SHELLEY and DICKENS

[2019] FCWA 264

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: SHELLEY and DICKENS [2019] FCWA 264

CORAM: TYSON J

HEARD: 29 NOVEMBER 2019

DELIVERED : Ex tempore

FILE NO/S: PTW 6930 of 2011

BETWEEN: MS SHELLEY

Applicant

AND

MR DICKENS

Respondent

Catchwords:

FAMILY LAW – Interim parenting – Application to discharge the Single Expert Witness during the trial – Application dismissed – Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms U
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Ms Korzeniecka

Solicitors:

Applicant	:	Calverley Johnston
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Platinum Legal

Case(s) referred to in decision(s):

Bass & Bass (2008) FLC 93-366

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

Marsh & Marsh [2011] FamCA 193

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shelley & Dickens has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1[Ms Shelley] and [Mr Dickens] are the parents of [G] who is now eight and a half years old. [G] lives with her mother and is currently not spending any time with her father.

2G’s parents are unable to agree on what arrangements are in her best interests. The central issue in dispute is which parent G should live with, parental responsibility and what contact, if any, G has with the other parent. The mother seeks G continue to live with her, for her to have sole parental responsibility and have no contact with the father. The father seeks G live with him, he have sole parental responsibility and G spend limited time with the mother.

3Each party has raised a number of serious risk issues about G’s safety in the care of the other parent. Those risks include allegations of family violence, physical, sexual, emotional, and psychological abuse and harm. An Independent Children’s Lawyer [(“ICL”)] has been appointed for G as well as a Single Expert Witness [(“Single Expert”)], [Mr R].

4This matter has recently been judge-managed and orders were made in October 2018 listing the matter to trial with priority, with an estimated hearing time of five to six days.

5The trial commenced before me on 10, 11, 12, 13, 14 and 19 June 2019. The proceedings were then adjourned part-heard and listed for a further three days from 27 to 29 November 2019. When the trial was adjourned, the mother’s case had been completed and the father was being cross-examined.

6The mother is represented by solicitors and counsel while the father is self-represented.

7On Wednesday, 27 November 2019 when the matter was called on for day seven of the resumed trial, the ICL advised that the mother’s counsel, [Ms U], had raised an issue that morning about her capacity to continue as the ICL. At the ICL’s request the matter was stood down to enable her to obtain urgent legal advice.

8When the matter was recalled, [Ms N] appeared as amicus advising she had spoken with [Ms A] who did not admit there was any conflict of interest but said there may be a perceived conflict as a result of an incident in the last week.

9The ICL sought to withdraw on a without admission basis and I made orders in those terms. I made further orders requesting Legal Aid urgently consider the appointment of another ICL. The mother’s counsel then raised another potential application about the future conduct of the proceedings, including the Single Expert whom the mother considered may be ‘tainted’.

10I made orders that the mother file a Form 2 and affidavit in support by 12pm yesterday and directed it be served by email on the father, Legal Aid, and the Single Expert and I adjourned the matter for further hearing to this morning.

11The mother has filed an application supported by an affidavit sworn by her solicitor, [Ms M]. She now seeks orders that the Single Expert be discharged, that subject to funding by Legal Aid, a new Single Expert be appointed, and that G be interviewed by a Family Consultant with respect to her wishes.

12That application is opposed by the father.

WHEN THE MATTER CAME BEFORE THE COURT

13At the commencement of the hearing today Mr R appeared. I gave him the opportunity to take legal advice before he addressed the Court, which he declined.

14He confirmed receipt of the orders from the Court, that he had been absent yesterday on a country circuit and only saw the email this morning which served on him the mother’s application and affidavit.

15Mr R, in summary, has advised he does not consider his position as the Single Expert has been compromised. He has run a private practice for the last 35 years and is often in contact with ICLs in terms of his appointment as a Single Expert, both by email and telephone. He referred to two reports having been filed with the Court and another two reports or letters, which he thinks the ICL filed in this case.

16He had contact with the ICL in this matter by both telephone and email in relation to his attendance at the trial and inspection of documents, including subpoenas and exhibits. The ICL made enquiries with him after the adjourned trial in June 2019 about a possible updated report. He considered, in light of the fact there had not been any changes since his last report prepared in 2018, that there was no merit in doing so. He says there has been no discussion between himself and the ICL about his views on the case, which are as set out in his 2018 report.

