Stephens and Maloney (No. 2)

[2008] FamCA 556

FAMILY COURT OF AUSTRALIA

STEVENS & MALONEY (NO. 2) [2008] FamCA 556

FAMILY LAW – EVIDENCE – Single expert witness – Challenge to appointment – Case management issues – FLR Rule 15.47-15.49

Family Law Act 1975 (Cth)

APPLICANT: MR STEVENS

RESPONDENT: MS MALONEY

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12036 of 2007

DATE DELIVERED: 9 JULY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 9 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SWEENEY

SOLICITOR FOR THE APPLICANT: PEARSON SCHETZER & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR CURTAIN

SOLICITOR FOR THE RESPONDENT: BRUCE CHALMERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS VOHRA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

ORDERS

IT IS ORDERED:

1. That the application in a case filed by the husband on 6 June 2008 be dismissed.

2. That the Independent Children’s Lawyer arrange (in consultation with the solicitors for each of the husband and wife) an updated consultation with the husband, wife and children to attend for a further report to be prepared by Mr L, Psychologist, and be filed with the Court on or before Friday 24 October 2008.

3. That any updated report be undertaken and completed at the joint expense of the parties with proper financial arrangements to be agreed upon with Mr L prior to 1 September 2008.

4. That on or before Monday 13 October 2008 each of the husband and the wife make, file and serve an updated Form 13 Financial Statement of their income, assets and liabilities (on a detailed basis) as at 30 September 2008.

5. That the question of payment of the wife’s costs be reserved to the Trial Judge save that the quantum of such costs be fixed in the sum of $2200 inclusive of Counsel’s fee on brief, solicitors fees of and incidental to the preparation of the interlocutory hearing and GST.

6. That liberty be reserved to either party to apply for any procedural order as may be necessary.

7. That the extempore reasons for judgment be transcribed and placed upon the file and made available to all parties.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED

A.That the interim findings in this case or other findings of fact are specific to the interlocutory issues before Young J and are not intended to bind the Trial Judge on any factual determination or credit issue that may arise in the trial generally.

IT IS NOTED that publication of this judgment under the pseudonym Stevens & Maloney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12036 of 2007

MR STEVENS

Applicant

And

MS MALONEY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Stevens & Maloney and the independent children's lawyer is before me in the Judicial Duty List.  Mr Sweeney of counsel appeared for the applicant husband, Mr Curtain of counsel for the respondent wife and Ms Vohra of counsel is briefed by Legal Aid Victoria for the children.

2. The husband was present in court for the hearing but not for these reasons for judgment.  The wife was unable to be at court this day.  She currently is in W during the school holiday period, as was provided for in the orders of her Honour Brown J made 26 November 2007. 

3. This is an extempore judgment delivered immediately upon receiving oral submissions.  The essence of the orders sought by the husband are those outlined in his application in a case filed 27 June 2008, wherein he seeks permission to adduce evidence from a psychologist other than Mr L, who has previously seen the parties and both children and prepared a report, at the request of the Independent Children's Lawyer, and that is filed pursuant to his affidavit as an annexure thereto on 20 June 2008.  Specifically, the husband seeks that that report and the affidavit of Mr L not be admitted into evidence and the consequential orders, as were expounded in his interim application.

4. In opening the case, Mr Sweeney has referred the court to Family Law Rule 15.49.  That Rule requires that if a single expert witness has been appointed to prepare a report, then a party must not tender a report or adduce evidence from any other expert witness on the same issue without the court's permission.  Subparagraph (2) of that Rule permits a court to allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that there was either a substantial body of opinion contrary to the opinion expressed by the single expert that is or may be necessary for determining the issue or if there is another expert witness that has knowledge of matters not known to the appointed single expert or otherwise, and specifically relied upon by Mr Sweeney, is that there is:

   (c)another special reason for adducing evidence from another expert witness.

