Swefford and Tarbell (No 5)

[2012] FamCA 989

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL (NO. 5) [2012] FamCA 989

FAMILY LAW – PROCEDURAL – application for a stay of orders discharging a Chapter 15 expert and appointing an alternate expert – whether the applicant has demonstrated substantial grounds for appeal – consideration as to when the appeal was likely to be heard – the balance of hardship between the parents and whether a lack of a stay would render the applicant’s appeal (if successful) nugatory – consideration of what order is in the child’s best interests – where an order for a stay is refused.

APPLICANT: Ms Swefford

RESPONDENT: Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER: Mr Christaki

FILE NUMBER: SYC 889 of 2008

DATE DELIVERED: 22 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 22 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant 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

Orders

1. The mother’s Application in a Case filed 15 November 2012 be dismissed.

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

Ms Swefford

Applicant

And

Mr Tarbell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. In the orders that I made on 22 October 2012, and ex tempore reasons I gave on that day, I dealt with an issue arising from an advice given by A/Prof Q that she wished to withdraw as a single expert in this matter.  Having considered the material I had at that time, I made orders discharging A/Prof Q and appointing Dr R as an alternate expert to do the report.

2. The mother, by way of an Application in a Case filed on 15 November 2012, has sought that various orders that I made on 22 October 2012 be stayed until the appeal that the mother filed on 8 November 2012 in relation to those orders is heard and determined.  She supported her application for stay by way of an affidavit sworn on 15 November 2012 and filed on that day, but I have not been specifically taken to any part of that affidavit by the mother during her submissions.

3. There are two pieces of agreed information that I have been given today.  The first is that the earliest probable date that the appeal will be dealt with by the Full Court is March 2013, and secondly, it is agreed that, in 2008, lawyers on behalf of the mother suggested Dr R as an appropriate expert to prepare a report in this case. 

4. The mother, in her Notice of Appeal filed on 8 November 2012, has set out 22 grounds of appeal (the last two grounds are both numbered 21) in response to my ex tempore reasons, which, when engrossed, contained 16 paragraphs.

5. Part of the mother’s stay application would be to reinstate the orders that were made for A/Prof Q to prepare the report and for the parties to attend interviews with A/Prof Q. 

6. The mother relies on what is in her Notice of Appeal to assert that the orders that were made did not meet the Family Law Rules 2004 (Cth) Chapter 15 requirements, and further, that errors of facts were made in the Reasons for Judgment dated 22 October 2012.

7. The mother also asserts that, if an appeal is successful, a different single expert witness or witnesses will be appointed and ordered to prepare the report for the Court. The mother also points to additional costs for preparation of the expert report if her appeal is successful. 

8. Both the father and the Independent Children’s Lawyer oppose the granting of a stay. 

9. I pause to mention that the orders that have been challenged under the Notice of Appeal are not parenting orders (the definition of parenting orders is set out in s 64B(2) Family Law Act 1975 (Cth) (“FLA”)). What that means is s 60CA FLA does not apply to those orders; that is, they are not strictly orders in respect of which the Court must regard the best interests of the child as the paramount consideration. This is not a case where a stay is sought in relation to an appeal lodged against parenting orders which involves a significant change in the child’s routine; however, the authorities indicate that what is in the child’s best interest is an important consideration.

10. When exercising my discretion as to whether or not to grant a stay, I shall consider the following matters (upon which I have asked the parties to address me): 

    10.1.Does the mother have substantial grounds for appeal; 

    10.2.When is an appeal likely to be heard; 

    10.3.Is there any hardship for either parent as compared to the other in either granting or not granting the stay; 

    10.4.Does the lack of a stay render the mother’s appeal nugatory;  and,

    10.5.What result is most in the child’s best interests.

DOES THE MOTHER HAVE SUBSTANTIAL GROUNDS FOR APPEAL

1. It has not been suggested that the mother brings this application as a delaying tactic (although delay may be its effect if granted), but it is still important to analyse if a Notice of Appeal discloses any substantial ground for appeal.

