Waterdown and Emerald

[2009] FamCA 35

FAMILY COURT OF AUSTRALIA

WATERDOWN & EMERALD [2009] FamCA 35

FAMILY LAW – PROCESS AND PROCEDURE – Transfer between Federal Magistrates Court and Family Court

Family Law Act 1975 (Cth)

APPLICANT: Mr Waterdown

RESPONDENT: Ms Emerald

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6156 of 2008

DATE DELIVERED: 6 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 6 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR CAHILL

SOLICITOR FOR THE RESPONDENT: CAHILL & ROWE FAMILY LAW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MICHELLE MOLONEY FAMILY LAWYERS

Orders

1. That all outstanding applications remain listed for final hearing before a judge on a date to be fixed.

2. That in the event that the parties are able to agree upon the appointment of a single expert witness and the report indicates that there has been a change of circumstances, one or more of the parties has leave to make an application for the matter to be listed with priority.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6156  of 2008

MR WATERDOWN

Applicant

And

MS EMERALD

Respondent

REASONS FOR JUDGMENT

1. On 6 January 2009, I made an order that the proceedings between the parties remain in the list awaiting the final hearing.  I did not give written reasons as the time although the transcript will show the logic behind my decision.  For the benefit of the parties and the future assistance of case management, these are my reasons.

2. In 2004 after a nine day contested hearing, Dessau J made parenting orders providing for the father to have supervised time with his then four year old child.  Her Honour heard not only the evidence of the parties but of two experts as well.  She heard from Dr H who is a child psychiatrist and Dr L who is a psychologist.

3. Paragraph 6 of her Honour’s orders reads:

   That when [the child] attains the age of 8 years, the wife shall arrange for a report to be obtained from Dr [L] or his nominee, after interviewing each of the husband, the wife and [the child], as to whether there are any changed circumstances such as to warrant a review of the supervised contact, the costs of such report to be met equally by the parties and a copy of the report to be obtained by both of them.

4. The child turned eight in January 2008.  She is almost therefore nine now.

5. In December 2007, Dr L was requested by the solicitor for the wife to prepare the report referred to in the order to which I have just mentioned.  The report was prepared and dated 6 May 2008 after consultation with the parties.

6. Paragraph 9 of the recommendations of Dr L reads:

   Ultimately, however, given all the circumstances, my view on balance is that changed circumstances do exist to a degree that warrants a review of supervised contact.

7. No agreement was reached between the parties.

8. On 7 July 2008, the father filed an application initiating proceedings in the Federal Magistrates Court of Australia.  He sought orders discharging the previous orders and then setting out a regime that would ultimately remove the supervision.  The case was returnable on 13 August 2008.  On 5 August 2008, the wife filed a response seeking a dismissal of the husband’s application.

9. I am told that over a space of two days but at varying times, the interim issue about the continuation of the supervised contact was argued before Federal Magistrate Turner.  His Honour dismissed the husband’s application for interim orders and appointed an Independent Children’s Lawyer.  His Honour then adjourned the matter for mention before himself on 4 December 2008.

10. On 4 December 2008, it appears that the matter was argued and his Honour reserved judgment.  That judgment was delivered on 12 December 2008. 

11. The only order made by his Honour on 12 December 2008 was that the matter be transferred to the Family Court of Australia and hence it comes before me.

12. A number of matters can be discerned from the judgment.  Federal Magistrate Turner noted that the case had been heard by Justice Dessau in detail and that her Honour was in a better position to adjudicate on the matter.  That comment was made over the opposition of the husband who said it was not appropriate for her Honour to hear the case where she had found that there was an unacceptable risk.

13. Dessau J in her judgment noted that it was not a case in which she could make a definitive finding that one party was lying and the other not and that there were aspects of each party’s evidence that were unsatisfactory.  Needless to say however, her Honour made significant findings against the husband.  As I indicated to the parties, I am not binding Dessau J at all in these proceedings but I would be surprised if her Honour was comfortable over the objection of the husband, in hearing the matter.  It is quite clear on her Honour’s orders that she did not envisage the matter returning to her for any form of “review”.  There is no suggestion that the matter come back to court at all.  Her Honour’s orders dismissed all outstanding proceedings.