5. The application is opposed, both by counsel for the wife and the children.  I have heard submissions from all counsel and read the affidavit material and annexures and exhibits to which I was directed.  My decision is therefore made in this busy interim hearing list and upon the material identified. 

6. The husband's affidavit was filed 27 June 2008.  Annexed to that affidavit is the original letter of appointment of the consultation which was forwarded by Legal Aid Victoria to Mr L and to the parties.  In that document and under the heading Appointments, it is stated that the parent with the children then with them on 1 March 2008, is to attend at 12.55 p.m. in Carlton.  The earlier parent - and in this case, that happened to be the mother with whom the children were not then residing on that Saturday - was to attend at 11.30 a.m. 

7. The husband's affidavit states that he was required to attend the interview venue at 12.55 a.m.  He maintains he received a call from the wife at about 12.30 p.m., inquiring where he was, and that seems consistent with the body of evidence.  Thereafter, he arrived shortly prior to the appointed time of 12.55 p.m. (or at least then that was thought to be the appointed time).  His affidavit touches upon the exchange with he and Mr L and otherwise documents the husband's evidence that his meeting with Mr L "lasted approximately five minutes". 

8. I have otherwise carefully read paragraph 7 of the affidavit.  Subsequently paragraph 9 identifies that Mr L then spoke with the child R and, after some period of reluctance, with the child, C.  The conclusion that the husband drew was that no more than five minutes was spent in total with the children and that he and the children departed Mr L's room at approximately 1.10 p.m.   By inference therefore, the husband's assertion is that approximately 15 minutes were spent in the interview process, in total, by himself and both children. 

9. The wife's response was filed 4 July 2008 and she seeks a dismissal of the interim application of the husband.  Her affidavit was likewise filed 4 July 2008 and I have read and evaluated the evidence in that affidavit.  She deposes to the fact that she was aware that the husband's time in consultation with Mr L was to commence at 12.15 p.m.  She does not provide the basis for that evidence as contained in paragraph 5 of her affidavit.

10. In paragraph 6 she confirms the fact deposed to by the husband, that she rang him and inquired as to his whereabouts and informed him that he was behind time for the interview.  That of course would have been news to the husband, as I accept he was intending to arrive for a 12.55 consultation.  The wife comments that the husband made no reference to her about the appointment time or timing.  The wife's affidavit estimates that the husband and Mr L were together for "at least 15 minutes".  Further, she estimates that the child, R, was with Mr L for "at least 10 minutes" and that thereafter C, who she acknowledges was reluctant to meet Mr L on his own, was nevertheless with him for a period of approximately five minutes when accompanied by his brother, R. 

11. The wife deposes that she left Mr L's rooms at approximately 1.30 p.m. and on that basis, the wife's evidence would be that there was "at least 30 minutes" of consultation time which Mr L made available to the husband and the children. 

12. Of significance is the fact that the wife raises a lack of the husband's then complaint as to any time pressure, though perhaps understandably, that is a matter that the husband would not necessarily raise with the wife, but more likely with his solicitor, who was clearly not present within the interview process.

13. The appointed Independent Children's Lawyer, Ms Jenkins, of Victoria Legal Aid, has filed with the leave of the court this day an affidavit.  No objection was taken to the affidavit and I specifically highlight there is no objection taken to the acceptance by the court and the reading and reliance upon exhibit EJ3 - that is, an email from Mr L dated 2 July 2008 and forwarded to the solicitors for the parties.  I have read and evaluated Ms Jenkins' affidavit and annexures.

14. It does seem to be now a matter of common agreement that when Mr L was approached and appointed to conduct interviews and to prepare a report for Family Court purposes, that was initially confirmed by an email which his office caused to be sent to respective solicitors, including the Independent Children's Lawyer. That email was timed at 3.22 p.m. on 23 January 2008 and it is now, and without objection, exhibit “ICL1” in the proceeding. That originating email clearly set the time of the interview and consultation with the parent who had the children on that particular day to be at 12.15 p.m. Otherwise, the email confirmed the costs of the report preparation and made appropriate reference to Rule 15.47(2) of the Family Law Rules.

