WORRALL and BARTLEY
[2018] FCWA 132
•20 JULY 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997 (WA)
LOCATION: PERTH
CITATION: WORRALL and BARTLEY [2018] FCWA 132
CORAM: O'BRIEN J
HEARD: 26 JUNE 2018
DELIVERED : Ex tempore
FILE NO/S: PTW 4789 of 2010
BETWEEN: MR WORRALL
Applicant
AND
MS BARTLEY
Respondent
Catchwords:
PARENTING - Where after a 23 day trial interim orders were made with provision for a review by single expert to provide recommendations for any extension of child's time with the mother - Where review occurs and recommendation is for no or limited change - Role of single expert as a witness as distinct from decision maker - Principles mandated for child related proceedings - Orders made for trial on limited issues - Orders made defining evidence to be presented and witnesses to be cross-examined
Legislation:
Family Court Act 1997 (WA) Part 5, Division 11A, s 202,
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr S Penglis and Ms Keeley |
| Respondent | : | Self Represented Litigant |
Solicitors:
| Applicant | : | Clairs Keeley Lawyers |
| Respondent | : | Self Represented Litigant |
Case(s) referred to in decision(s):
Rice & Asplund (1979) FLC 90-725
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1The proceedings before the Court relate to the parenting arrangements to be made for the child, [Child A], who was born [in] 2009. Child A is not yet nine years old, but her parents have been involved in litigation about her for only a few weeks shy of eight years, with only short periods of respite. The most recent of the trials in the proceedings concluded on 25 February 2016, after 23 days of hearings spread over some 15 months.
2At the conclusion of that trial, Crisford J made orders for the father to have sole parental responsibility and for Child A to live with him. Her Honour made further very detailed orders about Child A spending time with the mother, and various other issues, and expressed those orders to be made on an interim basis. Her Honour made a further order that 12 months after the making of those orders, the Single Expert Witness (“the SEW”) undertake a review of the parties and Child A and “provide recommendations to the Court as to whether it would be in [Child A’s] best interests to further progress the time she spends with” the mother. The proceedings were otherwise adjourned generally with liberty to relist on an urgent basis in relation to the implementation of, or compliance with, the orders.
3The SEW conducted his review as anticipated and published a report, which was distributed to the parties on 31 March 2017. Since then, the parties have been engaged in a dispute as to what is to happen from this point.
Relief sought by the parties
4By a minute filed on 28 September 2017, the mother sought that the proceedings be listed for trial, with an estimated hearing time of two to three days, to determine:
(a)the ongoing arrangements for Child A to spend time with her;
(b)whether either party should be the subject of further restraint on their involvement with Child A’s school; and
(c)the issue of whether final orders should be made or the question of Child A’s time with her should be the subject of still further review, the details of which were not specified.
5By a minute filed on 21 November 2017, the father proposed certain amendments to the interim orders providing for Child A to spend time with the mother, effectively in accordance with the recommendations of the SEW. He otherwise proposed that the interim orders of 25 February 2016 be made final.
6At a hearing before me on 28 November 2017, the father sought orders requiring the mother to file and serve an application specifying the orders sought by her, an affidavit of her own evidence, and affidavits by any witnesses upon whom she would rely in support of that application, with he to then have liberty to respond. Orders broadly in those terms, which were properly to be characterised as the father’s alternative submission in the event that I was not prepared to simply finalise the proceedings in accordance with the recommendation of the SEW, were made.
7The mother filed documents, albeit late. By her minute filed on 27 March 2018, the mother indicated that what she would now seek is that Child A’s time with her during school term be increased so as to include Sunday evening each alternate week, plus various specific orders regarding special occasions. She also sought an order further extending Child A’s time with her during school term from the commencement of Term 4 in 2018, and orders providing for additional time in school holidays.
8Perhaps most significantly, the mother also sought an order that the orders she now proposes be the subject of further review by the Court in January 2019, with Child A’s views about the ongoing care arrangement being ascertained by way of a family report to be prepared by a family consultant.
9The minute of proposed orders filed on behalf of the mother on 27 March 2018 did not repeat the proposals earlier made by her for the matter to progress to a two to three day trial. I enquired as to her position in that regard at the hearing this morning. Counsel for the mother confirmed that what she now seeks is accurately reflected by the minute filed on her behalf on 27 March 2018.
10It is fair to say that the mother seeks further interim orders incrementally increasing Child A’s time with her, additional interim orders prospectively increasing that time still further, and an ongoing review of those interim orders extending, at the very least, into next year and potentially beyond that.
