Swefford and Tarbell (No 3)

[2012] FamCA 698

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL (NO. 3) [2012] FamCA 698

FAMILY LAW – CHILDREN – interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Tarbell

RESPONDENT: Ms Swefford

INDEPENDENT CHILDREN’S LAWYER: Mr Christaki

FILE NUMBER: SYC 889 of 2008

DATE DELIVERED: 9 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 9 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: KDB Holmes Solicitors

COUNSEL FOR THE RESPONDENT: Ms Merkin

SOLICITOR FOR THE RESPONDENT: Consolidated Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The mother’s applications contained in her Application in a Case filed 27 June 2012 be dismissed.

2. So far as it is necessary, leave is granted to the father to make an oral application to discharge order 1 made on 22 November 2011 by Loughnan J (the order appointing A/Prof Q to provide a Chapter 15 report).

3. The father’s application seeking to set aside the order appointing A/Prof Q to provide a Chapter 15 report be dismissed.

4. The remainder of the application sought in the Response filed by the father on 1 August 2012 is dismissed in so far as they are otherwise inconsistent with other directions made this day.

5. The Independent Children's Lawyer, as soon as is practicable, forward a letter to A/Prof Q in the terms of exhibit 2, together with those documents referred to in exhibit 2 and in addition, forward to A/Prof Q, Dr W’s report dated 3 April 2008.  Further, any document filed on or after 27 June 2012 by either party to the current date is to be made available to A/Prof Q (this includes documents attached to the father’s affidavit filed 1 August 2012).

6. Leave granted to the Independent Children's Lawyer to photocopy any material that needs to be photocopied in order to give A/Prof Q the material that is referred to in the letter of instruction which is Exhibit 2.

7. Upon the application of the Independent Children's Lawyer, order 1.8 made by Loughnan J on 22 November 2011 be varied by relieving the husband of the obligation of paying $6500 into trust account of Legal Aid NSW, on the basis that I note the Independent Children's Lawyer has informed me that the Independent Children's Lawyer has negotiated with Legal Aid NSW for an arrangement whereby Legal Aid NSW would cover the father’s one half costs of A/Prof Q’s report and one half of any moneys that need to be paid to A/Prof Q to attend to give evidence on the condition that he pay both those amounts to Legal Aid NSW within a period of 24 months.

8. JIRT produce all material they have in respect of the child D Tarbell born … August 2004, including a copy of the audiovisual recording that was made and the Independent Children's Lawyer is to contact JIRT to give them a copy of this order and if there is any difficulty in JIRT producing that material, the Independent Children's Lawyer is to relist the matter and issue a subpoena to the relevant officer to explain why the DVD is not produced.

9. I note at the hearing the mother wishes to rely upon evidence from herself and from her sister Ms SS.

10. I note the mother wishes to ask questions of Ms HL and Ms DG from C Contact Centre in relation to entries in the contact centre notes. I note the mother has indicated to me today that her affidavit material would disclose that she said words that are similar to the words attributed to her by the supervisors as recorded in paragraphs 37 and 38 of Loughnan J’s judgment of 22 November 2011 but that she wishes to challenge the context in which those words said. If required, the Independent Children's Lawyer is to arrange for Ms HL and Ms DG to give evidence in person.

11. I note the mother requested that Ms P, an officer who conducted interviews with the child, be called to be cross examined about her training in respect of interviewing children and I have declined that request.

12. I note the mother wishes to call Officer Y who the mother asserts claimed that the mother threatened to go to Today Tonight. I note that at this stage, it is unclear as to what the relevance might be of any statement made by Officer Y about that issue. I reserve the position as to whether or not Officer Y will be required to give evidence. If she is to give evidence about that issue, she is to give that evidence in person.  The mother is to set out to the Independent Children's Lawyer and the father in writing the material that Ms Y has written with which she has a dispute and Ms Y is to be given that information prior to her giving evidence.

13. The mother wants to test the accuracy of statements made by Mr KB and Ms KT in a report that they have prepared dated 26 June 2012. The mother is to prepare a document setting out what she wishes to challenge in that document and provide it to the Independent Children's Lawyer. The Independent Children's Lawyer is to make either or both the authors of that document available for cross examination at the trial, having provided them first with the document prepared by the mother’s lawyer. They are able to give their evidence by telephone.

