Sullivan & Tyler (No. 2)
[2013] FamCAFC 136
•5 September 2013
FAMILY COURT OF AUSTRALIA
| SULLIVAN & TYLER (NO. 2) | [2013] FamCAFC 136 |
FAMILY LAW – APPEAL – Stay pending an application for Special Leave – Extraordinary Jurisdiction –Whether there are exceptional circumstances – Where the court must consider the merits for the application for special leave.
FAMILY LAW – APPEAL – Leave to Appeal - Appeal from an interlocutory order - prescribed decrees - interlocutory decree.
FAMILY LAW – JURISDICTION – Whether the court has the jurisdiction to order a single expert – where the court has the jurisdiction to order a single expert.
FAMILY LAW – EVIDENCE – Family Report – Expert Evidence – whether the process to appoint a single expert is flawed – where the application for special leave regarding the appointment of a single expert is entirely without merit.
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Family Law Regulations 1984 (Cth) |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 House v The King (1936) 55 CLR 499 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No. 1] (1986) 161 CLR 681 Norbis v Norbis (1986) 161 CLR 513 Sexton & Sexton [2012] FamCAFC 218 |
| APPELLANT: | Ms Sullivan |
| RESPONDENT: | Mr Tyler |
| INDEPENDENT CHILDREN’S LAWYER: | Christos Christaki |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| APPEAL NUMBER: | EA | 92 | of | 2013 |
| DATE DELIVERED: | 5 September 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
JUDGMENT OF: HEARING DATE: | Bryant CJ, Ainslie-Wallace & Murphy JJ 21 August 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 June 2013 |
| LOWER COURT MNC: | [2013] FamCA 472 |
REPRESENTATION
| THE APPELLANT: | Ms Sullivan in person |
| SOLICITOR FOR THE RESPONDENT: | KDB Holmes Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
Orders
Appeal against the orders made by Watts J on 19 June 2013 be dismissed.
The application in an appeal filed by the father on 14 August 2013 seeking the striking out of the mother’s grounds of appeal be dismissed.
The mother pay the father’s costs of and incidental to the appeal as agreed or assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 92 of 2013
File Number: SYC 889 of 2008
| Ms Sullivan |
Appellant
And
| Mr Tyler |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
The matter before the Court involves the child of the parties, D, who was born in August 2004. The history of the parties’ relationship, as it involves the child, is somewhat complex. It is important to give some background, both factual and procedural, to the parties’ dispute to give context to the present appeal.
Background
On 24 April 2008 the mother removed the child from Australia without the father’s knowledge or consent. In May 2008 an order was made in this Court, ex parte the mother, that the child live with the father. In December 2010 the mother and child were located in Europe and in December 2010 the child was placed in the care of the father. In January 2011 the father and child returned to Australia. The child is living with the father and spends time with the mother under supervision.
There are parenting proceedings on foot between the mother and father. Dates for the final hearing of the parenting issues have not yet been fixed.
In November 2011 Loughnan J ordered that Dr Q be appointed to prepare an expert report in the matter. A consequential order made by Loughnan J required a report earlier prepared by Dr W be given to Dr Q for her consideration.
The mother appealed that consequential order.
In February 2012 the father sought an order revoking the appointment of Dr Q. That application was dismissed and the father appealed the dismissal. The operation of the order appointing Dr Q was stayed pending determination of the appeal.
In June 2012 the Full Court dismissed both appeals.
Because of the appeals, the appointments with Dr Q for interviews with the parties, in preparation of her report, were cancelled. Further tentative appointment dates and times were given by Dr Q.
Before any of the scheduled appointments took place, on 21 September 2012 Dr Q wrote to the Court advising that she wished to withdraw her consent to act as the single expert in the matter.
As a consequence, Watts J discharged the order appointing Dr Q as Single Expert Witness and, on 22 October 2012, made orders appointing Dr R in her stead. He also made consequential orders as to payment of the costs of Dr R and ordered that the parties attend on Dr R and arrange for the child to attend on her.
The mother, by notice of appeal filed on 8 November 2012, appealed the order appointing Dr R. On 15 November 2012 the mother sought a stay of those orders. His Honour refused to grant a stay. The mother appealed the refusal to grant a stay.
The appeal against the trial judge’s refusal to stay the operation of his orders was heard by the Full Court on 7 December 2012 and on 14 December 2012 the appeal was upheld and a stay of the operation of the orders appointing
Dr R was granted pending the hearing of the appeal against her appointment to act as single expert in the case.
On 20 March 2013 the mother’s appeal against the orders appointing
Dr R was heard and dismissed in reasons delivered on 25 March 2013. Thus his Honour’s orders of 22 October 2012 remain in force. Appointments have been made for the parties to be interviewed by Dr R on 10 and 11 September 2013 in preparation of her report.
It seems that on 17 April 2013 the mother applied for special leave to appeal to the High Court from the Full Court’s order of 25 March 2013 dismissing the appeal in relation to the appointment of Dr R as single expert. We use the expression “it seems” because although it is apparently uncontroversial that such an application has been filed, no material in respect of it was before Watts J or is before us on this appeal.
On 24 May 2013 the mother applied to Watts J for a stay of his orders of 22 October 2012 pending her appeal to the High Court. On 19 June 2013 his Honour dismissed her application for a stay of those orders.
By amended notice of appeal filed on 5 August 2013, the mother appeals from his Honour’s refusal to stay his orders of 22 October 2012.
The father resists the appeal and seeks to maintain the trial judge’s order. The Independent Children’s Lawyer, while supporting the mother’s application for a stay before the trial judge, appeared and opposed the mother’s appeal.
Evidence before the trial judge
The mother’s application filed 24 May 2013 was supported by an affidavit affirmed on 20 May 2013. It is of assistance to set out some passages from the affidavit.