Ground 1, Ground 2, Ground 3 and Ground 4

1. These grounds are answered by the first three sentences of paragraph 14 of the reasons of 22 October 2012.

2. As I understand it, it is the mother’s overall position that Dr R does not have “specialised knowledge”, based upon her training, study and experience to provide the Court with a report particularly on the areas referred to in orders 3.1, 3.8 and 3.11 of 22 October 2012. The mother indicated that she did not agree with the Full Court’s comments at paragraph 75 of their Reasons for Judgment dated 13 June 2012; that the Full Court did not understand the true definition of the words “specialised knowledge” and that the Full Court “does not follow case law like Makita v Sprowles[1] and the High Court”. I do not accept the assertion that this court does not understand what is “specialised knowledge”.

Ground 5

[1] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

1. The mother asserts a factual error in the second sentence of paragraph 10. No factual error is disclosed in the Notice of Appeal. The sentence is based upon the contents of Exhibit 4 (tendered before me on 9 August 2012) and Exhibit 19 (tendered on 22 October 2012).

Ground 6

1. The mother asserts that a factual error was made in the third sentence of paragraph 10 because Dr R’s name is not mentioned in exhibit 21. That is so. Exhibit 21 is a copy of an email from the mother to the Independent Children’s Lawyer sent on 21 September 2012. The lawyer for the father indicated that Z Centre in inner western Sydney were Dr R’s rooms. The mother accepted that was so (although the mother went on to state that anyone from that centre would need to have “specialised knowledge”).

Ground 7

1. The mother complains about the use of the word “forcing” in the expression “forcing A/Prof [Q] to undertake the work” where it appears in paragraph 7 of the Reasons. The mother asserts her application to the Court was “based on a cooperative approach”. Her application was, she said, to resolve frequently changing appointment dates and issues in relation to fees and then reinvite A/Prof Q to reconsider her position.

2. Exhibit 16 is a respectful advice from A/Prof Q to the court that she wished to withdraw as the single expert in this matter. The clear inference is that she no longer continued to consent to being the single expert. The single expert’s consent was an integral part of the original order that was made (see rule 15.45(3) Family Law Rules 2004 (Cth)). In dealing with A/Prof Q’s request that she be relieved from the obligation which the current orders impose, I would have to make a decision whether or not to say “yes” or “no” to her request. A decision to say “no” can, in my view, properly be categorised as a decision whereby A/Prof Q was “forced” to comply with the order.

Ground 8

1. The mother asserts that paragraph 11 of the Reasons contain factual errors. The mother did initially suggest a “multi-disciplinary team”, saying that “it would be of assistance to have additional professional resources.” After I had indicated to the mother that, if at all possible, it would be best for one expert to write one report, she suggested “the work could be distributed between [Ms V] and Professor [sic] [Q]…..Professor [sic] [Q] could still meet all of us and [Ms V], though, could do the specific detail assessment of [the child] if Professor [sic] [Q] would agree to that and Professor [sic] [Q] write the final report. So, in other words, have [Ms V] as her resource”.

2. It could not be reasonably suggested the mother was saying Ms V would take no responsibility and participate in no way in the preparation of the material for the report (even though it might be true the mother was not proposing two reports be prepared but one).

3. The mother clearly proposed Ms V’s role would be to assess the child because “she is specialised” to do so and that A/Prof Q would assess the parents.

Ground 9

1. The mother points out a factual error was made in relation to Ms V’s qualifications (at paragraph 12 of my reasons). I said Ms V had an Honours degree in Social Work. Ms V has an Honours degree in social science and a Masters degree in social work. The error referred to by the mother is not of any significance. Notwithstanding the level of Ms V’s training and experience, the point made in paragraph 12 was that Ms V’s formal qualification is as a social worker not as a psychiatrist.

Ground 10

1. The mother asserts a factual error in paragraph 3 of the Reasons, namely that the Independent Children's Lawyer on his own motion asked A/Prof Q to pencil in further dates pending the outcome of the Full Court appeal.

