Watson and Watson

FAMILY COURT OF AUSTRALIA

WATSON & WATSON

[2012] FamCA 324

FAMILY LAW – CHILDREN – Application for family report writer to be discharged

APPLICANT:

Ms Watson

RESPONDENT:

Mr Watson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

5375

2009

DATE DELIVERED:

30 March 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

30 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Geddes

SOLICITOR FOR THE RESPONDENT:

Aitken Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

IT IS ORDERED UNOPPOSED

That for the 2012 Easter/Term one school holiday period the children shall spend time with the parties as follows:
(a.)With the wife from after school on 30 March 2012 until 11.00am on Saturday 7 April 2012; and
(b.)With the husband from 11.00am on Saturday 7 April 2012 until 11.00am on Sunday 15 April 2012.

NOT BY CONSENT

That otherwise the husband’s application filed 27 March 2012 shall be dismissed.
That my Reasons for Judgment given this day shall be transcribed and retained on the Court file.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the ICL’s costs of today and this application shall be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watson & Watson 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 MELBOURNE

FILE NUMBER: MLC 5375 of 2009

Ms Watson

Applicant

And

Mr Watson

Respondent

REASONS FOR JUDGMENT

Mr and Ms Watson have been litigating for a long time about property and parenting issues. The trial is due to start before me on 14 May, to run for five days.
On 29 February 2012, Ms Watson filed an application, effectively for litigation funding. About a month later, on 27 March, Mr Watson filed a response seeking that her application be dismissed. I will deal with that shortly. He also filed an application for Mr P, the psychologist involved in reportable counselling for several years, to be discharged and a new family report writer to be appointed.
Mr P has seen this family since my order of 16 December 2009. Young J ordered that Mr P prepare a report for trial, on 1 December 2010. Mr P did prepare a report in May 2011, and it is envisaged that he would prepare an updated report for this upcoming hearing. For that purpose, he is due to see the parties next week, on 4 April.
Mr Watson also brought an application in relation to spending time with the children in the upcoming Easter holidays. There is no opposition to the orders that he sought in that regard, and I shall pronounce them shortly.
The parenting issues involve nine year old M and seven year old R. Mr Watson also has a 15 year old son, L. Although L is not a child before me in this proceedings, he lived with the parents when they were together and now lives with his father and is very much a part of his household, and is certainly relevant in that sense.
The father relies upon his application filed on 27 March, and his affidavit, the affidavit of his personal assistant and the children’s nanny, Ms K, and the affidavit of Dr R, L’s treating psychiatrist, all filed that day.
The mother relies on an affidavit filed today.
Mr Watson swore that Mr P should be removed on the basis that he “formed a biased, favourable view of the wife in this matter”. That is what he says in his affidavit. He cites Mr P ignoring complaints against the mother made by his son, L. He says that Mr P treated L angrily and was upsetting him, that he was misrepresenting aspects of a meeting at the children’s school, that he shouted at Mr Watson, that he was not listening to Mr Watson’s concerns, and that he generally overlooked L’s role in the family. Mr Geddes, senior counsel for Mr Watson, added in submissions today that Mr Watson has lost confidence in Mr P, that he has found his work to be sloppy, unprofessional, inaccurate and rude, and that he has been abusive and intimidating not only to L, but also to Mr Watson.
It was submitted on Mr Watson’s behalf that L will not see Mr P, therefore, useful evidence and important evidence will be lost. Mr Geddes emphasised, although it was nowhere to be seen in the affidavit material of Mr Watson, that there is potential damage to the younger children if they are not listened to in the same way.
Mr Watson’s PA and nanny swears of L’s upset after seeing Mr P back on 22 July 2010. It is asserted that L was upset that Mr P would not listen to him about how Ms Watson had mistreated him, that Mr P told him to “stay out of it”, and that he, Mr P, “would do all the work”. L also reported that Mr P had said that he felt like telling L to “piss off and go home” and that he, L, felt intimidated.
Dr R, L’s treating psychiatrist, swore that he has been seeing L for depression since about 2010. In fact, he saw L the day after the appointment with Mr P. Dr R transcribed the sort of complaints referred to above, and he said that, although L has histrionic tendencies, he found L’s account to be credible and that any further contact with Mr P would carry with it the risk of re-traumatisation for L, and it should not occur.
I do not propose discharging Mr P. Counsel for the mother and the ICL both oppose the discharge and, in my view, for very cogent reasons.
Ideally, a party will have confidence in an expert witness before the trial. Frequently, if an expert gives an inkling or, as here, has given an earlier report, with a view or a possible view contrary to one party, that party frequently loses confidence in the expert. The professional view of an expert however, even if critical of one party, is not necessarily an expressed or implied bias.
Procedural fairness can ensure that an expert can be robustly tested, and, in that way, any potential or actual bias can certainly be properly explored. A party who is concerned that an expert is, to use the colloquial, “against them” can have the evidence tested in that way.
The father’s account of how L was not listened to by Mr P is not supported by parts of Mr P’s report cited in the mother’s affidavit. It is apparent that Mr P talks of very significant changes in L’s presentation. He says the first time he spoke of Ms Watson, L spoke very lovingly and warmly of her as the woman who was in the role of his mother for a number of years. Subsequently, that view changed, to talk of eight years of “abuse” at her hands.
Mr P refers to the need for the evidence to be tested. He noted a deterioration in L’s well-being, which seems quite reasonable on even the limited material that I have. In acknowledging the need for the evidence to be tested, Mr P seems to have been fair and appropriate.
The next thing I consider is that R and M have a relationship with Mr P. There is no suggestion that they are unhappy in their dealings with him. I am very reluctant to have them exposed to another expert.
The next thing I take into account is that the issues in relation to L are very complex indeed. Has he been abused so terribly by Ms Watson? Has he been manipulated in a terrible way by Mr Watson? Why has his view changed so dramatically? Mr P has a longitudinal involvement that, in fact, would be helpful to me in determining what has gone on and how that impacts on the welfare of the younger children.
I note that Mr Watson was very critical of Mr P for not being capable enough to glean in his early meeting with L that he had been so badly abused. That sort of criticism does not strike me at the moment as fair, at least because the father himself says he did not know of it and did not bring it to Mr P’s attention. In any event, this can all be explored with Mr P, and his expertise tested.
Otherwise, I am very concerned if there is any delay now to the hearing. I know Mr Geddes has told me that his instructor believes that two experts could be available, but the material about that was pretty thin, and what we do know is that Mr P can certainly see the family next week and prepare his report.
Most tellingly for me is that the concerns in relation to L and Mr P, known by the father for 21 months, are only being raised at this very last stage. He raised no objection when an order was made for a Family Report subsequent to those concerns, in September 2010. I cannot help but be concerned that his objection is made now with the idea that the expert may somehow be against him, although I have no idea what Mr P’s final view is or is likely to be.
Finally, the father says that L will not participate with Mr P, and therefore important information for me would be lost. I think it is up to Mr P if he asks L to participate. It is up to L whether he does participate. There is no guarantee that L would participate with anyone else, in any event, and at least Mr P has the history of dealings with L that another expert would not have.
I am quite comfortable that the evidence can and should be tested and that it is not in the best interests for these two young children for any protraction in a case where there has been so many interim applications, where I have determined so many lots of school holidays because the parties have not been able to agree, where I have dealt with contraventions, and where there are extremely pressing financial issues that must be resolved for the good of the family and because of the negative impact it has on the children when the parents are litigating.
So the only order that needs to be made in that regard will be that Mr Watson’s application - - -