Thayer and Caville and Ors

[2014] FCCA 3157

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAYER & CAVILLE & ORS [2014] FCCA 3157

Catchwords:
FAMILY LAW – Parenting matter involving Indigenous children – whether expert report, or part thereof, should be excluded – whether expert demonstrated relevant expertise in Indigenous and kinship issues – whether the report substantially deals with s.60CC(3)(h) considerations, s.61F, and the instructions given – no weight to be placed on those parts of the report dealing with Indigenous and kinship issues.

Legislation:

Evidence Act 1995, ss.79, 135, 136

Family Law Act 1975, ss.60CC(3)(h), 61F, 69ZT, 69ZX

Stephen Ralph, The Best Interests of the Aboriginal Child in Family Law Proceedings, (1998) 12(2) AJFL 140

Dasreef Pty Ltd v Hawchar [2011] HCA 21
Donnell & Dovey [2010] FamCAFC 15
Thayer & Caville & Ors [2013] FCCA 2265

Applicant: MR THAYER

First Respondent: MS CAVILLE

Second Respondent: MS P CAVILLE

Third Respondent: MS J CAVILLE

File Number: WOC 602 of 2013

Judgment of: Judge Altobelli

Hearing date: 24 June 2014

Date of Last Submission: 24 June 2014

Delivered at: Wollongong

Delivered on: 24 June 2014

REPRESENTATION

Counsel for the Applicant: Ms Humphreys

Solicitors for the Applicant: Bailey Mullard Lawyers

Counsel for the First Respondent: Ms Mahony

Solicitors for the First Respondent: Women's Legal Service

Counsel for the Second and Third Respondents: Ms Goodchild

Solicitors for the Second and Third Respondents: Shoalcoast Community Legal Centre

Counsel for the Independent Children's Lawyer: Mr Alexander

Solicitors for the Independent Children's Lawyer: Verekers Lawyers

ORDERS

THE COURT ORDERS THAT:

1. The hearing dates of 25 - 27 June 2014 be vacated.

2. The matter be adjourned to 13 April 2015 at 10:00am for Final Hearing (allocating 5 days).

3. Both parties file and serve any updating evidence upon which they intend to rely by no later than 3 April 2015.

4. Each party file and serve one consolidated affidavit in support of the orders sought by them together with any other witness’s affidavits by no later than 3 April 2015.

5. Neither party may rely on any documents filed after that date without leave of the Court and in the event of non compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.

6. Both parties and the Independent Children’s Lawyer are granted leave to issue such Subpoena as they consider relevant to the issues before the Court.

7. In the event that either party wishes to cross examine the Family Report writer at the final hearing, that party shall provide written notice to the Family Report writer within 14 days from this date or in the event that the Family Report is not yet released then within 7 days from the date of receipt of the report and in the event that no notice is given to the Family Report writer and the Family Report writer is unavailable the Family Report will be admitted into evidence without cross examination subject only to evidentiary objection.

8. Each party file and serve an outline of case document not less than 7 clear business days prior to the hearing setting out:

   (a)a precise Minute of Orders Sought;

   (b)a list of documents to be read in their case;

   (c)a brief summary of argument touching upon the matters set out s.60CC of the Act with reference to the relevant evidence relied on.

9. In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the Applicant and Respondent shall pay any such fee equally at least 14 days prior to the hearing date.

10. Leave granted to the parties to relist on 7 day’s notice.

11. In the event that the matter resolves during the adjourned period, the parties are at liberty to file terms in the Registry for the purposes of orders being made in Chambers and subject to compliance with Rule 13.04A orders will be made in Chambers.

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The First Respondent Mother be permitted to spend time with the children when the children are in the care of the Second and/or Third Respondent and such time is to be supervised save for where the Second and/or Third Respondent consider that supervision is not necessary based on their assessment of the First Respondent Mother’s presentation (being both her physical and psychological presentation), with such unsupervised time to allow for incidental activities such as taking the children to the bus stop and collecting them from activities in and around (omitted), such time not to exceed one hour.

2. The parties will jointly prepare terms of reference for a further Family Report having regard to the decision made today.

3. No weight be given to the report of Dr R dated 16 June 2014, insofar as it relates to Indigenous or kinship matters.

IT IS NOTED that publication of this judgment under the pseudonym Thayer & Caville & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 602 of 2013

MR THAYER

Applicant

And

MS CAVILLE

First Respondent

MS P CAVILLE

Second Respondent

MS J CAVILLE

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The application before me relates to the hearing of competing applications in relation to three children, X, who is six, Y, who is four, and Z, who is three. 

2. The children’s father is the Applicant.  The children’s mother is the First Respondent.  The children’s maternal aunt and great-grandmother are the Second and Third Respondents respectively.  The First and Second Respondents are (omitted)/(omitted) Aboriginal women. The Third Respondent is (omitted)/(omitted) Aboriginal and an Elder.

3. The matter was listed for hearing before me commencing this morning.  Indeed, pursuant to a draft trial plan that was provided the hearing would have started this morning and continued through to Friday afternoon.

