SWEFFORD & TARBELL

[2011] FamCA 1016

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL [2011] FamCA 1016

FAMILY LAW – CHILDREN – Interim – Application for a change to interim parenting arrangements – Application for new expert to be appointed in the proceedings.

Family Law Act 1975 (Cth)

APPLICANT: Ms Swefford

RESPONDENT: Mr Tarbell

FILE NUMBER: SYC 889 of 2008

DATE DELIVERED: 22 November 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 22 November 2011

REPRESENTATION

APPLICANT MOTHER: In person

SOLICITOR FOR THE APPLICANT: Slade Manwaring

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berry

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

Orders

IT IS ORDERED

1. Orders are made in terms paragraphs 1, 2, 3, 4, 6-15 inclusive of the Case Outline prepared on behalf of the Independent Children's Lawyer marked Exhibit A as set out hereunder, deleting from paragraph 15 the words and figures “and 27 May 2008” and inserting as appropriate Dr Q in Orders 7, 8, 9, 10 and 11:

1.That Order 2.2 and order 7 made on 18 August 2011 made by his Honour Justice Loughnan be discharged and otherwise all remaining parenting orders shall continue.

2.That the child [D Tarbell] spend time with the mother for two hours each week or such longer period as the [C]Contact Centre may permit supervised by the said centre.

3.That the child spend such further supervised time with the mother as can be arranged with the [S] Contact Centre … when time becomes available, such supervised time to be in addition to the time referred to in the last preceding order.

4.That both parties comply with all rules, requirements, requests or directions of the staff of the relevant contact centre.

6.That each party be restrained from denigrating the other or discussing these proceedings or the criminal proceedings with or in the presence of the child or causing or permitting any other person so to do.

7.Order pursuant to Division 15.5.2 of the Family Law Rules 2004 that Dr [Q], Child and Family Psychiatrist, be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the said child, and that in preparing the report to the court, Dr [Q] be requested to consider the following matters:

a)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;

b)any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

c)the relationship between the child and with each of his parents and any other relevant person;

d)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;

e)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other person with whom the child has been living;

f)the capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs;

g)the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person);

h)the effect on the child of any family violence to which they may have been exposed;

i)the mental state of the both parents in so far as it is relates to parenting issues;

j)the mental health/special needs of the child and any recommendation for therapeutic counselling if appropriate for the child;

k)your opinion concerning the allegations of sexual abuse of the child as alleged by the mother;

l)to consider with whom the child shall live with and spend time with factoring in the following:

i.   if the mother is not sentenced to a term of imprisonment;

ii. if the mother is sentenced to a term of imprisonment; and

iii.if sentenced on the mother’s release

m)    any other matter the Court Expert considers relevant.

8.That each of the parties, unless they are in receipt of a waiver or exemption of the expert's fees from Legal Aid NSW, be jointly liable of the cost of Dr [Q's] report and within 49 days of the making of these Orders each of the parties pay one half of Dr [Q's] estimate of fees being the sum of $6,500.00 each into the Trust Account of Legal Aid NSW for payment to Dr [Q] upon completion of her expert report and the Independent Children's Lawyer is authorised to make such payment to Dr [Q]."

9.In the event that there remain monies available subsequent to the receipt of the memorandum of fees from Dr [Q] these monies shall remain in the Trust Account of Legal Aid NSW and are to be returned to the father and the mother in equal shares upon the conclusion of the Court proceedings.

10.In the event that there is a shortfall the father and the mother are to pay such additional sum to meet the costs of Dr [Q] within 21 days of a request by Legal Aid NSW.

11.That in the event that Dr [Q] is required to give evidence at the hearing the parties shall be equally responsible for the Single Expert costs in respect of such attendance.

12.That the parties shall facilitate the preparation of the Report including attending on and arranging for the child to attend upon the Single Expert Witness.

13.Leave be granted to the independent children’s lawyer to uplift and have photocopy access to all material produced under subpoena for the purpose of providing the same to the Single Expert Witness and that the fees in respect of that photocopying be waived.

14.That the Single Expert Witness shall be authorised and at liberty to speak to the school and/or school counsellor of the school/s that the child is currently attending, and any medical and/or mental health professional that the child may be attending upon.

15.The Independent Children's Lawyer shall be permitted to make the copies of Dr [W] report dated 3 April 2008 and make that available to the Single Expert witness.

