STAPLETON & BRYANT - [2016] FamCA 242

FAMILY COURT OF AUSTRALIA

STAPLETON & BRYANT

[2016] FamCA 242

FAMILY LAW – CHILDREN – various interim applications for parenting orders – 12 year old girl who has been subject of litigation all of her life – Contact not now occurring despite final orders in 2008 – Father brought contravention application in Federal Circuit Court against the mother which was dismissed – Mother denies father contact – Federal Circuit Court orders family report by private practitioner but that has not occurred – Father seeks a different order – Federal Circuit Court appoints Independent Children's Lawyer and father seeks discharge on the basis of pre-judgment and lack of impartiality – Application fails. Review of Senior Registrar's decision on that issue – Father seeks contact by the child and he and/or his parents – All applications not supported by evidence that would justify such orders – Applications dismissed – Case needs final hearing – First day hearing before a judge ordered.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Brown & Pedersen [1988] FamCA 14
Dasreef Pty Ltd v Hawchar (2011) HCA 21
Freeman and Freeman (1987) FLC 91-857
Goode and Goode (2006) FLC 93-286
Hatton, VF & Attorney-General of the Commonwealth of Australia [2000] FamCA 892; (2000) FLC 93-038
Nepean & Treloar [2010] FamCA 781
Portal Software International Pty Ltd v Bodsworth, [2005] NSWSC 1115
R and R [2003] FamCA 1180

APPLICANT:

Ms Stapleton

RESPONDENT:

Mr Bryant

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

553

2007

DATE DELIVERED:

15 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Sudholz

SOLICITOR FOR THE APPLICANT:

Harper Buscombe & Madden Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

Orders

The father’s applications in a case filed, 23 December 2015, 8 January 2016, 10 February 2016, 17 March 2016 and 29 March 2016 are all dismissed.
The application of the mother for interim orders is otherwise dismissed.
That the mother and the father provide to the Independent Children’s Lawyer (and to each other) a list of counsellors, psychologists, psychiatrists and general medical practitioners that they and the child S have attended for the period from this date back to 11 April 2011.
That each parent comply with paragraph 3 of these orders by 4 pm on 29 April 2016.
That all extant applications for final orders are listed to a FIRST DAY before the Honourable Justice Thornton at 10.00am on 10 June 2016 for the purposes of listing the matter for final hearing.
That the parties and if represented, their legal practitioners, attend the first day of hearing.
That notwithstanding applications/responses have already been filed:
(a)by 4.00 pm on 13 May 2016, the applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and
(b)by 4.00 pm on 27 May 2016, the respondent file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.
All parties, including the Independent Children’s Lawyer, file and serve a brief summary of the issues, both legal and factual, that are in dispute by 4.00 pm on 2 June 2016 and such summary be emailed to: …
To the extent that the Independent Children’s Lawyer has formed a view with respect to the orders sought by the parties, his or her view and any orders proposed form part of the summary to be filed.
To the extent that any party wishes to participate in any form of negotiation or mediation prior to the final hearing, arrangements be made prior to the first day of hearing.
That at the first day of hearing, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

AND THE COURT NOTES:
If a party does not comply with paragraph 7 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stapleton & Bryant 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 MELBOURNE