4. The issue is whether the hearing is able to continue as a result of concerns that have been raised by the respondents in relation to the expert evidence in this case. 

5. Pursuant to an Application in a Case filed in court today, the substance of which was foreshadowed to the parties at least as at yesterday, but possibly earlier, the court is asked to rule on the admissibility of the report of Dr R, an expert who was jointly appointed.  His report is dated 16 June 2014 and his report became Exhibit ICL1. 

6. As it turns out there is not or very little criticism or complaint about those parts of Dr R’s report that deal with mental health issues.  Indeed, there may be little or no criticism  (subject to cross-examination of course) about other parts of his report other than insofar as his report deals with the specific issue that this Court is asked to consider as a result of the application.

7. In very pragmatic terms, the issue is whether Dr R’s report is of assistance to the Court insofar as it deals with matters that can be best described by reference to the relevant statutory provisions. Those provisions are s.60CC(3)(h) of the Family Law Act 1975 (hereafter referred to as ‘the Act’) that requires the Court, as an additional consideration, to take into account if the child is an Aboriginal child or a Torres Strait Islander child, firstly, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture, including the right to enjoy that culture with other people who share that culture, and secondly, the likely impact any proposed parenting order under this part will have on that right.

8. The other relevant statutory provision is s.61F of the Act that says in applying Part VII of the Act, to the circumstances of an Aboriginal or Torres Strait Islander child, or in identifying a person or persons who have exercised or who may exercise parental responsibility for such a child, the Court must have regard to any kinship obligations and child rearing practices of the child’s Aboriginal or Torres Strait Islander culture.

9. There is no dispute that these provisions relate to the children in this case.  The question is, again in practical terms, whether and if so to what extent Dr R has dealt with these issues, or indeed, is even qualified to give evidence about these issues.

Background

1. It is necessary to provide some explanation of the background of this case.  The chronology prepared by the Independent Children’s Lawyer in her Case Outline document is reproduced in Schedule One of these reasons. 

2. An earlier judgment has been given in this case on an interim basis and that judgment was published as [2013] FCCA 2265. Some matters of background are also set out there.

3. On 18 December 2013 for reasons that are set out in that judgment, I made Orders that are, the Court believes, still in place.  Those Orders provide for the Father, and the Second and Third Respondents to have equal shared parental responsibility relating to the children.  Z lives with the Second and Third Respondents.  X and Y live with the Father.  He was required to return to the (omitted) district, as he has, and basically the children spend time with each of the Father and the Second and Third Respondents on a week about basis.

Evidence

1. In terms of the evidence before the Court, as the matter was listed for hearing, the Court has had regard to all of the evidence that has been filed by the parties.

2. The Applicant relied on the following documents:

   ·Amended Initiating Application, filed 19 June 2014;

   ·Affidavit of Mr Thayer, filed 19 June 2014; and

   ·Case Outline, dated 23 June 2014.

3. The First Respondent relied on the following documents:

   ·Affidavit of Ms Caville, filed 12 December 2013;

   ·Case Outline, dated 22 June 2014; and

   ·Outline of Submissions for the First Respondent.

4. The Second Respondent relied on the following documents:

   ·Response, filed 20 November 2013;

   ·Affidavit of Ms P Caville, sworn 23 August 2013;

   ·Affidavit of Ms P Caville, filed 20 November 2013;

   ·Affidavit of Ms P Caville, filed 19 June 2014;

   ·Case Outline, filed 23 June 2014; and

   ·Application in a Case filed 24 June 2014.

5. The Third Respondent relied on the following documents:

   ·Initiating Application, filed 26 August 2013

   ·Amended Response filed 23 June 2014;

   ·Affidavit of Ms J Caville, filed 16 June 2014; and

   ·Interim Application Outline of Submissions.

6. The Independent Children’s Lawyer relied on the following documents:

   ·Case Outline, dated 20 June 2014; and

   ·Report of Dr R, dated 16 June 2014.

7. Dr R’s report became Exhibit ICL1 and Exhibit ICL2 and comprised of a bundle of correspondence relating to the Order that was made for the preparation of Dr R’s report, and reference will be made to some of the documents in this bundle in due course. 

Applicable Law

1. This is an application under Part VII of the Act and ss.60B and 60CC apply generally. However, the specific issue raised, as I foreshadowed, is the extent to which the report deals with the matters under s.60CC(3)(h), and likewise, s.61F. Sections 69ZT and 69ZX, dealing with evidence in Division 12A proceedings is also relevant.

2. The High Court decision in Dasreef Pty Ltd v Hawchar [2011] HCA 21 contains a number of paragraphs (drawn from the reasons of the plurality French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) that are relevant in the present context:

   [19] As a general rule, trial judges confronted with an objection to admissibility of evidence should rule upon that objection as soon as possible. Often the ruling can and should be given immediately after the objection has been made and argued. If, for some pressing reason, that cannot be done, the ruling should ordinarily be given before the party who tenders the disputed evidence closes its case. That party will then know whether it must try to mend its hand, and opposite parties will know the evidence they must answer.