1. That the child have telephone communication with the mother each Monday and Wednesday between 5:00 pm and 6:30 pm and that such communication be implemented by the mother sending the father an SMS message not later than 24 hours prior to the time for telephone communication indicating the time between the hours of 5:00 pm and 6:30 pm at which the communication should occur, and by the father then initiating that communication for the child.

1. That the Applications in a Case of the mother filed 16 September 2011, 15 November 2011 and the father’s Response filed 15 November 2011 are dismissed.

1. The Court noted it is advised that the mother is in receipt of a grant of legal aid in respect of the substantive proceedings.

1. That unless the Court otherwise orders the files of Dr W beyond the report identified are not to be provided to Dr Q.

IT IS NOTED that publication of this judgment under the pseudonym Tarbell & Swefford is approved 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

REASONS FOR JUDGMENT

1. D Tarbell (“the child”) was born in August 2004. Parenting proceedings in relation to him were started by the father in February 2008. There were interim proceedings. There was a regime because of allegations made in relation to notifications or disclosures made by the child whereby the child lived predominantly with the mother and had supervised time with the father. Dr W was appointed as the single expert in the proceedings. The carriage of the proceedings was with Watts J of this Registry. In about April 2008, the mother removed the child from Australia in breach of the Family Law Act, apparently, and in breach of the existing orders insofar as they provided for time with the father.

2. I understand that the child was located more than two years later in the Netherlands.  It may be that she had lived in different places.  I think there was a reference to Austria.  I understand that there were proceedings in the Netherlands under the Hague Convention.  The mother was arrested and incarcerated in the Netherlands.  The Hague proceedings were conducted.  A return was ordered. There was an appeal and it was unsuccessful.  The Dutch authorities made arrangements for a reintroduction of the child to the father, the child being kept in a care situation. Ultimately, the child was allowed to return to Australia with the father.  The mother too was returned to Australia where she was further incarcerated. I understand that, in total, the mother was held in custody for about nine months in the two countries.

3. The removal resulted in proceedings against the mother in the New South Wales District Court.  Those proceedings were listed in June and October of this year and now for trial over two weeks in April 2012.  The mother proposes, as I understand it, or has already, pleaded not guilty in relation to the charges.  Soon after the mother’s removal of the child from Australia, and presumably in aid of the proposed Hague proceedings, an application was made for interim orders placing the child with the father and consequential enforcement orders.  Those proceedings came before, as he then was, Judicial Registrar Johnston and orders were made, necessarily on an ex parte basis (the mother having removed herself from the jurisdiction). Those orders have been in force, in effect, until today.

4. The mother has sought to agitate the issue of interim parenting arrangements pending the final parenting trial. The matter remains in the docket of Watts J, and I understand that recently there was an application that his Honour recuse himself in relation to those proceedings, and that application was unsuccessful.  I am not aware of the allocation of dates for the final trial.  His Honour was not available to deal with further interlocutory application and they were listed before me.

5. The proceedings dealt with today are, broadly, the mother’s application for a change in the interim parenting arrangements and her application for a new expert in the proceedings.  The precise orders sought are contained in the mother’s Applications in a Case filed 16 September and 15 November 2011 and, insofar as submissions and evidence were taken today. The mother presses an application that Dr W be removed as the single expert in all matters concerning herself and the father. She formally seeks – although there were no specific submissions made about this today – that an assessment plan be developed by Ms L or Professor F or Dr M for the child and the parents to serve as supporting evidence in relation to interim and final orders.

6. She seeks is that if a psychiatric assessment is required that Dr Q be appointed the expert witness for this purpose.  The mother raised this issue with me on an earlier occasion and I said to her that I thought, there having already been a decision made by the trial judge that there should be a forensic psychiatrist appointed, my understanding would be that, without a review of that decision by appeal, I was not at liberty to re-examine the nature of the expertise required.  So the gravamen of this application by the mother is that Dr Q replace Dr W as the single expert for the substantive proceedings. That application is opposed on behalf of the father and it is opposed, albeit perhaps less strongly, by the Independent Child Lawyer. However, if there is to be a change, the ICL would support, in addition to others, the appointment of Dr Q.  A side issue is whether in addition to the material that a new expert would be instructed, he or she should have excess to the previous report.