13. On 25 March 2013 my appeal to the Full Court against the orders appointing Dr [R] was dismissed primarily on the grounds that the Full Court accepted the finding of the trial Judge regarding Dr [R’s] qualifications.
14. On 17 April 2013 I applied for leave to the High Court of Australia against the 25 March 2013 orders dismissing my appeal to the Full Court, as the decision was plainly wrong. My grounds of appeal concern the failure of the trial Judge to make findings of fact supported by evidence and the failure of the Full Court to review the evidence for themselves and make justifiable findings of fact. The Full Court had simply deferred to the trial Judge contrary to the duties required of the Full Court in an appeal.
…
15. If my appeal to the High Court is successful, a different single expert witness / expert witnesses will be appointed and ordered to investigate this matter and prepare a report/s for the court.
17. If this current application for a stay is not granted, and Dr [R] undertakes an investigation, I will be ordered to pay her fees. I only receive one legal aid funding to cover the fees of an expert. …
It is important to note that as well as not providing any documentation evidencing her application for special leave, the mother also did not inform the trial judge of the arguments advanced by her in it nor, potently, tell him that she had a copy of that document in court, resulting, of course in there being no copy of any documents pertaining to special leave appearing in the appeal books.
Trial judge’s reasons
His Honour observed that following the dismissal of the mother’s appeal against the order appointing Dr R as an expert in the case, appointments were made with Dr R to interview the parties. His Honour noted at [10] that these interviews are scheduled for 10 and 11 September 2013.
Referring to the mother’s affidavit in support of the stay application, his Honour observed that the basis for the stay was the mother’s application for special leave to appeal to the High Court from the Full Court’s dismissal of her appeal. He further noted at [11] that the mother did not provide any documents filed by her in the High Court.
His Honour said at [12] that “it appears, on its face, that the application filed with the High Court by the mother cannot succeed given s 95 of the Family Law Act 1975 (Cth)”. He thereafter set out the terms of the section which provide that it is only with special leave that an appeal lies to the High Court from the Family Court.
The trial judge observed at [13] that he had no information as to when the mother’s application for special leave might be heard.
His Honour said:
14.Secondly, the likely practical effect of granting a stay will be the cancellation of the September 2013 interviews with Dr [R]. The mother has not led evidence about how long her application to the High Court is likely to take. It may well be that the High Court will deliver the result of the mother’s application in a time frame that would allow the interviews to continue to take place. It is not appropriate to grant a stay given the uncertain time in which the mother’s application will be determined.
His Honour observed at [16] that the mother had been “wholly unsuccessful in convincing the Full Court … that there was any merit in her appeal”. He further noted at [18] that it was agreed that Legal Aid NSW would be unlikely to pay the costs of preparation of another report, having paid for Dr R, if the mother was successful in her appeal to the High Court.
The trial judge said that the bases of the mother’s application for a stay were essentially the same as those relied on by her in seeking the earlier stay and repeated parts of his earlier reasons.
The trial judge noted at [26] that, consequent on the mother’s earlier appeal, the appointments with Dr R were cancelled and were not able to be remade until some nine months later.
His Honour observed:
29. Once again, in this application, the overwhelming consideration is the possible effect on [the child’s] situation by granting the stay and cancelling another set of scheduled interviews.
His Honour continued at [30] that further delays may result in Dr R not making herself available to conduct the interviews with the parties and take a similar stance to Dr Q and withdraw from the proceedings.
His Honour said:
31. As time goes on, and the ability to manage this case is bogged in the mire of multiple appeals by the mother against interlocutory orders at multiple levels, [the child’s] best interests are left behind. I am mindful of the need for the court to give effect to the principles set out in s 69ZN of the Act and particularly ss 3, 4, 5 and 7.
Further, he said:
32. The mother’s position is that a single expert report is required in this case but only if it is done by an expert who, in the mother’s eyes, has a certain type of expertise.
His Honour recorded at [34] the Independent Children’s Lawyer’s support for the mother’s application for a stay on the basis “that the Full Court will find the mother’s argument as forceful as it was on the last occasion”.
His Honour concluded:
35. The fact is that during the nine months that will have passed between the two sets of scheduled interviews, [the child] will continue to live with his father and spend limited time with his mother. The mother asserts that that situation is dire for [the child] and not at all in [the child’s] best interests. There have been two interim parenting hearings since [the child] was returned from overseas and an order has been made which requires the mother to seek leave to bring any other interim parenting application. The paradox in this case is the mother asserts that [the child] is living in an intolerable situation but at the same time is conducting this litigation in a way that mitigates against this court being able to list the matter for a final hearing, having vacated the 10 days which were set for the final hearing in 2012. What orders are in [the child’s] best interests will best be determined at a final hearing when all matters can be properly ventilated and tested.
The appeal
The mother asserts nine grounds of appeal. They are discursive and opaque. The father applied to have the grounds struck out on the basis that the grounds are “unintelligible” and the relief sought is “meaningless”. As will be shortly apparent, there was considerable force in those arguments. However, we determined, noting in particular that, although an experienced litigant, the mother was self-represented, not to accede to the father’s application. We did require the mother to articulate the point she sought to make in each ground. We will set out each ground in its entirety together with the thrust of each ground as we understand it.