   [20] It is only for very good reason that a trial judge should defer ruling on the admissibility of evidence until judgment.

3. It was therefore important to rule on this issue before the evidence commenced.  As to the substantive issue:

   [32] To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge". The complaint which Dasreef made at trial, on appeal to the Court of Appeal and on appeal to this Court was that Dr Basden did not express an opinion about the numerical or quantitative level of exposure to respirable silica encountered by Mr Hawchar in working for Dasreef that was an opinion based on any specialised knowledge Dr Basden had that was based on his training, study or experience.

   [37] It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles[24]) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita[25], that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.

   [42] A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.

4. The Court recognises that s.69ZT(1)(c) excludes the operation of s.79 of the Evidence Act 1995 (Cth). However, no part of s.69ZT excludes the operation of s.135 of the said Act which states:

   General discretion to exclude evidence

   The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

   (a)  be unfairly prejudicial to a party; or

   (b)  be misleading or confusing; or

   (c)  cause or result in undue waste of time.

5. It was at least implicit in the Respondent’s case that parts of Dr R’s report were caught by s.135. Section 136 of the said Act could equally apply. It states:

   General discretion to limit use of evidence

   The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

   (a)  be unfairly prejudicial to a party; or

   (b) be misleading or confusing.

6. The Court nonetheless has a general power to exclude or limit the application of evidence under s.69ZX(1) of the Act, which States:

   Court's general duties and powers relating to evidence

   (1)  In giving effect to the principles in section 69ZN, the court may:

   (a)  give directions or make orders about the matters in relation to which the parties are to present evidence; and

   (b)  give directions or make orders about who is to give evidence in relation to each remaining issue; and

   (c)  give directions or make orders about how particular evidence is to be given; and

   (d)  if the court considers that expert evidence is required--give directions or make orders about:

   (i)  the matters in relation to which an expert is to provide evidence; and

   (ii)  the number of experts who may provide evidence in relation to a matter; and

   (iii)  how an expert is to provide the expert's evidence; and

   (e)  ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.

7. The issue before the Court is whether the concerns raised on behalf of the Respondents justifies the partial exclusion of Dr R’s report.  The Full Court’s decision in Donnell & Dovey [2010] FamCAFC 15 contains a number of helpful statements in that regard:

   [171] The question that inevitably arises is by whose norms is the “suitability” of the parent to be judged?  In the absence of any direct evidence on this point concerning Wakka Wakka traditions, it was likely that the assessment would be made by reference to the norms of the dominant European/white Australian culture – which is taken for granted and about which expert evidence is never required. 

   …

   [183] In our view there were only a few findings and deductions reasonably available to his Honour from the limited evidence.  We suggest they comprise the following:

   ·   the Wakka Wakka tribal line is matriarchic and it is the women who are dominant and assume the leadership role (sister’s affidavit paragraph 38, which was clearly accepted by his Honour at paragraph 37 of his reasons);

   ·   when a parent passes away it falls to the oldest child to look after their financial affairs and any younger children and to make the necessary arrangements (sister’s affidavit paragraph 39, which was expressly accepted by his Honour at paragraph 34 of his reasons);

   ·   this custom must be seen as subject to exceptions which may be assumed to be culturally appropriate, given what had been arranged within the family for the three half-sisters;

   ·   there was no evidence of the breadth of the exceptions to the custom; however, by inference the exceptions might include the following:

   Ø where the child is already living with the surviving parent (as in the case of C);

   Ø where the surviving parent lives nearby and has been regularly involved in the child’s life (as in the case of M and K);

   Ø where the eldest sibling consents to the child living with the father (as in the case of all three children).

   [184] We do not consider, however, that it could be inferred from the evidence that it was culturally appropriate for a child to be placed with a parent who had been almost totally absent from the life of the child in preference to an adult sister who was able (and anxious) to provide for the child’s needs, who had lived with the child for the greater part of the child’s life and who had been the principal carer for an extended period.

   …

   [187] A rigid interpretation of s 61F may have suggested that the adjournment option was to be preferred.  On the face of the section, it is mandatory for the court to have regard to the relevant indigenous child-rearing practice in every case involving a child of Aboriginal or Torres Strait Islander background.  If there is no evidence, or there is a lacuna in the evidence, the court cannot fully comply with the obligation imposed by the statute. 

   [188] However, such a strict interpretation of s 61F would be unrealistic.  In many cases there will be no evidence at all of the relevant custom or practice.  This may be because there is no acceptable evidence available to establish the custom or practice.  Alternatively, there may be no evidence because no party asserts it to be of any relevance.  For example, the child may have been brought up in a family where all meaningful attachment to indigenous culture has been lost. 

   …

   [228] Whilst we acknowledge there are limitations associated with evidence of cultural traditions being given by a party or a person closely aligned to a party, we are inclined to respectfully agree with their Honours that evidence relating to indigenous cultural practices need not necessarily be given by an anthropologist, nor need it be the subject of “well recognised peer reviewed research”.  We accept that the best evidence may be that given, if it is available, by an elder or such other person within the indigenous community who is accepted by the community as being able to speak with authority on its customs. 