7. The second issue arises out of the later application and the mother’s applications are that the earlier orders of 7 May 2008 – these were the orders made after she left the jurisdiction – be discharged, that the father have no contact with the child pending certain things being done. She seeks that the child be returned to live with her at her brother’s home or in the alternative, that the child live with the mother’s brother and his wife and their family until final orders, and that he have unlimited time with his mother. 

8. There are then consequential orders in relation to a new school, and then orders are sought in relation to an investigation to be undertaken - I think that relates to the expert’s report - and various other assessments in relation to issues such as the father’s capacity, really focussing on the section 60CC matters and some others;  that the mother and child be permitted to travel interstate; that the father be restrained from writing, speaking and disseminating to the general public in relation to the child’s care and from approaching the mother’s home.

9. An order is sought in relation to what are described as “extensive contraventions”.  Just stopping there briefly, there is a process for challenging somebody in relation to breaches of court orders and it would involve a formal application and setting out the charges – the dates, times and places of the alleged breaches and so on.  And as I think I might have said on a previous occasion, when the mother was out of step with the court orders for some two and half years, there is a level of hypocrisy in her complaining about breaches of a court order. 

10. The main issue – the most important issue, I think, is the question of the parenting arrangements for the child between now and the final hearing.

11. The mother has identified the Full Court authority of Goode & Goode as a basis for determining parenting disputes. It focuses, as it should in a jurisdiction such as this, on the legislation. The legislation is fairly convoluted.  It starts with a tree of decision-making in relation to, firstly, parental responsibility.  There is a presumption is that it would be in the best interests of a child for the parents to have equal shared parental responsibility. The Court is excused in relation to the presumption about decision making in interim matters in circumstances where it wouldn’t be in the best interests of a child to apply it. In addition, the presumption does not apply where certain allegations are made. Here there are very serious allegations of abuse.  

12. To be euphemistic about it, the parties do not have a good relationship. I don’t think it would be practicable in the short term for them to have equal shared parental responsibility.  In any event, it would not be in the best interests of the child.

13. The presumption is excluded and that excludes the requirements to consider things such as equal time and substantial and significant time. The Court is left on the authorities with an obligation to make orders in the best interests of a child.  The legislation sets out how one determines that in section 60CC of the legislation. It is acknowledged in Goode & Goode that in interim proceedings it might not be possible for the Court to make findings of fact in relation to any particular matter. That arises because the hearings are conducted on the papers.  Albeit that the mother herself is happy with some assessments that Dr W has made and not others, there is no agreement to accept the untested expert evidence filed in the proceeding to date.  The parties have filed affidavits and they disagree in terms of the inferences to be drawn, and they disagree in many cases in relation to the background facts of the case. The Court must do the best it can.

14. In relation to child abuse, the issue before the Court is not whether something happened or did not happen, but the focus of the Court’s inquiry would normally be whether there is an unacceptable risk in relation to abuse or other serious allegations.  Traditionally, and this is acknowledged in Goode & Goode the Court has behaved in a conservative way in interim proceedings because of the very matters that I have identified including the fact that it is often not possible to make findings of fact on disputed issues.  There are authorities about how one makes findings of fact in relation to hearings on the papers, and, as a general proposition, the Court is not at liberty to make a finding of fact on a disputed issue of fact unless there is independent evidence that excludes one version of events or wholly supports another.

15. Turning to section 60CC - the primary considerations:  the mother has made reference to the fact that there is before the Parliament draft legislation proposed to identify a priority between primary considerations. I don’t think she asserts that that the legislation has been passed, so I’m left with the legislation as it has been enacted.  The primary considerations are the benefit of a child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

16. A meaningful relationship is one that is important and valuable to a child. There isn’t much, as I said, in the way of independent evidence.  I think probably one would be safe to say that the mother has been the primary caregiver of the child.  Certainly, because of the removal, the child has predominantly lived with her since separation.  The observations from the contact centre suggest a lovely interaction between the child and each of the parents, and suggest, as a general proposition no indication of a reluctance to separate from one parent to the other, and a joyful reunion on each parent and the child coming back together. For example there is:

22 October:  child appeared happy and cheerful.  Mum and child greeted each other with hugs.  Child enjoyed time with mum.  They were busy the whole time, watering and so on.

10 October:  contact started on time.  Hugs and kisses from mother on arrival.  Child had his arm around mum’s leg and didn’t appear in a hurry to leave.  Supervisor prompted the child to say goodbye.  Child and mother had hugs and kisses before leaving. 

