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 of 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

1. 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.

2. Orders 5, 6 and 7 made on 9 August 2012 be and are hereby discharged.

3. 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 a term of imprisonment; and

   3.12.3.if sentenced on the mother’s release

   3.13.the effect upon the child of spending equal time, or substantial and significant time, with the mother and the father, having regard to the above matters as well as their current and future capacity to:-

   3.13.1.implement such an arrangement;

   3.13.2.communicate with each other and resolve difficulties that might arise;

   3.14.any other matter the Court Expert considers relevant.

4. The father be liable for his half share of the cost of Dr R's report and for her preparation and attendance for to give evidence at the hearing in the sum of $6,500.00 inclusive of GST and that such sum shall be paid by Legal Aid NSW at first instance on behalf of the father and the father shall within 24 months pay $6,500.00 into the Trust Account of Legal Aid NSW for payment to Dr R upon completion of her expert report and the Independent Children's Lawyer is authorised to make such payment to Dr R.       

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

6. 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.

7. The Single Expert Witness shall be authorised and at liberty to speak to the school and/or school counsellor of the school/s and any other organisations that the child is currently attending or has previously attended upon and any medical and/or mental health professional that the child or the parents may be attending upon or have previously attended upon, in either Australia or overseas.

8. The Independent Children's Lawyer shall be permitted to make a copy of Dr W’s report dated 3 April 2008 and make that available to the Single Expert Witness.

9. The Independent Children's Lawyer shall forward a letter to Dr R in the terms of the document marked as Annexure A, together with those documents referred to in Annexure A and any documents filed by either party and/or any documents produced under subpoena after 17 October 2012.

10. It is noted that the mother is currently in receipt of a grant of Legal Aid for the substantive proceedings.

11. The oral application by the mother for the appointment of Ms V as a single expert in this matter be dismissed.

12. Orders be made in accordance with the mother’s application in a case sworn 13 September 2012 as follows, such subpoenas to be returnable before the docket registrar:

    1.The other is granted permission to subpoena all Northern Sydney Child Protection Services records (Royal North Shore Child Protection Unit) from 2008 to the present time that relate to the child D Tarbell born … August 2004; Mr Tarbell born … 1953 and Ms Swefford (aka Tarbell) born … 1962;

    2.The mother is granted permission to subpoena records from psychologist Mr CP relating to any file notes, treatment, observation, consultations with D Tarbell born … August 2004 and Ms Swefford born … 1962 and any correspondence Mr CP has exchanged with staff at A Child and Adolescent Mental Health Services relating to the child D Tarbell, Mr Tarbell and Ms Swefford (aka Tarbell);

    3.The mother is granted permission to subpoena records from KPMG’s data analysis that mention/relate to Mr Tarbell born … 1953 that were reviewed as part of their review of the workplace conduct, governance, processes and culture of the NSW Fire Brigade conducted in 2010.

13. The hearing dates scheduled between 19 and 30 November 2012 be vacated.

14. The mother’s Application for interim time with the child D be adjourned to 10am on 22 November 2012.

15. By 12 November 2012 the father file and serve any evidence in reply.

16. No further documents are to be filed between now and 19 November 2012 without my leave.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 889 of 2008

Ms Swefford

Applicant

And

Mr Tarbell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. An order was made by Loughnan J on 22 November 2011 whereby he appointed A/Prof Q to do a Chapter 15 report in this matter and made consequential orders to facilitate that report being written. That order was appealed by the father in its entirety. An appeal was lodged by the mother as to the consequential orders in respect of A/Prof Q receiving the previous report that had been prepared by Dr W. The order appointing A/Prof Q was stayed on 2 February 2012 pending those appeals. 

2. That meant that appointments that had been scheduled for interviews with A/Prof Q had to be cancelled. 

3. The Independent Children's Lawyer, on his own motion, asked A/Prof Q to pencil in further dates pending the outcome of the Full Court appeal. The Full Court heard the matter on 2 May 2012 and delivered itself of its reasons on 13 June 2012 dismissing both appeals insofar as they related to the orders made by Loughnan J on 22 November 2011 in relation to the preparation of a report by A/Prof Q. 

4. One of the orders that were made by Loughnan J was that both parties pay into a trust fund an amount to cover A/Prof Q’s expenses. It seems common ground that at least the father did not do that. The mother did not do it either but it may be that she was by that time covered by the grant of legal aid but my attention has not been drawn to the precise details about that.

5. Further appointments were made for A/Prof Q to see the parties on 8 October 2012 for interviews. Prior to that time, A/Prof Q on 21 September 2012 wrote a letter to the Family Court and copied it to the Independent Children's Lawyer. The text of that letter is set out in exhibit 16. A/Prof Q respectfully advises the Court that she wishes to withdraw as a single expert in this matter. 

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.

9. That viable alternative is Dr R.

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 legal representatives, 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.

11. The mother makes a novel suggestion that the responsibility for the final report writing be split between two professionals. She suggests Ms V as somebody who could participate in the preparation of a report for the Court along with A/Prof Q.

12. Ms V has an Honours degree in Social Work. She has no relevant experience in psychiatry and the mother, to be fair, does not suggest that she has the qualifications to give the Court any opinion in relation to the issues as to the mental status of either of the parents or the history of their mental status.

13. I am of the view that I would be assisted if the one expert did the whole report.

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 those 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 it is now possible to give about that issue. Dr W will also give evidence about that issue.   

16. It follows therefore that I am of the view that the orders that the Independent Children's Lawyer proposes in exhibit 18 are to be made and I make orders in those terms. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 22 October 2012.

Associate: 

Date:  25.10.12