Swefford & Tarbell - [2013] FamCAFC 50

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL

[2013] FamCAFC 50

FAMILY LAW – APPEAL – CHILDREN – Appointment of Single Expert

Family Law Act 1975 (Cth)

De Winter and De Winter (1979) FLC 90-605
Edwards v Noble (1971) 125 CLR 296

APPELLANT:

Ms Swefford

RESPONDENT:

Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER:

Christos Christaki

APPEAL NUMBER:

149

2012

FILE NUMBER:

SYC

889

2008

DATE DELIVERED:

25 March 2013

PLACE DELIVERED:

Sydney

DATE HEARD:

20 March 2013

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace & Murphy JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 October 2012

LOWER COURT MNC:

[2012] FamCA 888

REPRESENTATION

THE APPELLANT:

Ms Swefford in person

SOLICITOR FOR THE RESPONDENT:

Duncan Holmes of KDB Holmes Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr John Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

Orders Made on 20 March 2013

The appeal against the order of Watts J made 22 October 2012 be dismissed.
The Appellant pay the costs of the Respondent and the Independent Children’s Lawyer on a party/party basis as agreed or assessed.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 149 of 2012
File Number: SYC 889 of 2008

Ms Swefford

Appellant

And

Mr Tarbell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 22 October 2012 Watts J made an order appointing Dr R to act as Single Expert Witness in the proceedings. The mother, Ms Swefford appeals that order. The father, Mr Tarbell and the Independent Children’s Lawyer both resist the appeal and seek to maintain his Honour’s order.
On 20 March 2013 the Full Court heard the appeal, made orders dismissing the mother’s appeal and ordered her to pay the costs of the respondent and the Independent Children’s Lawyer. We indicated that we would deliver reasons for that decision later. These are our reasons.
The matter before this Court involves the child of the parties, D who was born in August 2004. The history of the parties’ relationship as it involves the child is somewhat complex.
For convenience we include here an extract from our reasons for judgment delivered in December 2012 in which we set out what we understood to be non controversial matters of background.
In early April 2008 the mother removed the child from Australia without the father’s knowledge or consent. In May 2008 an order was made in this Court, ex parte the mother, that the child live with the father. The child remained out of Australia, his whereabouts unknown to the father, until he was returned to Australia and the care of his father on 25 January 2011.
The child has remained living with his father and spends time with the mother under supervision.
There are parenting proceedings on foot between the mother and father about the child. Any hearing of the issues in dispute between the father and mother about the child is unlikely to take place in the near future.

Procedural history

In November 2011 Loughnan J ordered that Associate Professor Dr Q be appointed to prepare an expert report in the matter. A consequential order made by Loughnan J required a report earlier prepared by Dr W be given to Associate Professor Q for her consideration.
The mother appealed against that consequential order.
In February 2012 the father sought an order revoking the appointment of Associate Professor Q. That application was dismissed and the father appealed the dismissal. The operation of the order appointing Associate Professor Q was stayed pending determination of the appeal.
In June 2012 the Full Court dismissed both appeals.
Because of the appeal, the appointments with Associate Professor Q for interviews of the parties in preparation of her report were cancelled. Further tentative appointment dates and times were given by Associate Professor Q.
Before any of the scheduled appointments took place, on 21 September 2012, Associate Professor Q wrote to the Court advising that she wished to withdraw her consent to act as the single expert in the matter. Her letter became exhibit 16 before Watts J. In it she said:
With reference to the above Family Court proceedings and my appointment as Single Expert, I wish to advise the Court that there have been a series of difficulties regarding appointments and costs and a further notification to me just this week that full costs may not be met. Requests from the Independent Children’s Lawyer at Legal Aid regarding my availability as Single Expert in this matter commenced in January 2012 and appointments were made and cancelled on two occasions because the parties could not agree on my appointment and I was advised then that I would not be required; some months later, however, a further request was made for me to undertake the role and I agreed. Now, given this most recent notification, and in light of the persistent difficulties, I respectfully advise the Court that I wish to withdraw as the Single Expert in this matter.
As a consequence, Watts J discharged the order appointing Associate Professor Q as Single Expert Witness and, in her stead, on 22 October 2012, made orders appointing Dr R.
By Notice of Appeal filed 8 November 2012, the mother appealed his Honour’s order appointing Dr R.
After the appeal was filed, the mother sought a stay of his Honour’s orders appointing Dr R pending the hearing of the appeal against the order. The stay was refused. The mother successfully appealed that refusal, and on 17 December 2012, the Full Court set aside the order refusing the stay and ordered that the order appointing Dr R be stayed pending the appeal against the making of that order.