24 September:  father arrived on time to collect the child.  Mother appeared to take her time packing gifts and so on.  Child was walking to the door to go.  Mother called the child to her, gave him a hug and kisses.  Child was pulling away from the mother.  Ran to the door where the father was waiting.  The session concluded 10 minutes late.

1. There is nothing in the notes that suggests anything untoward that has come to the attention of the supervisors. It is a feature of the case and relevant, I suppose, to the issue about the expert, that the mother is not happy with, in effect, every agency that has been involved in the case. In this regard she objects quite strongly to the involvement of the C Contact Service.  She feels that the service has been contaminated by the father in terms of his involvement and invoking his interest with them directly. I would assume that the mother would not be content to accept the observations that are set out above. Perhaps she would agree with the observations I've referred to in relation to the reintroduction or the reunion between herself and the child. I am not sure. In any event there is something there to give the Court comfort in relation to there being a meaningful relationship between each parent and the child.

2. In relation to physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence, some terrible things have happened to the child.  I deliberately will refrain from talking about the circumstances of the mother’s removal of the child.  She was at pains to try and explain to me the precise reason why she sought to remove the child, I think in an effort to encourage me that the circumstances will not arise again. The mother is facing a trial in relation to these issues and it seems to me that it is inappropriate for me to say more than I have about that issue.

1. In any event the child has experienced extraordinary changes in his life as a result of him travelling overseas in 2008, and he has been separated from his parents as a consequence of that, each of them in turn, for significant periods.

2. We started on this journey, as I understand it, because of disclosures the mother says were made to her in relation to things that she has concluded would represent sexual abuse of the child by the father. There were mechanisms in place before the events of April 2008 to address those concerns.  As a result of the removal those protections have been removed.  As Mr Holmes said earlier today, in the absence of an application that the welfare authorities take the child into care, the circumstances were such that the court was left with the two applicants, for the child to live with and spend time with, and they have been and continue to be the parents and, because of the events, the father’s time has necessarily become unsupervised.

3. At or about the time of the removal, advice was provided from the Joint Investigations Response Team (an organ of the Department of Community Services and the police) that their investigation had been concluded, and that no action would be taken by the authorities. In his preliminary report, Dr W, expressed the opinion that he didn’t think there had been any abuse.

4. The problem is, whether it is examined under this provision or elsewhere, there is no doubt the child has been subjected to psychological harm. The issue for the ultimate trial will be as to whether the source of that can be identified, or whether there is an unacceptable risk of that harm from a particular source.

5. The boy is currently observed by compellable notifiers. Each school week he attends the H Public School and AC. AC is a child and adolescent mental health service provider.  The teachers and counsellors are compellable notifiers, and there is no evidence of an escalation in concern in relation to him. There were very worrying aspects of his behaviour referred to in the initial referral to AC by the school, in around May 2011. There is evidence that in about August, the then 7 year old child tried to run away and suggested that he would cause harm to himself.  Thankfully, the child is physically well and there is no evidence that he has come to harm of the sort that was threatened. From the Central West notes and  the school material, there is a suggestion that he may well be settling down to some extent.

6. Much of the focus of today has been in relation to the expression of professional opinion in relation to conduct and other things. Just as there is criticism of Dr W’s opinion about the child’s presentation, it is certainly not permissible for me to take evidence from either of the parties as to the implications from the child’s conduct. I am not permitted to draw a conclusion as to what has happened to him or in relation to any psychological or psychiatric condition that might influence him.  The system of law we have is that parents are responsible for making decisions about their children.  If they can't make a decision then they can ask the Court for assistance.  In parenting cases, the Court does that by appointing somebody with appropriate expertise to give evidence. Differently to most areas of law, although increasingly it is taken up in other jurisdictions, family law has relied on single experts because, traditionally, in other areas, experts have become advocates for one party or another.

7. Thus a single expert is appointed.  That person is qualified to express an opinion. That opinion is then tested in the courtroom. It might please the parties to reach an agreement based on that opinion, but otherwise that opinion is never determinative of the issue. In the process of a final hearing, if necessary, the parties’ evidence is tested; the background facts are tested in terms of what information has influenced the expert’s opinion; the opinion itself is tested; and the Court is required to make a decision. One of the outcomes of the mother seeking to impugn the opinion of the single expert is that I am left without any specific expert. There is just the background fact that the child seems to be, if not doing well, then not in as serious a circumstance as he has been. 