Ground 1
1. Watts J speculated that my High Court appeal against the appointment of the current expert may be unsuccessful because the Family Law Act at s95 required litigants to seek ‘special leave’ in appealing to the High Court and in my application, which His Honour claims not to have seen, I used the term ‘leave’ and not ‘special leave’ (19 June 2013 Reasons for Judgment at [11] and [12]). I did file a copy of this application with the Eastern Appeals Registry (Full Court) as per the High Court rules. His Honour wrongly relied on an over simplification focusing on one word in my application rather than the substance and intent of my application. His Honour did not afford me an opportunity in Court to address this issue. The intent of seeking ‘special leave’ as opposed to ‘leave’ is that the High Court limits appeals to those of public importance or involving a conflict between the courts or important in the interests of administering justice. My application complies with the requirement for seeking special leave. In my application I argue the public importance of my case and the importance in the interests of administering justice. My application meets the criteria for special leave. The Registrar of the High Court reviewed my application for procedural correctness prior to sending it to Canberra. My application was approved (procedurally) by the Registrar. The Registrar of the High Court is cognisant of the fact that I am self represented and that I have in the substance of my application sought ‘special leave’ to appeal. The High Court Rules 2004, part 3 at 3.01.1 state: ‘The Court of a Justice may, at any stage of the proceedings allow a party to amend any document in the proceeding’. Given the strong merit regards administering justice and public significance of my application, it is most likely that if the High Court requires the word ‘special’ to be added before the word ‘leave’, they would permit me to make that amendment. (As amended in the notice of appeal filed 5 August 2013, errors as in original)
The mother said in reference to this ground that the trial judge erred in finding that her application for special leave to the High Court would likely fail because she did not use the word “special” in her application.
It is apparent from his Honour’s reasons that he made no such finding although he noted in passing that the relevant application is one of special leave. There is no substance in this ground of appeal.
Ground 2
2.In dismissing my stay application, Watts J wrongly relied in part on the fact that he had no evidence as to when a High Court determination of my application for leave might occur and that a stay may cause cancellation of the September 2013 interviews with Dr [R] (19 June 2013 Reasons for Judgment at [13], [14], [26], [29], [30] and [32]), a concern His Honour raised in relation to interviews with Dr [R] originally scheduled in December 2012, when he refused to stay the same order on 22 November 2012 (19 June 2013 Reasons for Judgment at [13], 14] and [26]). Current orders appointing Dr [R] do not comply with the rules of evidence, common law or the Family Law Rules 2004 Chapter 15 requirements in appointing an expert. Watts J failed to appreciate that Dr [R] does not have the legally required relevant specialised knowledge to prepare a report in this case and as a consequence Watts J failed to appreciate that a report from
Dr [R] would be inadmissible. With regard to the time delay, I provided His Honour with a solution – that His Honour permits me to seek properly qualified expert opinion in the interim which would have enabled a report to be completed even sooner than the current proposed schedule, and that His Honour immediately grant [the child] significant and substantial time with me to prevent his further deterioration, the further destruction of our relationship and minimise the unacceptable risk from orders placing [the child] in [the father’s] care unsupervised, orders that have resulted in [the child’s] severe deterioration. Watts J refused to consider this solution and refused to consider what was in [the child’s] best interests. (As amended in the notice of appeal filed 5 August 2013, errors as in original)
The mother argued that is an irrelevant consideration to take into account the fact that appointment dates with Dr R would be lost if a stay was granted because the point of her putative High Court challenge was the appropriateness of Dr R’s expertise to the issues to be determined in the case.
It is to be observed that there was no information before the trial judge as to when the mother’s application for special leave would be heard, a matter conceded by her in argument.
The mother’s submissions as to the need to administer “justice” regardless of the time taken, is one which ignores justice being a concept that must apply to all parties, not just her. His Honour was clearly concerned that the mother’s appeal against this interlocutory order would cause delay which was unacceptable to the child and the father. His Honour’s comments in [35] clearly indicate this.
Further, while the mother continues to assert that Dr R lacks the required expertise to offer an opinion in the matter, that is an issue on which she has failed to persuade the Full Court. Whether she persuades the High Court that special leave is appropriate for them to consider that question is, it seems to us, debatable.
Apart from the dictates of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) to which we will later refer, general principles of case management, delay and wasted costs remain significant considerations (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and Sexton & Sexton [2012] FamCAFC 218).
The mother has not made out this ground of appeal.
Ground 3
3. Watts J reasoned that in his view my appeal against the appointment of Dr [R] was without merit and that the Full Court of the Family Court upheld His Honours view (19 June 2013 Reasons for Judgment at [16] and [21]). Watts J failed to appreciated that the Full Court of the Family Court did not run a proper appeal process, in effect there was no appeal. The Full Court simply deferred to Watts J’s first instance ruling without following the constitutional and common law requirement that they review the facts for themselves. On 20 March 2012 in Court the Full Court did not allow verbal argument in relation to the appeal. On these grounds the Full Court of the Family Court appeal miscarried and the matter is now before the High Court for proper determination. The appeal is simple, my legal argument was neither disputed by Watts J nor the Full Court. The dispute arose when Watts J found that
Dr [R’s] CV provided evidence that she had relevant specialised knowledge in child sexual abuse. Watts J failed to identify evidence in Dr [R’s] CV to support that finding. There is no evidence to support that finding in Dr [R’s] CV. Dr [R’s] CV in fact supports the opposite finding. It is inconceivable that an expert would fail to mention their area of expertise in their CV. The Full Court of the Family Court failed to review Dr [R’s] CV for themselves. My appeal has strong merit. (As amended in the notice of appeal filed 5 August 2013, errors as in original)
This ground, as do Grounds 5 and 9, asserts that in determining whether to grant a stay, the trial judge relied on the Full Court’s determination in the earlier stay appeal against the appointment of Dr R and argued that to do so was in error because the Full Court did not determine the appeal properly by reviewing the evidence itself but rather “deferred” to the findings of the trial judge. It was suggested that the Full Court was obliged to consider the evidence for itself to come to a decision on the appeal.