The proceedings before Watts J

On 22 October 2012 the matter returned to Watts J. We observe of course, that by this time, Associate Professor Q had made her position clear by her letter to Watts J.
The mother’s submissions before the trial judge on the issue of the appointment of a single expert and in reference to several suggested experts proffered by the Independent Children’s Lawyer asserted:
27. [The Independent Children’s Lawyer] named Dr [R] as a possible expert. I reviewed the Curriculum Vitae of Dr [R] and there is no evidence in her CV that she has specialised knowledge in child sexual abuse. It appears that Dr [R] has focussed more on “community medicine” and general family issues. Dr [R] has worked at [AC]. [AC] deal with children who have emotional and behavioural difficulties e.g. anxiety disorders, ADHD, Aspergers syndrome. Furthermore their methods are highly questionable. This experience does not meet the requirement of specialised knowledge in child sexual abuse or domestic violence.
At paragraph 32 of her submissions, the mother seems to submit that Associate Professor Q does have, in the mother’s opinion, the requisite expertise.
However, the mother continued in her submission and said:
33. I also reviewed the Curriculum Vitae of [Ms V], who has signed an affidavit to confirm that she will assess [the child] and all relevant documents related to that assessment – on a pro bono basis. …
The submission refers to Ms V’s training and experience. Ms V’s Curriculum Vitae was before Watts J in exhibit 22.
Thus the mother submitted (paragraph 34) that the two, and it seems from her submission, the only two experts who have, in her assessment, the relevant expertise are Associate Professor Q and Ms V. She then posited a series of possibilities for “requesting the assistance of these experts” that included:
a)There exists a 22 November 2011 Court Order appointing A/P [Q] to prepare a report for the Court. A/P [Q] withdrew her services due to poor management of her appointment and obstruction/financial issues from [Mr Tarbell]. Her services should be re-instated and managed directly by the Court to avoid unnecessary changes in scheduling and financial issues. …
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] would be complimentary. …
The mother suggested at paragraph 34(b) that the “most likely option” would be for Ms V to:
…undertake assessments of [the child] and review documentation relation to [the child’s] welfare and prepare a report that is then provided to A/P [Q]. A/P [Q] could then interview and assess psychiatric/parenting/domestic violence issues relating to [Mr Tarbell] 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.
The mother opposed his Honour making an order that discharged the appointment of Associate Professor Q.
His Honour pointed out to the mother that in June of 2012 she had sought an order that he discharge the appointment of Associate Professor Q. The mother eventually agreed that her then legal representative had written a letter to that effect but submitted that it was done without her instructions. Although the mother agreed that she had been sitting in court when this letter was handed to the trial judge she insisted that she later remonstrated with her lawyer about sending the letter.
Whatever had been the position when the letter was written in June 2012, before his Honour, the mother said that Associate Professor Q was “totally qualified” to address the issues in the matter.
During the hearing on this issue, the trial judge referred to an email sent by the mother to the Independent Children’s Lawyer, which became exhibit 21, in which the mother said (relevant to this issue):
I have further researched experts that would be able to deal with this complex abuse case. …
I would accept any of the following:
1. [Z] Child and Family Centre…
…
The above people are recognised experts in this field.
The trial judge sought submissions from the solicitor for the father on the mother’s opposition to Dr R being appointed. It seems from the transcript of the proceedings on 22 October 2012, that the mother’s opposition to Dr R took the father’s representative by surprise, in the light of the above email.
The trial judge said (transcript 22.10.12, page 14.41):
His Honour: Now, do you accept that [Z] Child and Family Centre… is Dr [R].
Ms [Swefford]: I accept that but I did not state Dr [R]. I merely, very urgently, looked through, without considering the situation, I looked through for people who have done assessments to the court but I did not look at the curriculum vitae of Dr [R]. Obviously, anyone from [Z], if they were to do the assessment, would need to have the specialised knowledge which is in the issues of dispute, which is child abuse and from – and domestic violence and from Dr [R’s] CV there is no evidence that she has that. …
The mother’s submissions then turned to the question of Associate Professor Q. The mother agreed that she had no evidence that Associate Professor Q was willing to re-consider her position. She said (transcript 22.10.12, page 17.31):
Ms [Swefford]: I'm not allowed to contact her. I acknowledge that that’s her current position but I believe that Professor [Q] was very keen and willing to do this report and she was contacted inappropriately directly by Mr Holmes about financial issues without him having proven to the court that his client can’t pay… I do believe that Professor [Q] does not need to read all and every affidavit and procedural order that has been made since the beginning of this case. I believe that the work could be distributed between Ms [V] and Professor [Q] and I’ve also submitted that Professor [Q] could still meet all of us and Ms [V], though could do the specific detail assessment of [the child] if Professor [Q] would agree to that and Professor [Q] write the final report. …