8. I don't want to underestimate the concerns that were raised that led to the AC reference. The fact alone, that a child of his age would be four days a week at AC and not with his cohort at the H primary school, suggests that there were very real concerns for the child. One can read in the notes of the school, the concerns and frustrations of the staff, concerns for other students and concerns for the boy himself.  Through it all, there are also some lovely references to him. 

   [The child D] has a lovely sense of humour and a sweet smile.  Can be gentle and supportive to the smaller children, and a kind friend to his peers.  Works well in class most of the time, achieving well in Maths and English now that he’s more confident in having a go.

   And this was an updated report in September, something that might well resonate with one or both of his parents. 

   [The child D] likes to be in control of all situations and can have a hard time accepting the umpire’s decision in a game or group situation.  He will try and change the rules to suit his needs.  He has a strong opinion of fairness and justice.  He will seek out other adults to get the answer he wants and try and play staff off one against the other.

9. Coming back to the need to protect the child from psychical or psychological harm, there is a level of objective supervision because of the compellable notifiers and because of the focus of the staff at AC. To a great extent, the child is under a microscope. 

10. As to the additional considerations:  any views expressed by the child, and any factors such as the child’s maturity that the Court thinks are relevant.  You wouldn’t give any weight to the views of this boy. If he is in harm’s way with one of his parents, the fact that he wants to be with that parent wouldn’t be determinative of the issue.  If it would be in his interests to spend time with one parent, the fact that he didn’t want to spend time with that parent wouldn’t be determinative of that issue. Over the last few years he has had more to put up with than any child should have to put up with. Therefore, even if one was to accept that a seven year old child was mature enough and objective enough to express a relevant view, that isn’t this boy. 

11. The nature of the relationship with the child with each of the child’s parents and others:  well, that is a matter that we will need some more expert evidence on.  Dr W did not observe the parents with the child.  The mother’s case is that the father is an abusive person and mentally ill. The father’s concerns include the fact that the mother removed the child from him for more than two years. We don't as yet have any expert evidence that can be tested in relation to these things.  I have heard from the mother directly, and she seems to be a very intelligent person.  I have not heard directly from the father because he has been represented. I just don't know about the nature of their relationships. There is some evidence about the mother’s extended family and a relationship there, but not much.  Obviously, the mother’s action caused the boy not to see those relatives for more than two years. 

12. The willingness and ability of the parents to facilitate and encourage a close and continuing relationship:  that is a real issue.  The mother complains that the father hasn’t taken every opportunity to foster a relationship with her between her and the child.  She says that he stood in the way of arrangements in the Netherlands and wouldn’t cooperate with prison visits and so on.  She has complained that he has not facilitated as much time as she would like and the child needs here, and that he has interfered with and not facilitated communication with the child. The father’s complaint is that the mother took the child overseas for more than two years. I can find that irrespective of her intention, the mother’s actions demonstrated no willingness or ability by her to facilitate the boy’s relationship with the father.

13. The effect of any changes in the child’s circumstances:  the child has been separated from both parents, from the father and extended family, for more than two years at the mother’s hands, and, as a result of that and the consequential proceedings, he was then separated from her and the mother’s extended family for long periods since then.

14. Practical difficulties and expense of a child spending time in communicating with the parent:  a supervised regime has been put in place.  It is still promoted on behalf of the child and on behalf of the father. The mother says that the father should have no time with the child until certain inquires are made.  So I suppose there are no practical difficulties with her proposal.  The practical difficulties on the other side are that, unfortunately and necessarily, the contact centres don’t have unlimited resources and time.  C Contact Centre has been able to provide a weekly service.  The ICL is proposing another centre, S Contact Centre, which might in the future be able to service a fortnightly arrangement.

15. There are some costs involved in those services, as I understand it.  Those services are necessarily geographically inconvenient.  The times are restrictive.  The handovers are difficult and complicated. Those are real issues and they must affect the boy’s right to maintain proper relations with his parents. 

16. Nextly, the capacity of the parents and others:  this is perhaps the most important issue in the case. Each of the parties has real concerns in relation to the capacity of the other parent to parent this child safely and to provide for his emotional needs.  I don’t think there’s any issue about him being fed and clothed and so on, but, critically the concerns are about his emotional needs, and that is the issue about which expert evidence will be required. 

