SCVG and KLD
[2008] FMCAfam 1147
•24 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCVG & KLD | [2008] FMCAfam 1147 |
| FAMILY LAW – Parenting – interim application – whether an expert’s report should be prepared prior to preliminary hearing on the Rice v Asplund issue. |
| Family Law Act 1975, ss.60CA, 69ZN(3) |
| Rice & Asplund [1979] FLC 90-725 SPS & PLS [2008] FLC 93-363 |
| Applicant: | SCVG |
| Respondent: | KLD |
| File Number: | SYC 4380 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 15 October 2008 |
| Date of Last Submission: | 15 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richardson SC |
| Solicitors for the Applicant: | Adrian Twigg & Co |
| Counsel for the Respondent: | Mr Stewart |
| Solicitors for the Respondent: | Macphillamys |
ORDERS
The Father’s oral application for an Expert’s Report is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym SCVG & KLD is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). This judgment was previously published under the pseudonym Vanderhum & Doriemus.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4380 of 2008
| SCVG |
Applicant
And
| KLD |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter came before me in my duty list on Wednesday, 15 October 2008. The substantive issue raised in this case, though not the issue that is covered in this judgment, is what is commonly known as a Rice & Asplund [1979] FLC 90-725 issue. That issue will be determined on 5 December 2008. The issue that arose in the context of the Rice & Asplund application, and which is the subject of the present reasons, is an application by the applicant father for an expert to be appointed to prepare a report that, he asserts, will assist the Court in determining the Rice & Asplund application. There is no issue about the identity of the expert, the terms of her appointment, and whether the learned expert is able to complete the interviews and have the report available before 5 December 2008. The only issue for determination is whether I should order the report.
Background
In effect, the applicant father is seeking to revisit parenting orders that have been made in relation to his two children who are aged four and six. The respondent mother opposes this. The parents separated in January 2005 in circumstances where the mother left the former matrimonial home in Sydney and travelled with the children to [B] where, for all practical purposes, she has lived with the children ever since. The father applied to Judicial Registrar Loughnan on 6 May 2005 for the children to be returned to Sydney, but that application was unsuccessful.
A review of the learned Judicial Registrar's decision was filed by the father, but that too was unsuccessful before Moore J. The father's final application came before Moore J on 8 and 9 June 2005, 7 and 14 December 2005, and 6, 7, 8, 9 February 2006. An expert's report was provided by Associate Professor Carolyn Quadrio. Her Honour Moore J handed down judgment on 17 May 2006. As a result of this judgment the mother and the children continued to live in [B] and spend time with the father in accordance with the orders. The father appealed the decision of Moore J but on 24 May 2007 the Full Court dismissed the said appeal. The applicant father then sought special leave to appeal to the High Court, but the special leave application was refused on 14 December 2007. The father's present application was filed in this Court on 29 July 2008.
The above history creates the impression that the two children have been exposed to the litigation between their parents for a considerable part of their lives. Indeed, as at the date of separation, just a few months before the litigation commenced, the older child was three years old, and the younger one was five months old.
Issue
The issue for determination is whether it is in the best interests of these two children that a further report of Associate Professor Quadrio be prepared prior to the hearing of the father's Rice & Asplund application on 5 December 2008.
Discussion
Mr Richardson SC appeared for the father and Mr Stewart of counsel appeared for the mother. A considerable volume of material was filed in support of the father's application. The mother filed a response seeking orders that the father's application be dismissed and that the matter be listed for hearing on the determination of the threshold issue of the rule in Rice & Asplund. The mother filed a short affidavit. I had the benefit of a quite detailed outline of argument that had been prepared by the solicitor for the applicant father. Ideally, the Rice & Asplund issue would have been dealt with on the first return date.
Mr Stewart opposed this, however, as he was not familiar with the history of the matter and the mother's preference was that Ms Rees of counsel, who was familiar with the matter, would deal with the Rice & Asplund issue. In any event, the number of matters requiring my attention on the day precluded dealing with the Rice & Asplund issue.
The application for the appointment of Associate Professor Quadrio to prepare an expert's report was, in fact, an oral application. To the extent that leave needs to be granted to make that oral application, I grant the same. Tendered in evidence on behalf of the applicant father was a copy of Associate Professor Quadrio's report and supplementary report, provided in the earlier proceedings.
On behalf of the applicant father Mr Richardson emphasised the advantages to the father, and to the Court if Associate Professor Quadrio's report were available for the Rice & Asplund issue.
Mr Richardson outlined to me some of the submissions that would be made on behalf of the father at the Rice & Asplund hearing, in order to demonstrate the nature and the extent of the changed circumstances that had taken place since the decision of Moore J. There is no need for me to go into the details of his submissions in the present context. Suffice it to say that I am satisfied that a report from Associate Professor Quadrio might provide evidence to the Court which provides an insight into various aspects of the lives of the children and their parents since the earlier reports. I accept that all of the matters raised by Mr Richardson are matters in respect of which Associate Professor Quadrio could make observations based on her expertise. Indeed, I accept that if Associate Professor Quadrio were able to complete a report then, subject to its contents, it could be very useful evidence in the Rice & Asplund proceedings. Indeed, it could make the difference between the applicant father's application being dismissed, or being allowed to proceed in the normal course.