2. During submissions on 22 October 2012, the Independent Children's Lawyer did tell me that a second lot of interview dates had been tentatively arranged by him and that he had not advised the parties.

3. The gravamen of the mother’s complaint in this ground is that I had not in my Reasons referred to her evidence in her affidavit filed on 10 October 2012 (paragraphs 15, 16 and 17) about a request she had made to the Independent Children's Lawyer (apparently on 2 May 2012) to have dates for interviews with A/Prof Q made for August. That evidence was not specifically referred to in submissions by the mother at the hearing. It seems that the Independent Children’s Lawyer may have asked A/Prof Q to pencil in August dates but had not been able to confirm them in time for them to be retained. Whatever the position, the time in August which A/Prof Q had tentatively put aside, at the request of the Independent Children's Lawyer, without reference to the parties, was not confirmed with her. This ground discloses no factual error.

Ground 11

1. The mother complains that I was incorrect in saying that the order appointing A/Prof Q was stayed on 2 February 2012 pending the two appeals, one by each party, to the Full Court. The mother wishes to make the point that the stay of the order appointing A/Prof Q related to the father’s appeal, not her appeal. The particular appeal in respect of which the stay of the order appointing A/Prof Q was granted was not relevant. The relevant fact was the appointments with A/Prof Q were cancelled until the Full Court dealt with the matter. Both appeals were going to be dealt with at the same time and so the expression, “stayed…pending those appeals” is to be read in that context.

Ground 12

1. The assertion by the mother does not make what was said in the last sentence of paragraph 14 a factual error. A similar statement was made by Full Court at paragraph [84] of their Reasons for Judgment dated 13 June 2012.

Ground 13

1. This ground seems to foreshadow a challenge to Dr W giving evidence at the hearing. That was not an issue that I dealt with on 22 October 2012. This ground appears to be the foreshadowing of a ground of appeal from a decision yet to be made in relation to an application yet to be made. I note the last sentence of paragraph [75] of the Full Court’s Reasons for Judgment dated 13 June 2012. Also at paragraph [76] of those Reasons for Judgment, the Full Court says that challenges to the admissibility of Dr W’s evidence and submissions about an appropriate amount of weight to be given to Dr W’s evidence (should it be admitted) will be a matter for the trial judge.

Ground 14

1. This does not appear to be a ground relevant to the order that has been made for the preparation of a report by Dr R.

2. This ground asserts that I made an error in stating at order 11 of the orders made that the mother had made an oral application for the appointment of Ms V as a single expert in the matter. The mother says she made no such application.

3. During the hearing the following exchange took place between the mother and myself:

   MS [SWEFFORD]:   …I’ve provided today the names of two experts, Dr [sic] [Q] and [Ms V] who are highly reputed in the industry for their knowledge in domestic violence and child abuse.

   HIS HONOUR:   Well, where do I know that from?

   MS [SWEFFORD]:   I have their CVs here and if you look at [Ms V] ‑ ‑ ‑ 

   HIS HONOUR:   Do you know if they can do reports?

   MS [SWEFFORD]:   Absolutely.  [Ms V] has done ‑ ‑ ‑ 

   HIS HONOUR:  Sorry.  Have you got their proposal?

   MS [SWEFFORD]:   Yes.

   HIS HONOUR:  Are you putting a counter-proposal, are you, in relation to this ‑ ‑ ‑ 

   MS [SWEFFORD]:  On record – sorry.

   HIS HONOUR:   Are you putting a counter-proposal?

   MS [SWEFFORD]:   Absolutely.  It’s in my submissions.

4. In the mother’s document entitled by her ”Submissions in support of Affidavit filed 10 October 2012” (exhibit 20), the mother says at paragraph 34(b):

   “An alternative approach would be to discuss with A/P [Q] and Ms [V] if they would be prepared to work together. This would reduce the workload on A/P [Q] and cost to the parties and the additional experience from Ms [V’s] [sic] would be complimentary [sic]. I would propose that the two experts discuss and decide between themselves how they combine resources. The most likely option would be that Ms [V]h undertake assessments of [the child] and review documentation relating to [the child’s] welfare and prepare a report that is then provided to A/P [Q]. A/P [Q] could interview and assess psychiatric/parenting/domestic violence issues relating to [the father] and myself and present a summary report incorporating all reports. This would not preclude A/P [Q] interviewing/meeting [the child] and observing each parent together with [the child] to be able to make her own observations. Both experts could then be available in court.”

