treatment.
·Time should be initially supervised and move to unsupervised time when positive time with the child is identified. It is appropriate that the parents should only parallel parent.
Parallel parenting is less than ideal.
Counsel for the Independent Children’s Lawyer agreed with the mother’s position, pointing out the father’s behaviour in Court on 10 December and 4 February where the father became distressed and overwhelmed to the extent of walking out of Court or the from the room in which he was participating remotely.
Determination
The paramount consideration of course is always the best interests of the child (see ss 60CA and 65AA). The general considerations when determining the best interests of the child are set out in s 60CC(2). The relevant considerations are set out below.
Family violence history
There are serious family violence allegations in this matter. The mother outlines a non‑exhaustive list of allegations at paragraph 108 of her trial affidavit. In summary, she alleges verbal abuse; the father throwing plates at the mother in anger (including once when the child was being held by the mother); dangerous driving and related property damage; throwing a kettle of boiling water at the mother while she was holding the child; sexual assault; refusing to provide medical care; spiteful behaviour including ordering food with allergens the mother was anaphylactic to; threats to kill the mother’s father; assault including kicking the other while she protected the child with her body; confiscating the mother’s purse; pushing the mother down the stairs; and abuse of the family.
The mother also contends that the father has been stalking her either personally or through his agents. This includes allegations of leaving a work car, blocking her father’s driveway completely whilst there was an Intervention Order in place noting the mother and her sons visit the maternal grandfather’s home frequently. The father’s excuse was that it was a “company car”. This occurred as recently as October 2023, according to the mother. The breach of Intervention Order was listed for a contest mention at the Magistrates Court in late 2024 although no evidence has been submitted as to the outcome of those proceedings.
Post-separation, the mother asserts that the abuse has continued, including through leaving abusing voicemails. At paragraph 111 of her affidavit, she asserts the following constitute controlling behaviour:
(1)Issuing VCAT proceedings days after separation seeking sale of the matrimonial home and forcing the mother to leave the home;
(2)Reporting the mother’s car as a stolen vehicle and having the vehicle towed so the mother would not have access to a car;
(3)Cancelling direct debits the father had previously paid for without notice;
(4)Failing to pay for court-mandated drug and alcohol testing and which resulted in the mother having to pay for it;
(5)Failure to provide financial disclosure documents;
(6)Refusing to sign mortgage discharge documents required to settle the sale of a property which is cross-collaterised with another property owned by the father.
The father made admissions to Ms B to choking the mother, as recorded at paragraph 38 of the Family Report dated 30 October 2023. The father in his sworn material denies all other allegations but asserts that the mother committed family violence against him (which is denied).
The mother asserts that the father has a history of illicit drug and alcohol abuse and that he has not yet properly complied with the court order requiring a hair follicle test.
In the Short Form Report, Ms B states the following about the father which is of concern with respect to the father’s application for interim time:
84.[Mr Preston’s] interview was peppered with misogynistic expressions, he articulated his belief that IVOs provide "power" to women, and he would not voluntarily give that power to them (“that’s too much power for you to have over me”)…
[…]
92.In discussing family violence, [Mr Preston] confirmed that the incident [in late] 2020 had taken place. During his interview, [Mr Preston] readily admitted to assaulting, including choking [Ms Scriven]. He denied that [Y] was present. [Mr Preston] repeated on multiple occasions that the incident could have been avoided “this was all avoidable” if [Ms Scriven] had just complied with his wishes. He admitted that [Ms Scriven] was holding infant [X] at the time. When asked specifically how he thought [X] might have been affected by his actions, [Mr Preston] responded with, "I'm going to say zero per cent impact on [X]. He was just a baby." At no time did [Mr Preston] express remorse for his behaviour, but rather attributed responsibility for his behaviour to [Ms Scriven] for attempting to take his money held within her purse. Furthermore, he was unable to identify how his choice to act violently had affected [Ms Scriven], [Y] or [X].
[…]
95.During his interview, [Mr Preston] both stated, “I’ve never been found guilty of assault,” “I haven’t been to jail,” and “I live a quiet and normal life.” However, several minutes later, he admitted being charged with assault of […], “found guilty on a technicality,” and that this assault was “at the very bottom of the spectrum,” and that this occurred around four (4) years ago, although it had only come to Court relatively recently.
[…]
114.During his interview, it was particularly concerning that [Mr Preston] significantly minimised the impact of his choice to choke [Ms Scriven] while holding an infant while suggesting that [Ms Scriven] was using the legal system against him designed for situations he considered to be more serious. Overall, [Mr Preston] identifies himself as the victim of family violence from [Ms Scriven] due to her seeking financial assistance via legal means and preventing him from maintaining a relationship with [X]. It is noted that [Mr Preston] claims that he has proof that [Ms Scriven] assaulted him before she fell down the stair at his office while simultaneously minimising how this “fall” may have affected her.
In the Family Report, Ms B made the following comments:
134.[Mr Preston’s] first interview for the purpose of this updated report on 11 September was ceased by the writer after only a few minutes due to [Mr Preston’s] abusive and disrespectful behaviours, and he was clearly advised of this.
135.Interestingly, at the very beginning of the second interview, [Mr Preston] asked if the writer was well after her “mental breakdown” during the previous phone interview. It appeared that [Mr Preston] had not noted the reason for the writer ending the previous interview, or, if he had, he had chosen not to acknowledge his inappropriate behaviours.