17He considered updating evidence was required from G’s school and treating medical practitioner. If that updating evidence was available and presented to him, then he considered he may be asked if that impacted upon his recommendations.

18He confirmed he held [a private function in] November 2019 at which around two dozen people attended including other psychologists, ICLs and lawyers. The ICL and her partner attended. At that [function], there was no discussion between the Single Expert and the ICL about this matter.

19Given the circumstances I have proceeded on the basis the statements made by Mr R to the Court would be his evidence if he were sworn in or deposed to the facts on affidavit.

20On the basis that the hearing is effectively an interim hearing, I am unable to make any findings of fact where the evidence is in dispute, as none of the parties have been tested by way of cross-examination.

21After the parties heard from the Single Expert, the mother maintained her application, which the father advised he opposed.

22Ms Korzeniecka has appeared today and advised she has now been appointed as the ICL. As she explained, she is in an unenviable position as she is not familiar with the case, having taken the grant on an urgent basis and understood it was listed for directions only. In those circumstances she did not wish to be heard in relation to the application.

WHAT IS THE MOTHER’S CASE?

23The mother relies upon an affidavit sworn by her solicitor, Ms M. In that affidavit it is deposed that there were enquiries made by the mother’s solicitor to the ICL as to whether an updated report was likely, to which the ICL advised it was not, because the Single Expert would not have time to do so. Further, and I will quote, in paragraphs 16 to 22, Ms M deposes that:

[16][In] November 2019, counsel instructed on behalf of my client, [Ms U], contacted me regarding a conversation that she had with [Ms A], while both were at court on another matter.

[17][Ms U] told me that [Ms A] had initiated a conversation with her about when [Mr R] could attend to give his evidence at the resumed hearing and that [Ms A] had said she could discuss it with [Mr R] that evening at dinner.

[18]During the course of that conversation [Ms A] told [Ms U] the views [Mr R] had conveyed to her regarding [G] and my client. The views indicated, among other things, that [Mr R] and [Ms A] had discussed the expert’s views during the adjourned period.

[19]I have not received any correspondence from [Ms A] or [Mr R] regarding the communications between them and his views.

[20]When I was informed of this conversation by [Ms U], I relayed the information to my client.

[21]At Court on 27 November [Ms A] confirmed she had attended a private social dinner with [Mr R] and others [in] November.

[22]At the resumed hearing on 27 November 2019, [Ms A] then voluntarily withdrew from the proceedings.

24The mother’s position, in summary, is that the Single Expert is tainted by the contact between himself and the now former ICL and, as a consequence, he ought be discharged. She says there is a reasonable apprehension of bias and, accordingly, it is untenable for him to remain in his capacity as the Single Expert.

25The fact the Single Expert and the previous ICL attended that same function in days prior to the trial resuming, in her words “compromises beyond repair” his integrity and that of the former ICL, together with the fact that the Single Expert today has confirmed there were communications between himself and the ICL that have not previously been disclosed to the parties. The Single Expert is not the ICL’s witness and they must maintain independence.

26The fact the ICL withdrew ought further support her submission that it is untenable for the Single Expert to continue. The Court ought draw an inference the ICL would not have withdrawn without good reason. She has raised concerns whether the Single Expert has raised matters with the ICL since the adjourned trial about further evidence from G’s school and treating doctor, but the mother’s counsel conceded she was unclear whether that was something new.

27She raised concerns today from comments made by the Single Expert that there may be a further two reports or letters, which the parties do not have.

28The mother says there is a reasonable apprehension of bias and the rules of natural justice require that the Single Expert be discharged. She does not seek that the Expert’s reports be uplifted from the Court file, but says that a new Single Expert ought to be appointed, subject to funding.

WHAT IS THE FATHER’S CASE?

29The father strongly opposes the discharge of the Single Expert and says there is a complete lack of evidence to support the application.

30He says the Single Expert has only provided two reports, in 2014 and 2018, but he recalls the Single Expert writing to the Court on two occasions to deal with issues, including arranging an observation visit between G and himself for the 2014 report.

31He considers the previous ICL was intimidated and threatened into withdrawing. He accepts the statements of the Single Expert today that there have been no discussions between himself and the ICL about the substance of the case or his views. The simple fact they attended a [private function] with others is immaterial.

