Sunday, 21 August 2011

SMH v expert. SMH Nil; Expert 1

It was surprising to be reminded that court processes are based on evidence and not personal opinions. This reminder came in a recent case, Herridge and Henderson. The trial judge's views seemed to outweigh the evidence both as to ADHD and family violence. The trial judge's victim blaming was rejected, at least for a lack of reasons. The mother's appeal was successful.


In that case an expert, Dr B gave evidence that the son the subject of the court proceedings had some degree of ADHD. His evidence was unchallenged- at least in court.

When judgment was delivered, the judge was skeptical about this evidence, because of an editorial from the Sydney Morning Herald:

I am not in a position to say whether there is any substance in this claim [ as to ADHD]. I do know that the diagnosis of ADHD and the use of Ritalin and the like to treat so called sufferers is still controversial with some authoritative opinion to the effect that it is over diagnosed, or does not exist and is sometimes “used as a crutch” by medical professionals loath to tell parents that their child is “ill-disciplined”, and that Ritalin is over prescribed and used “as a crutch by parents and/or teachers in response to children whose real need is better parenting or teaching” (Sydney Morning Herald, Editorial p12 (25.01.2011))
The Full Court of the Family Court was critical of the use of the editorial, both because none of the parties had been accorded procedural fairness as to its intended use, and because it was not evidence from an expert:

  1. It is not in doubt that, until the delivery of judgment, none of the parties to the proceedings before him had any indication that the trial Judge was going to rely upon the material to which he referred in his reasons for judgment.
  2. To the extent that the newspaper editorial was regarded by the trial Judge as evidence, no party had the opportunity to test it. No party had any opportunity to make submissions about the material, whatever its potential status may have been. Quite apart from the trial Judge’s failure to afford the parties natural justice, the statements from the Sydney Morning Herald reiterated by the trial Judge do not appear to be those of a person who was qualified to make or express such opinions and would not have been admissible.
  3. Sensibly, Counsel opposing the mother’s appeal acknowledged that, as a matter of natural justice, the trial Judge had erred by referring to the material from the Sydney Morning Herald. Necessarily, it was submitted on behalf of the parties opposing the mother’s appeal that, although referring to it, the trial Judge could not be said to have relied in any discernable way on the statements in the Sydney Morning Herald editorial....
  4. (W)e are persuaded that the trial Judge did rely upon what he apparently read in the Sydney Morning Herald editorial in concluding as he did with respect to the child B’s likely future use of Ritalin. To read the three paragraphs is instructive, and supportive of our conclusion.
  5. The trial Judge referred to the children’s behavioural problems, and observed that Dr R “seems to accept that [the child B] has a degree of ADHD”. His Honour recorded, accurately, that the father and his “side of the family” questioned the diagnosis of ADHD for the child B and suggested that “reliance on Ritalin is a substitute for ill-discipline in the mother’s household”. As was conceded before us, Dr R did accept that the child B exhibited ADHD “to some degree”. No party at trial challenged Dr R’s expert opinion evidence in that regard.
  6. In a passage which was understandably relied upon significantly by Counsel resisting the mother’s appeal, the trial Judge said the he was “not in a position to say whether there is any substance in this claim”, i.e. the claim of the father and his family. How his Honour came to “know that the diagnosis of ADHD and the use of Ritalin and the like to treat so called sufferers (emphasis added) is still controversial with some authoritative opinion to the effect that it is over diagnosed” was not revealed by him in his reasons, or anywhere during the trial to which we have been referred. Nor was the basis upon which his Honour observed that the “authoritative opinion” to which he alluded also suggested that ADHD “does not exist”.
  7. In circumstances where there was unchallenged admissible expert opinion evidence that the child B exhibited a “degree of ADHD”, it was not open to the trial Judge, without reference to admissible evidence which was before him, to speculate as to whether or not ADHD existed or was exhibited by the child B. His Honour’s personal opinions, whatever their basis, were no substitute for evidence.
  8. Ultimately, it is apparent from the balance of the paragraph that the trial Judge accepted what an unidentified, and presumably unqualified editor of a newspaper apparently said about ADHD. It is readily apparent that, notwithstanding that Dr R had not expressed the cynicism so colourfully articulated by the newspaper editor, the trial Judge preferred the opinion of the latter.
  9. Our conclusion that the trial Judge’s opinions in relation to ADHD and Ritalin were influenced by the Sydney Morning Herald editorial is reinforced by the first sentence of the paragraph immediately following the reference to the editorial. His Honour there said that if the child B resides with the mother “and she retains a say in his medical treatment he may revert to dependence on Ritalin” (emphasis added). Notwithstanding that there was no evidence that the child B had ever been dependent upon Ritalin, inappropriately prescribed it, or that the mother had ever inappropriately had the child take Ritalin, the trial Judge clearly, and in the face of Dr R’s evidence, which was uncritical of the mother in relation to Ritalin, regarded the child B taking Ritalin in the future as undesirable, and reflecting adversely upon the mother.
  10. It is difficult to see how, by reference to the trial Judge’s own reasons, such a view could not have been reliant upon, or influenced by the newspaper editorial from which he quoted. If it was not, in the circumstances it could only, and impermissibly, have been based upon his Honour’s own views about those matters.
Family Violence