The trial judge’s reasons

His Honour referred at [5] to the procedural history of the matter and the circumstances in which Associate Professor Q withdrew her consent to being appointed as a single expert in the case.
His Honour observed:
6. Nothing that I have been presented with today would indicate that her position has changed. A/Prof [Q] cites as her reasons that there had been a series of difficulties regarding appointments and costs, and further notification in September that her full costs may not be met. That notification, I infer, must have come from the father. She refers to the fact that two lots of appointments had been cancelled.
7. If I was to consider forcing A/Prof [Q] to undertake work which she wishes to be relieved from undertaking, she would have to be given the opportunity to be heard. There may be some issue, absent her consent, as to whether the court had power to make such an order.
8. It is not necessary to call on A/Prof [Q] because I have otherwise formed the view that it would be inappropriate in all the circumstances to consider forcing A/Prof [Q] to do the report, particularly in circumstances where, in my view, there is a viable alternative presented by the Independent Children’s Lawyer.
His Honour then considered the proposed appointment of Dr R. His Honour after observing that the mother opposed the appointment said:
10.The mother opposes the appointment of Dr [R]. I view this opposition in the following context. Firstly, the mother on a previous occasion, through her solicitor, opposed the appointment of A/Prof [Q] (although she asserts she did not give her legal representatives instructions to do so even though she was present in court when this happened). Secondly, the mother on a previous occasion by way of an email (exhibit 21) supported Dr [R] as an appropriate expert.
His Honour then considered at [11] the mother’s suggestion that “responsibility for the final report writing be split between two professionals”. The trial judge observed at [12] that Ms V had an Honours degree in Social Work and had no relevant experience in psychiatry.
His Honour indicated that he would be assisted if one expert prepared the report and said:
14. Dr [R’s] qualifications are set out in exhibit 17. She is a psychiatrist with experience in child and family psychiatry. She has provided single expert evidence to this court since 1987. The mother alleges in this case that the father suffers from a number of diagnosable psychiatric conditions. Similar allegations are made against the mother. Dr [R] is qualified to give me an opinion about these issues. There is also an issue as to whether or not there is an unacceptable risk that the father sexually abused [the child]. The determination of that issue will probably, in good part, turn upon factual findings I am asked to make.
15. I am confident that Dr [R] is qualified to give any expert opinion that is now possible to give about that issue. Dr [W] will also give evidence about that issue.