However, I specifically raised with Mr Richardson the potential adverse impact on the children of being re-interviewed by Associate Professor Quadrio and the risks to them of further involvement in the parental conflict. Mr Richardson submitted that there was no evidence to indicate that the children would in fact suffer anything as a result of the preparation of a report and that, in any event, if they did suffer in any way it would need to be balanced against the far more serious concerns that the applicant father has about their wellbeing, and in particular the deterioration of their relationship with him. In any event, Associate Professor Quadrio has had a previous involvement with the children, and that would make the process less invasive.
Mr Stewart submitted on behalf of the mother that it was not in the interests of the children to be exposed to the intrusive process of interviews relating to an expert's report. He pointed out that both children had been exposed to litigation for a considerable part of their lives. From the children's perspective, the interviews would re-open the whole issue and expose them directly to the parental litigation. He submitted that the very rationale of the rule in Rice & Asplund was to reduce the stress and impact on children. He made the obvious point that if the report is ordered, but the father's claim is dismissed, then the children would have been needlessly exposed to the report interview process. In any event, he submitted that the report would not ultimately assist in resolving the Rice & Asplund issue.
In reply Mr Richardson emphasised the importance of the report in the context of fairness to his client at the Rice & Asplund application.
Application of case law
In his submissions Mr Richardson referred me to the recent decision of the Full Court constituted by Warnick J in SPS & PLS [2008] FLC 93-363. Whilst this decision focuses on the principle in Rice & Asplund, it is nonetheless a useful lens through which to consider the applicant father's application for an expert's report, essentially in aid of the determination of the Rice & Asplund issue. In accordance with the Full Court's decision in that case the Rice & Asplund issue in this matter will be dealt with as a preliminary matter, or threshold issue, in other words as the first question to be determined, and which, depending on the answer to it, may be dispositive of the application (see paragraph 46 SPS & PLS ). The Full Court reminds us that the application of the rule in Rice & Asplund is merely a manifestation of the best interests principle (paragraph 48(iii)) and not an alternative to it. In the present context of this case the decision about ordering an expert's report is also covered by the best interests principle.
At paragraph 57 of the Full Court's judgment an observation is made which I think is relevant on the facts of this case:-
In In the Marriage of McEnearney (1980) FLC 90-866, Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.
The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child. (emphasis added)
The above passage indicates, in my opinion, the Full Court's acceptance that children suffer psychological harm as a result of litigation between their parents, and that this conclusion is not one which is dependent upon specific evidence in this regard. Accordingly, I do not need evidence of whether or not the children might suffer harm as a result of being involved in the preparation of a family report. I am prepared to infer this. Even children aged four and six must have some appreciation that they are being observed by, and possibly interviewed by, a medical professional in the context of interaction between both parents. The fact that they might have had previous involvement with Associate Professor Quadrio does not necessarily mitigate any adverse impact on them. Indeed, having regard to their youthful age, one wonders whether they would have any recollection of any previous involvement.
I suspect that, for all practical purposes, these children would experience their meeting with Associate Professor Quadrio as being a meeting with a total stranger.
During his submissions Mr Richardson characterised the Rice & Asplund application as, in effect, a summary dismissal application. However, the Full Court at paragraph 77 in SPS & PLS emphasised that the paramountcy principle of the best interests of the children, expressed in s.60CA, applies to the decision to dismiss the father's application. Accordingly, the evidentiary onus on the applicant father is not necessarily so high that he must, of necessity, adduce evidence (possibly in the form of an expert report) that corroborates the existence of the matters that form the basis of his assertion of changed circumstances. In any event, as the Full Court recognised at paragraph 81 of its decision, there may be cases where the interests of the children in not being the subject of further litigation is more powerful than the matters raised by the father. Having regard to these matters one wonders what possible difference it would make to the father's case whether or not there is an expert report available.
In his submissions Mr Richardson referred me to paragraphs 86 and 87 of the Full Court's judgment. There the Full Court recognised that a Rice & Asplund application must, of necessity, take into account the 2006 legislative amendments, even though these amendments do not of themselves constitute a change of circumstances for the purpose of the rule in Rice & Asplund. However, there are other relevant amendments that were enacted in 2006 that also should not be ignored in the present context. The new Div.12A of pt.VII of the Act sets out principles for conducting child-related proceedings. The first of these principles is expressed in s.69ZN(3), which states:-
"The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings."
This is a clearly articulated statutory principle that requires the Court to specifically consider the needs of children, and the impact of the conduct of the proceedings on those children. Having regard to this principle, the case for involving these children in this litigation, through participation in interviews with a Court-appointed expert, would need to be very compelling before such an order would be made. No such compelling case exists in the matter before me. I am not satisfied that there is any prejudice to the father in terms of his opposition to the Rice & Asplund application without an expert's report. By contrast, not ordering a report protects these children from an intrusive process which potentially further enmeshes them in the litigation between their parents.
Having regard to the matters set out above I dismiss the father's application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 24 October 2008
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