5. In the exchange between myself and the mother, the mother was, in my view, proposing that Ms V be appointed as the single expert in relation to the assessment of the child.

Ground 15

1. The mother complains that in paragraph 14 of the judgment I refer to “the mother alleges in this case that the father suffers from a number of diagnosable psychiatric conditions”, saying it is not her allegation but a matter of findings documented by psychiatrists and reported upon. It seems clear that the mother wishes to rely upon those documented findings that have been made in the past to substantiate an assertion that the father continues to suffer from diagnosable psychiatric conditions. There is no factual error as alleged by the mother.

Ground 16

1. The mother has read the two sentences, “the mother alleges in this case that the father suffers from a number of diagnosable psychiatric conditions. Similar allegations were made against the mother” as meaning that it is alleged that both parents have similar diagnosable psychiatric conditions. Upon a reasonable reading of those two sentences, that is not their meaning. The mother of course asserts that she has no diagnosable psychiatric condition and as I said in the 6^th sentence of paragraph 14 of my reasons of 22 October, Dr R is qualified to give me an opinion about that matter.

Ground 17

1. This does not appear to be a ground relevant to the order that has been made for the preparation of a report by Dr R. In as much as this ground raises the issue of the Court acting as expeditiously as possible, it is clear from the Reasons of 22 October 2012 that the course proposed by the mother would inevitably lead to further delay, in circumstances where I said in paragraph 9 of the Reasons, a viable alternative existed. In so far as ground 17 complains about interim matters not being dealt with, it is to be remembered that on 22 October, the 10 days that had been set aside for a final hearing between the parties were vacated and the mother’s application for interim time with the child was adjourned for hearing to 10am on 22 November 2012.

Ground 18

1. This ground is so general as to not have any meaning nor does it relate to any application that I dealt with on 22 October 2012. Order 14 of the orders made on the 22 October 2012 adjourned the mother’s application for interim time with the child.

Ground 19

1. This is so general as to not have any meaning nor does it relate to any application that I dealt with on 22 October 2012.

Ground 20

1. This is so general as to not have any meaning.

Ground 21 (the first)

1. There are two grounds numbered as ground 21. The first ground 21 complains I hadn’t conducted the proceedings without undue delay. That ground is so general as to not have meaning. As is clear from the Reasons of 22 October 2012, the mother’s proposal would inevitably lead to further delay, in circumstances where I said in paragraph 9 of the Reasons, a viable alternative existed. The delay in this case has primarily resulted from appeals that have been lodged in relation to interlocutory and procedural matters and the fact that the mother’s criminal trial has not proceeded. So far as I understand it, the mother’s criminal trial has not proceeded when last scheduled for two reasons. Firstly the mother had recently become self represented in those proceedings and secondly, the mother wished to use the Chapter 15 expert report from these proceedings as part of the material in her defence in her criminal trial. I have previously expressed the view that the mother’s criminal trial should be finalised before the parenting issues between the parties are dealt with on a final basis.

Ground 21 (the second)

1. In the second ground 21, the mother asserts that an error was made in order 3.4 in which the report writer was asked to consider “the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent”. The ground is that paragraph is the version of s 60CC(3)(c) that was in the FLA prior to the amendments this year. It is true that the old s 60CC(3)(c) has been repealed from the FLA in accordance with the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). The old subsections (3)(c) and (3)(k) of s 60CC were replaced by a new (3)(c) and (3)(k) and a new subsection (3)(ca) was inserted. However, those amendments apply only to cases filed after 7 June 2012.[2] This matter of course commenced well before the commencement date of the new subsection. Accordingly the wording of the order directed to Dr R is appropriate.