14. Federal Magistrate Turner also said that he had been advised by counsel for the Independent Children’s Lawyer that although the case could be heard by him in part in April 2009, it “may be fully heard in the Family Court” before that time.  I was unable to ascertain where those details came from or their source.  On any view, the only basis upon which I could justify giving this case a hearing in April 2009 or before that time would be if an application was made for a priority hearing.  That application has not been made and even if it were, on the material I have seen, it would be hard to currently justify it.  The father pointed to the fact that the longer the matter was delayed, the less time he had with the child and her childhood days were lost but he did concede that he was having regular contact with his daughter albeit in a sterile and supervised atmosphere.  Accordingly, I am perplexed as to how it could be suggested that this Court could deal with the matter more expeditiously than the Federal Magistrates Court of Australia. 

15. The third issue was that it was the wish of the Independent Children’s Lawyer and the wife for the matter to be transferred to the Family Court.  Based upon the earlier matters to which I have referred, his Honour found that the administration of justice would be better served and at less cost and more convenience to the parties if it was transferred to this Court.  How that could be concluded on the basis that the Federal Magistrates Court of Australia is intended to hear the matters expeditiously and simply also escapes me.

16. On any view, it would seem that the Federal Magistrate was led into the conclusion that he was by the submissions that were put to him.  The husband’s position before me was that I should transfer the matter back to the Federal Magistrates Court.  I reject that on the basis that it would delay the proceedings further and give rise to what I described as a “ping pong” approach which is to be strongly resisted. 

17. Both the wife and the Independent Children’s Lawyer submitted that this was a case that would take more than three days.  How that assessment could be made without defining the issues and assessing what evidence was to be called in respect of those issues is also hard to say.  However, it seems to me that until such time as a preliminary report is obtained setting out the basis upon which it is asserted that there are changed circumstances, what evidence would be needed and in relation to what issues, a trial hearing time cannot be determined.

18. Both the Independent Children’s Lawyer and the wife wanted me to appoint Dr H as the single expert witness to undertake an assessment of the matter.  Dr H gave evidence before Justice Dessau.  Her Honour indicated that she was not entirely comfortable with all of the evidence of Dr L and as such, Dr H was brought in.  Dr H is a child psychiatrist and it was upon his evidence that Dessau J relied very heavily.  Subsequent to that hearing, the husband appealed and was unsuccessful on the appeal.  He then reported Dr H to his professional body.  It would seem inappropriate in the circumstances for the husband to have to endeavour to have Dr H provide an objective analysis including of his personal situation having regard to the their particular conflict.

19. Dessau J ordered that the review to which I have earlier referred be done by Dr L.  Dr L did that review but as Mr Cahill on behalf of the wife pointed out, Dr L was not asked to do any more than ascertain whether there had been a change of circumstances.  It will be a matter for the trial judge to decide whether or not Dr L is the appropriate expert particularly having regard to the comments made by Dessau J in paragraph 46 of her Honour’s judgment.

20. The Independent Children’s Lawyer also suggested that she would be seeking evidence of a psycho-sexual analysis and assessment of the husband.  She suggested Dr K.  However, it will be seen from the judgment of Dessau J that such an assessment was proffered by the husband from Dr B who is a forensic psychologist.  At paragraphs 55 to 58 of her Honour’s judgment, she placed little weight on the evidence of Dr B that the husband was a low risk of offending against his daughter.  Thus, to pursue that line of evidence through another similar expert in Dr K would seem unnecessary if not pointless.

21. I have indicated at the request of the husband that this case will not be heard in much less than 12 months.  That was clearly something about which he was unhappy.  It is unfortunate that the Federal Magistrates Court took the view that the matter could not be heard expeditiously particularly having regard to the fact that Dessau J wanted a review around January 2008.  The request for a review did not mean that there was going to be change of the supervisory orders nor that the Court would revisit the situation and make different orders.  It was simply an opportunity for the parties to look at whether or not the supervision was still necessary and then determine the matter amongst themselves.  Failing agreement, clearly the matter would then have to come back to Court for an independent and objective assessment to be made.

22. At this point in time therefore I have indicated to the parties that unless they can agree on a single expert witness to make an assessment as to whether there is any continuing risk to the child of the type found to have existed by Dessau J, I do not think there is any basis for me to do any more than place the case in the list awaiting a final hearing.  There is little point in me embarking upon an interim hearing in respect of that issue having regard to the fact that the parties had that opportunity in August and the husband was unsuccessful.  There has not been any appeal against those interim orders and as such, I see no reason to do any more than place this case in the list with liberty for the parties to apply in the event that a report stresses that there has been a change of circumstances and that that gives rise to a need for some priority.

I certify that the preceding Twenty Two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  8 January 2009