There is little point in making extensive reference to the decision of the Full Court dismissing the mother’s appeal against the appointment of Dr R. However, we note that the mother’s contention in that appeal was to challenge two aspects of his Honour’s decision. First she contended that Dr R did not possess the requisite skill and knowledge necessary to profess expertise in the “two key aspects” of the case as the mother perceived them being, child sexual abuse and family violence. The second contention related to the retention of Dr Q as an expert.
The Full Court said:
39. It relevant to note that, while it may appear to be otherwise from some of the expressions used by the mother in her written submissions, as she clarified during the appeal hearing, the effect of the grounds challenging Dr [R’s] appointment was not that
Dr [R] did not have the relevant experience to make the assessment for which she was appointed, but that there was no evidence before the trial judge on 22 October 2012 that she did.Thus, the mother’s challenge to Dr R’s appointment was one of fact. As the Full Court noted, the curriculum vitae of Dr R was before his Honour and, as the Full Court said at [42], his Honour’s finding that Dr R had the appropriate expertise was one open to him on the evidence before him.
We find no substance in the mother’s challenge asserted in this ground.
Ground 4
4. In his 19 June 2013 Reasons for Judgment at [22], Watts J repeated his 22 November 2012 Reasons for Judgment at [44], [45] and 46]. His Honour thereby repeated the same error in reasoning that caused the Full Court to rule against him the first time he refused my stay application. I will therefore refer to the Full Court’s reasons delivered on 17 December 2012 in which the Full Court at [40] in response to Watts J’s reasons stated: ‘With respect to those submissions, they do not engage with the point by which the mother argues the appeal will be rendered nugatory.’ and at [41] the Full Court stated: ‘We find force in the mother’s argument on this point. … his Honour did not address this issue’ and at [43] the Full Court stated: ‘if the mother’s appeal succeeded but the stay was not granted, she would be materially disadvantaged in that Dr [R] would not be the single expert but she would be not be funded to pay for any subsequently appointed expert.’ and at [44] the Full Court stated: ‘This ground of appeal has been made out’. Watts J’s reasons repeated on 22 November 2012 at [22] fail. (As amended in the notice of appeal filed 5 August 2013, errors as in original)
This ground refers to the mother’s first appeal against the trial judge’s refusal to stay the 22 November 2012 orders and her successful appeal against that refusal. She argued that the basis for upholding the appeal was the Full Court’s determination that to not stay the orders would render the appeal nugatory. The thrust of this ground is that the same consideration applies to this appeal and the Full Court should find that to fail to stay the orders would render her appeal nugatory.
When the trial judge refused on 22 November 2012 to stay the order appointing Dr R, the mother’s appeal against the making of that order had not been heard. The mother argued on the appeal against the refusal of a stay that if the order was not stayed and the then scheduled appointments with Dr R took place and a report was prepared, she would be required to spend her legal aid funds on that report and, if the challenge to Dr R’s appointment was thereafter successful, it would be rendered futile because she would not have the funds necessary to pay for a substituted expert report.
It was on this basis that the appeal succeeded and a stay of the operation of those orders was made.
As is apparent, in March 2013, the Full Court considered and dismissed the mother’s challenge to the appointment of Dr R consequent on the orders of 22 November 2012.
As we have indicated, the appeal against the appointment of Dr R was based on the mother’s assertion that the trial judge had no evidence of
Dr R’s expertise, not that she was not of the necessary expertise.It seems that in this appeal, the mother asserts that Dr R does not possess the requisite expertise to express an opinion on the issues before the court.
However, we observe that the continuation of the appointments and the preparation of a report by Dr R does not prevent the mother from challenging Dr R’s opinion on the basis of lack of expertise nor does it prevent the mother from, consistently with the Court rules (rule 15.49), applying to the trial judge for an order that she be permitted to rely on another expert opinion. Rule 15.49 of the Family Law Rules 2004 (Cth) (“the Rules”) provides:
Appointing another expert witness
1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
(b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing evidence from another expert witness.
Failure to stay the orders appointing Dr R will not render the mother’s appeal to the High Court nugatory. We are fortified in this finding because of the mother’s submissions on her High Court challenge in oral argument before the Full Court. It seems that, despite the grounds of appeal, the point the mother seeks to agitate in the High Court and the point which she argues is one of public importance, is whether the Family Court should require parties to rely on a single expert, chosen by the trial judge from a list of suggested experts. This challenge then is different from her asserted challenge which is particular to Dr R. Thus, to continue with the proposed interviews towards the preparation of the report, in the light of the avenues for challenge of Dr R and the ability to seek leave to rely on a further expert report, does not render the High Court challenge nugatory.
The mother has not made good this ground of appeal.
Ground 5
5.In his 19 June 2013 Reasons for Judgment at [23], Watts J repeated his 22 November 2012 Reasons for Judgment at [47] which also failed in argument before the Full Court. Watts J failed to provide a reason for his finding that it would be in [the child’s] best interests to have a final hearing as soon as possible and failed to identify evidence, facts or circumstances in support of this finding. Watts J failed to correctly identify the significant facts and history relating to [the child’s] best interests, factors that would cause a final hearing to miscarry if it were held now (29 June 2013 Reasons for Judgment at [23], [25] and 35],including:
Relevant History:
a.Watts J erred in 2008 in appointing a known biased Psychiatrist, Dr [W], as Court expert. Dr [W] failed to assess [the child], failed to investigate [the father’s] psychiatric history, failed to report on [the father’s] then psychiatric crisis – threats of self harm, and admission that he felt like ‘doing himself in’. Instead Dr [W] recommended that [the child] at 3 ½ years old could be placed alone in [the father’s] or my care and biased a report in favour of [the father], covering up the sexual abuse.