11I also sought this morning to clarify with counsel for the father his client’s position given that in a minute filed on 19 June 2018 he simply proposed that the interim orders of 25 February 2016 be made final. That stood in contrast to the position earlier adopted by him in which he proposed that those orders be varied, but only in the terms recommended by the SEW in his report in March 2017. Counsel for the father told me that the father seeks the orders set out in his minute filed on 19 June 2018, but that in the event that the Court is not persuaded to make those orders, would adopt, as his secondary proposal, the orders sought in his minute filed on 21 November 2017.
The evidence
12During the hearing I clarified with counsel for the father the evidence upon which he would intend to rely. He confirmed that the father:
(a)sought that I adopt the findings of Crisford J reflected in her Honour’s reasons for decision, as permitted by s 202L(3)(b) of the Family Court Act 1997 (WA) (“the Act”);
(b)relied on the report and recommendation of the SEW;
(c)relied on the content of the reports from Child A’s school annexed to a recent affidavit of the father’s solicitor;
(d)relied on the affidavit of [Mr G], Child A’s psychologist, filed on 14 May 2018, but only as to what the witness described as Child A’s “pleasing progress” and the witness’s opinion as to the desirability or otherwise of what she described as a change in the custodial arrangements; and
(e)relied on the reports annexed to the affidavit of the then-ICL in the proceedings, [Ms W], filed on 28 November 2017.
13I also clarified with counsel for the mother the evidence upon which she would intend to rely. He confirmed that the mother:
(a)accepted the proposition that I should adopt the findings of Crisford J reflected in her Honour’s reasons for decision;
(b)relied on two filed affidavits of her own therapist, [Ms A]; and
(c)relied on her own affidavit filed on 27 March 2018.
The issues
14The issue squarely raised on behalf of the father against the background of the long history of these proceedings, which does not require further recital, is the question of whether the orders for Child A to spend time with the mother should be the subject of ongoing review and, by implication, litigation, or whether the long-running parenting proceedings should now be finalised.
15The father maintains, firstly, that it is in Child A’s best interests for the litigation to come to an end, while acknowledging that in the event that relevant circumstances change sufficiently to meet the principles generally described as the Rice & Asplund[1] test, it would be open to the mother to seek to commence fresh proceedings in the future.
[1] (1979) FLC 90-725
16He argues further that the procedural orders made since the reasons for decision of Crisford J were published have given the mother every opportunity to place before the Court evidence to support the proposition that circumstances have changed such that the interim orders should be varied, and that she has provided no such evidence. He relies on the positive observations as to Child A’s progress made by her psychologist, and the opinion expressed by that psychologist to the effect that “changing anything in relation to custodial arrangements may not be in [Child A’s] best interests”. He relies further on the opinions expressed by the SEW, most particularly when the expert said:
Therefore, as far as I can see in the complex layers of psychological, emotional and practical factors of this case, [Child A] appears to be doing better and not worse, therefore do not risk the situation by making an unnecessary change.
17The father argues further that the submission by counsel for the mother that there have been, in his words, “no dramas” since the making of Crisford J’s orders represents an argument in support of the father’s position rather than against it.
18Counsel for the mother, while acknowledging the potential concern on the part of the Court at the prospect of open-ended, ongoing litigation, disputed the proposition that Crisford J was seeking in her orders to achieve finality in the proceedings upon publication of the SEW’s review.
19He submitted that, to the contrary, her Honour’s orders expressly contemplated the revisiting by the Court of the interim orders following that review, without there being any need for either party to meet the Rice & Asplund test.
20Counsel submitted further that it would be inappropriate for final orders to be made at this time given Child A’s age and what he would describe as the normal expectation that as she grows older considerations will arise as to her spending more time with the mother. Indeed, he went further to suggest that interim orders only should be made so as to avoid what he would suggest could be an artificial barrier to an ongoing adjustment of those arrangements in Child A’s best interests by any application of the principles in Rice & Asplund.
21He made it clear that there were elements of the opinions expressed by both Ms G and the SEW that were not accepted by the mother and which she would seek the opportunity to challenge.
The law
22In support of the proposition that the proceedings should be finalised and that the approach required to do so need not necessarily involve a still further trial, counsel for the father placed reliance on the provisions of Division 11A of Part 5 of the Act.
23The principles by which the Court must conducted child-related proceedings are set out in s 202B of the Act in the following terms:
(1)The court must give effect to the principles in this section -
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child related proceedings; and
(b)in making other decisions about the conduct of child related proceedings.