15. What thereafter seems to have occurred in this case was that there is a typographical error contained in the Victoria Legal Aid letter to the parties prepared the following day, that is, 24 January 2008, and the time for the appointment that was always intended by Mr L to be 12.15 p.m. was notified to be 12.55 p.m.  I observe that the original email with the correct time was sent to the husband's solicitor.  I do not make this as a criticism because no doubt many emails and many documents arrive at solicitors' offices at any given day, but clearly there was no checking or cross‑reference of the time of the appointment contained in that email to that which was contained in the letter received the next day from Victoria Legal Aid.  The information was all available to the husband's solicitor.  It could have been documented and forwarded to the husband and the issue of the timing, that is, what is the correct timing of the report, have been identified.  That did not occur.

16. There is nothing in the evidence before me to suggest that the wife knew or otherwise had any obligation to advise the husband, no doubt she was expecting his arrival at 12.15 p.m., but that fact is not a matter upon which I in any way rely in determining the outcome of this interlocutory hearing.  I know as a fact that Mr L did confer with both parties and the two children on the appointed day, for whatever period of time.

17. The issue of any complaint on the day is only that evidenced by paragraphs 6 and 7 of the husband's affidavit and it would not appear that he made any fundamental claim or dispute of the limited time within that affidavit.  There was a discussion as to the mistake in the appointed time and there is a reference to the husband identifying Mr L was rushed (paragraph 8) and further that he had another family arriving shortly for a further assessment.  I have carefully read and evaluated those complaints of the husband within that context.

18. Subsequently, the solicitor acting as the Independent Children's Lawyer has requested a detailed response from Mr L.  Her request is contained as exhibit BJ2 to her letter of 1 July 2008.  Certain questions were asked of Mr L therein and they have been answered in some detail by him in the email of 2 July 2008. 

19. There was some discussion at the outset of this case where Mr Sweeney properly highlighted to the court that any decision must be based on evidence.  Thereafter, and in the course of submissions, Ms Vohra highlighted that her instructing solicitor had on a previous occasion asked of the solicitor for the husband whether this information could be obtained by letter or was an affidavit required from Mr L.  In the end, that matter was not further the subject of any contest and a copy of the transcript would, if ever necessary, highlight a discussion that I had with Mr Sweeney on that basis.  I am comfortable to proceed on the basis that the email from Mr L is appropriately before the court and can be used to balance a proper determination of this interlocutory dispute.

20. What is clear from that email is that there was approximately 35-45 minutes spent in consultation with the wife.  She was seen prior to the husband.  Thereafter, and as a matter of significance, Mr L has observed that his notes of interview with the husband are more extensive than those of his interview with the wife.  He rejected and indeed said that he could not concede that the interview with the husband lasted approximately five minutes. His estimate, from his notes and presumably in part from memory and from the detail provided in his report, was more like 20 minutes.  He further estimated approximately 15 minutes with the eldest child and 10 minutes with the reluctant C.  In total, his estimate is 45 minutes which is greater than the wife documented but far and above that the period that the husband complained only occurred.  Thereafter, the email responded in detail to the other questions asked of him and I emphasise that I have read and had submissions upon and have considered the whole of that email in the context of this case. 

21. Ultimately, on a careful review and evaluation of the evidence before the court on this interlocutory hearing and having regard to the additional submissions, the exhibit and the annexures, I would be concerned that the husband has somewhat underestimated the actual time that he spent with Mr L.  Certainly, and as a fact, I would find that his interview lasted more than five minutes.  I have read Mr L's report and whilst it is not as extensive as sometimes reports are before the court, I am aware of the whole of paragraph 4 thereof and the quotations therein from his interview with the husband and I do not find that on the appropriate balance of probabilities, it would have been five minutes as the husband said in an approximation.  There was clearly other time spent with the children.