b.Johnson J on 7 May 2008 wrongly transferred custody of [the child] to [the father], in my absence, without reviewing the evidence, based on the fact that I had left the country and excerpts from Dr [W] biased report – even though the report recommended reducing not increasing supervised contact between [the child] and [the father] until all evidence had been reviewed by the court. Johnson J never wrote reasons for judgment – this is an appealable error. These orders are a miscarriage of justice, not based on adequate evidence and placed [the child] at severe risk.
c.On 22 November 2011, Loughnan J ordered [the child] to remain living with the father when evidence before the Court showed that [the child] had deteriorated severely to the extent that he had become suicidal in the father’s care. Evidence before the Court showed that [the child] was well in my care in Europe. Loughnan J delivered reasons reliant on gaps in evidence conveniently arranged by the removal of documents from Family Court files, including a Mandatory Report stating that [the child] was at risk of mental neglect and suicidal in the father’s care. This ‘suppression of evidence’ from the trial was further supported when two organisations withheld evidence from the trial – one at the request of the children’s lawyer, Mr Christaki. The 22 November 2011 trial was ‘fixed’ and the orders miscarried. [The child] continued to deteriorate.
d.On 30 January 2012, Watts J, in the face of evidence of [the child’s] continued deterioration in the father’s care, illogically granted the father sole parental responsibility of [the child], continued to isolate [the child] to the father’s care and deny [the child] a relationship with me. Watts J relied heavily on reasons from the 22 November 2011 ‘fixed trial’ in order to ‘justify’ this ruling in the face of [the child’s] continued deterioration.
e. Watts J allowed the obstruction, over the course of a year, of an expert report by Dr [Q] which resulted in her September 2012 withdrawal. Watts J then appointed a psychiatrist who does not have the required expertise in child sexual abuse and domestic violence, further denying [the child] expert investigations.
Watts J failed to identify relevant facts and make appropriate findings from those facts including:
1.Independent evidence shows exclusively that [the child] progressed well in my care in Europe, had no significant psychiatric or behavioural problems, attended normal schools, performed well and required no medication (Affidavit filed 27 June 2012 [43] to ]49]).
2.Independent evidence shows exclusively that [the child] has severely deteriorated since having been separated from me and placed in the father’s care. Evidence includes evidence of renewed sexualised behaviours, the father hitting [the child], the father locking [the child] in his bedroom for extensive periods, the father speaking inappropriately to [the child] and the father lying to authorities about [the child]. In addition [the child] becoming suicidal, aggressive, uncontrollable, defiant, committing self harm, failing to perform academically and forming inappropriate attachments to female teachers asking one teacher ‘Will You be my Mum’ (Affidavit filed 10 October 2012 [45] to [65]). Watts J has acted in an unconscionable manner in his effort to bias proceedings in favour of the father.
3.Watts J failed to find that based on significant facts and evidence, it is in [the child’s] best interests for him to be returned to my care until a final hearing is held and that the father be placed on supervised contact only until investigations by a proper expert have been undertaken into [the child’s] severe deterioration in 2011 and 2012, [the child’s] disclosures of sexual abuse in 2008 and in Europe, evidence of sexual, physical and emotional abuse in 2011 to 2012 and the father’s psychiatric illness
4. Watts J failed to appreciate that it is not in [the child’s] best interests to urgently hold a final hearing when the only expert evidence available is a biased, inaccurate and inadmissible report from Dr [W] who has no expertise in child sexual abuse or domestic violence and who has advocated for the father.
5.Watts J failed to appreciate that he is unable to conduct a final hearing because it would miscarry considering:
a.matters concern complex issues related to child sexual abuse and domestic violence are outside the accepted field of knowledge of Watts J. His Honour is unable to make findings until an investigation is undertaken by an expert in child abuse. Watts J has denied [the child] an expert investigation to date.
b.Dr [W] failed to review the father’s past psychiatric history and failed to report on the seriousness of the father’s psychiatric issues at the time he wrote his report in 2008. His report did not reflect evidence in his file notes. The father’s psychiatric history and issues have never been investigated. This investigation needs to be done, ideally by an adult forensic psychiatrist and before placing [the child] in his care.
c.Watts J is unable to hear this matter on a final basis as he is required to disqualify himself from this matter given evidence supports the fact that [the child] has deteriorated severely since Watts J has adjudicated this case and that Watts J has enforced orders denying [the child] a relationship with his mother and isolating him to a harmful relationship with the father. Watts J has used parenting orders as a form of punishment of me rather than in consideration of [the child’s] welfare.
d.Wrongful interim orders need to be changed to secure [the child’s] welfare until a proper investigation has taken place. (As amended in the notice of appeal filed 5 August 2013, errors as in original)
In articulating the point sought to be made in this ground, which appears on first reading to be little more than a litany of complaints about the proceedings so far, the mother contended that his Honour’s conclusion that it would be in the child’s interests to have a final hearing was a finding unsupported by reasons.
The mother did not concede that, given her concerns about the child’s present welfare as evidenced by her submissions and, indeed, the particulars in the ground of appeal, it would be in fact best for the child to bring the matter to a final hearing.
The mother’s contention is that the trial judge failed to understand that the child’s interests would be best served by “an investigation” and that he ought to make interim orders for the child to live with her or to spend significant and substantial time with her. Further, she contended that the child’s interests would not be served by a “legal proceeding”. In her written submissions, the mother argued: (paragraph 15)
It would be contrary to Family Law Best Practise [sic] Principles, contrary to [the child’s] best interests and unconscionable to leave [the child] in his current circumstances whilst proper investigations continue to be denied him, whilst evidence continues to be manipulated and whilst proceedings and specifically appeals continue to be delayed.
It seems to us that his Honour has been trying to bring this matter to a point where all the evidence can be considered and a determination made about the best interests of the child. Part of that determination will include a consideration of the expert opinion or opinions.