32He says the report of the Single Expert is not favourable to the mother and suspects that is part of her motivation behind the application. He points to the Single Expert’s longstanding involvement with the family and, in his view, the importance of that evidence. He says if the Single Expert were to be dismissed and another Single Expert appointed, this would inevitably mean a lengthy delay which is not in G’s best interests.

BRIEF FACTS

33The parties were in a short, tumultuous relationship which ended in 2011 when G was around three weeks old.

34Since then, G has lived with her mother and spent limited time with her father, for reasons that are in dispute. Since 2011, on and off, these parties have been involved in litigation about arrangements for G. The father initially spent supervised time with G and in 2013, those arrangements progressed to unsupervised daytime visits.

35After seven visits, the mother stopped contact as a result of concerns regarding G’s behaviour. In 2014, supervised visits were resumed and in April 2015, consent orders were made for G to spend unsupervised time with her father. G had around 82 visits with her father before the mother again stopped G spending time with him [in] October 2016, again raising concerns about G’s behaviour. G then did not spend any time with her father for some 23 months until September 2018 when interim orders were made to reinstate supervised visits.

36In the intervening period, the father was offered but declined to spend supervised time with G. In March 2019, interim orders were made to extend G’s supervised time with her father. In late May 2019, the mother again stopped the visits and G has now not seen her father in the last six months.

THE SINGLE EXPERT WITNESS

37Mr R is a clinical psychologist, who was initially appointed as the Single Expert in November 2013 and he prepared his first report dated 21 July 2014.

38He was then reappointed as the Single Expert on 11 August 2017 with updated terms of reference. His most recent report is dated 3 July 2018. That report is lengthy and detailed.

39The Single Expert sets out the interviews he conducted with each parent between September 2017 and March 2018 and the psychometric tests implemented. He observed G with her mother only.

40The Single Expert elected not to observe G with her father as she had then not been spending time with him for some 18 months, as a result of the mother seeking that time be supervised and the father refusing to do so. The Single Expert explained he chose not to conduct an observational visit in order to avoid placing G under further strain or potential harm, not as a result of seeing her father, but because of what he described as complex and concerning family dynamics that could result in some harm, stress or distress for G. He wrote that based upon the history of the mother’s reports as to G’s behaviour following contact with the father, circularity of behaviour would probably play out and there would be a high probability the mother would perceive and report that G was distressed after seeing the father, even if the interaction was neutral or positive. The mother’s distress would likely impact on the child and this could be stressful and harmful.

41Mr R met with G on 10 January 2018 but stated due to her age, it was not possible to conduct an interview or assessment with her.

42He set out the documents he relied upon, including reports from G’s then psychologist [Ms L] dated 24 October 2016 and 23 January 2017, the supervision report from [Supervision Agency B] dated January 2017, together with the subpoenaed documents. He also set out interviews he conducted with G’s school principal and teacher at [Primary School A], and [Dr H], G’s paediatric [specialist].

43The Single Expert acknowledged the limitations of his report, including the considerable amount of factual information in dispute. He expressed that the Court would need to make findings of fact, to enable a conclusion to be drawn as to what arrangements were in G’s best interests.

44Mr R described the parents’ conflict as high and their relationship as combatant, highly distrustful and not supportive.

45The mother maintained to the Single Expert the father ought play no role in G’s life; that he posed a serious risk of harm to G and the mother; that he had physically, sexually and emotionally harmed G; and there was a risk the father may kill G and/or the mother. She asserted G’s difficulties were caused by the father.

46The Single Expert observed while the mother had made a number of repeated allegations in terms of domestic violence, physical and sexual abuse, neither the Department of Communities nor the police, who had interviewed G, were able to find sufficient evidence to substantiate her allegations.

47Mr R commented that notwithstanding the mother’s position that G’s difficulties were caused by the father, contact had not occurred for 18 months. In that period, G had been in the exclusive care of her mother, while she continued to experience problems and, indeed, developed further difficulties.

48The father maintained to the Single Expert that G was unsafe in the mother’s care, the mother made repeated false allegations against him, and the mother was unable to appropriately care for G, who was being denied a relationship with him. He denied the mother’s allegations that he posed any risk of harm to G.

49The Single Expert concluded this matter needed to be determined at trial as quickly as possible, in order for the Court to determine the arrangements that were in the best interests of G.

50The Single Expert declined to make any recommendations as to whom G should live, spend time and communicate with, explaining he was not in a position to do so based on the limited undisputed information and the need for there to be findings of fact.