The appeal

The mother asserts 13 grounds of appeal in challenge to his Honour’s decision. In her summary of argument, the mother addresses them in two groups. In the preamble to her summary she notes:
…My appeal concerns the appointment of Dr [R] as a single expert witness when no evidence was presented to the court that

Dr [R] had relevant specialised knowledge related to two of the key issues in dispute in this case: child sexual abuse and family violence. My appeal further concerns the failure to properly consider the re-appointment of A/P [Q] as single expert witness when A/P [Q] was the only expert available on the day who did provide evidence of relevant specialised knowledge related to all key issues in dispute.
We propose to consider the mother’s grounds of appeal as falling within these two groups.
Appointment of Dr R
In relation to the appointment of Dr R, we are able to consider the four grounds globally, although we will set out each ground of appeal.
Ground 1. His Honour breached Family Law Rules 2004, 15.42(a) and 15.43, definition of an expert. It was determined that an Expert was required for the significant issues in dispute: child sexual abuse, domestic violence and parent psychiatric issues. The Judge however appointed Dr [R] as Single Expert Witness when there was no evidence before the Court that she had relevant specialised knowledge in relation to child sexual abuse or domestic violence issues. (underlining in original)
Ground 2. His Honour breached Family Law Rules 2004 15.42(c), compromising the interests of justice by appointing Dr [R] as a Single Expert Witness when there was no evidence before the Court that this person had the relevant specialised knowledge to provide expert opinion on all the significant issues in dispute.
Ground 3. His Honour proceeded on factual errors by stating that Dr [R] was a “viable alternative” to A/P [Q] and that Dr [R] was “qualified” to give expert opinion on the issue of whether “there is an unacceptable risk that the father sexually abused [the child]” when there was no evidence before the court that Dr [R] had specialised knowledge relevant to that issue. No evidence was given that Dr [R] or Dr [KN] had any specialised knowledge relevant to the issues in dispute concerning child sexual abuse and domestic violence.
Ground 4. His Honour breached Family Law Rules 2004 15.43 and 15.46(c), the requirements of the Family Law Rules 2004 when appointing an expert, the definition of an expert and the definition of an expert and the definition of a single expert witness in appointing Dr [R] rather than accepting the mother’s proposal to seek to re-engage A/P [Q]. A/P [Q] was the only expert from the names provided to the Court for whom evidence was before the Court showing that she did have specialised knowledge relevant to all the significant issues in dispute and who therefore could act as a single expert witness according to the definition of an expert at Family Law Rules 2004, 15.42 (and in keeping with Family Law Rules 2004 15.42(a)). The mother’s application would meet the requirements of Family Law Rules 2004, 15.42(a), 15.43 and 15.46(c )
It relevant to note that, while it may appear to be otherwise from some of the expressions used by the mother in her written submissions, as she clarified during the appeal hearing, the effect of the grounds challenging Dr R’s appointment was not that Dr R did not have the relevant experience to make the assessment for which she was appointed, but that there was no evidence before the trial judge on 22 October 2012 that she did.
The trial judge had Dr R’s curriculum vitae before him and on the basis of the information in that concluded that she was indeed qualified to conduct the assessment.
It could not be plainer that the mother does not agree with his Honour’s decision.
However, it was a finding of fact well open to him on the evidence. Indeed apart from the bare submission of the mother that Dr R did not have the appropriate expertise, she made no submission particularising why that was so. Her submission was a mere statement of her position.
As the High Court said (Barwick CJ, McTiernan, Menzies, Windeyer and Walsh JJ) said in Edwards v Noble (1971) 125 CLR 296 at 303 where the Chief Justice said:
I do not understand anything said in the reported cases and in particular in such cases as Powell v Streatham Manor Nursing Home (1935) AC 243 and in Benmax v Austin Motor Co Ltd (1955) AC 370 to deny the proposition that an appellant to succeed in an appeal against a finding of fact made by a judge sitting alone must convince the appellate court that the primary judge was wrong in his conclusion.