The mother further argued that the trial judge failed to give proper attention to the issues to be decided by the court in considering the appointment of an expert. The mother contends that she had recommended experts who, in her opinion, were possessed of sufficient expertise to determine the issue as she defines them. She asserts that the trial judge erred in not accepting her “solution to the problem” which was that she identify the single expert.
A consideration of the trial judge’s reasons in this instance indicates that he made no such error.
Ground 6
6.I accept Watt J’s point at [24] of the 19 June 2013 Reasons for Judgment that granting of a stay is discretionary, however he relied on case law that does not fit the law or facts relating to my case. Watts J referred to Sheldon & Weir [2011] which was referred to by the Full Court. Sheldon & Weir, in contrast to my case involves the question of expert evidence in relation to a dispute about the significance of aboriginal heritage. Sheldon & Weir, in contrast to my case did not involve:
a.a child who has severely deteriorated, developed psychiatric illness and required medication and placement in a class for the emotionally disturbed in a special school – as a result of Family Court orders isolating the child to the father without first investigating concerns of abuse and psychiatric issues and denying the child a relationship with the mother – for 2.5 years.
b.evidence and disclosures indicative of sexual, emotional and physical abuse perpetrated by the father and parent psychiatric issues suffered by the father that are not controlled and that adversely affect his ability to parent.
c.a contested and biased psychiatric report written by Dr [W] known to be biased and lacking in integrity and lacking in expertise relevant to child sexual abuse and domestic violence. Watts J has stated he wishes to rely on this Psychiatrist and his report in a final hearing (22 October 2012 Reasons for Judgment at [15]).
d.a persistent refusal by the docket Judge (currently Watts J) to appoint an expert with relevant specialised knowledge in child sexual abuse to investigate the case.
e.repeated refusal by the docket Judge to allow the child to spend time with the mother, even in the fact of evidence that this has severely harmed the child.
It was determined in Sheldon & Weir that the father could speak for himself about matters concerning his own Aboriginal culture and that a Family Consultant could give evidence concerning underlying prejudices (Sheldon & Weir at [72] and [102]). The issues in my case are complex, specialised and disputed by the parties. The issues were determined by the Full Court on 2 May 2012 to be too complex for a Family Consultant and determined to require expert opinion leading them to dismiss the father’s cross appeal seeking to discharge the appoint of Dr [Q] and his request that no investigations into sexual abuse or psychiatric issues be undertaken. (As amended in the notice of appeal filed 5 August 2013, errors as in original)
The mother submitted that while she agreed that the determination to grant a stay was one for the exercise of judicial discretion, the trial judge erred by referring to a case in which the facts were entirely distinguishable from those in this matter.
His Honour’s reference to authority was in the following context:
24. On appeal the Full Court confirmed that the granting of a stay is a discretionary matter and that in this case, the best interests of [the child] is an important consideration (see K & B (2006) FLC 93-288; Sheldon & Weir (Stay Application) [2011] FamCAFC 5).
The cases to which his Honour referred establish the principles to be considered in determining whether to grant a stay, the facts of each individual case provides the vehicle by which the principle is articulated. His Honour made no error in referring to those authorities.
As was conceded by the mother, to grant a stay is quintessentially an exercise of judicial discretion. The task of establishing error in that exercise is difficult as cases such as House v The King (1936) 55 CLR 499 and Norbis v Norbis (1986) 161 CLR 513 make plain. The mother has not demonstrated any relevant error.
Ground 7
7.Watts J at [25] of his 19 June 2013 Reasons for Judgment repeated a paragraph from the Full Court’s reasons (17 December 2012 Reasons for Judgment at [31]) in which the Full Court referred back to paragraph 47 of Watts J’s 22 November 2012 Reasons, but only for the purpose of summarising those Reasons, not for the purpose of agreeing with them. The Full Court, in the next section of their 17 December 2012 reasons, titled ‘The Appeal’, went on to address the appeal before them, highlighting the fact that Watts J had failed to address the key ground of my application for a stay. The Full Court then ruled in my favour. Watts J’s reasons at [23] and [25] of his 19 June 2013 Reasons for Judgment both refer to the same paragraph from his 22 November 2012 Reasons (paragraph 47) which were not accepted by the Full Court and fail for the reasons already indicated in ground 5 above. Evidence supports the view that it is in [the child’s] best interests that he be returned to my care, have restricted and supervised time with the father and have an expert with relevant specialised knowledge investigate the child abuse and psychiatric issues in this case. A final hearing at this stage would miscarry for the reasons given in ground 5 above. For the same reason Watts J’s reason at [29] of the 19 June 2013 Reasons fails. (As amended in the notice of appeal filed 5 August 2013, errors as in original)
The thrust of this ground is that his Honour erred in citing a passage of the Full Court’s judgment where it referred to his reasons as if the Full Court had approved of those reasons when, in fact, the Full Court had merely set out those paragraphs as part of its discussion of the trial judge’s reasons.
It is difficult to understand what error could possibly arise from this. However, we will set out the impugned paragraph. His Honour said:
25. The Full Court at paragraph 31 said the following:
31.His Honour considered that “the overwhelming” consideration was the child’s best interests and determined that it is in [the child’s] interests to have a final hearing as soon as that is possible. His Honour was clearly concerned further delay in a final hearing would adversely impact on his future welfare at [47]. In fairness to his Honour, he understood March 2013 was the earliest date upon which the mother’s appeal might be listed. …
We note that no relevant challenge was made to this comment by the trial judge when the appeal was heard in December 2012.
The mother did not assert that his Honour’s repeating that which he had earlier said was productive of particular error and we find no substance in this ground.
