SCVG and KLD

[2013] FamCA 565

FAMILY COURT OF AUSTRALIA

SCVG & KLD [2013] FamCA 565

FAMILY LAW – CHILDREN – Interim parenting orders – whether the father’s time with the children should continue to be suspended until further order – expert evidence to be given little weight – expert evidence presented no clear discernible pathway of reasoning – whether there is a risk of psychological harm to the children in spending time with the father – little evidence regarding s 60CC factors.

Sydneywide Distributors Pty Ltd v Red Bull [2002] FCAFC 157

APPLICANT: SCVG

RESPONDENT: KLD

FILE NUMBER: SYC 4380 of 2008

DATE DELIVERED: 4 July 2013

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Deputy Chief Justice Faulks

HEARING DATE: 4 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rugendyke

COUNSEL FOR THE RESPONDENT: Mr Schonell

SOLICITOR FOR THE RESPONDENT: McPhillamy’s

Orders

1. A Single Expert be appointed to conduct consultations and to prepare a report in accordance with the Terms of Reference agreed except as to four words between the lawyers for the parties and to include those four words on my determination.

2. This is a matter in which the Court would be assisted by the appointment of an Independent Children’s Lawyer and I request the Director of the Legal Aid Commission in Canberra to make arrangements for the nomination of such a person as soon as practicable.

3. I further direct that the Independent Children’s Lawyer as soon as is practicable after his or her appointment consult with the lawyers for the mother and the father to assist in the identification of an appropriate single expert for the purposes of the preparation of the report referred to above.

   (a)The children will attend upon a Family Consultant at this Court, Ms W, on 24 July 2013.  I request that the Registry confirm the appointment as soon as possible and the time of the required attendance of the children. 

   (b)In relation to the attendance upon the Family Consultant neither parent is either required or otherwise to attend and the purpose of the interview between the children and the Family Consultant is to enable the Family Consultant to ascertain the children’s wishes and views about the time with and or communications they may have with their father. 

   (c)In this regard neither child is required to express those views if she does not wish to do so.

   (d)In coming to a conclusion about what views might have been expressed by the children, the Family Consultant will take into account the fact that the children have been living with their mother and have not seen their father since February 2013 and that there have been telephone communications between the children and their father, the content and effect of which is not the matter of agreement between the parties. 

   (e)Upon completion of the consultation, the Family Consultant will either provide a written report to this Court or give oral evidence if that is a more convenient course to be adopted in accordance with the time available for the matter to be returned before me.

4. This matter is adjourned until completion of the report or the Family Consultant’s availability to provide an oral report so that a further determination can be made about what orders might be made either in suspension of the existing orders or a continuation of them pending a final hearing.

5. Until I have received a report from the Family Consultant referred to above and the matter has been relisted before me and the parties have had an opportunity to make submissions to me and if necessary to ask questions of the Family Consultant the physical time that the children might spend with their father pursuant to the Orders of Federal Magistrate Altobelli (as he then was) such Orders being made on 15 September 2010 and the Orders made on 10 November 2010 are suspended.  It is noted in this regard that such suspension does not apply to the telephone contact that the children were ordered to have available to them with their father.

6. The matter is otherwise adjourned to a date to be notified to the parties as soon as possible when I am able to ascertain when I am likely to be able to receive the copy of the report from the Family Consultant.

7. I direct that the Independent Children’s Lawyer as soon as he or she is able to do so will notify my Chambers of the name of the agreed Single Expert and the Court will be responsible for forwarding to that Single Expert the Terms of Reference as previously referred to. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 4380 of 2008

SCVG

Applicant

And

KLD

Respondent

REASONS FOR JUDGMENT

1. Upon receipt of the report from the single expert, I would want to relist the matter for the purposes of determining the final orders that each of the parties are seeking and to give directions as to what further evidence might be reasonably required from both parties.  I am of a view that I should make an order, and I will listen to any submissions to the contrary, that no further affidavit material is to be filed until such time as I give those directions to avoid any further cost to the parties, but also to avoid further enflaming of any of the disputes.

2. That then leaves for determination the issue of what is to occur until such time as the final hearing and, in particular, what is to happen between now and my receipt of the report from the Family Consultant about the views of the children.  I note in this regard that it is not suggested by the mother that there should be a cessation of the oral communication between the children and their father in accordance with the orders of Altobelli FM (as his Honour then was) on 15 September 2010, and that she seeks at this point only that there be a cessation or suspension of the physical contact.

3. The issues in relation to this are complicated.  The evidence of the parties is contradictory on nearly every aspect of the proceedings. However, there are some facts which are, in my opinion, more significant than others.  The first is that the mother is going through a period of illness and treatment and it is common ground that that would be adversely affected by additional stress.  I accept the mother’s affidavit maintains that she is suffering and these proceedings are causing her stress. I accept this even though she has not been available for cross-examination on these matters. The father appropriately expressed sympathy for the mother’s circumstances in the email that he tendered today, which constitutes exhibit F1.

4. The second point is that, so far as the father is concerned, his criminal proceedings involving officers and former officers of this Court have now concluded and he is now on a good behaviour bond, which involves his commitment to and requirement for continued medical assistance and medication.  In this regard there are two factors:  the first is if he should fail in the terms of the bond then he would become immediately liable for, presumably, imprisonment and at least for arrest. Neither of those events, if they should occur when the children are with him, would be something that the children should be exposed to. The second factor is that while the evidence in support of the father’s continued physical attendance upon the children is supported in part by the opinions of the doctors annexed to his affidavit and I accept – because they were relied upon without objection – that they are before me and should be dealt with accordingly.  Each expert has failed to provide any background as to his or her expertise and, in particular, any particular expertise that might be brought to bear in arriving at the opinions he or she has reached. I am, however, still entitled, in accordance with the principles of Sydneywide Distributors Pty Ltd v Red Bull[1] to take account of the professional opinions and give them such weight as may be appropriate.

