Spalding & Barbaro (No 2)
[2022] FedCFamC1F 1000
Federal Circuit and Family Court of Australia
(DIVISION 1)Spalding & Barbaro (No 2) [2022] FedCFamC1F 1000
File number(s): BRC 6176 of 2021 Judgment of: HOGAN J Date of judgment: 7 December 2022 Catchwords: FAMILY LAW – Where the applicant father seeks that the trial be adjourned – where the respondent mother opposes the adjournment – where the application is dismissed. Division: First Instance Number of paragraphs: 27 Date of hearing: 28, 29 & 30 November 2022; 1, 2, 5, 6, 7 December 2022 Place: Brisbane Counsel for the Applicant: Mr Bunning Solicitor for the Applicant: Simonidis Steel Lawyers Counsel for the Respondent: Mr Dodd Solicitor for the Respondent: Mills Oakley Lawyers Counsel for the Independent Children's Lawyer: Mr Pollock Solicitor for the Independent Children's Lawyer: Barbara Fox Solicitor ORDERS
BRC 6176 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SPALDING
Applicant
AND: MS BARBARO
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
7 DECEMBER 2022
THE COURT ORDERS THAT:
1.The oral application made on behalf of the Applicant father on 6 December 2022 for an adjournment of the trial is dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Spalding & Barbaro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
Mr Bunning applies for an adjournment of the trial, now in its eighth day, to enable his client, the father, to obtain a report (based on documents to be provided to that person) from an appropriately qualified professional in relation to the issue of D’s diagnosis with ASD.
Such application for an adjournment of the trial is opposed by the mother and the Independent Children's Lawyer.
It is submitted by Mr Bunning that the Court should be persuaded that adjourning this proceeding to enable the father to take the action sought is appropriate in this case because the issue of D’s diagnosis with autism is one of the, I would say, very many matters about which these parents are in dispute; and that resolution of the same is necessary, given that the father contends that such diagnosis is, as I appreciate his case at least, entirely the product of the mother’s actions and influences over time and rests on the information provided only by her.
His case, as I appreciate it, includes the contention that D has, in his mother’s care, been wrongly diagnosed with ASD/autism as a result of her actions. He contends, amongst other things, that D being told over time that he has autism or ASD (as reference to other aspects of the evidence before me suggests that he has been at least from early last year) by professionals and – on the father’s case, earlier, I think, by the mother – is, in a sense, part of the mother’s longstanding plan to cause D to be diagnosed with a condition that (based on assessments earlier undertaken by Dr NN in 2017 and the contents of more recent correspondence in 2021) the father believes he does not have; and to manipulate such diagnoses for her own purpose and benefits, be they financial or otherwise.
As I told the parties yesterday, if I were to accede to the application to adjourn this matter to facilitate the father obtaining a further report about the issue of D’s diagnosis, this proceeding will not, because of my current commitments to other matters and current listings, be able to return before me for further hearing until about late July/early August 2023.
Such delay is, of course, a significant consideration in the determination of any application to adjourn any trial. More so, in my view, in this case where the evidence establishes that, for D, in particular, the consequence of his parents being in litigation in relation to those parenting orders which are in his best interests, and in the best interests of his siblings, has been significantly detrimental.
I do not intend in these reasons to recount the history of the disputes between these parents about those parenting orders in their children’s best interests other than to note that it is clear from the record (and the evidence) that Carew J made final parenting orders in May 2018 following a trial in April of that year and that, more recently (relatively speaking), interim parenting orders were made by the Deputy Chief Justice.
Mr Bunning submitted, in essence, that whilst the issue of D having been diagnosed with autism or ASD, and being told of this, was known to the father in early 2022:
(a)in particular, I refer to paragraph 739 of the father’s affidavit of evidence-in-chief which recounts that the mother told him in early 2022 that the treating team had recommended D be assessed for autism; and
(b)at paragraph 740 where he recounted that, about three weeks later, the mother told him that D had been diagnosed with ASD and had been told that,
he had only become aware of the existence of the report (which is found in Exhibit 2 between pages 159 and 161 inclusively – which I will refer to as the ASD report) as a consequence of the provision of documents on 24 November 2022 (that is, one to two business days before the trial started on 28 November 2022) in answer to subpoena issue by his legal representatives on 14 November 2022.
That subpoena was, as I understand it issued after documents had been returned in answer to a subpoena earlier issued by the Independent Children's Lawyer, I think, on 28 October 2022, which required production of documents by 11 November 2022. So, a short time after the production of those documents, the determination was made that it was necessary to issue a further subpoena, this time directed to the H Region Hospital and Health Service: that issued on 14 November 2022 and required the production of documents, I think, by 27 November 2022, although such documents were (at least as I understand the chronology) produced earlier than the required date.
In any event, Mr Bunning’s submissions also included that the father had only seen the ASD report during the course of the trial and that the documents underpinning it were only provided to all parties’ legal representatives yesterday after I made orders disposing of the hospital’s objection to the production of the same.
In order to appreciate Mr Bunning’s submissions it is, I think, necessary to have regard to aspects of the father’s evidence about the issue of D’s ASD diagnosis. This is found in his affidavit of evidence-in-chief under the heading “Autism Spectrum Disorder Diagnosis”.
Reference to paragraph 725 to 741 of the same seems to me to establish the following:
(a)first, that D was assessed for ASD in approximately September 2016 and the conclusion was, at that time, that he did not have ASD: reference is made I think to a Dr MM’s assessment in July 2016; and
(b)secondly, in approximately 2017, Dr NN, a psychologist who is a witness in the father’s case, recommended that D not be assessed further for ASD and was resolute in saying that D did not have ASD.