FILE NUMBER: MLC 553 of 2007

Ms Stapleton

Applicant

And

Mr Bryant

Respondent

REASONS FOR JUDGMENT

The litigation between Mr Bryant (the father) and Ms Stapleton (the mother) about the child (soon to turn 13 years of age) has been going for about 8 years.
In 2008, in what obviously was intended to be a judgment with final orders about the child, Dessau J ended her reasons with the following statement:
[B] has been fought over and litigated over for too much of her life. I hope that these orders will bring closure for her so that she can just get on with being a child.
How forlorn her Honour’s hope has turned out to be.
This particular judgment concerns a raft of interim issues but the most important question is the need to set the substantive case down for a final hearing or trial (again).
The substantive issue seems to be about where the child should live. I say “seems” because there are a number of issues being argued on an interim basis; the parties seem to have lost sight of the big picture. In fairness, it has not helped that this case has been before other courts and there are currently numerous interim or interlocutory applications alive.
The father represents himself. The mother has lawyers acting for her and attended represented by counsel. The Federal Circuit Court has previously made an order for the appointment for an independent children’s lawyer and the person nominated was Mr Mark Finn. He instructed Ms Buchanan of counsel to appear for him.
A short time before the hearing before me, Registrar Field made an order requiring all parties to file with the Court, a set of proposed orders. That was necessary because of the myriad of interim applications before the Court. Even with the benefit of those documents, reference has to be made back to the formal applications.
It is important to observe that whilst I have determined these interim proposed orders on the basis of the document each party filed, I have read the relevant applications; it is necessary to identify them. To the extent that those applications refer to proposed orders not otherwise mentioned in the documents each party relied upon, I have presumed that the proposals were no longer pursued and will therefore be dismissed.
The only evidentiary document that the father wished me to read was his affidavit filed on 23 December 2105 but that led to other affidavits associated with the various applications. I read those too.
Other issues can conveniently be dealt with on the basis of the parties’ respective submissions. I have presumed that where factual issues were relevant and no objection was taken to the accuracy of the statements and submissions from the bar table, there was no significant dispute. In hindsight there were few areas of common ground.
This case was heard in a very busy duty list. It was most unfortunate that the Court had experienced an electrical malfunction on the previous day (which was also a duty list day) and the work load was larger than normal. The alternative to setting time limits for submissions was to transfer the case to the trial list but that would have prejudiced everyone. In the end, I have obtained a first day before a judge as set out in the orders at the start of these reasons. If everything that is required by the orders is fulfilled, the trial of this application should be accommodated within months of that first day.
The father had more submission time allocated to him in this discrete hearing than the two legal practitioners but that is perhaps understandable because he had more to deal with. That said, he did have to condense his submissions.
There has been a long history of litigation over the child. The file of the Court has travelled within the Federal Circuit Court but there has also been a recent appeal from orders of that Court. The condition of the file was challenging. I raise that because, for the reasons mentioned earlier about the busy list, I heard the submissions and then reserved judgement to read the documents.
During the submissions, it was difficult at times to decipher fact from argument. Where the father raised an assertion, I have gone looking for a plausible explanation in the surrounding documents most of which have come from him.
One such example concerned what happened (apparently on circuit) in the Federal Circuit Court from which the father raised an appeal. The initial judgment was given by Judge Riethmuller. I asked whether the father desired that I read the judgment but he said I should not. Yet some of his submissions revolved around what actually occurred in that hearing.
What transpired was that the father appealed against that judge’s decision but then abandoned his appeal in February 2016. He said Strickland J, sitting alone in the Appeals Division, encouraged him to abandon his appeal because he might obtain a hearing before this Division more quickly. Whilst that is accurate, the hearing to which his Honour was referring, was in the Judicial Duty List, rather than a trial.
Having heard and read what I have, I have no doubt this case needs a final hearing because the assertions (particularly of the father) are about evidentiary matters that need to be tested. There was an odd statement also made by the father that he was reticent about a final hearing but I am uncertain why that might be so. On any view of what I understood, this child needs that final conclusion one way or another. There are only 5 years left of her childhood.
The issues (although not necessarily set out that way in the father’s applications) are:
(a)Should a family report be ordered and if so, who should undertake that task?
(b)Should the Independent Children’s Lawyer be discharged?
(c)Should the mother be assessed by a psychiatrist and if so, should the father attend also to answer that professional’s questions and provide information and documents? And an ancillary issue of who should pay?
(d)Should there be orders of a discovery nature made to disclose a raft of details about health professionals that the parties and the child have attended?
(e)Should counsel (for the mother) be ordered to disclose documents that might record what the basis was of her statement to the Court that the father’s behaviour was “strange”?
(f)Should the child attend the school that she had been attending in C Town prior to the Senior Registrar’s order of 4 February 2016? That is, should she change schools now?
(g)Should there be a change of residence from the mother to the father?
(h)Should there be an order for contact between the child and the paternal grandparents?
(i)Should there be an injunction (re-ordered or repeated) that the mother’s former partner not be brought into contact with the child?
(j)Should the father be psychiatrically assessed?
The mother’s position was described as follows:
(a) there should be an order under s 102QB(b)of the Act;
(b)the father should attend upon Psychiatrist Dr D for the purposes of a psychiatric assessment and he should pay.
The position of the Independent Children’s Lawyer was that:
(a) The father should attend Dr D and pay for the report;
(b) There be discovery about health professionals.
The father’s applications were multifactorial whereas those of the mother and the Independent Children’s Lawyer, focused upon getting an outcome of a more permanent nature.
The applications of the father were found in documents filed 23 December 2015, 8 January 2016, 10 February 2016, 17 March 2016 and 29 March 2016. To some extent there was an overlap but for the reasons mentioned, the main documents were the parties’ respective proposed orders.
It may be that one of the bases for the mother’s application for a vexatious proceedings order arises out of the persistence by the father but when I queried whether she wished to proceed, bearing in mind its complexity, her counsel said it could go off to trial. That is not to say that if the father continues to bring applications, that application cannot be resurrected.
The number of applications also has to be seen in the context of the number of hearings. The application before me, for example, was a review of the Senior Registrar’s decision. It was unnecessary for me to read the Senior Registrar’s judgment because I conducted the review as a de novo hearing.
I have already mentioned that there has been an appeal directions hearing. It was not immediately apparent that the appeal was against the orders of Judge Riethmuller in August 2015.
In respect of the father’s application for a change of residence, he said that there had been a change of circumstances to warrant a revisiting of the residence of the child. The appeal against order related to parenting issues did not proceed and it is conceivable that I could conclude that the father had the opportunity to not only proceed with the appeal but also to seek to rely upon fresh evidence. No such application was made by the father. It follows that the focus should be the evidence since that appeal. The father’s primary affidavit in support of the change of residence was filed in December 2015. I have concluded that I should look at the evidence that is current.
As the transcript will attest, there was discussion about the nature of an interim hearing, the difficulty of a court making determinations on untested evidence, the importance of only generally using interim hearings for holding orders pending trials and most importantly, the difficulty of this Court in identifying what needed attention for the proper use of its resources.

The family report

There was considerable enthusiasm expressed by the father for a family report. In this case, there has been a s 69ZW order made and the Department of Health and Human Services have responded. I explained how that document is mandatorily in evidence. The father’s consternation about that report is that, as he described it, the author was a “diploma graduate of a Tafe college”. I have not looked at the report.
I do not know whether the father had his tongue firmly planted in his cheek or whether he was seriously suggesting that the report was flawed. To the extent it was, even if it went to a family report writer, it would do no more than indicate what notifications, investigations and outcomes the Department had undertaken.
The admission of the report into evidence enables the father to challenge the professionalism, expertise and accuracy of the author. An expert (if so found by the Court and I shall return to that subject below) who writes a family report can also be tested as to the impact on any such information or opinion given. There is therefore no prejudice to the father by its admission or use by others but here, that report has no significance.
Despite the father’s assertions (which I am prepared to assume are genuinely held), the Department has not intervened under s91B of the Act nor taken away the jurisdiction of the Court by issuing a protection application in the Children’s Court.
As will be seen below, there is a strong and consistent flavour in the father’s arguments about many issues along the same lines.
The father told the Court that the Department had finished its investigations but it remains unclear whether anything they have found is of relevance. What the father did make clear was that the Department had not done their job to his satisfaction.
The matters that the father said supported a family report being done now need consideration. He said:
·The situation of the child is “dire”;
·S has been self-harming and there was mention of suicide;
·S has no contact with her paternal family;
·The whole problem of reports to date (at least of late) has been that they are based on what the “child says”.
In respect of the last dot point, I asked the father to tell me whether Judge Riethmuller had erred in his judgment from August 2015 in that he had made the decision only on the basis of the child’s statements. He hedged his answer but, as I was not asked to read that judgment (and I have not), I do not know but I draw some comfort from the fact that the appeal against the judgment was abandoned. If the Federal Circuit Court judge’s reasoning was flawed in respect of the legal requirements, as distinct from the factual bases of the orders themselves, one would have expected the appeal to proceed. There is little substance concerning that last dot point.
In respect of the other matters, I readily concede, each is very serious and worrying but again, arguments over procedural issues and interim hearings would be much better focused on a final hearing. If the situation was as dire as the father portrayed it, one wonders why the Department had not taken steps and significantly, why an independent children’s lawyer had no such concern. Thus, there is little merit in the father’s submission.
Having said that, it is timely to consider the purpose of such a report in circumstances where no judge of this Court has yet been allocated to hear the final hearing.
Section 62A of the Act provides:
This Division deals with the preparation of reports for use in proceedings relating to children who are under 18.
Section 62G provides:
This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.
(2        The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.
…
(3A)    A family consultant who is directed to give the court a report on a matter under subsection (2) must:
(a) ascertain the views of the child in relation to that matter; and
(b)      include the views of the child on that matter in the report.
Note: A person cannot require a child to express his or her views in relation to any matter (see section 60CE).
(3B)    Subsection (3A) does not apply if complying with that subsection would be inappropriate because of:
(a)      the child's age or maturity; or
(b)      some other special circumstance.
(4)      The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.
(5)      For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant).
...
(8)      A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.
I have underlined and emboldened the relevant parts of the Act which the Court should consider before making an order for such a family report. What is its purpose and what is its relevance? Whilst there is a clear indication that the Court desires that parties have the opportunity to sort out their issues through counselling and indeed, can consider the professional’s views about what is occurring to a child, that is not the main focus if a matter is clearly heading for trial. I very much understand that some reports of this nature are ordered as a way of giving the parties an opportunity to settle their differences about their children (see s 11A (a), (c) and (e) referred to below) but in the cases such as that between the mother and the father, the real question is what expert advice can the court obtain from such a professional (see s 11A (b) and (e) below).