   [1] [2002] FCAFC 157.

5. In determining what weight the expert evidence might properly be given, I note the very limited facts each of the experts were provided with and, in relation to the issue of whether or not there should be a continuation of the time that the father spends with the children. I note that they did not have the opportunity of interviewing either the mother or the children and did not have access to a number of items of evidence in the past which may or may not have affected the particular expert’s opinion.  In relation to each of the experts, I find that the way in which the opinions were expressed in the reports shows there is a lack of a discernible pathway from the facts available to the expert to the opinion expressed. In addition, if the additional information that had been provided to the expert were available then it may or may not – but probably would – have affected the expert’s opinion, at least to some extent.

6. In such circumstances I would not put significant weight upon any of the opinions I have before me as annexed to the father’s affidavit.  That is not to say that I do not accept there is a lot of other material in those reports which might well be relevant to these proceedings (and I will deal with those matters in due course in the final hearing). 

Best interests of the children

1. So far as the other factors are concerned, my primary consideration must be to look at the factors set out under section 60CC for the purposes of determining the best interests of the children.

Primary considerations

1. There are two primary considerations[2] but I am to give greater weight to the consideration of whether there is a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[3]

   [2] Family Law Act 1975 (Cth), s 60CC(2)

   [3] Family Law Act 1975 (Cth), s 60CC(2A).

2. Turning to the issue of safety first, there is no evidence that would support the proposition the children would be in any physical danger if they were with their father and I accept the submissions of the father’s counsel on that point.

3. So far as their psychological harm is concerned, the evidence is contradictory – both from mother and father and from the children.  It is for that purpose that I seek to ascertain the children’s views independently through the use of a Family Consultant.  It seems to me that until I have that information I can not reasonably rely upon either the evidence of the mother or the father, except where it might be independently corroborated. This can be done through evidence given by the Family Consultant and also from a single expert. To the extent there is a difference between the parents’ evidence, there are more occasions where the mother’s evidence is corroborated than the father’s. However, that is far from saying I accept every statement made by the mother or, indeed, that I reject any statement or all statements made by the father.  It is simply the case that the evidence at this point – not unreasonably, perhaps – is in a state of conflict and not capable of easy resolution. 

4. The second matter that bears upon this fact is the position taken by the father, consistent with the orders that were made previously and consistent also with the submission made by Mr Rugendyke, that in previous court proceedings there have not been orders which have meant the father did not have any time with the children and therefore, the ‘default position’ is that the children should spend time with their father.

5. The prescription of the Act is, however, not that the children should have a meaningful relationship with each of their parents but rather the benefit to the children in having a relationship with both of their parents.  That is a balance that needs to be brought into account. At this point in the proceedings, given that I am talking, in effect, about a delay of possibly one month in which I could have a more sensible report about what the children want and how they see their relationship with their father, I do not regard the benefit to the children in having that physical time with their father as outweighing the importance of all the other factors, including the possibility that the children may suffer from psychological harm if they spend time with the father. 

Additional considerations

1. I note that in coming to the conclusions I have about this matter, I have taken account of the fact that the children’s views are unclear and there is a need to obtain appropriate material to throw as much light as possible on their views. 

2. I have considered the nature of the children’s relationship with each of the parents and I accept that, in coming to this conclusion, there is a discounting perhaps of the relationship of the children with their father.  That is a factor which would certain weigh more heavily in final proceedings than it does on the basis of a relatively temporary delay for the purposes of ascertaining the matters that I consider to be important.

3. I have very little evidence about the other matters to be considered under s 60CC.  For example, I do not have evidence which would assist me about the extent to which each parent has fulfilled or failed to fulfil the parent’s obligation to maintain the child.  I note the father told one of the doctors that he obtained $2 million from the settlement with X Firm.  The evidence is that there is a dispute about child support.  I note also that the father has offered to meet the financial costs of the children spending time with him.  Those are factors which remain as question marks rather than as answers at this point in the proceedings.

4. I am not satisfied that if the children were to resume spending time with their father at this point, that this would operate materially to their benefit.  I am equally unsatisfied that if they were to spend time with their father that would provide a difficulty for them. I just simply do not have that evidence.  There are substantial practical problems in the time the children might spend with their father, which are unexplained, notwithstanding, as I suggested to Mr Rugendyke, there were opportunities to rectify that lack of explanation.

5. I have serious doubts about the father’s capacity to be able to control his behaviour when the children are with him and I have already given reasons in the course of dialogue with counsel about those matters.  These are serious matters which will require deep consideration in the final hearing to the extent that they go to the question of whether the children should spend time with their father or, indeed, whether they should spend half their time with their father.  I am satisfied on the admission of the father, if not otherwise, that the mother has both the ability and the motivation to properly provide for the children’s emotional and intellectual needs at this point.

6. I note in passing that there is a dispute between the parents about where the children should be educated, but that does not bear upon the decision in front of me at the moment.  I am concerned about the attitude of the father in relation to his responsibilities as a parent, and, in particular, I am concerned – and I draw attention to the report in the evidence submitted by him – that he wants to see the children so he can influence them prior to the proceedings.  That, if it is an accurate report of what was said (and it was not ultimately contradicted by the husband in the material filed by him) is, in fact, a matter of very serious concern indeed and a matter which, almost of itself, would operate as a bar to the physical connections between the children and the father prior to my ascertaining their wishes with more precision. 

7. Those are principally the matters upon which I rely.  I do not suggest that they are comprehensive of all of the matters that might bear upon the issue, but they suffice for the purposes of the determination I make at this point.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 4 July 2013.

Legal Associate: 

Date: 1 August 2013