The comments I am recording are those taken from the father’s affidavit.
In relation to that, specific reference is made to annexure “MS-16”, which is correspondence from Dr NN dated 20 September 2017 in which he said to the father that: “Following our telephone consultation […] I can confirm that D does not have an autism spectrum disorder (ASD). I recommend against further assessment for ASD.”
Returning to the father’s evidence, thirdly, that, in early 2020, Dr NN confirmed it was not necessary for D to be assessed any further for ASD. The father relies on the document found at “MS-17” for those assertions. Reference to annexure “MS-17” establishes that it is correspondence from Dr NN addressed “To whom it may concern” and dated 31 March 2020, by which he informs, in so far as D is concerned, that:
(a)he saw him at his father’s request in late 2016 to address learning and behavioural changes; and
(b)his assessment was as per the reports; and
(c)he had not had contact with the mother for the purpose of the same but met with her in late 2016 and, in essence, nothing she said to him made him change his mind or the opinion as expressed in his initial reports; and
(d)after the mother subsequently indicated that a psychologist from AN Psychology was suggesting autism in D, he responded with a view that he did not assess for autism specifically because of the history and D’s presentation did not indicate that to be necessary and that Dr MM had provided the same opinion in late 2017 correspondence.
That correspondence (that is, the correspondence of Dr MM) is itself annexed to the father’s affidavit in reply.
In addition, the father in his affidavit in reply annexes correspondence by Dr NN dated 12 April 2021 in which Dr NN:
(a)reports that, whilst the ADIR test (that is, the same test it seems was administered in early 2022 as part of the process which resulted in formulation of the ASD report found at Volume 2 between pages 159 and 161) was planned if D met the criteria for ASD on ADOS, he did not meet such criteria and so it was not administered; and
(b)expressed the opinion that, in summary, D was a long way from meeting the criteria for ASD on ADOS and he did not meet the criteria for ASD; and
(c)said that he could say with considerable certainty that D does not have ASD, although he did not dispute that he may have some of the characteristics of ASD.
The consequence of reference to that evidence, as well as the ASD report, is that, at present, there is before the Court evidence of an opinion (that is, Dr NN’s opinion) that D does not have ASD and there is evidence of an opinion (that is, the opinion expressed in the ASD report, jointly authored by Dr AO and Dr AP) that he does have ASD.
Given that Dr NN is a witness in the father’s case, I consider the issue of the opinion contrary to his (namely the ASD report) about the issue of D’s diagnosis with ASD/autism can be taken up with him – both by way of evidence-in-chief if necessary and/or cross-examination. Given that Dr AP is a witness in the mother’s case, the issue of the existence of Dr NN’s opinion (which is contrary to Dr AP’s opinion) can be taken up with him – in either or both of evidence-in-chief and by way of cross-examination.
I also note that reference to Exhibit 1 (in particular, pages 704, 714 and 717) reveals that there are various progress notes both in relation to the ADP program and what I presume is the record of a multidisciplinary team meeting in early 2022 which contain references to the fact of the issue of D being assessed for ASD having been completed or having been undertaken. There seems reference in notes as at early 2022 in the ADP notes, although I appreciate the submissions Mr Bunning made in relation to the access to those.
But I also note that, at page 714 of Exhibit 1, there is a progress note from OO Hospital for early 2022 which recounts the information that: “ADI assessment took place with [Ms Barbaro] (mum) [Dr AQ] and [Dr AO] last Friday. Results to be confirmed ([D] not aware of yet).”
Additionally, I consider that the father’s concerns, expressed, for example, at paragraph 741 of his trial affidavit, that there is a possibility that:
(a)the way in which the mother and those under her direction or engaged by her in a sense have spoken about D’s “problems” or mental health issues in front him have contributed to his current presentation; and
(b)D has been over-pathologised (including through exposure to what is asserted to be repeated assertions and discussions about autism and other behaviours) and this has contributed to his current presentation,
can be explored with the expert witnesses who are yet to give evidence in this proceeding and who have been subpoenaed to give evidence.
One of those witnesses, as I have already recounted, includes Dr AP who is, as I have said, one of the co-authors or signatories to the ASD report and who, by reference to the contents of various progress notes and the notes of various team meetings, appears (at least to me) to have had a reasonably significant involvement in the oversight of D’s management and his engagement with the public health system administered through AD Hospital and the ADT program also.
Given Dr NN’s involvement as a witness in the father’s case, I am not persuaded that it is necessary to adjourn the trial to enable the father to engage a further expert to address the issue of the opinion expressed in the ASD report. As I have said, I consider that that issue can be taken up with Dr NN – who is called in the father’s case, presumably in support of the opinions he has expressed about that issue.
The conclusion I have arrived at to refuse the application to adjourn this proceedings is strengthened having regard to the consequences of adjourning the trial now: the most significant of which, in my view, is as I have already said – namely, that I cannot return to it until approximately the start of the second half of 2023. That delay is simply, in my view, unacceptable and certainly not in any way in any of the children’s best interests.
I also accept the submissions made by Mr Dodd and Mr Pollock in relation to the likely prejudice to the children if this proceeding was adjourned and the likelihood that the continuation of litigation, which I think may well fairly be regarded as a manifestation of parental conflict, is likely to contribute negatively to the children’s ongoing functioning. I particularly accept, in this case, that the impact of the adjournment, especially one as lengthy as would be the case here, cannot be understated.
For those reasons, then, I decline to adjourn the trial.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 16 December 2022
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