   …

   [313] No reference was made in the first report to any research to support any of the propositions/assumptions made by the report writer.  There was, however, in the second report a reference in a footnote to a presentation by Professor Guy Diamond at “Attachment Based Family Therapy Training” in Brisbane in January, 2009.  This appeared in the portion of the report in which the report writer said there was abundant evidence about “the importance of the parent-child attachment, parent-child identification and parent-child belonging” and where she stated the converse proposition that “children that are denied (for whatever reason) strong and loving parent-child relationship are at significantly greater risk of poor outcomes (across a range of issues) in adulthood”. 

   [314] We are prepared to accept for the sake of argument that in a dispute involving a child of European/white Australian origin, it may be legitimate to assert such propositions as a matter of common understanding or experience.  We hasten to add, however, that such general propositions inevitably need to be considered carefully against the backdrop of the factual circumstances of each case. 

   [315] We are unable to accept, however, that such propositions can be applied to indigenous families without any consideration at all of the cultural context.  In this regard we note there was no indication in the material that Professor Diamond had purported to suggest that his views had application to indigenous children. 

1. The Full Court set out its expectations of Judges dealing with cases involving an Indigenous child at paragraphs 322 – 324.  This passage is lengthy, but warrants setting out in such a case as this:

   [322] In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic level of understanding of indigenous culture, at least to the extent that this can be found in what the Full Court in B and R (supra) called “readily accessible public information”.  It should not be expected that parties must approach the court on the basis that the presiding judicial officer comes to the case with a “blank canvas”. 

   [323] It is also to be expected, in our view, that judicial officers will be familiar with the reported decisions of the Full Court dealing with indigenous children, as well as the policy considerations that have informed the significant changes made to the legislation pertaining to indigenous children.    

   [324] Accordingly, judicial officers should be aware of (or remind themselves of) the matters set out in the extracts below from the article by Professor John Dewar (former Chair of the Family Law Council) entitled “Indigenous Children and Family Law” published in (1997) 19(2) Adelaide Law Review 217. 

   In defining kinship, or its conceptions of relationship, Australian family law reflects its Anglo‑European heritage. So, when it comes to constructing legal relationships around children, the law tends to assume a nuclear model: that is, that a child will have two parents for legal purposes, generally those who are its biological mother and father. These are the people who automatically have legal status with respect to the child, a status that they never technically lose. Thus, s61C of the Family Law Act 1975 (Cth) states that each parent of a child has parental responsibility for it, and that this responsibility survives any changes in the relationship between the parents. “Parental responsibility” for the child includes all duties, powers, responsibilities and authority a parent might have in relation to a child. The recent changes to the Family Law Act, which introduced the concept of shared and continuing parental responsibility between biological parents, have, if anything, served further to entrench this nuclear model in the law. Thus, according to the principles underlying the new Part VII, contained in s60B, children have a right to know and be cared for by both their parents, but not by other significant figures in their lives; and parents (but not others) share duties and responsibilities for the care, welfare and development of their children, and should agree about their children’s future.

   …

   Other departures from the nuclear model can be found in the s68F(2) checklist, which requires a court to take account of a child’s relationships with persons other than its parents in making decisions about the child’s best interests.  Thus, in addition to paragraph (f) already discussed, paragraph (b) refers to “the names of the relationship of the child with each of the child’s parents and with other persons”; paragraph (c)ii) refers to “the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from … any other child, or other person, with whom he or she has been living”; and paragraph (e), which talks of “the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs”.  Finally, the statement of objects underlying Part VII talks of the child’s right of contact with parents and with others “significant to their care, welfare and development”.  However, each of these provisions has to be seen as a qualification of, or as an exception to, a basically nuclear, two‑parent model of parent‑child relations.

   In general, then, the Family Law Act and the child support regime enshrine particular assumptions about relationships between children and parents. While these may seem natural to many members of the dominant European culture, they become, in the context of Indigenous cultures, a serious barrier to the sort of increased flexibility to which the [Australian Law Reform Commission] refers. In the case of support obligations in particular, the current law amounts to a clear breach of the principle of substantive equality, stated to be a cornerstone of multiculturalism, in the sense that the current law “unintentionally acts to disadvantage certain groups of Australians”. Yet it is the supposed naturalness of these assumptions, and the powerful ideology of the nuclear family surrounding them, that renders them invisible to many. From the point of view of the Indigenous community in particular, this nuclear model doesn’t fit at all well with Indigenous child-rearing structures or practices.

   …

   Although practices vary between Indigenous groups, it seems generally true that conceptions of kinship and of good child‑raising practice are significantly different from the nuclear model.  Kinship relations are constructed in different ways from Western kinship systems, with the term “mother”, for example, often being used to cover a much wider group of people than the biological mother.  Kinship systems amongst many Indigenous groups are classificatory, which means that a much larger proportion of the social group, perhaps all members of the group, are accounted for in terms of kinship.  Western kinship systems, by contrast, consist of a much narrower range of relations.  As Bringing them Home says:  “By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child‑rearing values”.  In addition, child‑rearing practices often differ markedly:  whereas non‑Indigenous culture tends to emphasise permanence and stability as positives for children, Indigenous culture sees movement of children, either geographically or between or within kinship groups, as beneficial.  As Bringing them Home argues, “by privileging stability of residence, the system similarly entrenches a bias against Aboriginal practice of mobility of children amongst responsible adults and their households”.