Ground 8
8. Watts J at [31] of his 19 June 2013 Reasons for Judgment failed to identify the significant facts in this case in relation to 69ZN of the Act. I brought 69ZN of the Act to Watts J’s attention on 22 October 2012 and I refer to my argument on that law in my 22 October 2012 Submissions at [3] to [52]. I have re-stated the significant facts in this case in ground 5 above. Watts J threatened on 6 June 2013 and does so again here that if I do not agree to attend interviews with Dr [R], even though I am appealing her appointment and attendance would render my appeal nugatory, he would force a final hearing without expert opinion (other than his intention to rely on Dr [W]) and in addition thereby cancel my appeals to the High Court and Full Court of the Family Court. I have given evidence and argument in the grounds above in support of [the child’s] most pressing need for urgent reunification with me, protection from the father and an investigation by a qualified expert. Watts J is not qualified to make findings of fact on the complex child abuse issues at a final hearing. As I argued in Court on 6 June 2013, Watts J can make interim orders for [the child’s] welfare as per the Family Violence Best Practise Principles and Family Law Act 69ZR which states that a Judge can make determinations, findings and orders at any stage in the proceedings (6 June 2013 Submissions at [10(g)]). Interim orders are urgently required in the face of evidence showing [the child’s] deterioration has related solely to orders isolating him to the father’s care and denying him a relationship with me. Furthermore Watts J is compelled to disqualify himself from this case given [the child’s] severe deterioration under his case management and as a result of orders made by His Honour and Loughnan J. The Full Court has acknowledged that expert opinion is required and that the matters are too complex for a family consultant who would not have the relevant specialised knowledge. Furthermore Watts J would deny me my legal right to correct the numerous wrongful and miscarried judgments that are under appeal. Forcing an urgent final hearing would conveniently sweep the wrongdoings and possible corruption in interim proceedings under the carpet and achieve the father’s goal of avoiding investigations into child sexual abuse and psychiatric issues (as mentioned in ground 6). This would be further evidence that there is cause for serious concern and need of a special inquiry into the method of adjudication of the Family Court Judges in this case and their resistance to a proper expert investigation. (As amended in the notice of appeal filed 5 August 2013, errors as in original)
The mother contended that the trial judge was wrong to apply the provisions of
s 69ZN of the Act to the matter because it is not in the child’s interests to have a prompt legal hearing but an “investigation”.Section 69ZN contains a statement of principles to which a court must give effect in conducting child related matters. In particular ss 69ZN (4) and (7) state:
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
As with the earlier ground, this ground of appeal proceeds on the basis that the trial judge has erred in attempting to have the matter heard in the absence of “proper investigations” which, it is tolerably clear, means a report conducted by a person nominated by the mother. We find no error in his Honour’s approach. This ground fails.
Ground 9
9. At [35] of the 19 June 2013 Reasons for Judgment, Watts J failed to correctly identify the cause of the delays in expert investigations. Dr [Q], the only expert with relevant specialised knowledge was appointed on 22 November 2011 by Loughnan J having dismissed Dr [W]. Interviews were scheduled with Dr [Q] for 16 February 2011. The father and the children’s lawyer, Mr Christaki blocked those interviews for the remainder of the year until Dr [Q] finally withdrew on 21 September 2011 (Affidavit filed 10 October 2012 at [5] to [21]). A proper investigation would have been completed by April 2012 – prior to [the child’s] continued deterioration and prior to prescribing [the child] medication, if Watts J had not permitted the obstructive behaviour of the father and Mr Christaki. I made known that I wished to use the results of this investigation in my criminal trial proceedings. Watts J was against this (7 December 2012 Summary of Argument, ground one at [3] and [4]) having pressured the AFP into charging me criminally in the first place (Transcript 10 June 2008). Watts J failed to consider Dr [Q’s] re-appointment on 22 October 2012 and instead appointed an expert specialised in child behaviour problems not child abuse. The father is attempting to attribute [the child’s] deterioration in his care to developmental behaviour problems. The issues are complex and require an expert with specialised knowledge in child abuse. The delays in expert investigations have been the result of Watts J’s involvement in this case. Watts J acknowledge that [the child] continues to live with his father and spend limited time with his mother, but failed to acknowledge that this situation is the result of his own interim orders and his refusal to change them. Watts J continues to withhold [the child] from my care. Complying with orders that fail to address the true issues in this case will be of severe detriment long term to [the child]. Watts J should disqualify himself from this case and interim orders should be made returning [the child] to my care. (As amended in the notice of appeal filed 5 August 2013, errors as in original)
The basis of this challenge was that the trial judge failed to take into account the history of the matter in considering the delay to the final hearing.
We are of the view that, in this matter, the trial judge was acutely aware of the delays in the matter and had heroically persisted in attempting to manage the case so as to give effect not only to the statutory mandates but also to give effect to the child’s best interests.
We reject this argument.
Legal Principles
The jurisdiction to grant a stay pending an application for special leave to appeal to the High Court is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No. 1] (1986) 161 CLR 681 at 684, Brennan J said:
A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal. That was the situation to which this Court adverted in Marconi’s Wireless Telegraph Co. Ltd. v. Commonwealth [No. 3]. There the Court granted an order staying the operation of one of its own orders pending the hearing of an application to the Privy Council for special leave to appeal. What the Court said in that case, is applicable to this case:
“The Court will not ordinarily grant an application of this kind unless very strong and special grounds are shown. This is a very peculiar case. The conditions are such that, on the one hand, if the stay is granted without more, the whole benefit of the action may be lost to the plaintiffs, while, on the other hand, unless the stay is granted on some fair terms, the defendants’ appeal will be nugatory. It really is a question of the preservation of the rights of the parties without disregard of the balance of convenience.”