The report writer is simply another witness. That person can be challenged not only as to the facts and their opinion but also their expertise.
The role of the family consultant is now enshrined in the Act. Section 11A provides:
The functions of family consultants are to provide services in relation to proceedings under this Act, including:
(a)assisting and advising people involved in the proceedings; and
(b)assisting and advising courts, and giving evidence, in relation to the proceedings; and
(c)helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and
(d)reporting to the court under sections 55A and 62G; and
(e)advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.
Section 11B provides the details about who such a person is expected to be.
Unlike counsellors and mediators, communications with family consultants are not privileged or confidential. Whilst (and this is relevant in this case) there are situations where other professionals than those engaged by the Court have the requisite expertise to fulfil the s 62G task, they are still expected to be of the quality and expertise that the Court expects of its employed family consultants.
The sort of assistance to which the father referred about the child can be obtained from the various services within the community and at this stage, the Court’s resources ought not be used for the preparation of what may be a complicated report about the child’s needs. To the extent that the Department has already been made aware of the child’s welfare situation, they can provide the type of advice that is mentioned in s 11A above.
I have no doubt that a family report is necessary here but it ought not be used for the purposes other than to give expert advice to the Court and to the parties at a time most beneficial which is at trial. With the history of this litigation, the chances of consensus after receiving the advice of a psychologist would seem unlikely. More importantly, such a process would involve the child in another psychological examination and evaluation. There was considerable debate about who should or should not be paying for things in this case and the father’s position was somewhat unclear. He had been ordered to pay yet he refused because he did not see that his input was taken. That can be reconsidered by the trial judge if necessary.
I find in the circumstance that there is no need for the court to order that a family report be immediately undertaken. It is obviously important that such an issue be considered if the matter is to proceed to trial. The date that I am going to allocate is not far away.
It is also important to observe that Division 12A of the Act provides the mandatory obligations of a trial judge conducting a parenting trial. It is that judge who is best to decide what evidence is needed to properly protect the interests of the child and that is the other reason why, in my view, the Court ought not exercise its discretion now to make an order under s 62G of the Act.