Conclusion in respect of Grounds of Appeal

[2] Schedule 1 Part 1 Item 18 and Part 2 Item 45 Family Law Legislation Amendment (Family Violence and Other Measures)

1. Based upon the analysis set out above, I do not accept that the mother’s Notice of Appeal demonstrates any substantial ground of appeal.  

WHEN IS THE APPEAL LIKELY TO BE HEARD

1. The appeal is, it was agreed, not likely to be heard before March 2013.  If the stay is granted, interviews for any report will be delayed until after the time the Full Court finalises the appeal. The litigation process has already contributed to significant delays in the preparation of a report for the hearing. I comment below about whether or not further delay is in the child’s best interests.

IS THERE ANY HARDSHIP FOR EITHER PARENT AS COMPARED TO OTHER IN GRANTING OR NOT GRANTING THE STAY

1. In relation to whether or not there is a balance in favour of the mother in respect of hardship if a stay is not granted, I am unable to say if there is.  I am of the view that it is of no real hardship one way or another for either parent as to whether a stay is granted or not granted. It is really the child’s interests, which is the fifth consideration upon which there needs to be focus.

DOES THE LACK OF A STAY RENDER THE MOTHER’S APPEAL NUGATORY?

1. The fourth consideration is whether or not not granting the stay renders the mother’s appeal (if successful) nugatory.  In the event that the stay is not granted, my orders will have effect, and the parties will be under an obligation pursuant to court order to attend for interviews with Dr R which are scheduled for December 2012 (although the mother did intimate she will consider whether or not she will comply with my order).  Dr R will have read material and may well have prepared a report by March 2013. 

2. However, in the event that I am wrong about the substance of the mother’s grounds for appeal and the Full Court overturn the order that I have made that Dr R be appointed as a single expert, the effect would be, as Mr Holmes has indicated, that Dr R would not be able to give evidence (nor her report used) because the order allowing her to report to the court will have been discharged. A different report writer would have to be found.

3. The mother has said that if the stay is not granted, but her appeal is successful, the parties would have to pay Dr R, and a new Chapter 15 expert. The mother raised the fact that father may not have money for any new Chapter 15 expert (on top of what he is already paying towards Dr R’s fees), in circumstances where the father said that he could not pay for additional work that A/Prof Q might have to do. In the original hearing on 22 October 2012, the mother said the father was on a “$100,000 a year pension for life”. The father said he was willing to take that risk that he would need to pay a further amount of money should the mother’s appeal be successful, and that he would find that money. I accept that in the event the father has to find additional monies in about five months time to pay for his share of the costs of a new report, he would be able to do so. The mother’s share of the cost of Dr R’s report has been covered by Legal Aid NSW and she does not assert that Legal Aid would not continue to cover her reasonable costs. If the appeal is successful and a new report writer needs to be appointed and Legal Aid NSW do not cover the mother’s half share of that new report, there may have to be further consideration by the court as to how the cost of that report will be paid.

WHAT RESULT IS MOST IN THE CHILD’S BEST INTERESTS

1. The overwhelming consideration, from my point of view, is what is in the child’s interests. It is in the child’s interests to have a final hearing in this case as soon as that is possible. The order for a stay would impact on the child’s future welfare in that the scheduled dates for interviews would be lost and the preparation of the Chapter 15 report would be delayed, and in those circumstances, it is unlikely there would be a final hearing absent the report about the matters about which Dr R has been asked to consider.

2. The other thing that is standing in the way of the case being heard is the mother’s criminal trial, and for some period prior to this time, the mother has, in part, used the lack of the preparation of the Chapter 15 report as a basis for successfully applying to have her criminal trial adjourned. Making final orders in relation to parenting not knowing the result of those criminal proceedings would be difficult.

3. It is my view that it is in the child’s best interests for the process of the preparation of the Chapter 15 report to be completed as soon as possible.

CONCLUSION

1. For those reasons, I dismiss the Application in a Case seeking a stay of orders, that the mother has filed on 15 November 2012.

I certify that the preceding fifty (50) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 22 November 2012.

Associate: 

Date:  22.11.12