(2)Failure to give effect to the principles does not invalidate the proceedings or any order made in them.
(3)Regard is to be had to the principles in interpreting this Division.
(4)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(5)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
(6)The third principle is that the proceedings are to be conducted in a way that will safeguard —
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)the parties to the proceedings against family violence.
(7)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child focused parenting by the parties.
(8)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
24The section is expressed in mandatory terms. It does not simply empower the Court to conduct child-related proceedings in accordance with those principles; it says that the Court must do so.
25The Court’s general duties related to giving effect to the principles are set out in s 202E. Again, the section is expressed in mandatory terms. Relevantly for present purposes, the Court is required to:
(a)decide which of the issues in the proceedings require full investigation and hearing, and which may be disposed of summarily;
(b)decide the order in which the issues are to be decided;
(c)in deciding whether a particular step is to be taken, consider whether the likely benefits of taking the step justify the costs of taking it; and
(d)deal with as many aspects of the matter as it can on a single occasion.
26Section 202F provides that the Court may, at any time after the commencement of child-related proceedings, if it considers that it may assist in the determination of the dispute, make a finding of fact, determine a matter arising out of the proceedings, and make an order in relation to an issue arising out of the proceedings.
27Section 202L sets out the Court’s general duties and powers relating to evidence. Relevantly for present purposes, the Court may:
(a)give directions or make orders about the matters in relation to which the parties are to present evidence;
(b)give directions or make orders about who is to give evidence in relation to issues and how that evidence is to be given;
(c)limit the matters in respect of which evidence may be given, the kind of evidence that may be presented, the number of witnesses and cross-examination; and
(d)adopt any recommendation finding decision or judgment of any court.
Consideration and conclusion
28As already noted, the primary position adopted by the father was that I should determine the matter on the papers by simply making final orders in terms of the interim orders made by Crisford J. His secondary position was that, if not satisfied that it was in Child A’s best interests to adopt that course, I should nevertheless determine on the papers that her Honour’s orders should be varied to the extent recommended by the SEW and otherwise should be made in final form.
29The difficulty with those propositions is twofold.
30Firstly, in circumstances when the mother does not accept the evidence relied upon, and most particularly the opinion evidence of the SEW and Child A’s psychologist, it would, in my view, be procedurally unfair to make final orders in reliance on that evidence without affording the mother the opportunity to challenge it in cross-examination.
31Secondly, the simple acceptance by the Court of the recommendation of the SEW, without affording an opportunity for cross-examination, might reasonably be perceived as an abrogation by the Court of its decision-making responsibility in favour of the expert. A single expert witness, no matter how experienced or qualified, is still simply that: a witness. The expertise of the witness renders his or her opinion evidence admissible, but the opinion remains subject to an assessment by the Court as to the weight to be given to it. While expert evidence is of great assistance to the Court and informs many of the decisions which must be made, the responsibility for making those decisions is the Court’s alone.
32For those reasons, I am not prepared to accede to the proposition advanced on behalf of the father that I should simply determine the matter on the papers and make final orders.
33That said, equally I am not prepared to simply allow the case to proceed to yet another trial of a wide-ranging nature, nor am I prepared to assume that it is in Child A’s best interests to have the litigation perpetuated by a continuing and open-ended process whereby the detail of the time she is to spend with the mother is reviewed.
34In my view, the appropriate course is to schedule a hearing at which the mother may have the opportunity to cross-examine the SEW and Ms G so as to challenge the opinions expressed by them if she considers it appropriate to do so. Such a hearing will also afford to the Court the opportunity to ask questions directly of the SEW and Child A’s psychologist, if appropriate.
35By that method, the Court will ensure that it is fully informed in determining the central dispute between the parties as to whether – as the father would contend – it is in Child A’s best interests for final orders to be made now or whether – as the mother would contend – there should be an ongoing process of review.
36I foreshadowed that possible approach with both counsel during their submissions as it was not proposed by either party and I wished to ensure that they had the opportunity to address it.
37Counsel for the father acknowledged the potential for, at the very least, a perception of procedural unfairness if the proceedings were simply determined on the papers, while agitating for very clear constraints to be placed on any alternative process to avoid the issues already raised in relation to potentially open-ended litigation or a canvassing at trial of matters beyond the scope of the review ordered by Crisford J. He confirmed that if the foreshadowed approach was taken he would not seek to cross-examine the mother or Ms A.
38Counsel also foreshadowed possible objections should counsel for the mother seek to extend the scope of cross-examination of the SEW or Ms G beyond the point necessary to afford procedural fairness. He acknowledged that it was not necessary or appropriate for me to seek to make pre-emptive orders in that regard.
