Trusting the Expert

In the matter of Sagilge & Magee,1  trial Judge O’Brien J concluded that it was in the child’s best interests that “there be no order for him to spend time with the mother.”2 Accordingly, Orders were made for the father to have sole parental responsibility for the child, then aged 12, and for the child to live with the father. The Orders further included an injunction restraining the mother from attending the child’s school. The only means of communication available to the mother were sending letters, cards and presents at Christmas, Easter and on the child’s birthday.

At the commencement of trial the Independent Children’s Lawyer (ICL) proposed orders where the child live with the father and spend time with the mother in accordance with the child’s wishes. The father agreed with the ICL’s position and further sought that the child spend time with the mother each alternate weekend and during the school holidays. The mother initially sought equal shared parental responsibility but changed her position mid-trial seeking an order for her to have sole parental responsibility for the child. 

There were two expert witnesses that prepared reports prior to the trial commencing, and both gave oral evidence at trial. Both experts, Ms L3, a psychologist who had provided therapeutic counselling to the family, particularly to the child, and Dr B4, a clinical psychologist who had been appointed as a single expert to prepare a family report considered the above proposals put forward by the parties.

The trial Judge relied upon Dr B’s comments in oral evidence, being that the mother posed a potential risk of physical harm to the child despite this potential risk not being present in the single expert’s reports and the child not expressing a view about this. 

Neither expert had contemplated the impact on the child if orders were made for the child to spend no time with the mother and the child had not been asked to express a view about orders to this effect.

The Appeal

The mother appealed. The Full Court of the Family Court of Australia (FamCAFC) found that the mother had established procedural unfairness and allowed the appeal. The Full Court said “[W]e conclude that this self-represented mother had no reasonable opportunity to meet a case that her mental health was such that she posed a risk of physical harm to the child…”5

The Full Court remitted the case back to the Family Court of Western Australia for the Family Court to reconsider ordering that the child spend time with the mother. The Full Court found no reason to change orders that the child live with the father and that the father have sole parental responsibility for the child.

Lavan Comment

This case reinforces the importance of the role of experts in parenting matters and the weight placed on expert evidence by the Court in matters involving children.

Trial judges should as far as possible ensure that procedural fairness is afforded to both parties whether represented or appearing in person in order to ensure a fair trial. Where the circumstances of the case require it, a judge may identify applications or submissions which ought to be put to the Court and clarify the particulars of the orders sought by a litigant in person or the bases for such orders.6