Zammitt and Lennon (No. 2)

[2009] FamCA 300

FAMILY COURT OF AUSTRALIA

ZAMMITT & LENNON (NO. 2) [2009] FamCA 300

FAMILY LAW – CHILDREN – where mother objects to the completion of the family assessment by psychologist– where wife does not have confidence in the independence of psychologist – psychologist has the professional expertise and experience not to allow matters of alleged influence for basis of her opinion – psychologist may have misunderstood instructions from the Independent Children’s Lawyer to interview both parties – it is appropriate for the psychologist to undertake completion of the report

Family Law Act 1975 (Cth)

APPLICANT: Mr Zammitt

RESPONDENT: Ms Lennon

INDEPENDENT CHILDREN’S LAWYER: Mr A Kent

FILE NUMBER: ADF 196 of 2004

DATE DELIVERED: 8 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 8 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms R.L. Croydon

SOLICITOR FOR THE APPLICANT: Croydons

COUNSEL FOR THE RESPONDENT: Ms M.G. Dickson

SOLICITOR FOR THE RESPONDENT: Women's Legal Service (SA) Inc

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr J.G. McGinn

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Orders

1. The Contravention Application filed by the mother on the 20 March 2009 is dismissed.

2. IT IS DIRECTED that Ms N undertake conclusion of her report by interviewing the mother, interviewing L again and if she considers appropriate to observe interaction between L and the mother and provide a conclusion report to the Court.

3. IT IS FURTHER DIRECTED that the Court obtain a copy of the transcript for the whole of the proceedings on the 13 March 2009 as soon as possible and release the same to each of the parties and the Independent Children’s Lawyer without cost and direct the Independent Children’s Lawyer to provide a copy of the same to Ms N for the preparation of the final family report.

4. The final orders and the application in a case are adjourned to the 6 May 2009 at 10.00 am before the Honourable Justice Dawe.

5. During the period of the adjournment the orders are continued that the child L live with the father or as arranged during the father’s hospitalisation on his behalf.

6. The matter is listed for a conclusion of trial for five [5] days in the week commencing 10 August 2009 before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 196 of 2004

MR ZAMMITT

Applicant

And

MS LENNON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have considered the matter in relation to the completion of the family assessment by Ms N or ordering a further family assessment, having heard the submissions of counsel for the mother, counsel for the father and counsel for the Independent Children’s Lawyer.

2. I have before me the letter from the Independent Children’s Lawyer to Ms N of 19 March and the attachment to that letter (being a letter from counsel to the Independent Children’s Lawyer of 18 March) and Ms N’s report of 7 April 2009.

3. It is put to me that the mother does not have confidence in Ms N’s independence on two bases.  One, that she appears to have been influenced inappropriately by the letter from Mr McGinn to his instructing solicitor, the Independent Children’s Lawyer; and two, that the mother was not interviewed, only the father and L were interviewed.

4. Firstly, in relation to the question of unfair influence, I have to consider carefully that these matters must be determined on the basis that justice is done and there is fairness attributed to all parties.  However, looking at the report of Ms N and taking into account her expertise and experience as a psychologist preparing reports for this Court, I am not convinced that she has done other than express concern about information in Mr McGinn's letter and offers conclusions which might be drawn if those facts are supported.

5. The letter from Mr McGinn to Mr Kent does indeed express an opinion in relation to the mother's trustworthiness and in relation to an interpretation of the evidence which the mother gave before me on 13 March 2009.  However, I am satisfied that Ms N has the professional expertise and experience not to allow such matters to form the basis of her opinion, I am not satisfied that it would be inappropriate for Ms N to conclude the assessment.

6. The report only relates to an interview by Ms N of the father and of L and I note that that may have been due to a misunderstanding by Ms N as a result of instructions in the letters received from Mr Kent. My order provided that both parties make themselves available and L available for a further updated assessment. This is not a factor that should disqualify Ms N from completing her report.

7. I have also taken into account the factors which would suggest that it would be beneficial for the parties, and indeed L, for Ms N to complete her report as now suggested.  Ms N has been involved with the preparation of earlier reports in relation to this family in anticipation of these proceedings, in February 2008 and April 2008, and has conducted this interview with L most recently. 

8. The benefit to the parties is that someone with experience and knowledge of the matter can now conclude the report by interviewing the mother and L, and, if necessary and if Ms N deems appropriate, an observation of L with his mother, to enable the psychologist's report to be completed on a full basis.

9. I have considered all of the factors and, in balancing all of them, I am of the opinion that it is appropriate for Ms N to complete the family assessment and that she is not disqualified, nor is it inappropriate for her to do so, notwithstanding the material provided to her and her report before me of 7 April 2009.

10. I propose to order that Ms N undertake the completion of her report by interviewing the mother, interviewing L again, and, if she considers it appropriate, to observe an interaction between L and the mother, and provide a conclusion report to the Court.  I am told that that can be done within the next three weeks.  I will hear counsel on a proposal that I direct that the transcript of the whole of the day's hearing before me on 13 March 2009 be released to Ms N, which would then be before her as the evidence that was before the Court and the submissions that were before the Court on 13 March 2009, to enable her to complete her report with the factual matters before her, rather than any other person's opinion about the factual matters before the Court.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  23 April 2009