14. The mother wishes to ask Ms HK, the principal of AC School, questions in relation to how the child has been treated at AC. The Independent Children's Lawyer is to arrange for Ms HK to be available on the telephone to give evidence during the hearing.

15. The mother wishes to ask Dr G questions about her diagnosis of the child.  The Independent Children's Lawyer is to organize Dr G’s attendance on the telephone during the hearing.

16. The mother wants to ask questions of Dr F (who diagnosed the child having ADHD and prescribed the child Ritalin). Dr F can give evidence by telephone.

17. I reserve the issue as to whether or not Dr Z gives evidence relevant to any document Dr Z has prepared in relation to the child. If Dr Z is to give evidence, then the Independent Children's Lawyer is to arrange for Dr Z’s attendance by telephone.

18. The Independent Children's Lawyer is to inform A Child and Adolescent Mental Health Service that I require them to produce their unedited notes. In the event there is any reason why they wish any part of that material to not be available to the parents and the Independent Children's Lawyer in these proceedings, they are to place any such material in a sealed envelope addressed to me indicating that they wish to claim some form of privilege in relation to that material. If they make that indication, then they are to inform the Independent Children's Lawyer of that claim and the Independent Children's Lawyer is to arrange to have the matter listed for mention so that a representative from A Child and Adolescent Mental Health Service can make an application that that information remain confidential.

19. Leave granted to the mother to issue a subpoena to Royal North Shore Hospital in respect of their notes in relation to any statements that the mother made in early 2008 or any assistance that she sought in 2008 relating to assertions by the mother the child had been sexually interfered with.

20. I note that the only witness in the father’s case will be the father.

21. I note the Independent Children's Lawyer will be calling both Dr W and A/Prof Q.

22. General leave granted to the Independent Children's Lawyer to update nine subpoenas and to issue new subpoenas to … Child and Adolescent Mental Health Services and the Australian Federal Police.

23. When A/Prof Q’s report becomes available the matter will be relisted prior to 19 November for a compliance check.

24. Both parties can rely at the trial on any affidavit filed.

25. Both parties will be able to file and serve one updating affidavit no later than 14 days prior to the hearing.

26. I confirm that this hearing is scheduled to take place commencing on 19 November 2012.  At this time 10 days have been set aside subject to a more detailed trial plan which will be completed prior to the commencement of the hearing.

27. Liberty granted to the Independent Children's Lawyer to relist the matter before me if the Independent Children's Lawyer believes there is any reason why I need to make a ruling on some matter.

28. In the event there is any application in relation to an injunction sought by the mother to restrain the father from publishing material relating to the history of this case, then any such application can be made by way of an application in a case in the normal manner.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell 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 SYDNEY

FILE NUMBER: SYC 889 of 2008

Mr Tarbell

Applicant

And

Ms Swefford

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I note that, by paragraph 2 of his Response filed on 1 August 2012, the father intended to seek that the Court set aside order 1 made by Loughnan J on 22 November 2011. For more abundant caution, I have given the father leave to make that application. The order in question was challenged by the husband in the Full Court, unsuccessfully. The husband, again, before me today, attempts to have another go at getting that order discharged. The lawyer for the father asserts that I am able to entertain the application (notwithstanding the order of the Full Court) as it is an interlocutory order.

2. The lawyer for the husband says there are three reasons why I should entertain that application. The first is that the father says that he cannot pay the order that has been made. The only evidence that he leads in support of that submission is the bold assertion that he doesn’t have funds for further assessments. I am unable to assess what weight I could possibly give that bold assertion and I place no weight on it. In any event, I am told a deal has been done allowing payment by the father over a two year period.