51When the Single Expert met with G, he described her as determined to do what she wanted to do. G said to her mother she wanted to leave, that she did not want to talk to the Single Expert and she disliked being there. The mother told the Single Expert that G disliked his accent and how he pronounced G’s name.

52The Single Expert considered G was failing to reach her developmental milestones and was experiencing a number of problems across a wide range of areas not usually associated with children of her age, including physical, [medical], social, behavioural and emotional. He described G as being significantly impacted by the current parental dispute in terms of lacking a sense of security.

53The Single Expert was unable to conclude the cause of G’s difficulties and problems but proffered a number of possible hypotheses. These hypotheses included that G’s behaviour and difficulties were caused by:

•medical conditions;

•the alleged inappropriate sexual conduct and/or physical or psychological harm by the father;

•the interruption to G of her relationship with her father in October 2016. The sudden end of that relationship could have affected G’s sense of security, predictability and safety;

•the mother’s parenting and home environment;

•factors that were unknown to the Single Expert; and

•a combination of all the above.

54The Single Expert considered it likely that a combination of factors had contributed to G’s difficulties, however the most likely hypothesis of the causes were the mother’s parenting and home environment, including the mother’s perception and reaction to G’s behaviour, together with the mother’s stress and anxiety, in addition to the interruption to G’s relationship with her father.

WHAT IS THE LAW?

55Rule 15.44 Family Law Rules 2004 (Cth) provides for a Single Expert to be appointed by agreement between the parties. Rule 15.59 sets out the expert’s duties to the Court which include to:

(a)give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;

…

(d)consider all material facts, including those that may detract from the expert witness’s opinion;

(e)tell the Court:

(i)If a particular question or issue falls outside the expert witness’s expertise; and

(ii)Is incomplete or may be inaccurate for any reason;

(f)produce a written report that complies with rules 15.62 and 15.63.

56Rule 15.62(2) requires the Single Expert to certify by affidavit as to the following matters:

•The Expert has made all enquiries they consider necessary and appropriate.

•The facts within their knowledge have been stated as true and the opinions expressed in the report are independent and impartial.

•The Expert must confirm they have read and understood the relevant divisions of the Family Law Rules and have used their best endeavours to comply with them.

•The Expert has complied with the requirements of their relevant professional body.

•The Expert understands their duty to the Court, which they have complied with, and will continue to do so.

57Rule 15.63 sets out the mandatory obligations imposed upon an Expert.

58The Rules also provide a number of options open to a party who takes issues with the contents of an Single Expert’s report, including:

•Rule 15.49, which enables a party to apply for the appointment of another Expert;

•Rule 15.65, which enables the parties to seek clarification of an Expert’s report through asking questions;

•Rule 15.64B, which enables the parties to agree to convene a conference with the Expert for the purpose of clarifying aspects of the Expert’s report and, in the absence of any agreement, to seek an order from the Court to that effect.

59Rule 15.64 sets out the consequences of an Expert failing to comply with the Rules, which includes the Court being able to order the witness to attend Court, refuse to allow the Expert’s report, or answers to be relied upon, allow the report to be relied upon, but take the non-compliance into account when considering what weight is to be given to the Expert’s evidence, amongst other matters.

60The Rules do not provide any guidelines for the Court in considering an application to discharge an Expert.[1] It is a power that is assumed to exist.[2]

[1] Marsh & Marsh [2011] FamCA 193, [49].

[2] Bass & Bass (2008) FLC 93-366.

61A review of the authorities establish that:

•Courts have been reluctant to discharge an Expert and, in the absence of exceptional circumstances, will not do so until other mechanisms available under the rules for testing and clarifying an expert’s opinion are exercised.[3]

•In relation to claims of actual apprehended bias of an expert, the Full Court of the Family Court in Bass v Bass[4] said:

The assertion of bias, be it apprehended or actual, on the part of the single expert will best be able to be tested through cross-examination of the single expert at the trial of the parenting proceedings. Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial judge.

[3] Ibid.

[4] Ibid.

62The relevant test applied by a Judge in considering whether or not to disqualify himself or herself on the basis of apprehended bias is whether a “fair-minded lay observer might reasonably apprehend that a Judge might not bring an impartial mind to the resolution of the question a Judge is to decide”.[5] I intend to apply the same test, to the alleged apprehension of bias by the Expert.

