Swefford & Tarbell (No 4) - [2012] FamCA 888

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL (NO. 4)

[2012] FamCA 888

FAMILY LAW – CHILDREN – appointment of new single expert

Family Law Act 1975 (Cth)

APPLICANT:

Ms Swefford

RESPONDENT:

Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER:

Christos Christaki

FILE NUMBER:

SYC

889

2008

DATE DELIVERED:

22 October 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

22 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

KDB Holmes Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Orders 1.7, 1.8, 1.9, 1.10, 1.11, 1.12, 1.13, 1.14 and 1.15 made on 22 November 2011 be and are hereby discharged.
Orders 5, 6 and 7 made on 9 August 2012 be and are hereby discharged.
Order pursuant to Division 15.5.2 of the Family Law Rules 2004 that Dr R, 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 R be requested to consider the following matters:
3.1.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;
3.2.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;
3.3.the relationship between the child and with each of his parents and any other relevant person;
3.4.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;
3.5.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 and the likely effect of any change to the child's schooling;
3.6.the capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs;
3.7.the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person);
3.8.the effect on the child of any family violence to which he may have been exposed and the need to protect the child from being exposed to family violence in the future;
3.9.the mental state of both parents in so far as it is relates to parenting issues and their willingness to address such issues if they exist;
3.10.the mental health/special needs of the child and any recommendation for therapeutic counselling if appropriate for the child;
3.11.your opinion concerning the allegations of physical, emotional and sexual abuse of the child as alleged by the mother;
3.12.to consider with whom the child shall live with and spend time with factoring in the following:
3.12.1.if the mother is not sentenced to a term of imprisonment;
3.12.2.if the mother is sentenced to…

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 (No 4)

Details

AGLC: Swefford & Tarbell (No 4) [2012] FamCA 888
Case: [2012] FamCA 888
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, in the matter of *Swefford & Tarbell (No. 4)*, heard an application concerning the appointment of a single expert witness in proceedings involving the welfare of a child. The applicant was Ms Swefford, the respondent was Mr Tarbell, and Mr Christos Christaki acted as the Independent Children’s Lawyer.

The court was required to determine whether to discharge previous orders relating to expert reports and to appoint a new single expert witness. Specifically, the court considered the withdrawal of a previously appointed expert, A/Prof Q, due to difficulties with appointments, costs, and uncertainty regarding payment. The court also had to assess the mother's opposition to the proposed new expert, Dr R, and her alternative suggestion of appointing Ms V to share reporting duties.

Justice Watts discharged previous orders made on 22 November 2011 and 9 August 2012. The court reasoned that it would be inappropriate to force A/Prof Q to continue in the matter given her request to be relieved and the existence of a viable alternative. The court found Dr R, a child and family psychiatrist with extensive experience, to be well-qualified to address the complex issues in the case, including allegations of psychiatric conditions and child abuse. The mother's opposition to Dr R was noted, particularly in light of her prior support for Dr R and her unsuccessful attempt to have Ms V appointed, whose qualifications were deemed insufficient for the required psychiatric assessments.

The court ordered the appointment of Dr R as a Single Expert Witness to report on various matters concerning the child's welfare, including risk of harm, the child's views, parental relationships, parental capacity, and allegations of abuse. The father was ordered to contribute $6,500 towards Dr R's fees, with Legal Aid NSW to pay this amount initially on his behalf. The parties were directed to facilitate the preparation of the report, and the Independent Children's Lawyer was granted broad authority to gather relevant documents and communicate with various professionals and organisations involved with the child and parents. The mother's application for subpoenas was granted, and previously scheduled hearing dates were vacated.

Orders