2. At paragraph 327 the Full Court referred with approval to an article by Mr Stephen Ralph entitled “The Best Interests of the Aboriginal Child in Family Law Proceedings” ((1998) 12(2) AJFL 140) and reproduced an abstract of the same:

   [327] Of particular concern is the possibility that counsellors who have limited knowledge or experience in working with Aboriginal families may produce reports that do not adequately address the issue of the child’s cultural identity and consequently the report may fail to attend to vital cultural issues affecting the child’s best interests.  This possible deficit in cross‑cultural understanding is one of the issues that the court’s cultural awareness programme seeks to address both through the appointment of Aboriginal Family Consultants and through training of counsellors in this area.

   In contrast to the counsellor’s view Aboriginal people are likely to argue that children have the ability to effectively attach themselves to many carers in the course of their “growing up”.  In many indigenous cultures multiple, serial attachments are the norm and are not regarded as necessarily harmful to the child’s development and long‑term adjustment.

3. Many of the submissions made on behalf of the Respondents clearly had their foundation in matters set out above.

Dr R

1. Dr R’s report is dated 16 June 2014. It follows a format that would be familiar to the lawyers practising in this jurisdiction. The Court’s present focus on Dr R’s report is the manner in which he has demonstrated that he took into account matters referred to in s.60CC(3)(h) and s.61F. In this regard, there are a number of relevant passages. For example, at page 18, lines 650-653, he records what Ms P Caville the maternal aunt said to him, and I quote:

   Ms P Caville said that she would like the children to remain in (omitted).  It’s important for them to keep the connection with the extended family and be in touch with their family history.  She tried to emphasise the importance of the strong family bonds and aboriginal heritage and kinship stories.

2. On page 24 of his report under the heading “The Nature of the Relationship Between the Children and Mr Thayer”, at lines 888-890 inclusive, Dr R records as follows:

   I believe that he does also value the children’s relationship with the maternal family and also maintaining a connection with their aboriginal heritage.  

3. Commencing from page 27, lines 130 onwards, Dr R sets out the possible outcomes in relation to the issues present before the court.  Commencing at page 28, lines 1040-1054, he describes the option of the children being in the care of Ms J Caville and Ms P Caville and having weekend contact with the father.  He refers to Ms J Caville and Ms P Caville as “not the primary carers.” 

   For the children to be in the care of Ms J Caville and Ms P Caville, and have weekend contact with the father.  This is a possibility; however Ms J Caville and Ms P Caville are not the primary carers, and haven’t been the primary carers of X and Y.  The advantage is that the children would be close to the broader aboriginal community, and would have a strong sense of connection with them.  The negatives are that there may be significant risks in relation to the community’s use of drugs and social difficulties.  However, I don’t have first had experience with this community, and am relying somewhat on what was relayed to me by Mr Thayer about this community.  Mr Thayer would be very upset about not having substantial care of the children. Ms J Caville and Ms Caville believe that the children should be in the aboriginal community, and do not want them shared.  I believe there is a strong risk that they would try and eventually exclude Mr Thayer from the children, as they do not regard him as Aboriginal like the children.

4. He goes on to say, referring to what he described as the broader aboriginal community, at line 1045-1047:

   The negatives are that there may be significant risks in relation to the community’s use of drugs and social difficulties. 

5. Dr R goes on to recommend that the children reside primarily with their father and, for example, at line 1082-1083, he says: 

   I also am of the view that it is best for the three children to be kept together.

6. He goes on to recommend that the children see Ms P Caville and Ms J Caville on a regular basis, and he suggested that there be fortnightly weekend contact from Friday to Monday.  His recommendation in this regard is found at lines 1097-1099. 

7. There is a significant paragraph, the Court believes, being paragraph 11 of his recommendations on page 30, lines 1133-1145 inclusive.  What is of significance is the suggestion that, after the children are placed in the Father’s care, that the Father obtain certain assistance in order to maintain the children’s kinship lines and their Aboriginal heritage.

   I believe it might be helpful to have an aboriginal Liaison officer or coordinator to assist Mr Thayer to ensure that the children maintain their kinship lines and their aboriginal heritage, and that he fully understands how to cooperate with this important aspect of their development. The aboriginal heritage issue is important.  However I’m of the view that the attachment and bonding issues for the children and their stability with regard to having stable, secure base then having a platform on which to develop their self-esteem and maintain their security and stability, is of more importance than simply remaining in an aboriginal community.  The relationship with the parent is of higher order, whilst maintaining contact with aboriginal heritage is still of great importance, but the father is the person who can provide the primary care of the children as the stable parental figure.