ON THE BASIS OF THE APPLICATION

[5] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

63In turning to the application, I observe these issues were raised by the mother on the first day of the resumed trial without, it appears, prior notice to any of the parties. On the mother’s own case, these were matters within the knowledge of her counsel on Friday, 22 November 2019 and her solicitor on Monday, 25 November 2019. The mother’s affidavit is silent as to when the mother instructed her solicitors to raise objections in relation to the ICL and the Expert. There is no evidence to suggest that the mother’s counsel raised directly with the ICL during their conversation on Friday any concerns.

64In relation to the mother’s application, I make the following observations:

(a)The mother has not led direct evidence as to what, allegedly, was discussed between the ICL and the Single Expert between the adjourned trial and now, being the basis upon which she asserts there is a compromise to the Expert continuing.

(b)The evidence relied upon is hearsay from the instructing solicitor, when direct and the best evidence could have been led by the mother’s counsel. The mother has elected not to do so, for reasons I can appreciate, given the potential for the mother’s counsel to become a witness in the proceedings, and the likely impact that would have upon her ability to continue to represent the mother. Be that as it may, I need to deal with the application based upon the evidence relied upon.

(c)In my view, the evidence is vague and does not on the face of it establish the allegation that the Expert has been compromised. It falls short of evidence to establish anything exceptional, such as to warrant the discharge of the Expert.

(d)The Expert has not yet been cross-examined. The mother will be entitled to do so, including about any contact between himself and the ICL. She will be able to make submissions to the Court afterwards as to what weight, if any, is to be attached to the Expert’s report, with the benefit of that evidence having been tested. None of that has yet occurred.

(e)The evidence relied upon asserts that the ICL liaised with the Expert in relation to the possibility of an updated report, which did not eventuate, and to arrange his attendance at the resumed trial. The ICL spoke with the Expert on the weekend prior to the trial resuming after advising the mother’s counsel she would be doing so. The ICL and the Single Expert both attended a private function days prior to the trial.

(f)These proceedings are part-heard and orders have been made for witnesses out of Court. The Single Expert has not yet given evidence or been cross-examined. There is nothing inappropriate with the ICL liaising with the Expert about the timing of him giving evidence. It was an enquiry I made with the ICL during the trial in June. It was reasonable to expect that that would be arranged for the resumed trial.

(g)A review of the transcript reveals on Wednesday, 19 June 2019 the ICL advised the Court and the parties she had spoken with the Expert during the luncheon adjournment about him attending Court to inspect exhibits and further subpoenaed material. The mother’s counsel conceded, properly in my view, there was nothing inappropriate with the nature of that contact.

(h)There was nothing inappropriate with the ICL providing the Expert with access to exhibits, in circumstances where may be asked questions about the documents. That avoids delay and the matter being stood down to allow an inspection to occur. It is a more efficient use of the Court’s and the parties’ time. Further, an Expert witness, unlike others, does not give their evidence in a vacuum. It is usual for an Expert to be updated about relevant matters since their report was prepared, both the provision of any further filed affidavits, through access to subpoenaed documents and exhibits.

(i)Paragraph 18 of Ms M’s affidavit allege that the ICL told the mother’s counsel the Expert’s views regarding G and the mother which indicated they had discussed the Expert’s views in the adjourned period. That is contradicted by the Expert, who has told the Court there have been no such discussions. I have already commented on the nature of the hearsay evidence. I observe the Expert has not seen any of the parties since his last report was prepared in 2018.

(j)The views of the Single Expert are matters before the Court and contained in his report. That evidence is yet to be tested. The Expert has made it clear the need for there to be findings of fact and has clearly expressed the limitations in his report at this time.

(k)There is currently no explanation nor detail to support the mother’s assertion of discussions between the ICL and the Single Expert about his views in the adjourned period which compromises his ability to continue. I do not accept that the ICL’s decision to subpoena G’s school is supportive of a finding of inappropriate conduct. I observe that a subpoena was issued prior to the trial in June by the ICL for the production of documents by the school. There has since been a subpoena issued for the school principal to attend and give evidence.

(l)I am not satisfied on the basis that the ICL and Expert attended a [private] function with a number of other people in the days prior to trial compromises his ability to continue in his role as an Expert, in circumstances where the Expert denies this case was discussed at that date.

(m)Nothing in these circumstances are, in my view, exceptional, as required to warrant the discharge of the Expert.