The mother has failed to demonstrate that the trial judge was wrong in his conclusion.
These grounds can not be made out.
Consideration of Associate Professor Q
Under the rubric of the consideration of Associate Professor Q’s appointment are grounds referring to the mother’s suggested appointment of Ms V. Two grounds were asserted which seem not to fall under either heading, assert errors of fact made by the trial judge. We will consider them separately.
It is necessary to set out these grounds as they appear in the Notice of Appeal.
Ground 5. His Honour proceeded on a factual error that the mother had opposed the appointment of A/P [Q]. I sent a letter to the court on 21 August 2012 stating that I did not oppose but to the contrary request the appointment of A/P [Q]. I presented my letter dated 21 August 2012 to his Honour in Court on 22 October 2012 in support of my application and affidavit to have A/P [Q] re-appointed the Single Expert Witness.
The mother asserts that his Honour’s finding that she had previously opposed the appointment of Associate Professor Q was an error. It was a finding open to the trial judge on the evidence before him. Indeed the mother conceded that her lawyer, then acting for her, sent a letter to all parties in those terms. That she asserted to the trial judge that that letter was not sent on her instructions was a matter of which his Honour was aware. The mother has not established that his finding was indeed an error much less established that it was productive of appellate error.
Ground 6. His Honour proceeded on factual errors that the mother had in an email supported Dr [R] as an appropriate expert. At no time did I mention the name of Dr [R] or that Dr [R] was an appropriate expert in any email or to the court.
Although the mother’s submission is correct that she had not supported Dr R in terms, her propounding of any psychiatrist at Z Child and Family Centre could well found his Honour’s acceptance that, when the email was sent, she did indeed support Dr R. However, even if his Honour was incorrect in that finding, it is not an error of fact that enlivens appellate intervention. As the High Court made clear in De Winter and De Winter (1979) FLC 90-605, where there has been a mistake of fact made, the judgment may nevertheless be upheld where the result is “plainly right”. Such is the case here.
Ground 7. His Honour proceeded on factual errors that he would need to “force” A/P [Q] to undertake the report. My application to re-engage A/P [Q] was based on cooperation with A/P [Q] by asking her if she would reconsider the appointment if the problems that caused her to withdraw were resolved – including cancellation of or frequently changing appointments dates by the I.C.L and the father refusing to pay A/P [Q’s] fees. This does not involve “force”.
The mother asserts that his Honour proceeded on a factual error in finding that he would need to “force” Associate Professor Q to undertake the assessment. Associate Professor Q’s letter, in the clearest of terms, set out her reasons for wishing to withdraw. The mother put no evidence before the trial judge of any contrary view of Associate Professor Q or that she was amenable to reconsideration. Her submissions on this point, it seems to us, to have been an expression of hope over experience. His Honour in making that comment at [7] was entirely apt and not, as asserted, a factual error.
Ground 8. His Honour proceeded on the factual error that I had made a ‘novel suggestion’ that the responsibility for the final report writing be split between two professionals… This is incorrect. I applied to have A/P [Q] re-appointed as a Single Expert Witness as is documented in my Application filed 10 October 2012 at Order 1, 2 and 3 and in my Affidavit filed 10 October 2012 at paragraph 58 and 59. I provided a “suggestion” in my submission filed 22 October 2012, that A/P [Q] cold be approached to ascertain if she believed she would be assisted by Ms [V], a child protection expert providing input as part of the assessment. I stated that this would be a matter for A/P [Q] to decide upon and that A/P [Q] would remain responsible for writing the final report.
It should not be thought that we accept the mother’s characterisation of her “suggestion” as she sets out in the grounds. However, it is unnecessary for the disposition of this ground to cavil with it. His Honour found that he would be assisted by having a report written by one expert and, in so doing, rejected the mother’s “suggestion”. Whether or not her suggestion was “novel” or not is beside the point. The decision was one entirely open to his Honour and no error has been established.