The removal of the Independent Children’s Lawyer

The father seeks the removal of Mr Finn as the Independent Children’s Lawyer.
Section 68LA(2) of the Act provides that the Independent Children’s Lawyer must:
(a)form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and
(b)act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.
Section 68LA(5) provides that the lawyer must:
(a)act impartially in dealings with the parties to the proceedings; and
(b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
The rest of the sub-section is not relevant for my purposes.
The father asserts that there is a “conflict of interest” for the lawyer here because he interviewed the child and, as there is a pending application for an intervention order, he has become a witness. The applicant for the intervention order is the mother seeking the protection in respect of the child so, it would seem, the Independent Children’s Lawyer is the witness of the mother.
The father further asserts that because of the actions of the lawyer, he has pre-judged issues or, in one form or another, is biased. His argument (although complicated) is that the lawyer “pre-supposes” the outcome and makes recommendations. The assertion is about lack of objectivity as well. If so found, he says, it flies in the face of the lawyer’s obligations under s 68LA as I have set them out.
Connected with the last assertion is another which maintains that the lawyer is running the case only on the basis of what the child says.
As part of his submission, the father strayed back into the argument about the Judge Reithmuller judgment. I suggested to him that I should read the judgment to ascertain whether there was substance to the submission that the case was decided on the one issue and if it had been, there was the appeal point. The father then said that there had also been a stay application which was refused but added that he had only sought the stay order to prevent the operation of the order. All of that suggests a very calculating, if not forensic, approach to this litigation. It also suggests that this case needs a permanent resolution by a final hearing before a judge.
The father said that what the Independent Children’s Lawyer wrote to the proposed expert indicated an unbalanced view which was “so prejudicial”.
Before looking at what did occur, it is helpful to consider how the Court should approach the issue of an Independent Children’s Lawyer’s role having regard to s 68LA.
In Lloyd & Lloyd & the Child Representative (2000) FLC 93-045, Holden CJ referred to “a number of very good reasons” why a court “should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties”.(my emphasis).
Particularly with allegations of partiality where the evidence cannot be tested and scrutinised, the court should be cautious. S 68LA has a number of subjective elements and the court has to assess objectively whether the line has been crossed. Much of the father’s view is about perception. On the issue of impartiality, the objective test can focus on whether the independent children’s lawyer is actually impartial but there are a number of considerations that go towards that assessment that must not be forgotten. For example, it must not be forgotten that the lawyer is an officer of the Court and therefore has obligations of honesty and integrity.
There is no doubt that s 68LA requires the Independent Children’s Lawyer to advocate for the interests of the child in circumstances where that lawyer is not bound by “instructions”, views or wishes. It is an independent role and one which often must clash with the interests and desires of a parent. Fairness or impartiality does not mean taking sides but the appearance of taking sides can often occur because one parent agrees with the position adopted by the lawyer or indeed the lawyer adopts the position of the parent. That can mean that the lawyer has to argue (at times vociferously) as if he or she was representing any other client but making sure that such a duty does not conflict with the duty to the court. One such responsibility which is reflected in s 68LA(2)(a) is to make submissions on the evidence. The submissions cannot be unfounded. To fulfil the role properly, the lawyer must seek out that evidence. To make a submission without considered and well-founded evidence would be irresponsible and indeed may show partisanship rather than impartiality.
Vigorous pursuit of evidence and then advocating from it, may cause a perception that the lawyer is biased or has pre-judged something simply because the parent disagrees. Fearlessness by the lawyer is undoubted and required. Compromising with an unhappy or dissatisfied parent for the sake of compromise would be an abdication of the duty of the lawyer to the child and to the court.
In circumstances where an application (such as here) is made on an interim basis rather than at trial, the same principles apply but the limitation is that it can only be determined on submissions and untested affidavit evidence. The limited nature of the hearing means the court should exercise the caution that Holden CJ mentions. The independent children’s lawyer may have gathered evidence which, at that point, is untested and may ultimately prove to be unfounded or rejected. The court must look at the plausibility of the evidence at that time if the parent seeks to have the lawyer removed based on a perception created by what the lawyer has written or submitted.
The Court has written guidelines for Independent Children’s Lawyers and hopefully all parents understand the role. The Independent Children’s Lawyer provided the parties with such a statement.
In my view, the most fundamental question in assessing whether the lawyer has over-stepped the line is whether the written and spoken word is balanced and whether views expressed about what is good for a child are based on evidence.
The father did not mention the specific evidence he relied upon but in both the applications of 8 January and 10 February, he sought the removal orders and accompanied those applications with affidavits. It is to those that I turn. Insofar as the father’s affidavit was directed to this particular issue and contained any facts (as distinct from assertions or beliefs without factual support), he said, referring to Mr Finn as the “ICL”:
·The ICL secretly interviewed the child and mother;
·The ICL failed to provide him with the November orders despite his requests;
·The ICL failed to nominate a psychiatrist to assess the mother as required;
·The ICL sent a letter “ex-parte” to Mr E;
·The ICL failed to inform the Court that “Child Welfare” had substantiated neglect requiring intervention to remove the child;
·The ICL did not inform the court of the fact that the child had a protection order against the mother;
·The ICL refused to go to C Town to discover the child’s circumstances; he did nothing.
Some of these may be immediately disposed of without further consideration. The failures (if that is what they were) to comply with orders are not an indication to me that the Independent Children’s Lawyer has adopted a pre-judged position. It means he has failed to do the tasks allocated (if that is what they were) but no prejudice has been shown nor does it indicate an intent to assist the mother to the detriment of the father.
The issue relating to Mr E is different. That allegation is said to be an attempt to influence the witness. The evidence seems to be that a letter was sent on 2 December 2015 and the father received a copy on the following day. He said there were errors of fact, critical omissions, misrepresentations and fabrication “that it could not be accidental”. The letter is annexed to the father’s affidavit. On any reading of that letter, it is historical and there are few, if any, assertions or conclusions. The father said he had a different view and he added some facts from his perspective that were not in the letter to Mr E. I am satisfied that the father’s position about the background and his commentary upon the facts, are his perception and may very well be correct but it is difficult to see how they could have influenced Mr E because there was so much information . More importantly, nothing I read indicated that there was an unbalanced historical overview or that the letter was calculated to influence Mr E. There is no substance to this allegation.
The other main complaint relates to the involvement of Mr Finn as a witness in the intervention order proceedings arising out what is described as the “secret” interview.
Mr Finn addressed the issue and described something that looks, on its face, to be a common approach. The father’s reference to the “secret meeting” is more about the fact that he was not told it was to happen. Indeed, Mr Finn says that it was not secret. The meeting of the independent children’s lawyer was hardly controversial.
The father complained that Mr Finn was not qualified to assess the child’s emotional maturity. He may very well be correct but I do not consider that assists. Emotional immaturity would be a reason for Mr Finn to seek advice from a psychologist such as Mr E and he appears to me to have done just that by seeking the orders that he did.
Importantly, Mr Finn provided his views to both sides even if the father did not like what he heard and read.
Then followed the hearing before Judge Riethmuller at which, according to Mr Finn (because I have not been asked to read the judgment), the father described him in disparaging terms but also made the allegations that he makes again now. I do not know whether that attitude influenced the trial judge in some way. I do not have a transcript.
There were proceedings in the Magistrates’ Court related to a State intervention order and Mr Finn may very well be a witness but one would expect any person who could contribute admissible evidence should give that to a court. To the extent that it might put the lawyer in an uncomfortable position or one in which he has to tell the truth as he sees it, that is not uncommon or improper nor do I see it as any conflict with his duties under the Act. I do not see that is any more than fearlessly fulfilling his role to the court.
The facts are said to be disputed by the father in the State Magistrates’ Court and that means he would have an opportunity to test them. He could, in those circumstances, under cross-examination, suggest to the lawyer that he was prejudiced, biased or just plainly wrong. The lawyer must give evidence if he has something to contribute. His role as an independent children’s lawyer is not compromised. It might be different if the State court found that he was indeed biased, prejudiced or untruthful. Nothing in all of the evidence I read suggested that any such determination has been made. Thus, I am satisfied there is nothing in the complaint.
In the course of some correspondence, the father wrote to Mr Finn to say that the child had endeavoured to cut her wrists with scissors. The affidavit detail refers to a transcript of what looks like a discussion by the child of despondency and suicidal ideation. Mr Finn responded asking about whether a Dr F had examined the child and was subsequently told that the child had not attempted suicide, that she did not require psychological nor psychiatric intervention nor a mental health plan. It would seem from the father’s December 2015 affidavit, he does not accept that. He said that Dr F “had no solution”. That being the case, I am unable to say what, if anything, the lawyer did wrong. He accepted the father’s correspondence and investigated it. He responded with his perception as I would expect him to do. The serious allegation of suicidal ideation was apparently not acted upon by the relevant state welfare department. I have concluded that it could not have been what it seems.
The father also asserted that the father “ambushed” him at court with “hand written minutes”. The emotive language arises from the fact that the Independent Children’s Lawyer did not support the position of the father. But even so, the father had an opportunity to read and deal with the proposed orders. He has shown that he intimately knows the details of the case so responding on short notice, could hardly be difficult for, or prejudicial to, him. The father is an articulate man as his affidavit attests.
The affidavit of Mr Finn combined with the vociferous way the father argued his case both before me and in his affidavits, suggests that the father can be abrupt and critical of anyone with whom he disagrees.
In relation to the complaint about the role of the lawyer and the relevant state welfare department, it is obvious that Mr Finn’s assessment of the situation and the circumstances of the mother do not match the views of the father. But all of those are facts in issue and do not suggest that there has been an unbalanced assessment by Mr Finn even under the strain of the father’s criticisms of him.
The father did not want any other lawyer in the role than someone in C Town. He made clear in the complaints to which I have referred that he wanted the lawyer to go to C Town if a local lawyer was not appointed. The father is not in a position to dictate those terms. Victoria Legal Aid is the funding body and the Court’s role under s 68L is to make the order. If the Court considers the role is not being properly fulfilled, it would be unlikely that the order would be discharged but rather that the funding agency would be asked to substitute another lawyer if the court did not have confidence in that person.
The general complaints of pre-judgment and bias are not supported by any of the evidence although I accept that the father strongly believes that Mr Finn is not adequately representing the child’s interests and not giving him the same assistance as he is giving the mother. On the basis of assertion and untested evidence, I could not find that. I have read as much as I could of the affidavits of the father and the one affidavit of Mr Finn to try and decide whether there has been a loss of objectivity. I do not find that.
Returning then to s 68LA, the evidence available to the lawyer would indicate that he expressed concern but made inquiries which were for the purposes of deciding whether there was urgency. He armed himself with the information he could. He endeavoured to set out the historical context in the letter to Mr E. At this point, I find there is no legitimate basis to accuse Mr Finn of not being diligent about the best interests of the child.
In his submissions, the father seemed to suggest that decisions had or were being made on the statements of the child rather than her holistic best interests. That certainly is not a conclusion that I would draw at this interim stage.
That being so, the Independent Children’s Lawyer seems on my objective analysis, to have acted independently to form a view of what is in the best interests of the child. Nothing I read could be seen to be inconsistent with the lawyer’s duties to the role he has to fulfil or his duty to the court.
That part of the father’s application must be dismissed.