8. To be fair, Dr R also does appear, at paragraph 11, to undertake some form of balancing exercise in which he concludes that psychological issues relating to attachment, bonding and stability is of more importance than “simply remaining in an Aboriginal community”.  He says:

   The relationship with the parent is of higher order whilst maintaining contact with Aboriginal heritage is still of great importance.

9. Of course, Dr R’s report cannot be taken in isolation.  It was the product, it would seem from exhibit ICL2, of negotiation between the parties that ultimately resulted in a Consent Order made, which was the Order that appointed him.  There is some significant correspondence within the bundle that is ICL2; for example, the letter of 27 February 2014 from the Independent Children’s Lawyer to the parties’ lawyers acknowledges that the Second and Third Respondents had recommended a psychologist, Mr S, to be appointed as the expert report writer.

10. The Independent Children’s Lawyer preferred Dr R, it would seem, for two reasons:  firstly, he was available much, much earlier than Mr S would have been available; nextly, based on a curriculum vitae that was supplied, it was suggested that he had the relevant expertise.  Moreover, because of the issues relating to the mother’s mental health history in particular, it was submitted that he was an appropriate expert.  Dr R’s resume is attached to this letter, and will be referred to this elsewhere in these reasons.

11. Another letter which is of significance is a letter from the representatives for the Mother, Ms Caville.  The letter is dated 1 April 2014.  It is clear that the context of this correspondence appears to be negotiation about the Consent Order appointing the expert.  In the letter there is a suggestion that Dr R is to travel to the (omitted) Community to undertake interviews with the Respondents and observe their interaction with the children.  The Court notes that it is common ground that this did not take place, and it is not a requirement that was reflected in the Orders appointing Dr R.

12. The Orders appointing Dr R do contain some specific provisions in relation to what I will describe as Indigenous issues;  for example, Dr R was requested, in preparing his report, to consider paragraph (l) of Order 1, “the children’s right to enjoy their Aboriginal or Torres Strait Islander culture, including the right to enjoy that culture with other people who share that culture”, and, at paragraph (n), it states that, “in considering the children’s right to culture, it is noted a right to the culture includes:  (1) the right to maintain a connection with that culture, and specifically the (omitted) Community;  (2) to have the support, opportunity and encouragement necessary;  (3) to explore the full extent of that culture, consistent with the child’s age and developmental level, as well as the child’s view, and;  (4) to develop a positive appreciation of the culture”.

13. The impression that is formed from the submissions that were made to the Court today suggest that, in the very difficult circumstances of conducting what is clearly complex litigation relating to children, in circumstances where either the parties were dependent on pro bono assistance or on a grant of Legal Aid, the provisions particularly of paragraph (n) of the Order were an attempt to try to grapple with some of the complex issues. 

Submissions

1. Without doing justice to the submissions made on behalf of the Second and Third Respondents by Ms Goodchild, those submissions were that, in essence, despite the explicit brief that was given to Dr R and notwithstanding the absence of any specific reference to s.61F of the Act, Dr R has not, in his report, addressed the critical issues relating particularly to kinship matters, and being the matters explicitly referred to in s.61F, thus, leaving the Court with no evidence about these matters.

2. Indeed, it was submitted that the report exhibits a cultural bias in favour of, for example, the natural parent; and, not splitting siblings.  It was submitted that Dr R had the opportunity to speak to elders of the (omitted) Community, for example, Ms P Caville, and Mr M, to gain at least their perspective about kinship issues, but that he failed to do so.  Implicit in the submissions is that if Dr R had, in fact, done these things, it is not apparent from the report that he has produced.  Indeed it is further submitted that his qualifications do not, and indeed, at no point, demonstrated his expertise in Indigenous matters. 

3. Ms Mahony, for the Respondent Mother, supported the submissions.  Ms Humphreys, for the Father, who opposed the application, emphasised the significance of all parties in this case signing Consent Orders appointing Dr R in circumstances where they were fully aware of his CV.  Nonetheless, it was acknowledged by Ms Humphreys that Dr R’s report does not deal with the issue raised at paragraph (n)(i), that is, the right to maintain a connection with, specifically, the (omitted) Community. 

4. Mr Alexander, for the Independent Children’s Lawyer, also opposed the Order, again emphasising that all parties consented to the appointment, and then submitted that the deficiencies in Dr R’s report, if there are any, could be remedied by cross‑examination; might possibly be supplemented by expert evidence; and that, in any event, the Court had to adopt a pragmatic and realistic approach in terms of expectations of what experts can, in fact, achieve, in terms of their evidence to the Court.

Discussion

1. There is no question in the Court’s mind, that it was best to deal with this issue as a preliminary issue, rather than to get to what would have been the last evidence in this case, and find that the evidence was not going to be able to assist the Court to make a decision in accordance with the Act.  Whether the issue is one of admissibility or weight may well be an interesting academic issue, but, in practical terms, makes no difference in this particular case, because if the Second and Third Respondents’ submissions are accepted, the weight that would be given to the report insofar as it gives evidence about Indigenous issues would, for all practical purposes, be so low, as to make it irrelevant. 