[…]
143.He appeared frustrated that he had been provided no health or wellbeing updates regarding [X] and that [Ms Scriven] continued to refuse him to spend time with [X], including taking [X] to visit his ageing father and join his siblings at family events, such as attending birthdays and sporting events, stating “I can’t believe she’s being such a bitch.”…
[…]
172.[Mr Preston] claimed that he has now completed an anger management course and counselling since the previous assessment. However, consistent with [Dr C’s] assessment of [Mr Preston], although he has engaged in a variety of programs in the past, [Mr Preston’s] insight into his psychological vulnerabilities is limited. During his interview for the purpose of this assessment, he continued to deny he had perpetrated family violence while simultaneously denigrating [Ms Scriven] and the writer throughout his interviews. [Mr Preston] presents himself as a victim of family violence from [Ms Scriven] and the broader legal system and is unable to take responsibility for his own actions.
173.[Mr Preston’s] interactions with the writer throughout his assessment have been bizarre. [Mr Preston] would beg the writer for his preferred outcome using charisma; however, when he heard something he disliked, his behaviour quickly dissolved into abusive behaviour and threats. This behaviour appeared consistent with a toddler who, after pleading with their parent for a chocolate bar, using all the charms and cuteness they could muster, would subsequently throw their drink bottle into their parent’s face, yelling "I hate you" upon this request being denied.
174.Given [Mr Preston’s] rapid deterioration in his demeanour, his inability to take responsibility for his actions, coupled with his documented history of violent behaviour towards partners and others, this assessment holds significant concerns for [Mr Preston] spending unsupervised time with [X].
[…]
177.As recently as [late] 2023, [Mr Preston] continues to perpetrate family violence against [Ms Scriven] and her family by acting in a manner designed to harass and intimidates her family. It is noted that Victoria Police are currently investigating the above matters, and this information may be of assistance to the Court. This assessment suggests that [Mr Preston] is engaging in persistent family violence against [Ms Scriven] while simultaneously blame-shifting and portraying himself as a victim, which is synonymous with his behaviour during both assessments prepared by this writer.
I have heard the voicemails (Exhibit M1) and video of an altercation between the mother and father (Exhibit M2). However, I have not heard directly from the parties and cannot make findings as to specific family violence instances asserted by the mother and denied by the father (and visa versa). The voicemails are prima facie abusive. The video shows the father physically assaulting the mother in the office at his workplace but does not clarify the disputed context of the altercation. In short, the mother says she asked the father to move so she could work on both screens at the desk, and he reacted by punching the computer. He then took her purse, and she tried to get it back, which escalated the dispute and resulted in the father pushing her down the stairs. The father says the mother attacked him when he stopped her from taking company money for personal use and that she was regularly stealing from the business and denies pushing her down the stairs.
Taken at its highest, the mother’s case paints a picture of the father as a dangerous perpetrator of family violence. The father’s outbursts in Court and comments to Ms B are not inconsistent with that depiction.
Safety of the child and each person who has care of the child
The untested allegations of the mother contained within her affidavit and the recorded history of the alleged family violence allegedly perpetrated by the father upon the mother and her family members is very concerning. The comments of Dr C as to the lack of insight of the father, combined with the comments of Ms B as to the father’s “bizarre” behaviour when being interviewed by her also cause great concern as to the safety of the mother if there were to be any interim time between the father and child. Dr C’s recommendations that any parenting be done in parallel are also indicative of there being very little ability for the parents to safely communicate in order to organise time.
The conceded family violence event in which the father choked the mother while she was holding the child causes concern that the family violence risk is not isolated to the mother alone.
While it is not contended at this stage that the father poses a particular direct family violence risk to the child, the impact of reintroduction of time, to the mother’s psychological wellbeing is a factor I consider when deciding the application for interim supervised time. This is not the subject of expert evidence, but I do not ignore it.
The risk of physical safety to the child can be ameliorated by the requirement of supervision. However, I consider also the psychological safety of the child. The use of reintroduction to the father on an interim basis as an experiment, or to create evidence for the next hearing, is inappropriate.
I also consider that the application for interim time does not specify a therapeutic process for reunification other than that supervised time should recommence at a contact centre. The proposed schedule for increasing time on an interim basis outlined in the father’s response (starting with 4 hours per week for 3 months) is unrealistic and further demonstrates a lack of insight.
Developmental, psychological, emotional and cultural needs
The child has ASD and a speech disorder. The child is only five years of age. No evidence was led in the course of submissions as to how these conditions may make coping with a reintroduction more difficult for the child, but it can be assumed that it would be more difficult than for a child without those conditions.
Benefit of having a relationship where it is safe to do so
There is a benefit to a child having a relationship with a biological father. At the present time, the child has no psychological relationship with the father. The risks of creating a relationship without a full assessment and testing of the evidence, to ascertain where X’s best interests lie, outweigh any benefit at this stage.
Conclusion
The father’s application for interim time is dismissed. I stress that I have only considered time between now and a final hearing in the context of the Court not yet having found what kind of ongoing relationship (if any) between the father and X would be in X’s best interests.
The mother’s costs of the applications are reserved and an application for costs for the afternoon of 10 February 2025 and an hour of 13 February 2025 may be made during the final hearing.
The final hearing of the matter will recommence in accordance with my orders published on 13 February 2025.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 19 March 2025
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