Allegation against Ms Sudholz

The next allegation is a curious one. Read in isolation and hearing what was submitted, the complaint does not make much sense. It was left to counsel to assist. It is said that in the Federal Circuit Court, Ms Sudholz, then counsel for the mother, saw the father doing something in his belongings from which she drew a conclusion that he was taping proceedings. Of course, had he been doing so, he would have contravened legislation. What counsel then did was report the matter to the staff of the Federal Circuit Court Judge. I have presumed that it was then raised publicly. I do not know the outcome but it must have upset the father sufficiently to include this particular discovery application.
It is alleged by the father that counsel said he had “strange behaviour” and as a consequence, he wanted discovery as to all her notes, documents and the like about that assertion. According to counsel, there are no such discoverable documents.
If, as it seems to me, the allegation is restricted to the statement of what I was told counsel did as just described, that is not a matter that I should be concerned about. Indeed, I would be concerned if a member of counsel ignored such an issue if it had been elevated to a level of subjective concern. To the extent that such is the extent of the complaint, it has no relevance to any issue for determination in the parenting case.

The authorities about discovery are, like the rules of the court, clear. The focus must be on relevance.
In Hatton, VF & Attorney-General of the Commonwealth of Australia [2000] FamCA 892; (2000) FLC 93-038 the Full Court noted that given that there were no pleadings in the Family Court of Australia, the only way in which “apparent relevance” could be established was by reference to the affidavit material filed in those proceedings. I have not had any material put to me to show how this issue, let alone any possible documents, could be relevant to this parenting dispute.
In Portal Software International Pty Ltd v Bodsworth, [2005] NSWSC 1115, Brereton J noted of the documents pursued by (in that case) subpoena:
It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings. (emphasis mine)
What possible light could any further investigation of this matter shed on the parenting issues in dispute?
In Hatton (supra) at para 59, the Full Court was referring to the fact that the affidavit material was the only material that was available to the trial judge in that case. I consider the principle to be a guide. The strict nature of the disclosure obligations which relates to parties, as set out in chapter 13 of the rules of the Court, also provide guidance but that goes back to relevance to the issue for ultimate determination. To the extent that the father intended this application to be a way of removing particular counsel from acting for the mother (and he did not say it was), the Court has a limited role to play in any event. Such matters relating to conduct of its practitioners are generally matters for the relevant regulatory bodies.
In my view, this has been a serious waste of time and resources and the father’s pursuit of discovery is misguided if not obsessive and disingenuous. If anything, it seems to me to be classic “fishing” but I am not sure what there is to catch. That being the case, to allow the matter to proceed any further would be an abuse of process. The father’s application therefore fails.

The interim parenting issue

The dispute brought by the father seeks principally a return to the previous orders. One has to work out how this current dilemma came about because it is not at all clear from any affidavit material.
It seems that in July 2015, there was a dispute (some might say an altercation) between father and the child. The mother stopped contact. The father brought a contravention application. Judge Riethmuller heard that application and dismissed it. The interim parenting dispute then began as the mother did not provide the child to the father. An order was made that telephone contact resume and also that the father could attend the child’s sporting engagements. What did not resume was the relationship that had stood for some years arising out of orders of Dessau J in 2008.
As best I can understand the evidence, there was a hearing before Judge Riethmuller wherein his Honour decided he needed some expert evidence. That led to orders being made on 16 November 2015 for the appointment of Mr E to be funded by the father and that the proceedings be transferred to this Court.
As I have already mentioned, the father appealed those orders and the matter came before Strickland J in February 2016. Although the father is said to have abandoned his appeal, I note that there is a formal order of Strickland J dismissing the appeal. In between, there was the unsuccessful stay application before Judge Riethmuller.
Strickland J did give reasons but they indicated that, as there was an allocated hearing date in this Court, the father had been encouraged to go to that rather than appeal. The difficulty is that even taking that into account, nothing I heard suggested that there were new circumstances since February 2016. There was certainly concern about the welfare of the child. The file of the Court (which is in a number of volumes) indicates by the size of the transcript before Judge Riethmuller that there was significant argument about what time the father should have with the child. By the making of the orders to appoint Mr E, it can be seen that Judge Riethmuller declined to order the resumption of the previous orders.
Thus, in addition to the appeal dismissal and the fact that Judge Riethmuller did not make orders of the nature proposed by the father, nothing otherwise indicated that there were new circumstances.
True it is that the father is frustrated about the absence of the resumption of his contact with the child, his dissatisfaction with Mr Finn and his dissatisfaction with the order/nominated experts but even so, on the basis of the untested and controversial facts here, it still seems to me that there is little the Court can do until the evidence is fully examined. It is inappropriate that once an interim determination is made, further applications are made before trial unless there is very good reason, and most importantly, new circumstances. I could not find anything like that here.
The best solution is the one I have now offered which is a first day before a judge where the father can plead his case for an urgent hearing. It is unfortunate that many of the matters to which I have already referred have been a distraction but worse, the argument over the proposed experts has not helped. Had those exercises been concluded, the first day before the judge would have been much more simple.
The interim parenting dispute that I therefore have to determine is about three things:
(a)Should the child be put back in her previous school (that is, for the Court to discharge the order of the Senior Registrar)?;
(b)Should the former orders of 2009-2009 be enforced so that the father’s time be resumed rather than what appears to be the current position of telephone communication and his attendances at her sporting commitments?
(c) Should the paternal grandparents have time with the child?
For the reasons that follow, the father’s proposals in respect of all three things must fail.
Despite so much time being devoted to the matters above, it seems that the underlying problem relates to the father’s relationship with the child. He observed that he had been a significant parent in the child’s life including subsequent to previous court orders. He has been her sports coach and, from what I can glean, she was to be competing at a high level.
It is difficult to deal with the parenting issue here without reference to the orders of Judge Riethmuller because, for better or worse, that Court was seised of the case, heard the parties, determined the interim dispute and then transferred the substantive issue to this Court.

The school issue

There is also the review of the Senior Registrar’s decision to allow the child to be removed from the private school she was attending at the expense of the mother but which expense was not being met. The Senior Registrar made the order on 4 February 2016.
The review of that decision is a de novo hearing. Despite the discrete nature of the application, it is still a parenting dispute and despite the truncated hearing and the paucity of evidence, the Court must still regard the best interests of the child as the paramount consideration in deciding what (if any) interim parenting orders should be made. (Goode and Goode (2006) FLC 93-286). In Goode, the Full Court indicated that the Court should:
·Identify the competing proposals;
·Identify the issues in dispute;
·Identify any agreed or uncontested relevant facts;
·Consider the matters in s 60CC that are relevant and if possible make findings.
The proposals of the parties are self-evident. The father wants his daughter to return to the previously ordered school and the mother says that the decision of the Senior Registrar has been implemented. I do not know what the school’s current attitude is.
There is a certain unreality in the father’s position about the school and I consider that the issue is better addressed as a long term issue. As I understand the mother’s case, she could not pay the fees. As a long term issue, it will be part of the residence dispute and if the father is successful in having the child live with him, no doubt he can address the schooling issue then.
This seems to be part and parcel of the interim parenting arrangement so as the Full Court indicated, the issues set out in Part VII of the Act still have to be addressed.
Section 65D(1) provides that in proceedings for a parenting order, the Court has a discretion to make such order as it thinks proper. The Court should only exercise that power if it is in the best interests of the child. The current schooling arrangement in place may not be to the father’s satisfaction but it seems to suit the immediate need of having the child in a school. As I understand what I have read, neither party is prepared to pay the fees. Why would the school take the child back? It is said there is currently an outstanding fees debt and that is not being offered to be met by either parent.
In determining best interests in relation to the schooling, the various considerations in s 60CC are of little assistance. The reality is that the old school will not have the child back and the mother is not going to pay the fees. There is an irony in the fact that fees are outstanding but the parties were debating who would pay for experts.
To the extent that one needs to consider the views of the child, I have no objective evidence to work on other than the report given to Judge Riethmuller about the child’s views. That does not support a conclusion urged by the father.
The nature of the relationship between the parents is apparently not good because if it was, this impasse would not have arisen. Other issues will have to be determined at trial as I am not in a position to make any findings on them. One of the critical questions in any such case is about the attitude to the responsibilities of parenthood as shown by the parents. The very nature of this dispute is concerning. There are allegations of incompetent parenting against the mother but it was conceded by the father that the Department had not intervened nor removed this Court’s jurisdiction. I appreciate that the father has a low opinion of whoever was responsible within the department but that is the evidence. There are accusations against the father but, from the father’s position, they are controversial and again, I am not in a position to make any finding.
Section 61DA requires the Court to begin with the presumption of equal shared parental responsibility but I decline here to make any findings about the rebuttal or otherwise because the evidence in this interim hearing does not permit itself of sufficient clarity for me to do so.
In my view, the focus must be on two things. Is the current schooling meeting the needs of the child even if the father disagrees? Nothing in any recent evidence suggests it is not. Secondly, is it proper to alter the existing order of the Senior Registrar when the child has settled into a new environment and she is about to enter term two? In my view nothing suggests that a change is beneficial but importantly, nothing suggests that it can be done.
That application of the father must fail.
Dealing with the third issue (before dealing with the second) of time with the paternal grandparents, there is no evidence as to how that could be implemented.
The father attached to the back of his affidavit, various copies of affidavits. One, by his father, was sworn in 2008. It can hardly have much relevance now. The next “affidavit” was by his mother who confirmed that the contents of the father’s various affidavits were true. Thus, I do not really know what the grandparents’ position is and how any alteration of the care of the child would be implemented. Repeating what was said in 2008 in proceedings now long finished and with an entirely differently- aged child, has little or no relevance. I have had no other evidence drawn to my attention from the grandparents.
Therefore, if I addressed each of the relevant aspects of s 60CC relating to such an order, I could not conclude that order was in the child’s best interests.
I find the father’s application numbered [11] must fail.
The other parenting issue is equally perplexing. The father seeks that his time with the child resume.
The difficulty lies in the facts.
In his proposed orders, the father sought that:
[10]That the orders sought in the father’s application filed 23/12/15 to change the child’s residence after self-harming be ordered or in the alternate (sic) that the father spend time with the child at least two times per week pursuant to DHHS case plan.
One of the immediate problems was that I could not find any evidence of the “DHHS case plan” but as elsewhere observed, the Department has not intervened in this proceedings and more significantly, despite the apparent very serious parenting incapacity allegations by the father, the child has not been removed from the mother’s care.
In respect of his affidavit filed 23 December 2015, he said:
·“[The child] remains isolated with an untreated seriously mentally ill mother diagnosed with significant health problems……The mother denies anything is wrong and rejects discussion…..”;
·“An investigation by DHSS (sic) substantiated abuse and neglect of the child by the mother requiring intervention by the department”;
·There was a family violence order against the mother for protection of the child;
·The mother denies the “suicide attempt” (by the child), the police would not act because it was a “CPS” matter but they would not act without police;
·The child’s psychologist had “withdrawn”;
·The magistrates’ court would not do anything;
·The ICL would not do anything;
·The family report had been cancelled;
·B’s “social media” had been blocked;
The father pointed to the “11F” reporter recording that the child said she “never wanted to see” the father again yet 5 months later, she was suicidal. I have already set out the investigation by the Independent Children’s Lawyer about that and whilst acknowledging that the father does not accept it to be the case, the evidence otherwise is what the father describes. That evidence talks of the social media communication by the child in December 2015 (as transcribed by the father) but I remain uncertain who the person is referred to as “Jaya”. Rather than attach the transcript to the affidavit, one would have expected the father to have produced the details of the outcome of the investigation by the Department. He said:
There are substantiated findings of child abuse and neglect requiring intervention by the department to remove the child from the mother’s care.
But the Department did not do so. The father’s statement is perplexing if (as here) it does not seem to be corroborated by anything or anyone.
He certainly made clear in his oral submissions that he has a lack of confidence in them and that might account for his actions.
The intervention order is also a curious document. It is an interim intervention order to which the mother consented and which does not seem to have a final return date. It was hard to see how the annexure fitted with the narrative but that aside, the applicant was the father and, he sought and obtained the order on his own behalf and that of the child. The mother was prohibited from going to the father’s address but it does not seem to suggest that the mother could not go near the child. Curiously, the father did not include a copy of the formal application (or if he did, it was not on the affidavit) but there was no indication of the magistrate being asked, or exercising, the powers in s 68R of the Family Law Act. I do not know why, if the situation was that dire, the State court did not so act. I am also uncertain why the welfare authorities did not intervene (and I appreciate that the father says they should have) when such an application was before the State Court. I infer that they were not concerned about the removal of the child from the mother. I have also subsequently gleaned that there is or was an application for an intervention order sought against the father. That appears in the father’s February 2016 affidavit but he refers to the fact that the mother “withdrew her allegations” about “child abuse” but apparently not about anything else. The evidence is confusing but that is not to the point. The issue is that I am unable to make findings upon it in these circumstances.
At various parts [paras 15-19 and 27-31] of his affidavit, the father refers to a variety of facts about how his time with the child stopped. The difficulty I have is that all of these must have been the evidence before Judge Riethmuller. Again, not having read the judgment, I am only aware that his Honour dismissed the contravention application of the father.
That is important because of the provisions of Division 13 A of the Act. S 70NBA provides:
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i)the court does not find that the person committed a contravention of the primary order; or
(ii)the court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;
(b)there was no post-separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
As best I can understand, Judge Riethmuller adjourned the matter back to himself after concluding the contravention application which by then had been dismissed and presumably had intended to deal with the primary parenting issue because his Honour was well aware that the father’s time had been terminated. In the steps taken thereafter (according to the orders I read), there was an order made for a family report. Then the proceedings were transferred to this Court. The powers to alter or return to the previous order were not activated. In part, I have concluded that occurred because of the appeal by the father which no doubt delayed things but that was his focus. It is difficult to see how the Court could do much more if that was his focus.
I return to the evidence of the father. At [33] the father said that in November 2015, the child “performed”. This was a reference to her expressing her wishes. This “performance” was apparently to the Independent Children’s Lawyer. The father said:
She now hated her father and cried her mother’s fears of being taken from the school.
At [46] he said:
[S] started abusing me via text….[S] claimed it was just a test for her friends so that she knew she could trust them. A troubling comment in itself given the mother’s paranoia.