3. Next, the lawyer for the father says that the mother now has had a change of heart and has lost confidence in A/Prof Q being able to consider whether the child is at risk of being exposed to any physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I accept that it seems that that assertion is accurate. That, however, is no reason for me to vacate an order that has been made. Justice Loughnan made a choice between Dr W and A/Prof Q for the reasons that his Honour expressed. Those reasons were endorsed by the Full Court. Certainly, a part of his Honour’s reasons for choosing A/Prof Q was that, at that time, the mother had confidence in A/Prof Q. The fact that she has now lost confidence does not move me in any way to discharge the order in a way that would leave me without any expert report at all or would lead to a situation where we would have to go back to reconsider whether Dr W complete the report. Regardless of who prepares the report, the child would need to be re-interviewed by somebody, so it is of little relevance or weight that he was seen with each of his parents (but not interviewed alone) in 2008 by Dr W. 

4. The third reason given by the lawyer for the husband for discharging the order at this stage relates to timing. The mother faces a criminal trial in early October 2012 and the interviews for the report by A/Prof Q are set for 2 October 2012. The lawyer for the husband submits I should wait and make this order after the criminal trial is concluded. We have established dates in my diary for dealing with this matter, commencing 19 November 2012. A/Prof Q has set 2 October aside in her diary. I have no idea when the next available appointment will be; I have been given no indication by way of evidence as to what that date might be, in fact it might be a date that totally jeopardises the dates that I’ve set aside. 

5. I do not find any of the reasons given by the lawyer for the father compelling in terms of the application to vacate the interview date with A/Prof Q and I dismiss the oral application to discharge A/Prof Q from preparing the report.

6. Order 5 of the mother’s application filed on 27 June 2012 seeks an urgent psychiatric assessment and an order for immediate medical assistance for the father. I put to one side, for the purposes of these reasons, the issue as to whether or not I have jurisdiction to make an order for psychiatric treatment of a parent and assume that I have that power for the purposes of these reasons. The mother asserts that an assessment and assistance should be immediately provided, although she seems to concede that given that A/Prof Q has been ordered to report upon the mental state of the father after interviewing him, that that assessment will be provided to me by A/Prof Q. The mother’s submission is that it is so obvious that the father has a problem with his mental status that I should order his treatment without waiting for any such assessment. That, to say the least, is an unusual application. The mother, in her written submissions, refers to the father having an acknowledged longstanding history of mental illness and his use of medication in respect of that illness. Any information which the wife relies upon seems to date back to early 2008.

7. In terms of the urgency any treatment of the father for any alleged difficulty with his mental status, the only relevant information is an assertion in the mother’s affidavit, that around about the time of the separation the father indicated to the mother that he was going to commit suicide. That would have been somewhere between February and April 2008.  The only specific evidence of anything said was something the mother reports the father said at the beginning of 2008 in an angry tone:

   I hate you for taking [the child] away from me.

8. I have not got any evidence that from early 2008 until now (the second part of 2012) the father has made any suicide attempt. I see no basis whatsoever to entertain the application that the mother has made. I will also dismiss that part of the application.

9. The mother, by way of her application in a case at paragraph 3, filed on 27 June 2012, makes what I consider to be a fairly unusual application. This application is made in circumstances where there is an order that an eminent child psychiatrist carry out an assessment inter alia as to whether the child is at risk of being exposed to any physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence (an order which the mother requested from Loughnan J and supported in the Full Court). The mother now wants, in addition, an order that the Department of Community Services (“the Department”) be invited to become a party to these proceedings. She does not seek them to become a party for the normal purpose that I would entertain that happening, namely an assertion, usually coming from the independent children’s lawyer, that neither parent would provide an appropriate safe haven for the child and the Department is needed in the proceedings for that particular purpose. Rather, the reason I am asked to make this order is for there to be a further assessment of the child by the Department.

10. I am then told, in submissions, that the Department do not actually have the resources to do a further assessment, even if I thought it was a good idea for the child to be assessed further by multiple people. The mother is suggesting that once the Department is joined, I request them to engage Ms V, who has filed an affidavit which is exhibit 5, to carry out this assessment. It is an application for an order which is likely to lead to systems abuse. I can see no merit whatsoever in putting the child through anything like that and there is nothing counsel for the mother has said that would form a basis for making the order which is sought and I dismiss the application.  

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 9 August 2012.

Associate: 

Date:  20.8.12