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.


ADHD

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:

Iam not in a position to say whether there is any substance in this claim [ as to ADHD]. I doknow that the diagnosis of ADHD and the use of Ritalinand the like to treat socalled sufferers is still controversial with some authoritative opinion to theeffect that it is over diagnosed,or does not exist and is sometimes“used as a crutch” by medical professionals loath to tellparents that their child is “ill-disciplined”, and thatRitalin is over prescribed and used “as a crutch by parents and/orteachers in response to children whose real need is better parenting orteaching” (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:

78. Itis not in doubt that, until the delivery of judgment, none of the parties to theproceedings before him had any indication thatthe trial Judge was going to relyupon the material to which he referred in his reasons for judgment.
78. Tothe extent that the newspaper editorial was regarded by the trial Judge asevidence, no party had the opportunity to test it. Noparty had any opportunityto make submissions about the material, whatever its potential status may havebeen. Quite apart from thetrial Judge’s failure to afford the partiesnatural justice, the statements from the Sydney Morning Herald reiterated by thetrial Judge do not appear to be those of a person who was qualified to make orexpress such opinions and would not have been admissible.
79. Sensibly,Counsel opposing the mother’s appeal acknowledged that, as a matter ofnatural justice, the trial Judge had erredby referring to the material from theSydney Morning Herald. Necessarily, it was submitted on behalf of the partiesopposing themother’s appeal that, although referring to it, the trialJudge could not be said to have relied in any discernable way onthe statementsin the Sydney Morning Herald editorial....
81. (W)e are persuaded that the trial Judge did rely upon what heapparently read in the SydneyMorning Herald editorial in concluding as he didwith respect to the child B’s likely future use of Ritalin. To read thethreeparagraphs is instructive, and supportive of our conclusion.
82. Thetrial Judge referred to the children’s behavioural problems, and observedthat Dr R “seems to accept that [the childB] has a degree of ADHD”.His Honour recorded, accurately, that the father and his “side of thefamily” questionedthe diagnosis of ADHD for the child B and suggestedthat “reliance on Ritalin is a substitute for ill-discipline in themother’shousehold”. As was conceded before us, Dr R did accept thatthe child B exhibited ADHD “to some degree”. No partyat trialchallenged Dr R’s expert opinion evidence in that regard.
83. Ina passage which was understandably relied upon significantly by Counselresisting the mother’s appeal, the trial Judge saidthe he was “notin a position to say whether there is any substance in this claim”, i.e.the claim of the father andhis family. How his Honour came to “know thatthe diagnosis of ADHD and the use of Ritalin and the like to treat so calledsufferers (emphasis added) is still controversial with some authoritativeopinion to the effect that it is over diagnosed” was not revealedby himin his reasons, or anywhere during the trial to which we have been referred. Norwas the basis upon which his Honour observedthat the “authoritativeopinion” to which he alluded also suggested that ADHD “does notexist”.
84. Incircumstances where there was unchallenged admissible expert opinion evidencethat the child B exhibited a “degree of ADHD”,it was not open tothe trial Judge, without reference to admissible evidence which was before him,to speculate as to whether ornot ADHD existed or was exhibited by the child B.His Honour’s personal opinions, whatever their basis, were no substitutefor evidence.
85. Ultimately,it is apparent from the balance of the paragraph that the trial Judge acceptedwhat an unidentified, and presumably unqualifiededitor of a newspaperapparently said about ADHD. It is readily apparent that, notwithstanding that DrR had not expressed the cynicismso colourfully articulated by the newspapereditor, the trial Judge preferred the opinion of the latter.
86. Ourconclusion that the trial Judge’s opinions in relation to ADHD and Ritalinwere influenced by the Sydney Morning Heraldeditorial is reinforced by thefirst sentence of the paragraph immediately following the reference to theeditorial. His Honour theresaid that if the child B resides with the mother“and she retains a say in his medical treatment he may revert todependence on Ritalin” (emphasis added). Notwithstanding that therewas no evidence that the child B had ever been dependent upon Ritalin,inappropriately prescribed it, or that the mother had ever inappropriately hadthe child take Ritalin, the trial Judge clearly, andin the face of Dr R’sevidence, which was uncritical of the mother in relation to Ritalin, regardedthe child B taking Ritalinin the future as undesirable, and reflectingadversely upon the mother.
87. Itis difficult to see how, by reference to the trial Judge’s own reasons,such a view could not have been reliant upon, orinfluenced by the newspapereditorial from which he quoted. If it was not, in the circumstances it couldonly, and impermissibly,have been based upon his Honour’s own views aboutthose matters.