39Counsel for the mother acknowledged that the foreshadowed approach would afford his client procedural fairness. He confirmed that he would seek only to cross-examine the SEW and Ms G. He made certain submissions pointing to the time that has passed since the SEW completed his review, raising the possibility that it may be appropriate for the SEW to meet further with Child A and potentially for his client to give still further evidence-in-chief. He did not cavil with the proposition that orders could be made enabling the SEW to indicate to the parties and to the Court whether he saw any need to meet further with Child A once he has had the opportunity to review the materials in evidence and that, on that basis, no pre-emptive order on the point should be made.
40Counsel did not press the proposition that the mother should have the opportunity to adduce still further evidence when advised of some of the recent history of the matter and exchanges which had occurred at earlier hearings at which his client was represented by experienced practitioners but in respect of which he had not been briefed.
41As is implicit in what I have already observed, both counsel agreed that it is appropriate that the SEW be provided with the materials earlier identified by me as being in evidence.
Orders
42Subject to any submissions as to form, I propose to make the following orders:
1.Within 14 days from the date hereof, the Applicant, [MR WORRALL] and the Respondent, [MS BARTLEY] are to advise each other and the Court in writing as to any dates before 3 December 2018 on which they, their counsel, the single expert witness and [Ms G] are unavailable for attendance at Court for a one day hearing (“the hearing”).
2.The proceedings are adjourned to the hearing, to be listed before the presiding Judge on a date to be advised following the provision by the parties of the information referred to in the immediately preceding order, such hearing to determine:
(a)whether, as proposed by the Applicant, final orders should now be made in the terms of the interim orders made by the Honourable Justice Crisford on 25 February 2016;
(b)whether, as proposed by the Respondent, orders should be made extending the time the child, [Child A], born [in] 2009 spends with her, on an interim basis only; and
(c)whether, as proposed by the Respondent, orders should be made whereby the issue of the time that [Child A] is to spend with her is to be further reviewed by the Court, whether in early 2019 or at some other time.
3.Within 14 days from the date hereof, the solicitors for the Applicant are to provide to [the SEW] copies of:
(a)the reasons for decision published by Crisford J on 19 July 2016, if [the SEW] does not already have them;
(b)the minute of proposed orders filed on the Applicant’s behalf on 19 June 2018;
(c)the affidavit of [Ms W] filed 28 November 2017;
(d)the affidavit of [Ms K] filed 31 May 2018;
(e)the affidavit of [Ms G] filed 14 May 2018; and
(f)these orders.
4.Within 14 days from the date hereof, the Respondent is to provide to [the SEW] copies of:
(a)the affidavit of the Respondent filed 27 March 2018;
(b)the minute of proposed orders filed on her behalf on 27 March 2018; and
(c)the affidavits of [Ms A] filed on 27 March 2018 and 9 April 2018.
5.For the purposes of the hearing, and noting that the Court adopts the findings and judgment of the Honourable Justice Crisford contained in her Honour’s reasons for decision published on 19 July 2016, the following materials only will be in evidence:
(a)the affidavit of the Respondent filed 27 March 2018;
(b)the affidavits of [Ms A] filed on 27 March 2018 and 9 April 2018;
(c)the affidavit of [Ms W] filed 28 November 2017;
(d)the affidavit of [Ms K] filed on 31 May 2018;
(e)the affidavit of [the SEW] filed on 13 April 2017 and any updated report he may choose to submit; and
(f)the affidavit of [Ms G] filed on 14 May 2018.
6.In the event that [the SEW] advises the parties in writing that he considers it appropriate that he should meet further with [Child A] prior to the hearing, the parties are to do all things necessary to facilitate that.
7.The parties are not to submit any further material to [the SEW] other than as expressly provided in these orders, or upon leave being granted by the Court in response to a request initiated by [the SEW].
8.At the hearing:
(a)each party or their counsel may make opening and closing submissions;
(b)the affidavits listed above will be received into evidence, and no further evidence in chief may be presented by either party without leave;
(c)the Respondent or her counsel may cross-examine [the SEW] and [Ms G];
(d)the Applicant or his counsel may cross-examine [the SEW] and re-examine [Ms G];
(e)the Respondent, [Ms A], [Ms W] and [Ms K] will not be required to present for the purposes of cross-examination.
These reasons are the reasons for decision I delivered on 26 June 2018, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
LH
ASSOCIATE20 JULY 2018
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