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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SWEFFORD & TARBELL

Details

AGLC: SWEFFORD & TARBELL [2011] FamCA 1016
Case: [2011] FamCA 1016
Decision Date: 22 November 2011

CaseChat Overview and Summary

The case of *Swefford & Tarbell* concerned parenting orders for a child, [D Tarbell]. The dispute involved applications made by the mother and father, which were ultimately dismissed. The matter came before Loughnan J.

The court was required to determine the terms of ongoing parenting orders, including the extent of the child's time with each parent, and to address allegations of abuse. A key issue was the appointment of a single expert witness to report on the child's welfare and related matters.

Loughnan J ordered that existing parenting orders, with specific amendments, would continue. The child was to spend supervised time with the mother at a contact centre, with further supervised time to be arranged as available. Both parties were restrained from denigrating each other or discussing the proceedings in the child's presence. Crucially, Dr Q, a Child and Family Psychiatrist, was appointed as a Single Expert Witness to inquire into and report on various aspects of the child's welfare, including risk of harm, the child's views, parental relationships, parental capacity, and allegations of sexual abuse. The court also made detailed orders regarding the payment of Dr Q's fees and the facilitation of her report, including authorising her to speak with the child's school and medical professionals. The mother's applications and the father's response were dismissed. The court also ordered that the child have telephone communication with the mother on specified days, to be facilitated by the father.

Orders

Orders of the court

IT IS ORDERED

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.

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.

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.

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

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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