2. The Court does not accept that cross‑examination can somehow remedy any deficiencies in the expert evidence.  The issues, particularly of kinship, and particularly as related to the (omitted) Aboriginal Community, are not peripheral, or ancillary issues.  They are close to central in terms of the issues that the Court has to decide.  Neither the court nor those challenging the report should be left to cross‑examine in the dark, so to speak, in the hope that what might appear to be gaps in the evidence might somehow be filled.  What if those gaps are not filled, or not adequately filled?  It assists no one, but especially these children, to find this out on the last day of the hearing.

3. This Court does not accept that, even now, it is possible to somehow supplement the evidence about (omitted), and the kinship issues, in a way that is somehow achievable in a pragmatic sense, and fair to all concerned.  In any event, there are real issues about whether Dr R has, at any relevant time, demonstrated that he had the relevant expertise.  When one has regard to the information that Dr R’s office provided, no doubt in response to the perfectly appropriate inquiry by the Independent Children’s Lawyer about his expertise and expertise in Indigenous matters, the CV and the email of 25 February 2014 (which comprises part of ICL2) would not, at least with the benefit of hindsight, provided any reasonable reassurance to the parties that Dr R had the relevant expertise.  For example, in the curriculum vitae itself there is absolutely no reference at all to indigenous issues.  There is one reference in the fifth paragraph to Dr R having commenced a part-time position as lecturer at (omitted) University.

4. The email of 25 February explains that, and I quote, “He also lectures at (omitted) University, a regional university with strong indigenous emphasis.”  What is not explained is what Dr R lectures in and how it might be relevant that he lectures at a regional university with a strong Indigenous emphasis.  The same email says, and I quote, “Please note that he currently works in (omitted) with Aboriginal population.”

1. Again, it is not apparent from this email or from the curriculum vitae how somehow working in (omitted) with Aboriginal population provides him with the relevant experience or expertise to assist the Court in the matters before it.  It is possible that he does have the relevant expertise and experience, but it is not apparent from the material that is provided to the Court, and as previously indicated, it should not be left to cross-examination to fill in what appear to be increasingly large gaps in the evidence.

2. Moreover, there are real issues about the absence of any reference in his report or in the instructions or indeed in the order to s.61F of the Act, given the critical importance of kinship issues, and again, there should be no doubt about what s.61F says. It says the Court must have regard to any kinship obligations and childrearing practices of the child’s Aboriginal or Torres Strait Islander culture.  If the Court must have regard to that, one asks rhetorically, it is inconceivable that the Court appointed expert would not do likewise.

3. To the extent that recommendation 11 might be interpreted, and I think this stretches the interpretation, as an attempt to deal with kinship issues without explicit reference to s.61F, this Court has grave reservations as to whether the manner in which it has been sought to achieved is in fact consistent with the statutory mandate. It is possible, indeed, that Dr R has put the cart before the horse in the sense of deciding that the children should live with their father and then considering how kinship issues might be managed in his care.

4. There was a complaint in submissions about whether Dr R had in fact adopted a cultural bias in, for example, seeking to favour the natural father over the others.  One can understand how the Respondents might form that impression when recommendation 2 of Dr R’s report at page 28 is read.  One could understand why the Respondents would form the same impression as a result of recommendation 1 where Dr R states the view that it is best that the three children be kept together.

5. It is possible that if expert evidence were led that the primacy of the natural parent and the quasi-presumption in favour of not splitting siblings would need to be reconsidered.  In any event, and with great respect to Dr R, it is not apparent how, if at all, he has dealt with the Orders that he was asked to respond to, and particularly at paragraph (n) the reference to (omitted).  Indeed, what comments he makes about (omitted) appear to on the basis of what the Father told him rather than take advantage of the opportunities presented to speak to those elders in that community who coincidentally he happened to be interviewing or observing.

Conclusion

1. In view of the matters dealt with in these ex tempore reasons, as well as having regard to broader considerations of natural justice as well as perceptions of the same, the result that is compelled is that no weight can be given to Dr R’s report insofar as it relates to Indigenous or kinship matters, and it is therefore not possible to foresee how a decision in the best interests of these children could possibly be made.

2. Insofar as Dr R’s report deals with Indigenous or kinship matters, it will have to be disregarded.  This, of course, is highly problematic.  It will mean that this case will have to be adjourned, possibly for some time.  It will mean that the parties will be put to, no doubt, much inconvenience and possible cost as well as disruption to their lives.  The risk of not excluding Dr R’s report on the basis articulated is that there would have been an appellable error that would have permeated any decision that was made.  This would have simply put the parties to even greater inconvenience, cost and disruption to their lives.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:       1 May 2015