The Full Court stated, quoting the trial judge:
    1. It is my assessment, after reading all the relevant police material in evidence, the affidavit evidence and seeing and hearing both the mother and father giving oral evidence, that the mother is not, and has never been, fearful of the father but that she has abused the system in place to protect people who are in genuine fear, and have a proper reason to be fearful, for the purpose of getting her own way and gaining a tactical advantage in these proceedings. To do so she must have manipulated [the child B] and [the child H] so they would be fearful of their father, not for any benefit to them. Such manipulated fear in the boys is the only explanation for the preschool teacher’s complaint, although it was no doubt made because of information the mother supplied and because of her urging. It is not, in my opinion, a coincidence that Senior Constable [P] reached much the same conclusion as I have about the motives, bona fides, and attributes of the mother. I regard her as attempting to use the Court in the same way as she attempted with more success to use the police and Local Court.
  1. Later in his reasons, the trial Judge referred to an episode on 4 January 2010, and said:
    1. One 4 January 2010, the father attended ... Police Station in response to a police request. He was charged with two counts of breaching the AVO, which was in place at the relevant time. The charges were based on the text messages of 5 and 11 December. He was initially refused bail, and spent from 4 January to 27 January at ... jail. It is a testament of the ridiculousness of the situation that, on 27 January, the father admitted what it was alleged he said and was convicted. It does not reflect well on the legal system and those who refused bail, that the Magistrate sentenced the father to 14 days imprisonment after he had already spent more than that on remand. He was immediately released. The father, his mother, the police, and the Magistrate who refused bail and could not have seriously considered the circumstances, further empowered the mother. That this is the case is shown by what next occurred.
    2. On 15 February 2010, the father went to [the child B]’s school. He had, in May 2009, after I had allowed him to collect the children from school and return them to it, met the Headmistress, [Ms M], to inform her of the situation. He had requested copies of [the child B]’s school reports, including that for the end of 2009. He collected this on 15 February 2010. Either [the Headmistress], who in many ways has demonstrated that she is quite prejudiced against the father in favour of the mother, contacted the police or, as is more likely, contacted the mother, who had already told her not to deliver reports to the paternal grandparents. The mother or [the Headmistress] contacted the police and claimed that the father had breached the AVO, which he had because of its ludicrous terms. One of these was that the father was not to approach the children’s school. The police charged the father on 22 February, but he was granted bail. He had, between 18 February when the police first contacted him about the matter and 22 February made an application to discharge or modify the AVO.
    3. When the matters were due to be heard on 5 May 2010, the mother refused to attend but wanted the orders to continue unchanged. The charge of breach was withdrawn and dismissed and the term of the AVO was reduced from five years to one further year concluding on 5 May 2011. The children were also removed from the “protection” of the AVO and the condition about approaching their school was deleted, as it should have been in view of my still effective orders. The terms affecting the children and school should not have been there in the first place.
  2. Later again, the trial Judge recorded:
    1. ... On any view, the facts up to that time [November 2007] establish that the father could not limit his alcohol consumption to acceptable levels and was very prone to lack of self-control and angry outbursts. These resulted, in Ms [T’s] [the Family Consultant’s] understanding, in damage to property, an assault on police, pub brawling and similar, as well as disparaging language directed at the mother; sometimes in the presence or hearing of the children, but not in assaults on the mother or children.
  3. His Honour also later recorded:
    1. The father was no more candid with Dr. [R] than the mother. He said he was “now” drinking only one or two alcoholic drinks each week, and had no current alcohol problems. Ludicrously, he said he had been a heavy drinker, drinking up to five beers per day. Surely, to get as drunk as he often was, he was drinking much more than that, and would be likely to believe that to drink five beers a day would be very modest consumption. He attributed the breakdown of his relationship with the mother in part to her objection to his alcohol consumption. This is probably true. The paternal grandmother understated the father’s alcohol problem to Dr. [R] and excused it by blaming the mother.
  4. At trial, Counsel for the ICL submitted the following in relation to the issue of violence:
It is submitted that the Court would be persuaded that there is substance to the mother’s complaints about breach AVO’s, given the number of convictions and the sheer number of messages, coupled with the father’s admission to the police that he recognised that he had breached the orders on a number of occasions. The Court would also accept that her concerns that the children or either of them had been sexually interfered with were genuinely held, and based on the unchallenged evidence of [Dr B] it is clear that [the child B] made some disclosures even though JIRT held that the charges could not be substantiated, and that she was perhaps encouraged in those beliefs by the responses she received from [Ms G], [Mr F] and [Dr N]. ...