(Footnotes omitted)
In considering the merits of the mother’s application for special leave, his Honour expressed the view that the mother’s appeal against the orders appointing Dr R were without merit, that she had been unable to persuade the Full Court otherwise at [16] and that successful special leave applications to the High Court “are the exception not the rule and are even rarer where what is being challenged is an interlocutory order” at [17].
The mother argued that his Honour’s analysis of the merits of her application was in error because he did not consider the particulars of her special leave application. We regard this submission as both disingenuous and somewhat outrageous given that the mother conceded in argument before the Full Court that she had not given his Honour a copy of her application, did not inform him of its contents nor did she indicate to him that she had a copy with her. Her riposte to the Full Court’s queries of her on this point was that his Honour “did not ask” for the document.
His Honour’s consideration of the matter as known to him was, in our view, entirely correct and no error is shown.
The mother revealed in her oral submissions to the Full Court the basis of her application for special leave. She contends that the Family Court should not appoint a single expert and that the process of the appointment, by which the parties are invited to submit suggested experts, from which the court selects the person to be appointed as single expert, is flawed. It is flawed, she argued, because parties suggest an expert who in the opinion of that party will best portray that party’s case and because on selecting a person to be appointed, the trial judge is immediately biased. The mother argues that this point is one of sufficient importance that she will be given leave.
To the extent that the mother’s application for special leave involves a challenge to the appointment of Dr R as an expert, we are of the view that it is entirely without merit. We are similarly of the view that her general challenge to the jurisdiction of the Court to order a single expert demonstrates little in the way of merit.
However, whether or not the mother’s contentions to be argued on special leave have merit, we do not propose to order a stay of his Honour’s orders. That the orders are not stayed will not operate to frustrate or thwart the subject matter of the mother’s appeal. As we have indicated, this is an appeal from an interlocutory order made in preparation of the matter for hearing. Once
Dr R has presented her report, the mother is at liberty to seek an order that she be permitted to rely on a further expert report and is of course entitled to challenge Dr R’s report if she asserts it is defective, whether by reason of sufficient expertise or any other basis.
The mother has failed to make good any grounds of appeal and the appeal will be dismissed.
Leave to appeal
Section 94AA(1) of the Act refers to “prescribed decrees” being the matters in respect of which leave to appeal is required. Regulation 15A of the Family Law Regulations 1984 (Cth) defined “prescribed decrees” as “an interlocutory decree (other than a decree in relation to a child welfare matter). A decree includes a refusal to make an order. The refusal of a stay does not operate to finally dispose of the parties’ rights and, consistent with the authority of Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178, we are of the view that a decree in relation to a stay is, of its nature interlocutory. That however leaves the question as to whether the decree appealed from in this case is a "child welfare matter" as defined. Regulation 15A(2) defines child welfare matter as a matter relating to:
(a)the person or persons with whom a child is to live; or
(b)the person or persons with whom the child is to spend time or communicate; or
(c)any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.
In this case the appeal is against an order refusing a stay (pending an application for special leave to the High Court) which relates to the appointment of an expert witness. The order under appeal relates to practice and procedure and does not fall within the class of matters in reg 15A(2). On this basis leave to appeal is necessary.
During the hearing of the appeal, there was some discussion with the mother as to whether leave to appeal was required. We indicated that it was not. There were thus no submissions made on the point. On reflection we consider the position to be somewhat different as we have already indicated. Because the mother did not have the opportunity to make submissions on this point we are prepared to accept that the question of whether leave is required in this case remains moot. As we have already determined that the substantive appeal should fail, for present purposes we propose to order simply that the appeal be dismissed.
Costs
As is usual, we sought submissions from the parties on the question of costs of the appeal.
In the event that the appeal failed, the father’s solicitor sought an order for costs in an identified amount, arguing that to require these parties to undergo the process of assessment of costs (accepting that no agreement would ever be reached as to quantum) was difficult and costly. While we understand the reason for the submission, and while the solicitor provided the court with a document which set out the costs incurred by the father by reference to the hours spent on the matter against an hourly rate, we find ourselves unable to determine whether those fees are otherwise reasonable.
The Independent Children’s Lawyer too sought an order for costs in an amount which, it was said, was the amount of the “lump sum” grant payable to counsel who appeared for the Independent Children’s Lawyer on the appeal.
As to the Independent Children’s Lawyer, we observe that counsel for the Independent Children’s Lawyer appeared before the trial judge and supported the mother’s application for a stay of the orders. However, when the matter was before the Full Court, the Independent Children’s Lawyer opposed the mother’s appeal. We were somewhat puzzled by this apparent volte-face and counsel for the Independent Children’s Lawyer indicated that his support of the mother’s application for a stay was because she would inevitably appeal any refusal to order the stay. In any event, the Independent Children’s Lawyer filed written argument in the appeal, making submissions in opposition to it and indicating in the document that the Independent Children’s Lawyer did not wish to make any further submissions. Consistent with the document, counsel for the Independent Children’s Lawyer did not make any further submissions.
We are of the view that in these circumstances, no costs should be awarded to the Independent Children’s Lawyer as there was nothing added in oral argument and, given the written submissions, there was nothing further to add.
The mother argued that she ought not be ordered to pay costs because she has a genuine dispute and should not be “afraid” to seek justice through appeals. She further argued that she is not employed because attention to various legal matters robs her of the time to devote to paid employment. She submitted that she was in receipt of a government benefit.
The pursuit of justice does not come with a blank cheque. The mother’s unsuccessful appeal has caused the father and the Independent Children’s Lawyer to expend funds to meet her meritless appeal. Although she claims to have little in the way of funds, indigence of itself is not a barrier to a costs order being made in an appropriate case. This is such a case and the mother should pay the father’s costs as agreed or assessed.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ,
Ainslie-Wallace and Murphy JJ) delivered on 5 September 2013.
Associate:
Date: 5 September 2013
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