Schedule One

CHRONOLOGY

DATE	DETAILS
(omitted) 1932	Second defendant, maternal grandmother Ms J Caville DOB.
(omitted) 1979	Applicant Mr Thayer DOB.
(omitted) 1980	Third defendant, maternal aunt Ms P Caville DOB.	Para 3 of Ms P Caville’s affidavit filed 20 November 2013.
(omitted) 1984	First defendant Ms Caville DOB.
(omitted) 2006	Mr Thayer and Ms Caville began relationship.	Para 2 of Mr Thayer’s affidavit sworn 5 December 2013.
February 2007	Applicant father alleges that First Respondent mother stabbed him in the face with a kitchen knife.	Para 5 of Mr Thayer’s affidavit sworn 5 December 2013.
(omitted) 2007	X (now aged 6 years).	Para 2 of Mr Thayer’s affidavit filed 23 August 2013.
(omitted) 2009	Y (now aged 4 years).	Para 2 of Mr Thayer’s affidavit filed 23 August 2013.
2010	Ms P Caville moved to (omitted) Village to live with Ms J Caville and Ms Caville.	Para 6 of Ms P Caville’s affidavit filed 20 November 2013.
(omitted) 2011	Z (now aged 3 years). Born at (omitted) Hospital, premature at 36 weeks and 2 days.	Para 10 of Ms P Caville’s affidavit filed 20 November 2013.
(omitted) 2011	Z transferred to (omitted) Hospital with lung complications.	Para 8 of Mr Thayer’s affidavit sworn 5 December 2013.
(omitted) 2011	Z transferred back to (omitted) Hospital	Para 8 of Mr Thayer’s affidavit sworn 5 December 2013.
April 2011	Meeting with Family and Community Services where decided that Z would be in the temporary care of Ms P Caville and Ms J Caville. Z discharged in to their care.	Para 11 of Ms P Caville’s affidavit filed 20 November 2013.
Between 2011 and July 2013	Z admitted to (omitted) Hospital on at least 9 occasions, 7 of which related to respiratory illness.
April–February 2012	Mr Thayer lived with Y and X in (omitted) Village.	Para 15 of Mr Thayer’s affidavit sworn 5 December 2013.
March-June 2011	Domestic violence disputes occurred between Ms Caville and Mr Thayer. They were placed in the Brighter Future’s program.	Para 6 of Mr Thayer’s affidavit sworn 5 December 2013.
02 June 2012	Mr D assaulted Mr Thayer. Mr D charged with assault. Charges dismissed as Mr Thayer considered protagonist.	Para 21 of Mr Thayer’s affidavit sworn 5 December 2013. Para 45 of Ms P Caville’s affidavit filed 20 November 2013.
June 2012	Mr Thayer and Ms Caville separated.	Para 2 of Mr Thayer’s affidavit sworn 15 July 2013.
January 2013	X begins at (omitted) School.
14 March 2013	Legal Aid Family Dispute Resolution.
13 June 2013	Protection Order made against Mr Thayer for the protection of the Third respondent grandmother, Ms J Caville.	Para 22 of Ms P Caville’s affidavit filed 20 November 2013.
15 July 2013	Applicant father, Mr Thayer filed an application for interim orders and Final Parenting Orders at Wollongong Federal Circuit Court seeking sole parental responsibility. The mother was listed as the sole respondent. The matter was listed for 11 November 2013.	Para 8 of Ms P Caville's Affidavit filed 20 November 2013.
15 August 2013	Applicant father relocated to (omitted) with all three children.	Para 59 of Mr Thayer’s affidavit sworn 5 December 2013.
23 August 2013	Applicant father files Application in a Case at Wollongong Federal Circuit Court adding Ms J Caville, as second respondent.	Para 8 of Ms P Caville's Affidavit filed 20 November 2013.
26 August 2013	Recovery Application on behalf of Aunt and great grandmother filed at Nowra Local Court. Service attempted. Applicant father’s former solicitor refused to accept service.
28 August 2013	Application in Case served on great grandmother Ms J Caville.
30 August 2013	Recovery Order made at Nowra Local Court for the return of Z.	Para 8 of Ms P Caville's Affidavit filed 20 November 2013.
3 September 2013	Directions Hearing appointing Independent Children’s Lawyer and ordering a Child Dispute Conference.
1 October 2013	Amended Initiating Application filed by Applicant father adding Second Respondent.
4 October 2013	Notice of Intention to Withdraw as Lawyer for Applicant filed.
23 October 2013	Second and Third Respondents listed in matter by Registrar.
23 October 2013	Filing Confirmation Notice for Applicant father’s solicitor.
31 October 2013	Child Dispute Conference held.
6 November 2013	Directions Hearing – Orders made that children spend time with the father, meet with the ICL and then spend time with the Respondents over period starting 17 and ending 23 November 2013. Matter listed for Interim Hearing 12 December 2013.
18 December 2013	Applicant father ordered to move back to the (omitted) district by 21 January 2014. Matter listed 30 January 2014 for mention.
30 January 2014	Matter adjourned to 28 February 2014 for mention. Matter adjourned to 23 to 27 June for hearing. ICL instructed to facilitate resolution.
28 February 2014	Mention outline deadlines prior to hearing.
1 May 2014	Consent orders made appointing Dr R to write the Expert Report.
12 June 2014	Dispute Resolution Conference occurred without settlement.
16 June 2014	Expert Report released.