17. Maturity, sex, lifestyle and background of the child and of the parents:  I don’t know that there’s anything particular.  He is a young boy, and his upbringing has been devastated over the last few years.

18. There is no issue about aboriginality.  As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents, this stretches into the area in respect of which the mother is on charge and I don’t propose to deal with that for that reason only.

19. The mother is very critical of the father’s attitude.  She says it is abusive, apart from anything else.  She is critical of his failure to support her relationship with the child adequately.  It is disturbing that the mother, knowing she was being supervised, has sought to influence the child in respect of what he wants. On 7 November the mother said, “You tell your teacher and everyone you see that you want to see mummy every day.”  Perhaps the expert will be able to tell us what’s behind that.

20. The supervisors raised that with the mother, asking her to speak up so they could hear her interchange with the child and the mother repeated: “You need to tell everyone what you want to happen.  I will be telling people what I want.”  This little boy is seven years of age.  He needs to get on with being seven years of age.  His biggest problem should be what he eats, not being an advocate in the dispute between his parents. If these decisions were up to him, we wouldn’t need the court system; we could just ask him. I am not a forensic psychiatrist and it may be that there is a benign explanation for that, but it seems to me to be of concern, particularly, as I say, when the mother is on notice that she is being observed. It trite to say that there would not be any brake on that sort of conduct if the mother was not being observed.  The mother has not advanced a case as to why that would be an appropriate thing to say. It could only lead, presumably, to both parties badgering the boy about what he should say. It is hard to see how that could lead to a good outcome.

21. As to family violence, the allegation really focuses on these serious allegations of physical violation that are made by the mother as a result of the disclosures of, I think, 2007 by the boy.

22. There is no family violence order that I’m aware of and whether it’s preferable to make an order that would be least likely to lead to further proceedings. 

23. I am asked to make an order in the line of section 118 which deals with vexatious litigants, whereby the mother would require leave before bringing a further application.

24. For the reasons that I gave earlier, I do not think that such an order could be made at this stage. There has not been a decision to reject an application as being vexatious, and albeit she caused it, there hasn’t been a hearing on the merits in relation to the current living arrangements.  The irony of the case is, of course, had the mother not removed the child from Australia, there would long before now have been a final parenting determination. There is the principle of Rice & Asplund, whereby the Court does not revisit parenting decisions quickly. I suppose that applies, to the extent that it is good law, in relation to interim matters. The Court has always been reluctant to interfere with and jealously guarded access to itself. There is no basis for such an order today. 

25. Any other fact or circumstance:  to the extent that what I’ve referred to hasn’t fitted exactly within a particular criteria, for example, a psychological harm caused by the child’s removal under section 60CC (2)(b), that issue can be considered under (2)(m). The section goes on to talk about how one establishes some of those things:  looking at the conduct of the parties, whether the parties have taken or failed to take an opportunity to participate in decisions about the child, spend time with the child, communicate with the child, has facilitated or failed to facilitate the other parent participating in making decisions in relation to spending time and communicating with the child.  Obviously, in that regard, the mother has by her conduct failed to facilitate the father spending time with the child.

26. This is not a case where there is a clear safe course.  There are risks in terms of the competing proposals.  The current arrangement protects in relation to the child being removed from or within the Commonwealth. The mother addresses that by saying, “Well, although I haven’t said it in my affidavit, the circumstances are different now.” The inference is that the mother would not remove the child again. I do not understand the logic of that position. The system is fairly complete.  If an order is made, then you comply with it.  You don’t have to like it.  If you don’t like it, you can appeal against it.  If you don’t like the decision made on the appeal, you can appeal against that decision. The Court is available 24 hours a day, 365 days a year to respond to urgent circumstances.  There is a capacity to invoke the welfare agencies to be involved in proceedings. As Winston Churchill said about democracy. It may not be the best system, but it’s the best system we know about. This is a matter that the mother might be taking up in the other proceedings and I don’t want to extend into there for risk of doing more harm to her. Nevertheless, I do not understand why the circumstances today are any different, to the circumstances in April 2008. 