CONCLUSIONS

65The mother bears the onus of establishing that it is appropriate to discharge the Expert. She has not persuaded me that such a course is warranted or appropriate. I intend to dismiss her application.

66The mother has not established any basis upon which I could be satisfied that there is a reasonable apprehension of bias by the Expert. I note the test is an objective one, and not a subjective test based on the mother’s perceptions and views.

67While the mother maintains there is an apprehension of bias, she has not satisfied the test laid out by the High Court Ebner (supra) nor in Johnson v Johnson (2000) 201 CLR 488:[6]

[6] Paragraph 12, the High Court stated: The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

68The two steps that are required have not been undertaken. While the mother refers to the factors which she says might lead the Expert not to bring an open mind in terms of his contact with the ICL, she has not demonstrated nor has she articulated a logical connection between the matters she has raised and the feared deviation of the Expert in dealing with the matter in an independent and impartial manner.

69I do not consider the issues raised by the mother identify a basis upon which I could be satisfied there is a reasonable apprehension of bias. I observe it is a matter for the Court and not the Expert to make findings of fact, a matter squarely identified by him.

70In reaching my decision, I have taken into account the risk the mother’s counsel raised of the Court finding, after cross-examination, that little weight, or no weight, can be placed upon the Expert’s report and being left with no alternatives if another Expert is not engaged.

71I have also taken into account the submissions of the father in terms of the cost and the inevitable delay. In my view, it is also appropriate that I take into account the potential systems abuse, if G were required to attend upon an additional interview with another Expert.

72There have already been significant delays in this case being heard. It cannot be in the best interests of G, nor her parents, for there to be further delays.

73Any delay prejudices the father to the extent he seeks G live with him. He considers G is unsafe in her mother’s care. G is not currently spending time with him, despite the interim orders.

74Any delay also prejudices the mother in terms of the ongoing stress and uncertainty of these proceedings, which is a matter the Expert has commented on. It is likely the father also is experiencing stress as a result of these proceedings.

75Further, and perhaps most significantly, delay cannot be in the best interests of G, whom the Expert has observed is failing to meet her development milestones. It is unclear what may be the cause of G’s difficulties. Amongst the matters the Expert has hypothesised may be contributing to G is the impact of being exposed to the ongoing conflict between her parents, together with the stress and anxiety these proceedings may be having on the mother, with whom she lives.

76I make no findings as to the reasons why the previous ICL withdrew, nor do I consider it necessary that I do so. I decline to draw the inference sought by the mother.

77For these Reasons, I intend to dismiss the application for the discharge of the Single Expert.

78I am not satisfied that an order should be made for G to be interviewed by a Consultant. I have already indicated G is not meeting her development milestones and the Expert was unable to interview G. Given G’s age, together with her development difficulties and the complex family dynamics, I do not consider that G being interviewed by yet another party could be in her interests.

79In any event, I note G’s views are but one of a wide number of matters I must consider, in determining what is in G’s best interests, most significantly of which are the risk issues that have been raised.

80I therefore intend, subject to hearing from the parties, to pronounce orders as follows.

PROPOSED ORDERS

1.The Applicant’s, [MS SHELLEY], Form 2 filed 28 November 2019 be dismissed.

2.The costs of the Respondent, [MR DICKENS], Legal Aid and the Single Expert Witness be reserved to the Trial Judge.

3.A copy of the transcript of the proceedings from 10, 11, 12, 13, 14 and 19 June 2019 is to be obtained and be provided to the Independent Children’s Lawyer and the parties free of charge on an urgent basis.

4.By consent, the Single Expert Witness will be requested to provide to the Independent Children’s Lawyer copies of all communications and correspondence with the previous Independent Children’s Lawyer, [Ms A].

5.By consent, the Independent Children’s Lawyer will forthwith advise the parties upon receipt of the documents from the Single Expert Witness and thereafter arrangements will be made either to facilitate the parties inspecting the documents at the offices of the Independent Children’s Lawyer or subject to the volume of material, providing scanned versions of the documents to each of the parties.

6.The proceedings be adjourned for monitoring to 12 December 2019 at 9.45am before Justice Tyson.

7.By consent the Independent Children’s Lawyer will provide to the Single Expert the list of exhibits tendered into evidence to date and in the event the Expert seeks permission to inspect to exhibits, arrangements can be made through Justice Tyson’s chambers.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

9 DECEMBER 2019