Sewell and Jacobs
[2011] FMCAfam 1377
•11 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEWELL & JACOBS | [2011] FMCAfam 1377 |
| FAMILY LAW – To appoint or not to appoint – principles regarding appointment of expert witness. |
| Family Law Act 1975, Part VII Federal Magistrates Court Rules 2001, Division 15.2 |
| Golden Eagle International Trading Pty Ltd v Zhang (2007) 234 ALR 131 Mazorski v Albright (2008) 37 Fam LR 518 Omychund v Barker (1744) 26 ER 15 SPS & PLS (2008) FLC ¶93-363 |
| Applicant: | MS SEWELL |
| Respondent: | MR JACOBS |
| File Number: | CAC 2 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 8 September 2011 |
| Date of Last Submission: | 3 November 2011 |
| Delivered at: | Canberra |
| Delivered on: | 11 November 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson (Ms D Simpson |
| Solicitors for the Respondent: | Legal Aid ACT (Ms M Burgess) |
| Independent Children’s Lawyer: | Evans Family Lawyers (Mrs A Evans) |
ORDERS
Pursuant to Rule 15.2 of the Federal Magistrates Court Rules (2001), Dr M, or such other appropriately qualified expert, be appointed as the Court Expert to prepare a report as set out below.
The cost of the report be shared equally between all the parties (the Mother, Father and the Independent Children’s Lawyer) subject to the Independent Children’s Lawyer being able to secure funding from the NSW Legal Aid Commission with respect to the Independent Children’s Lawyer’s share of the report.
The Court Expert interview, assess and observe the parents and the child, [X], born [in] 2002 (“the child”) for the purposes of the Court Expert preparing a report on matters relating to the child.
The parties will do such things necessary to facilitate the preparation of the report including attending upon the Court Expert as requested.
The Court Expert:
(a)investigate all matters relating to the welfare, care and development of the child;
(b)carry out an assessment of the parents;
(c)carry out such assessments of the child as considered necessary;
(d)provide a report to the Court.
The Court Expert prepare a report to consider the following issues:
(a)the nature of the relationship between the child and each of their parents and the intervener;
(b)the emotional attachment of each of the child with each of their parents;
(c)the likely effect (if any) of any change in the child’s circumstances, including the likely effect on them of any separation from either of their parents, or from any other child or person with whom they have been living;
(d)the attitude of the parents to the child and to their responsibilities of parenthood, and its impact on the child demonstrated by each of the parents including but not limited to:
(i)their attitudes to each other party;
(ii)to encourage and facilitate time with the other parent and the child’s relationship with the other party;
(iii)to alienating the child from the other parent; and
(iv)to denigrating the other parent in front of the child.
(e)the capacity of each parent to provide for the child’s emotional and intellectual needs;
(f)the likely effect (if any) on the emotional and psychological needs of the child if either of the proposals made by the parents were implemented;
(g)any aspect of the psychological or psychiatric health of the parents which in the opinion of the expert may have an effect or what that effect may be;
(h)the effect on the child of each party’s proposed living arrangements and any other arrangements open to the parties;
(i)the likely effect of separation of the child from each of the mother, the father and any other child;
(j)the nature of the relationship and emotional attachments of the child;
(k)any views expressed by any child in relation to living arrangements and any factors which the Court Expert considers are relevant to the weight that ought to be given to those wishes, including:
(i)the child’s respective age and maturity;
(ii)the degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implication;
(iii)the strength and duration of her views;
(iv)the extent to which those views are based on a choice that is well thought through and appropriate as distinct from peripheral matters;
(v)the extent to which those views are the result of pressure on the child and thus far how they reflect the child’s own choice;
(vi)the likely impact in the child of any order contrary to her views; and
(vii)any other issue that the Expert considers relevant.
In this regard the Court Expert should note that, whilst the Court Expert may question the child regarding these issues, no child may be required during the course of the examination to express their views about any matter.
In preparing the report the expert shall not have access to any material filed by the parties in these proceedings (save as referred to below) but shall rely upon his or her interviews and observations of the parties, the child and any other persons considered by the expert to be significant and any testing she considers necessary. The expert shall be provided, by the Independent Children’s Lawyer, with copies of the following documents:
(a)All documents produced on subpoena;
(b)Affidavit material filed in proceedings to date on behalf of all parties;
(c)The Family Report dated 7 March 2011 prepared by Ms L.
The parties be restrained from providing any other documents to the court expert without first having provided a copy of the document or documents to the other party and obtained their agreement to providing such documents to the court expert.
In the event that the expert is considering affidavits or material produced subpoena to this Court, the expert will take into account the fact that material contained in those documents may not necessarily become evidence before the court and or may be qualified or modified by cross examination. To the extent that the expert bases the expert’s opinion on any such statement the expert shall identify the statement.
If the expert consults anyone other than the parties and the child they must disclose the source of information and opinion and to the extent necessary to enable the report reader to determine the basis for the expert’s reliance on the information the actual words or information used and the context in which they were used.
Where the expert provides an opinion, they are to state the information they rely on in forming that opinion, and the manner in which that information has impacted upon their formation of that opinion.
AND IT IS NOTED THAT:
A.A request was to be made of Legal Aid NSW to transfer the appointment of the Independent Children’s Lawyer to Legal Aid ACT. The Court has since been advised by the Independent Children’s Lawyer that Legal Aid NSW will provide appropriate funding in this matter, as such no order will be made to transfer the appointment of the Independent Children’s Lawyer.
B.The child has not spent any time with the Father over the last two years.
IT IS NOTED that publication of this judgment under the pseudonym Sewell & Jacobs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2 of 2010
| MS SEWELL |
Applicant
And
| MR JACOBS |
Respondent
REASONS FOR JUDGMENT
Introduction
An ex tempore judgment in this matter was delivered on 11 November 2011. What follows are the Reasons as revised from the transcript of proceedings on that date.
The immediate and discrete issue for determination is whether there should be a formal assessment of the parties, and the 9 year old child who is the subject of the proceedings, by a psychiatrist, pursuant to Division 15.2 of the Federal Magistrates Court Rules 2001.
This question might initially be framed in terms of the old statement of the “best evidence rule” by Lord Hardwicke LC in Omychund v Barker, where his Lordship said: “The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will admit.”[1]
[1] Omychund v Barker (1744) 26 ER 15 at p.33.
The Independent Children’s Lawyer supports the appointment of an expert for reasons set out in submissions provided electronically on 2nd November. The Respondent Father, who now lives in Queensland, adopts the submissions of the ICL, and similarly supports the appointment of a psychiatrist.
For reasons set out in a detailed affidavit filed on 28th October, and in submissions filed on the same date, the Applicant Mother opposes such an appointment. For the reasons she outlines, in her view, such a course is not in the child’s best interests. Indeed, the Mother goes further and says that a review by a psychiatrist would be detrimental to the child. Although not used, another vice relevant to not appointing an expert is because of what is described generally as ‘systems abuse’ by which is comprehended the notion that a child has been seen by so many experts it would be adverse to her interests for yet more interviews, analysis and reports to be undertaken.
As I note a little later, it is also the case that the Mother is concerned about the ongoing negative impact on the child of the whole litigious process because [X] becomes so anxious before seeing any relevant expert, for example, most recently Ms L back in February of this year, prior to the preparation of her March Report.
The Mother’s affidavit to which I have referred was filed in support of an Application in a Case, also filed on 28th October, in which she sought orders for the matter to be set down for hearing as a matter of urgency, and certain formal restraints in relation to the Father, among other things, contacting or communicating with the child and the Applicant Mother. Most immediately relevant is a further order which seeks that any application by the ICL (or the Father) for the appointment of a psychiatrist be dismissed.
For the reasons that follow, in my view, it is essential that a psychiatrist be appointed, and that a report be provided to the Court, and thence to the parties, at the earliest opportunity. Also for the reasons that follow, the other orders sought by the Applicant, on an interim basis in relation to the restraints, should be granted. This is so notwithstanding that neither the ICL, nor Mr Jacobs, addressed these other orders sought by Ms Sewell.[2]
[2] I accept that, absent there being a cancellation with one of the usual specialists, there will almost certainly be significant difficulty in obtaining the report required in the time-frame that I propose. Subject to hearing further from the parties and the ICL, because of another trial being vacated, the Court is able to provide early trial dates, being 30th & 31st January 2012. As it happens, in part because of Dr M’s likely availability, and the means of the parties to afford the cost of his report, the trial of the matter has now been fixed for 16th – 18th July 2012.
Discussion
The ICL, Ms Sewell (the Mother) and Ms Simpson on the Mother’s behalf, all outline the range of concerns of [X] and her Mother about the child spending any time with her Father. Those concerns physically manifest themselves in such things as [X]’s complaints in relation to abdominal pain, self-harm ideation, apprehension, withdrawal and anxiety. This is not a comprehensive list.
Annexure C to the Mother’s 28th October affidavit is a letter from
Mr T, a psychologist from the [omitted] Health Service, dated 20th August 2010. In that letter, Mr T diagnoses [X] as suffering from Undifferentiated Somatoform Disorder. He notes, at some length, the range of [X]’s worries and their extreme form.
In my view, Mr T’s letter is especially helpful, and otherwise significant, on a number of fronts. First, as already indicated, he highlights a range of psychological issues that inhabit [X] and her Mother’s world in relation to Mr Jacobs. Secondly, he notes (at p.3) the difficulty in treating [X] because “she is frightened and fearful of what the outcomes of court may be and perhaps of the court process itself.” Thirdly, Mr T also notes (at p.2) that [X] wrote in her diary that she likes her Dad, and as explained to Mr T, she liked her Dad at times when he was not mean to her.
Some more generalised comments about [X]’s state are set out in
Ms L’s Report, dated 7th March 2011. I will formally admit that Report into evidence on the basis of the principles outlined by Warnick J in SPS & PLS,[3] and the parties should take it that it has been so admitted.
[3] (2008) FLC ¶93-363.
In passing, I note that Ms L records in her Report (at par.12) that [X] responded to questions in a friendly and co-operative manner. This might suggest that, whatever her level of anxiety, if appropriately informed about the object of any assessment, it will likely proceed without undue difficulty.
In the light of these observations, I note the following.
First, as far as I can see no one suggests that Mr Jacobs has spent any time with [X] since 2009.
Secondly, given how long ago it has been, and given the Father’s residence is interstate, no report, to my knowledge, has clearly or expressly articulated how or why [X] continues to manifest such significant, adverse reactions to her Father, not least being such alarming dreams (the details of which I need not recount), when it has been so long since they have had any contact at all. This might suggest that [X] has particular psychiatric or psychological issues that need attention. Moreover, I have seen no evidence to suggest that Mr Jacobs has been involved in either murder, robbery, or kidnapping, which form some part of [X]’s dreams.
Thirdly, her level of acute anxiety is somewhat more puzzling when [X] has written, and confirmed to Mr T, that she likes her Dad, albeit in a somewhat qualified way.
Fourthly, Mr T records [X]’s anxiety about Court outcomes and Court process, at least thereby suggesting that [X] is acutely conscious of, if not somewhat embroiled in, the current litigation. I make no formal finding in this regard. However, if this were to be the case I would be extremely concerned about it.
A further observation is simply that, in order for any trial to proceed, on the basis of the Mother’s Application that there be no psychiatric assessment, the most recent material available to the Court would be Ms L’s Report of March 2011. The brief letter from Mr T to Dr F, dated 26th May 2011, in my view, is an insufficient evidentiary base upon which the Court should proceed to trial.
A final observation relates to the Mother’s contention that part of [X]’s concerns arise out of her expression of disquiet that the Court does not believe her.[4] This might also suggest, perhaps to some degree at least, that [X] is more embroiled in the proceedings than she should be. In any event, it should be appropriately confirmed to her that it is not a case of the Court believing or not believing her. It is a matter of the Court having the best evidence available to it in order to make orders that are in her best interests.
[4] See, among other places, paras.29, 45, 49 & 52 of Ms Sewell’s affidavit of 28th October.
Having regard to the statutory prescriptions in Part VII of the Family Law Act, and in attendant case-law such as Mazorski v Albright,[5] in relation to (a) a child having, or in this case, not having, a meaningful relationship with both parents, and (b) its protective responsibilities towards a child, it is a very significant order, as sought here by
Ms Sewell, that [X] spend no time, and effectively have no relationship, with her Father. In my view, there needs to be an appropriate level of expert evidence to justify or to warrant such an order, and whether it is in the child’s best interests. I am also especially keen to know what treatment might assist in dealing with [X]’s concerns about her Father, and what, if any, orders should be put in place for the future. In my view, there is insufficient evidence currently available to the Court to make any longer-term orders that are in [X]’s best interests.
[5] (2008) 37 Fam LR 518.
The final matter to note, also relates to certain other gaps in the evidence available to the Court.
In this regard, Ms Sewell rightly notes that orders were made on 6th April 2011 that require Mr Jacobs to provide a report from his treating psychologist. This has not occurred. Having regard to the matters recorded by Ms L in her Report regarding Mr Jacobs’s suicide ideation, his depression and anxiety (and medication there-for), and his apparent attempt to deal with his problems – notably in relation to his lack of contact with his daughter – by drinking significant amounts of alcohol, it may be that (a) absent the psychological evidence from Mr Jacobs ordered by the Court, and (b) in the light of whatever is in the expert report to come, the matter may ultimately proceed either on an undefended basis, or certainly on the basis that the weight of evidence is such that the no-contact orders sought by the Mother will ineluctably follow.
In conclusion, I simply note the High Court’s comments in Golden Eagle International Trading Pty Ltd v Zhang. There, discussing the limited survival of the “best evidence rule”, and after noting Lord Hardwicke’s remarks to which I have earlier referred, Gummow, Callinan & Crennan JJ said: “An aspect of the rule is that courts should act upon the least speculative and most current admissible evidence available.”[6]
[6] Golden Eagle International Trading Pty Ltd v Zhang (2007) 234 ALR 131 at p.132 [4].
Given the significant length of time between relevant, but still somewhat limited, expert evidence available to the Court and the proposed trial dates, in my view, it is important that a psychiatric assessment be undertaken and report be prepared as soon as possible.
In my view, an expert assessment is required. It will reduce the risks noted by the High Court in proceeding on evidence that is the least speculative and that is the most current. It is so ordered. In my view, the terms of reference proposed by the ICL, which were attached to her written submissions, are appropriate.
The order for appointment of the expert may properly be made, for example, nominating ‘Dr M, or such other similar expert’ pursuant to Division 15.2 of the FMC Rules.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 16 January 2012
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