  1. The trial Judge’s ultimate conclusion with respect to family violence was:
    1. The mother’s allegations of family violence have already been chronicled and rejected. There is still a family violence order which, as recently as May 2010, the father contested and had reduced in duration. In my assessment, it was largely made without justification and should not be permitted to inhibit what would otherwise be appropriate parenting orders.
  2. Earlier, his Honour said:
    1. There are no significant practical difficulties and expenses which ought to arise whether the boys live with the mother, the father, or the paternal grandmother, which will significantly affect the maintenance by the boys of their right to have personal relations with, and direct contact with, both parents and all the relevant family members on a regular basis. The main source of such practical difficulties to date has been the attitudes of the mother, those who support her, those who have empowered her such as the Police and Local Courts in granting AVO’s to “protect” her and the children unnecessarily, and the father’s weakness of character which makes him vulnerable to her manipulative and deceptive actions.
  3. As is readily apparent, notwithstanding that courts charged with hearing and determining AVO proceedings had determined such proceedings in the mother’s favour, in criticising the mother in the way in which he did, the trial Judge effectively criticised the person who had been found by courts dealing with such matters to have been the victim, and considered the father, who had been found to be the perpetrator of family violence, the victim.
  4. Earlier still, the trial Judge found the mother’s behaviour had been “so serious and potentially damaging to the children” as to raise the prospect of the children only having supervised contact with her. His Honour had also found that “[n]ow that the parents live apart, there is virtually no prospect of incidents of violence occurring between them”. His Honour proceeded to find that “any risk that [the father] would harm the children either physically or psychologically as a result of abuse, family violence or neglect is such that the risk is so low as to be within acceptable limits”. Those findings have not been challenged in this appeal....
 The conclusions of the trial Judge with respect to the topic to some extent appear to reflect his personal views in relation to the operation of family violence laws in this country, and of those who rely upon them, or support and assist those who do. Similar views found expression elsewhere in the trial Judge’s reasons, such as the following paragraph:
126. [The child B] had continued to see [Mr F], is a senior counsellor with the NSW Child and Adolescent Mental Health Service, and [Ms G], a biased clinical psychologist at [E Organisation]. [Ms G] made a report that the children could not spend time with the father following an alleged relapse in his behavioural problems. [Ms G] is so biased that, in a report she made on 23 September 2008, she said [the child B] has disclosed sexual assault to a doctor. Unfortunately [my emphasis] [the child B] has not disclosed to JIRT.” [The child B] was referred to [Dr N], no doubt because the mother had approached [Mr F] or [Ms G].(emphasis added)

  1. Further support for our conclusion is gained from the following extract of the passage which we have earlier set out in full:
    1. ... It is typical of the mother’s case that she claims many acts of violence against her by the father, but provides next to no detail or specific evidence of it. I regard the mother as being an exaggerator and habitual liar, and as being exceptionally willing and able to manipulate situations to her perceived advantage, especially by using politically correct do-gooders and people who have a duty to deal with social problems and the like, but not the time, inclination or ability to distinguish truth from fiction. I do not completely discount the allegations of violence. I think they have been greatly exaggerated in number, extent and effect by the mother and regard the limit of the father’s violence toward the mother as likely to be drunken verbal abuse, threats and occasional damage to property.

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