Family Violence

The Full Court stated, quoting the trial judge:

49. 78. Itis my assessment, after reading all the relevant police material in evidence,the affidavit evidence and seeing and hearing boththe mother and father givingoral evidence, that the mother is not, and has never been, fearful of the fatherbut that she has abusedthe system in place to protect people who are in genuinefear, and have a proper reason to be fearful, for the purpose of gettingher ownway and gaining a tactical advantage in these proceedings. To do so she musthave manipulated [the child B] and [the childH] so they would be fearful oftheir father, not for any benefit to them. Such manipulated fear in the boys isthe only explanationfor the preschool teacher’s complaint, although itwas no doubt made because of information the mother supplied and becauseof herurging. It is not, in my opinion, a coincidence that Senior Constable [P]reached much the same conclusion as I have aboutthe motives, bona fides, andattributes of the mother. I regard her as attempting to use the Court in thesame way as she attemptedwith more success to use the police and Local Court.
50. Laterin his reasons, the trial Judge referred to an episode on 4 January 2010, andsaid:
    136. One4 January 2010, the father attended ... Police Station in response to a policerequest. He was charged with two counts of breachingthe AVO, which was in placeat the relevant time. The charges were based on the text messages of 5 and 11December. He was initiallyrefused bail, and spent from 4 January to 27 Januaryat ... jail. It is a testament of the ridiculousness of the situation that,on27 January, the father admitted what it was alleged he said and was convicted.It does not reflect well on the legal system andthose who refused bail, thatthe Magistrate sentenced the father to 14 days imprisonment after he hadalready spent more than thaton remand. He was immediately released. The father,his mother, the police, and the Magistrate who refused bail and could not haveseriously considered the circumstances, further empowered the mother. That thisis the case is shown by what next occurred.
    137. On15 February 2010, the father went to [the child B]’s school. He had, inMay 2009, after I had allowed him to collect thechildren from school and returnthem to it, met the Headmistress, [Ms M], to inform her of the situation. He hadrequested copiesof [the child B]’s school reports, including that for theend of 2009. He collected this on 15 February 2010. Either [theHeadmistress],who in many ways has demonstrated that she is quite prejudicedagainst the father in favour of the mother, contacted the police or,as is morelikely, contacted the mother, who had already told her not to deliver reports tothe paternal grandparents. The motheror [the Headmistress] contacted the policeand claimed that the father had breached the AVO, which he had because of itsludicrousterms. One of these was that the father was not to approach thechildren’s school. The police charged the father on 22 February,buthe was granted bail. He had, between 18 February when the police first contactedhim about the matter and 22 February made anapplication to discharge or modifythe AVO.
    138. Whenthe matters were due to be heard on 5 May 2010, the mother refused to attend butwanted the orders to continue unchanged. Thecharge of breach was withdrawn anddismissed and the term of the AVO was reduced from five years to one furtheryear concluding on5 May 2011. The children were also removed from the“protection” of the AVO and the condition about approaching theirschool was deleted, as it should have been in view of my still effective orders.The terms affecting the children and school shouldnot have been there in thefirst place.
51. Lateragain, the trial Judge recorded:
    149. ...On any view, the facts up to that time [November 2007] establish that the fathercould not limit his alcohol consumption to acceptablelevels and was very proneto lack of self-control and angry outbursts. These resulted, in Ms [T’s][the Family Consultant’s]understanding, in damage to property, an assaulton police, pub brawling and similar, as well as disparaging language directed atthe mother; sometimes in the presence or hearing of the children, but not inassaults on the mother or children.
52. HisHonour also later recorded:
    157. Thefather was no more candid with Dr. [R] than the mother. He said he was“now” drinking only one or two alcoholic drinkseach week, and hadno 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, hewas drinking much more than that, and would be likely to believe that to drinkfive beersa day would be very modest consumption. He attributed the breakdownof his relationship with the mother in part to her objectionto his alcoholconsumption. This is probably true. The paternal grandmother understated thefather’s alcohol problem to Dr.[R] and excused it by blaming themother.
53. Attrial, Counsel for the ICL submitted the following in relation to theissue of violence:

It is submitted that the Court would be persuadedthat there is substance to the mother’s complaints about breachAVO’s,given the number of convictions and the sheer number of messages,coupled with the father’s admission to the police that herecognised thathe had breached the orders on a number of occasions. The Court would also acceptthat her concerns that the childrenor either of them had been sexuallyinterfered with were genuinely held, and based on the unchallenged evidence of[Dr B] it is clearthat [the child B] made some disclosures even though JIRTheld that the charges could not be substantiated, and that she was perhapsencouraged in those beliefs by the responses she received from [Ms G], [Mr F]and [Dr N]. ...

149. Thetrial Judge’s ultimate conclusion with respect to family violence was:
     246. Themother’s allegations of family violence have already been chronicled andrejected. There is still a family violence orderwhich, as recently as May 2010,the father contested and had reduced in duration. In my assessment, it waslargely made without justificationand should not be permitted to inhibit whatwould otherwise be appropriate parenting orders.
150. Earlier,his Honour said:
     231. Thereare no significant practical difficulties and expenses which ought to arisewhether the boys live with the mother, the father,or the paternal grandmother,which will significantly affect the maintenance by the boys of their right tohave personal relationswith, and direct contact with, both parents and all therelevant family members on a regular basis. The main source of such practicaldifficulties to date has been the attitudes of the mother, those who supporther, those who have empowered her such as the Policeand Local Courts ingranting AVO’s to “protect” her and the childrenunnecessarily, and the father’s weaknessof character which makes himvulnerable to her manipulative and deceptive actions.
151. Asis readily apparent, notwithstanding that courts charged with hearing anddetermining AVO proceedings had determined such proceedingsin themother’s favour, in criticising the mother in the way in which he did, thetrial Judge effectively criticised the personwho had been found by courtsdealing with such matters to have been the victim, and considered the father,who had been found tobe the perpetrator of family violence, the victim.
152. Earlierstill, the trial Judge found the mother’s behaviour had been “soserious and potentially damaging to the children”as to raise the prospectof the children only having supervised contact with her. His Honour had alsofound that “[n]ow thatthe parents live apart, there is virtually noprospect of incidents of violence occurring between them”. His Honourproceededto find that “any risk that [the father] would harm the childreneither physically or psychologically as a result of abuse,family violence orneglect is such that the risk is so low as to be within acceptablelimits”. Those findings have not beenchallenged in this appeal....

 Theconclusions of the trial Judge with respect to the topic to some extent appearto reflect his personal views in relation to theoperation of family violencelaws in this country, and of those who rely upon them, or support and assistthose who do. Similar viewsfound expression elsewhere in thetrial Judge’s reasons, such as the following paragraph:
126. [Thechild B] had continued to see [Mr F], is a senior counsellor with the NSW Childand Adolescent Mental Health Service, and [MsG], a biased clinical psychologistat [E Organisation]. [Ms G] made a report that the children could not spend timewith the fatherfollowing an alleged relapse in his behavioural problems. [Ms G]is so biased that, in a report she made on 23 September 2008, shesaid“[the child B] has disclosed sexual assault to a doctor.Unfortunately [my emphasis] [the child B] has not disclosedto JIRT.” [The child B] was referred to [Dr N], no doubt becausethe mother had approached [Mr F] or [Ms G].(emphasis added)
and

158. Furthersupport for our conclusion is gained from the following extract of the passagewhich we have earlier set out in full:
     37. ...It is typical of the mother’s case that she claims many acts of violenceagainst her by the father, but provides next tono detail or specific evidenceof it. I regard the mother as being an exaggerator and habitual liar, and asbeing exceptionally willingand able to manipulate situations to her perceivedadvantage, especially by using politically correct do-gooders and people whohavea duty to deal with social problems and the like, but not the time,inclination or ability to distinguish truth from fiction. I donot completelydiscount the allegations of violence. I think they have been greatly exaggeratedin number, extent and effect by themother and regard the limit of thefather’s violence toward the mother as likely to be drunken verbal abuse,threats and occasionaldamage to property.