Ground 9. His Honour proceeded on a factual error that Ms [V] ahs an Honours degree in Social Work. Ms [V] has a Masters Degree in Social Work and extensive additional training and experience in child protection, child assessment and child sexual abuse matters, as per her curriculum vitae, which was read by his Honour on 22 October 2012 in Court.
We accept that Ms V’s curriculum vitae does indeed show that she has a Masters Degree in Social Work. However, whether she had an Honours degree or a Masters Degree was not relevant to his Honour’s decision. His Honour observed at [12] that the mother did not contend that Ms V had the qualifications to give “any opinion in relation to the issues as to the mental status of either of the parents or the history of their mental status”.
His Honour found that Dr R’s qualifications and experience would enable her to give him that assistance.
The mother has not demonstrated any materiality in the asserted error.
Ground 10. His Honour proceeded on the factual error that the 22 November 2011 Order appointing A/P [Q] was stayed in part pending an appeal by the mother regarding whether Dr [W] 3 April 2008 report should be provided to A/P [Q]. This is incorrect. The order appointing A/P [Q] was stayed on 2 February 2012 solely in response to the father’s cross appeal filed late on that day.
How the order appointing Associate Professor Q was stayed is entirely immaterial to his Honour’s determination. The mother has not made out this ground.
Ground 11. His Honour erred in stating at Order 11 of Orders made on 22 October 2012 that the mother had made an oral application for the appointment of Ms [V] as a single expert in this matter. At no time did I apply orally or otherwise to have Ms [V] appointed as a single expert.
As with the previous ground, this asserted error has no bearing on his Honour’s determination and does not establish appealable error.
Ground 12. His Honour proceeded on the factual error that the mother alleges in this case that the father suffers from a number of diagnosable psychiatric conditions….the father’s psychiatric conditions are not “allegations” arising from me and are not disputed. They are diagnosis (sic) documented by Psychiatrists, Psychologists and the father’s GP and have been communicated to the Court in Expert Reports and subpoenaed records.
Ground 13. His Honour proceeded on the factual error that “similar allegations are made against the mother”….The father’s allegations concerning a mental illness in the mother are based on the father falsely representing his own unfounded allegations about the mother’s mental health as being findings made by Dr [W] represented as findings in his 3 April 2008 Report. These false representations by the father of statements made in Dr [W] report have been shown to be false. Further allegations made by the father concerning the mother’s mental health are unsupported by any evidence from mental health professionals. In contrast mental health issues in the father are supported by evidence from mental health professionals.
Neither ground raises an appealable error and, in our view each is misconceived.
On 22 October 2012 the trial judge said (transcript 22.10.12, page 16.16):
His Honour: You would agree with me that apart from the allegations of sexual abuse in this case you’re raising significant issues in relation to the husband’s – the father’s mental status.
…
His Honour: Do you agree with that?
Ms [Swefford]: I do.
His Honour: And you assert that he has a number of psychiatric illnesses. You do, don’t you?
Ms [Swefford]: Yes
His Honour: And you know similar things are alleged against you?
Ms [Swefford]: Yes.
His Honour: And you’re suggesting that somebody who is not a psychiatrist give the court expert evidence as a single expert?
Ms [Swefford]: Not as a single expert, no, and she is not prepared to assess myself and [Mr Tarbell]. Her role is to assess [the child]. …
The mother raised none of the matters asserted in the ground with the trial judge. She agreed with his proposition that similar allegations are made against her as she makes against the father. His Honour made no error. These grounds are not made out.

Conclusion and costs

The appeal was demonstrably without merit and we have made orders that it be dismissed.
Both the respondent and the Independent Children’s Lawyer sought an order for costs against the mother.
In responding to our invitation to address s 117 of the Family Law Act 1975 (Cth), and s 117(2A) specifically, the mother indicated that she should not pay costs because she will appeal our orders. She was taken to the terms of s 117(2A) of the Act. Nothing in that section nor anything put to us by the mother persuades us that she should not pay costs.
We ordered that she pay the costs of the respondent and the Independent Children’s Lawyer.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace & Murphy JJ) delivered on 25 March 2013.

Associate: