Tarelli and Langley

[2020] FamCA 75

FAMILY COURT OF AUSTRALIA

TARELLI & LANGLEY [2020] FamCA 75

FAMILY LAW – PRACTICE AND PROCEDURE – Terms of reference for a Ch 15 Expert.

Family Law Act 1975 (Cth)

APPLICANT: Mr Tarelli

RESPONDENT: Ms Langley

INTERVENOR: Department of Communities and Justice

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: PAC 4311 of 2014

DATE DELIVERED: 14 February 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: F W Ewart & Ewart

SOLICITOR FOR THE RESPONDENT: Adam Jones Solicitor

SOLICITOR FOR THE INTERVENOR: Crown Solicitors Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

Orders

The terms of reference for the Expert are as follows:

1. Whether there are any identified psychological and/or psychiatric conditions that may impact upon the parenting capacity of each of the parents and any significant others.

2. If there are identified psychological or psychiatric conditions that impact on parenting capacity what, if any, recommendations are made as to treatment and/or services to ameliorate those issues.

3. The nature of the child’s relationship with each of the parents and noting the child has lived exclusively with the father for the last 2 years .

4. Any ill treatment, including physical, sexual or psychological abuse, and including inadequate supervision, that has been directed towards the child or witnessed by him and the likely impact of this upon the child including an assessment as to the risk of the child living with and spending time with the mother and father.

5. If there is an assessment of risk are there any recommendations to ameliorate those identified risks in relation to the mother and the father or other person’s the child may live with.

6. The likely effect of any change in the child’s circumstances, including the likely effect of the child’s separation from the father and other persons he lives with.

7. The capacity of the mother and father to provide for the needs of the child during periods that the child lives with and/or spends time with them.

8. The mother and father’s attitude to the child, to each other as parents of the child and to their responsibilities of parenthood including the capacity to provide for the needs of the child and their capacity to facilitate time with the non-resident parent and promote a positive relationship for the child with the other parent.

9. An assessment of the mother and father’s capacity to meet the emotional, psychological, physical and intellectual needs of the child.

10. Any family violence, including physical, sexual or psychological abuse, which has been perpetrated by the father and/or mother towards each other or the child, or that the child has witnessed whilst in his parents care and the impact, if any, on the child.

11. If there are identified deficits in these attitudes what recommendations if any are made to ameliorate those identified deficits

12. Any views expressed by the child and the weight that should be afforded to those views given the psychological, emotional and cognitive development of each child.

13. What is the level of D’s understanding about why he was removed from living with his mother and is now living with his father and does not live with or spend time with his mother.

14. What psychological impact in your opinion has D sustained, if any, due to the change in his residence from his mother to his father and spending no time with his mother.

15. The psychological, emotional and developmental impact on the child of not having spent time with the mother and of not living with or spending time with the mother into the future.

16. The psychological, emotional and developmental impact on the child of not living with or spending time with the father, maternal grandmother, the father’s partner and the child’s sibling.

17. The basis, in your opinion, of the mother’s inability to be able to spend time with the child in a supervised setting.

18. The capacity of the mother to have the child living with her on a full-time basis given her current incapacity to spend time with the child in a supervised setting.

19. Does the mother suffer from PTSD and if so, are you able to opine the cause of this condition.

20. Your opinion of whether a positive finding of PTSD of itself would be an explanation of the mother’s inability to spend time with the child.

21. Your opinion of whether the mother’s alleged trauma of the consequence of D living with his father is of itself an explanation of her avoiding contact with close family members including her child.

22. Your assessment of the risk to the child living with, and/or spending time with his mother and his father and your recommendations to ameliorate any risks so identified.

23. The likely effect of any change in the child’s circumstances including the likely effect on the child of separation from the mother, father or other person significant in his care.

24. The psychological impact on D of living with his father and spending no time with his mother into the future.

25. Any other issues identified by you.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 4311 of 2014

Mr Tarelli

Applicant

And

Ms Langley

Respondent

And

Department of Communities & Justice

Intervener

REASONS FOR JUDGMENT

1. The Independent Children’s Lawyer, father and intervener, the Department of Communities and Justice, have agreed on the terms of reference for the Expert in this matter, Dr TT.

2. The mother does not disagree, prima facie, with the terms of reference as set out, but seeks additional terms of reference to those which have been put forward by the Independent Children’s Lawyer.

3. I am tasked to settle those terms of reference and in so doing have endeavoured to ensure the witness is only asked to address matters within her expertise and knowledge, to leave findings of fact, which the Court is to make, to the Court and ensure neither party’s conclusions regarding the facts or propositions of alternate scenarios are asked to be commented upon by the expert witness in the report.

4. Those matters are matters properly put to an expert witness in cross-examination and there will be ample opportunity for that to occur in this matter. The Court-appointed expert is an objective witness whose opinion can be received into evidence due to their opinion training and expertise. They are not a witness for one or any party, rather an objective observer whose evidence will assist the Court to make the findings of fact and ultimately the orders that the judge considers are in the best interest of the child.

5. I formed the view that many of the matters the mother seeks to put to the Expert are not properly to be put to an Expert in the preparation of the report but will be highly relevant matters to put to that expert in cross-examination, for example:

   a)16. If the decision was made for D to remain with his father what might be the impact on D’s psychological well-being if he were to subsequently discover that his father had been physically and sexually abusive to the mother, that the mother was in fear of the father and that the mother is unable to spend time with him due to her fears in full relating to the father?;

   b)17. In providing your opinion in response to question 16 please consider what ongoing risk may be posed to D’s mental health and well-being by virtue of that knowledge; and

   c)18. What impact may the knowledge that the father was abusive towards D Wiley as an infant have on D’s psychological well-being, relationship with his father, and relationship with his mother?

6. The matters sought to be addressed in these paragraphs are matters which have assumed the fact that the father was abusive to the child as an infant, that his father had been physically and sexually abusive to the mother, and that D would find out these matters and thus are not proper questions at this time, but may be at the trial.

7. Dr TT is a Court-appointed expert and objective in that sense and is not as such a witness for one party or the other.

8. However, I do not agree entirely with all the questions as framed by the Independent Children’s Lawyer and thus the settled terms are somewhat of a hybrid of the Independent Children’s Lawyer’s proposals and the mother’s additional questions, and are as follows:

   i)Whether there are any identified psychological and/or psychiatric conditions that may impact upon the parenting capacity of each of the parents and any significant others.

   ii)If there are identified psychological or psychiatric conditions that do impact on parenting capacity what, if any, recommendations are made as to treatment and/or services to ameliorate those issues.

   iii)The nature of the child’s relationship with each of the parents.

   iv)Any ill treatment, including physical, sexual or psychological abuse, and including inadequate supervision, that has been directed towards the child and the likely impact of this upon the child including an assessment as to the risk of the child living with and spending time with the mother and father.

   v)If there is an assessment of risk are there any recommendations to ameliorate that identified risk in relation to the mother and the father.

   vi)The likely effect of any change in the child’s circumstances, including the likely effect of the child’s separation from the father.

   vii)The capacity of the mother and father to provide for the needs of the child during periods that the child lives with and/or spends time with them.

   viii)The mother and father’s attitude to the child and to the responsibilities of parenthood including the capacity to provide for the needs of the child and the capacity to facilitate time with the non-resident parent.

   ix)An assessment of the mother and father’s capacity to meet the emotional, psychological, physical and intellectual needs of the child.

   x)Any family violence, including physical, sexual or psychological abuse, which has been perpetrated by the father and/or mother towards each other or the child, and impacts, if any, on the child.

   xi)The mother and father’s attitude towards each other and the impact that view and attitude has on each parent’s capacity to promote a positive relationship with the other parent.

   xii)If there are identified deficits in these attitudes what recommendations if any are made to ameliorate those identified deficits.

   xiii)Any views expressed by the child and the weight that should be afforded to those views given the psychological, emotional and cognitive development of each child.

   xiv)What is the level of D’s understanding about why he was removed from living with his mother and is now living with his father and does not live or spend time with his mother.

   xv)The psychological, emotional and developmental impact on the child of not having spent time with the mother and of not spending time with the mother into the future.

   xvi)The psychological, emotional and developmental impact on the child of not living with or spending time with the father, maternal grandmother, the father’s partner and the child’s sibling.

   xvii)The basis, in your opinion, of the mother’s inability to be able to spend time with the child in a supervised setting.

   xviii)The capacity of the mother to have the child living with her on a full-time basis given her current incapacity to spend time with the child in a supervised setting.

   xix)Does the mother suffer from PTSD and if so, are you able to opine the cause of this condition.

   xx)Would a positive finding of PTSD of itself be an explanation of the mother’s inability to see the child.

   xxi)Whether the mother’s alleged trauma of itself and the consequence of D another living with his father is of itself an explanation of her avoiding contact with close family members including her child.

   xxii)The nature of the child’s relationship with his father currently given the child has lived with his father exclusively for two years.

   xxiii)What psychological impact in your opinion has D sustained, if any, due to the change in his residence from his mother to his father and spending no time with his mother.

   xxiv)Your assessment of the risk to the child living with, and/or spending time with his mother and his father and your recommendations to ameliorate any risks so identified.

   xxv)The likely effect of any change in the child’s circumstances including the likely effect on the child of separation from the mother, father or other person significant in his care.

   xxvi)The psychological impact on D of living with his father and spending no time with his mother into the future.

   xxvii)Any other issues identified by you.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 14 February 2020.

Associate:

Date: 14 February 2020