22. One of the matters to which I have had regard and in the circumstances I think appropriate is that the husband did not register with the independent children's lawyer any complaint after the interview and indeed, as I understand the submissions today, the only complaint received by Ms Jenkins was at a subsequent court hearing on 26 June 2008, that is, the better part of four months from the interview to complaint.

23. Mr Sweeney emphasises that concern was raised between the client and his solicitor, but seemingly that was not forwarded on to the other parties or indeed at that time and post the interview to Mr L.  That fact is not a foundation to my reasoning but it does lend some support that seemingly, the wider expansion of concern occurred at a date after the release of the findings of the report.  The matters that I am therefore concerned with is whether this report should be and remain the primary report in the proceedings, other than of course all evidence of the parties and their witnesses.

24. Before the court is a substantial issue and that is where these two children, now aged nine and six, should live.  The husband has a secure and permanent job in Melbourne and lives in the Western suburbs, and the wife deposes to relocate to W in Western Victoria.  In this factual background, I have had the opportunity to consider the orders made by Brown J on 26 November 2007 and her reasons for judgment.  Subsequently, the matter came before Cronin J who did not afford priority to the hearing of the matter and there again, the matter came before Cronin J on 26 June 2008, where this application was foreshadowed and where his Honour then fixed the matter for the Judicial Duty List on this day and that is how the matter comes before me.

25. I find on all of the evidence before me and having careful regard to the submissions of counsel that there are no special reasons such as I should rely upon to facilitate the preparation of another expert witness.  In that regard, the husband's application will be dismissed.

26. There are two other matters arising.  The first is that as part of my consideration, I was alert to Mr Sweeney's suggestion that a family consultant from within the court could be appointed and a fresh report could now be prepared.  I invited counsel to make inquiries and I accept that the timetable was such that a report could have been prepared by the court.  That course of action was wholly opposed by both the wife and the Independent Children's Lawyer. 

27. The predicament in part that would have been created then was that there were two experts then to give evidence, as clearly - and subject to cross‑examination on all issues - Mr L's report was validly before the court and has been accepted into evidence.  I emphasise that I have evaluated in the context of this interlocutory judgment those options and I find that the engagement of a further expert was both not appropriate and not required on the facts before me. 

28. The second issue that I record is that the current report of Mr L was prepared in early to mid-April 2008.  If this matter is now to be fixed for hearing before her Honour O'Reilly J in November, and as a special fixture, there is the issue of whether there should be any update to the report, the wishes of the children and like relevant facts.  I would conclude that it would be of benefit for there to be an October update and in that regard, the husband should be invited to participate.  Whether he so attends is ultimately a matter for him, upon advice, to decide.  It would be a very unfortunate turn of events if the trial Judge considered that there should be an update of the report and, particularly as the Judge is coming from interstate to hear this matter, there was to be any interruption to the smooth and efficient hearing and determination of the case.  Orders should be put in place for the benefit of the children.

29. I propose therefore to order that there be an update of the report, specifically as to the children's best interests and wishes and I do that with the real understanding that C is too young at six years of age, but nevertheless with R at nine years of age, there might be some benefit. 

30. Finally, I record that there is clearly an obligation - and practitioners will know and understand this fact, and the practitioners in this case are all very experienced - to have this matter ready for trial.  The husband and wife are not legally aided.  They are funding these proceedings and the smooth and efficient hearing of all applications and the conclusion of the trial can only be in the best interests of the children. 

31. For those brief extempore reasons, I will make orders dismissing the husband's interlocutory application and otherwise ordering the independent children's lawyer to facilitate an updated report from the appointed expert.  I will, in that context and because of Mr Sweeney's submissions today reserve liberty to apply.  It may be that an application will be made to excuse the husband from attending any updated consultation and I leave open all proper avenues to him.  I would however observe that necessarily one would think this report should be updated and before the judge for final hearing.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate:      …

Date:              21 July 2008