27. There has been a reference today to the fact that there is a bond in place in relation to the other proceedings. I suppose that might be a deterrent to a further removal. I cannot help thinking that if the situation was reversed and the father had taken the child to South America for two years, the mother would be outraged if I was to order unsupervised time between the father and the child. I would think that an order I made for unsupervised time in those circumstances wouldn’t survive appeal by more than about five minutes.

28. The other aspect is that notwithstanding she is being supervised, the mother has on a number of occasions had to be reminded of the need to stay away from certain topics when she’s dealing with the boy, not to confuse the boy. She seemingly has not taken that advice.  Now, she might be right.  It could be that Watts J in 2008, JIRT, Dr W, Judicial Registrar Johnston, the Australian Government, the Dutch Courts, the C Contact Service have all failed in relation to this child.  That is a possibility, but it is not one that I can find is more probable than not.  There is another possibility and that is that some or all of those agencies acted appropriately.  That too is a possibility. 

29. It follows in terms of the competing proposals that, although this is far from ideal and I accept that there has been real harm done to this child by the circumstances, I can’t be confident that it is a better answer for me to make orders that the mother has sought.  I didn’t allow further submission to be made in relation to her alternate proposal.  The mother has proposed the child live with her but formally with her brother and his wife. They don’t ask for that order. That is fairly important.  I assume that they would agree with it but they don’t ask for it. The mother’s brother and his wife do not say in their affidavits what arrangements would be put in place or which of them would care for the child. Their affidavits suggest they are both in paid employment, so although one might infer something, there is no evidence about what happens before school, what happens after school.  There is scant evidence of this alternate proposal.  One could infer something, but it’s a fairly serious step for a child to be placed with a third party. One would expect, and I think probably if the mother had been legally represented, she would have been advised differently about this issue. In the latter regard I understand that the mother has been granted Legal Aid but has yet to instruct a solicitor. I do not understand why. No, the mother is an intelligent person but her conduct of these proceedings has not done her case any favours. It has meant that I have been put in the positon of denying aspects of the father’s rights in relation to getting the matter dealt with today. The mother’s material is replete with complaints about things that wouldn’t have particular relevance to the proceedings today.  She was able belatedly to identify some particular paragraphs of the voluminous material and that was of assistance but that meant, in effect, there was some denial of natural justice today in relation to the father and the children’s representative, and that shouldn’t happen. These are complicated enough proceedings without those things happening and a lawyer would have known not to do those things. Again it is particularly frustrating because the mother says that she has been granted Legal Aid. Perhaps there was no grant for the interim proceedings. That is a possibility, but I’m sure things will be better once she has made an election about a solicitor. 

30. It follows that I’m going to leave the current arrangements in place.  The mother said that she’s not happy with the C Contact Service. That is an understatement. After I pursued that with her, however, she would prefer that to not having time with the child. I will leave the C Contact Service arrangement in place, and an additional arrangement is suggested on behalf of the child, and I will make that order. There is no detail spelled out and that was the subject of complaint on behalf of the father. I am told that the additional facility would be available only once a fortnight. The result will be three times a fortnight rather than twice.

31. The other order sought is an order proposed in relation to telephone communication.  The mother did not address this in submissions. The father says that would be okay, but seeks to reverse the obligation so that the mother sends an SMS message about the time that she would like a phone call between those hours and then he would be responsible facilitating that.  That seems like a practical suggestion.  There were no complaints about the various other orders except in relation to the expert. There was concern about the expert speculating about the mother’s imprisonment and I don’t think it matters.  By the time the interviews take place, it might be unnecessary.  If not, it might be relevant. 

1. The remaining issue is the issue of the single expert, Dr W.  The mother’s attack is on all grounds.  She says that he is not an expert in the sense of Makita & Sprowles, that he is not an expert in the area of expertise which is, in this case, child abuse and, therefore, he is not qualified to express an opinion.  She says that his opinion has been contaminated by errors of fact and there have been private communications between the father and the expert and that the inferences that he has made from things that he has observed are impermissible inferences. 

2. The single expert holds a very important place in parenting proceedings for the reasons that I’ve said.  The Court has sought to avoid, and successfully since 1976, the spectre of advocates for the parents in the guise of child experts, giving evidence and their opinions being tested.  And so it would only normally be in circumstances where for example, there is a medical treatment and there is a whole different view about another form of medical treatment, whereby one would normally allow adversarial experts.

3. I am not satisfied on the basis of the assertions that the mother has made. They contradict themselves to some extent.  The mother identified, for example, Dr W giving a paper in relation to other peoples’ research in respect to child abuse evidence in child abuse cases.  I will not make a finding that Dr W was not an appropriate expert. He was appointed by Watts J and that decision was not challenged. I am not free just to make a different decision. Dr W falls within a category of persons qualified to give this evidence.

4. That isn’t the end of the inquiry.  Because the single expert holds such an important place, it is not an irrelevant consideration, it seems to me, that one party has absolutely no confidence in that expert for whatever reason.  Now, as I said, Dr W is not on his own in this case.  The mother, I think, doesn’t have confidence in any or most of the agencies that I’ve identified. Watts J was asked to disqualify himself recently. But it seems to me, at the end of the day, without any disrespect to Dr W, that it will be in the child’s best interests if another expert is appointed. 

5. Happily, that doesn’t make much difference to the financial cost of the proceedings. Happily it doesn’t make much of a difference in terms of the systems abuse concerns in respect of the child. His life has been devastated over the last few years. If he’s involved with a new expert, not having any significant involvement with Dr W, no harm is done, or no additional harm is done. There will be some inefficiencies in that process, but Dr Q has given an estimate in relation to cost of a similar order to Dr W, for example.

6. Nothing is said against Dr W.  The father’s submission would be that a psychiatrist associated with AC - Dr T would be an appropriate alternative.  The ICL has discovered that Dr T is not available.  It seems to me that in circumstances where there is no criticism from about her appointment; no suggestion that Dr Q is not an expert qualified to give an opinion in these circumstances, that there is a greater likelihood that the parties might be assisted by Dr Q’s advice/opinion. There are less likely to be further interlocutory issues in relation to the expert’s opinion, and less opportunity for complaint that the ultimate decision was contaminated by reference to the expert opinion.

7. The remaining issue is whether Dr Q should have access to the report prepared by Dr W.  There is reference to a second report, but it’s just a letter that was sent after the removal, a communication between the expert and the Court.  It seems to me that Dr Q should see the earlier report. I don’t accept it but it is one thing from the mother’s point of view, to say Dr W’s opinion has been fatally contaminated by partisan material, by errors of fact and so on, and entirely another thing to say that there is no objective validity to the observations made by Dr W of the parties in 2008.

8. Through her lawyers the mother will be able to have some influence in the documents that will go to the expert. When the report is prepared, there is provision in the rules for particular issues to be taken up with the expert on notice to everybody so that the expert can be enlivened to, “Would your opinion be the same if the fact that was referred to in Dr [W’s] report; etcetera; was, in fact, X not Y”.  And, of course, ultimately those things can be put to Dr Q in cross-examination if that is necessary.  So this isn’t a cargo cult exercise. The expert’s opinion is not locked in stone. It is just one of the things, after being tested, that goes to the process of decision‑making for the parents and, if they can't make a decision, for the Court.

9. The mother has raised in her application and addressed in her fulsome written submissions and in her evidence, an application for injunctions in relation to what might be called breaches of section 121 - and further dissemination of information. It is an offence under the Family Law Act to disseminate to the public or a section of the public, information that identifies a party, a witness, a child who is a subject of ongoing proceedings. Those offences are prosecuted only with the consent of the Attorney‑General and therefore it is not a matter that the mother can take up directly. She would need the consent of the Attorney‑General. In fact some orders were made under section 121 in these proceedings permitting publication as a result of the removal. I will do no more than remind the father that (a) it is a breach of the law to identify to a section of the public or the public at large, the child, the mother, himself, any witness associated with these proceedings, and (b) it would not be in the child’s best interests to have the risk of anything like that being read by another school friend or by the parent of a school friend. This boy has had enough to cope with without that.

10. The parties are free to come back through my associate when the orders are released if they feel, on reflection, that some part of the orders does not reflect the reasons I have given.  That is not an invitation to reopen the case, but it is an invitation if I have left something out or I have said something inconsistent, in terms of the orders, with the reasons I have given.  Normally, it could be a matter not of any controversy, normally there would be an agreement about that. If there is controversy, it may not be a matter I can fix. In any event the parties are at liberty to restore the matter before me, for that reason only. This is otherwise a matter before Justice Watts.

11. I note that I’m advised that the mother is in receipt of a grant of legal aid in respect of the substantive proceedings.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 November 2011.

Associate: 

Date:  10 January 2012