It will hopefully help any future trial judge if the father understands that evidence is not just his opinion. He might do himself a service by reading ss 55 and 56 of the Evidence Act 1995 (Cth).
Thus, to the extent that these statements of the father were intended to be persuasive or of probative value, I find they add nothing to the determination. I do not understand how the father concludes that the mother has paranoia. I do not know how he interprets what his daughter says. It is clear that she does have some form of communication with him. All of this evidence needs to be in proper form and properly tested. An interim hearing such as this is unable to decipher fact from argument. That said, I understood these comments reflect the father’s understanding of the evidence associated with the child’s views. In his affidavit [36], the father said the mother’s case was totally reliant on the child’s “wishes”, a statement he repeated in his submissions but, even if that was right (that is, that the mother relies solely upon the child’s wishes), that ignores all of the relevant parts of Part VII of the Act as well as years of jurisprudence.
There is little doubt that ongoing litigation has unfortunate, if not adverse, effects on children. Many cases, such as here, are really about the conflictual nature of the parental relationship; the child is affected. She cannot be immune from the fact that her parents are in a litigious mode. I understand by reference of the father (and the other parties) to the fact that there was a s 11F conference. As best I can understand, that outcome was provided to Judge Riethmuller. Thus, to the extent that the views of the child were considered, they may have also come from that family consultant who undertook the s 11F report.
In rather prophetic words which apply here, in Freeman and Freeman (1987) FLC 91-857 Strauss J said:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. …The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …
S’s life from the father’s perspective is in turmoil. He is of the view that the mother is incapable of caring for her. Against that, the evidence is disputed and no-one else supports the case of the father, including apparently, the state welfare department.
I am very conscious here that because of s 69ZN of the Act, courts have been mandated to follow principles for conducting child-related proceedings and s 69ZN(3) provides:
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.(my emphasis)
Thus, in considering the principles in Goode, combined with that principle just mentioned, it is not possible to make any findings as to what is currently in the child’s best interests such that any interim orders should be made to return to the previous arrangement. I consider it important to reiterate that situation must have been contemplated by Judge Riethmuller probably on two occasions and no orders of the nature sought by the father were made.
The father’s application for an immediate return to the previous orders must fail.

The reference to Mr Stapleton

An issue that was not in the father’s proposed orders (because he ran out of time) was to seek injunctive relief to keep the child away from Mr Stapleton.
The order could only be made against the mother.
The evidence which supported this proposal was that the child has had contact with this man whom the father described as “a religious fanatic and known child alienator whom [the child] now calls ‘dad’”.
These strong words are concerning. I have been unable to find any reference to such an injunctive order despite the father’s words. Indeed, amongst the reasons for judgment of Dessau J, I found the following:
[89]In March 2008 there was unfortunately an altercation at a change-over at which [Mr Stapleton] attended. Given the complexities in the various adult relationships, it was not surprising that the father was edgy when he saw [Mr Stapleton] at the change-over. [Ms Stapleton] and her husband remain close. [Mr Bryant] does not like him.
[90]Where the accounts of the two men differ as to what occurred at the change-over, I accept the evidence of [Mr Stapleton] as the more truthful. [Mr Stapleton] impressed me as a genuine and caring man. Despite the turmoil that had been caused in his and his family’s life, due to the relationship between his wife and [Mr Bryant], he seemed to be able to genuinely focus on [the child] as the innocent victim of circumstances. He showed a clear understanding that her needs must prevail. I accept his account that he took [the child] to the change-over as the mother had been unexpectedly called into work and last-minute, no-one else was available. I accept too that [Mr Bryant] was the aggressor in an unfortunate incident. He pushed [Mr Stapleton], lost sight of [the child] as she went to cross a road without him, and the incident saw [the child] crying by the end of it. [Mr Stapleton’s] version was also supported by a security video clip, from which it was obvious that the child started to walk across the road unattended, when [Mr Bryant] turned his attention to [Mr Stapleton] rather than to [the child].
Absent some explicit reference to material other than the reasons to which I have just referred, the same conclusion might be drawn as that made by Dessau J. I do not understand the reference to religious fanatic and so forth. I do not know what the risk issue is. The father’s evidence, which is emotive and opinionated, does not contain facts.
I therefore reject that application of the father.

The psychiatrist issue

The father sought an order that the assessment and report of the mother by Dr D is “inadmissible”. That misunderstands the use to which evidence is put. I have interpreted his submission to be that another expert should be used.
The mother has been ordered to have an assessment. The psychiatrist wants the father’s involvement. The father wants Dr G not Dr D.
In addition to that issue, both the Independent Children’s Lawyer and the mother seek an order that the father attend on Dr D for an assessment of him. In my view, that is an order that should be sought from the trial judge. It is one thing to seek his attendance in respect of an order already made for the assessment of the mother but quite another to seek an order for his own assessment.
Any concern about the power of the Court to make such an order seems to have been disposed of by the Full Court’s decision in Brown & Pedersen [1988] FamCA 14 relying on what was then s 62 of the Act. That provision is now replicated largely in s 13C(1)(c) of the Act. That said, I do not know what evidence is relied upon for the order. One might be tempted to draw an inference from the father’s vociferous pursuit of the parenting orders and his criticisms of the mother and her mental health being unresolved but that is not necessarily a basis to say that he has a mental illness or disorder. As this was not an issue argued because of time, I consider it should be properly addressed. That has nothing to do with the requirement that the father co-operate with Dr D in respect of the assessment of the mother. It may be that Dr D detects something that he considers requires investigation and if so, the order would follow.
The current order, which has not been appealed, is that Dr D undertake the psychiatric examination and at the father’s expense. I do not have sufficient evidence to determine that the previous orders should be altered or set aside. Indeed, it is the father’s evidence that the mother is psychiatrically ill. That can be seen from his many disparaging references. In view of that, one wonders why he would not endeavour to prove it. That assessment will presumably be needed by the psychologist or social worker responsible for the family report. I see no reason why the extant order should be altered. If the father does not fulfil the obligations, the prospect of the trial he wants will be delayed.
I clearly understand the father’s complaint that Dr D may not approach the task with an open mind. That ignores the professional responsibilities as well as the admissibility of the opinion.
In reality, the father objects to Dr D because he did not have an input when the assessment began.
The father relied upon a decision of Nepean & Treloar [2010] FamCA 781. There is no principle enunciated in that decision. In that case, Fowler J was strongly critical of what a solicitor had done in providing material to a single expert witness in breach of the rules. His Honour felt that the report of the expert was contaminated because what was given to that expert was not disclosed to the father. In that case, the father had no opportunity to respond to the allegations. That is not the situation here. Even so, that expert could have been subjected to cross-examination and could have been given the father’s material.
An expert who is partisan can be tested by cross-examination. Fowler J likened the test to justify exclusion as the same for that which is applied in a bias application concerning a judge. I am conscious that Boland J accepted the test in R and R [2003] FamCA 1180 but that preceded the current rules and the 2006 amendments to the Act.
I think the two tests are different. In one, the test is the independent observer who is properly informed. In the other, the test ought be whether, after the witness is provided with all of the information and tested upon it, the evidence is so biased that it is not objective. At that point, the judge is unlikely to accept the evidence. I think justice is served by testing, rather than throwing out, the evidence.
The perception of the father seems to be that Dr D will be biased. It is not my task to say how the expert carries out the assessment. In Dasreef Pty Ltd v Hawchar (2011) HCA 21, the High Court looked at opinion evidence as it is considered in s 79(1) of the Evidence Act 1995. The Court observed:
[31]the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant.
The Court went on to say, the rule:
...directs attention to the finding which the tendering party will ask the tribunal of fact to make.
At [32], their Honours observed:
To be admissible under s 79(1), the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence “has specialized knowledge based on the person’s training, study or experience”; the second is that the opinion expressed is evidence by the witness “is wholly or substantially based on that knowledge”.
It seems to me that attention is better focused on those two aspects than on someone’s perception of bias before the assessment is undertaken.

Discovery

One matter which seems to be common ground is that there should be disclosure of documents and information relating to counselling services used. The dispute is over how far to go back.
There is no evidence shown as to why that history is so relevant. The father proposed going back 14 years but that is beyond the orders of Dessau J. It would be an abuse of process to make such an order.
I consider 5 years is ample. The parenting proceedings will be forward-looking, based upon what has occurred but the child is into her teenage years. Time is running out before she reaches adulthood. What counselling many years ago she had must have limited relevance. The same must be said of the adults.
No plausible reason was given why the mother’s history needs that sort of examination. The father sought an order that he too provide 12 years’ worth. He can certainly do so but I would not order it.

Dr K

That leads to the question of who should be the family report write or expert. The existing order is that of Judge Riethmuller made on 16 November 2015 appointing psychologist Mr E. That order [ No 1] required the report to commence on 23 December 2015. The mother’s application is, in reality, an application to enforce that order. For the reasons that follow, I think that the issue should be considered again and by the relevant trial judge.
Not content with opposing the extant order being enforced, the father wanted Dr K to be the reporter but my attention was drawn to the fact that in the defended hearing resulting in the judgment by Dessau J in 2008, the evidence of Dr K did not find much favour.
Dessau J’s reasons for judgment put the argument here in some context. Her Honour said (and here, I have only taken parts relevant):
[102]I also had reservations about [Dr K’s] oral evidence, caused in part by the way he answered questions, and in part because he necessarily had a more limited snap-shot of the parties’ relationship and the extent of their capacity to communicate and co-operate, than was available to me in the course of the broader and more detailed evidence.
[103][Dr K] seemed to maintain an unduly optimistic approach to the parents’ capacity to communicate and co-operate, despite the fact that in the course of the three reports, their communication did not improve, but arguably worsened...
[104]I was unimpressed that he continued to slide across that important issue in the course of the majority of what was lengthy cross-examination of him…
[105][Dr K] was…It gave me the impression that he was defending the father and trying to justify the conclusion in his report.
[106]I was concerned that [Dr K] struggled to concede – until given many opportunities –that this material lacked empathy for the mother, and was a troubling sign in terms of the hope for co-operation and communication between these parents…
[107] By the end of his evidence, [Dr K] made concessions to counsel for the ICL, which amounted to a “back-flip” on his reports.
It would be unwise to use Dr K where the Court has found an “impression” that he was defending the father. Dessau J was obviously critical.
Whilst Mr E is the existing nominated (or indeed ordered) single expert witness, I understand he is in private practice and the child has not seen him before. In circumstances where there is argument about spending money and, early in the year there was the issue of the mother’s inability to pay private school fees, one wonders why the Court would use a private practitioner whatever his experience. In my view (and I do not have to decide this issue) the in-house resources of the Court are more than competent to determine a case such as this. I shall leave that the relevant trial judge.

Future listing

It matters not but I should finally mention that the father sought an order that the matter be listed before me on 48 hours’ notice if there was non-compliance. That cannot happen. However, provided that all things are done which are required by the orders I shall now make, the case will be docketed to the judge for trial.

Dismissal

It is important that these orders cover all outstanding matters. That too might be a forlorn hope as I said when I began these reasons. That said, unless all interim applications are concluded, the substantive matters cannot seriously be listed for final hearing.

I certify that the preceding One Hundred and Seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 April 2016.

Associate:

Date: 15 April 2016