Geoffrey Preston v L Carmody, J Cauchi and J Mcauliffe and Chief Executive Officer of the Family Court of Australia [1993] FCA 377;

Geoffrey Preston v L Carmody, J Cauchi and J Mcauliffe and Chief Executive Officer of the Family Court of Australia [1993] FCA 377; - FCA 1993 case summary — Zoe

[33]

"My reasons are:-

1. Mr Preston quite clearly does not acknowledge the right of his

professional supervisors in the Court to give him directions about

the manner in which he performs his professional duties unless

that supervision conforms with his own views. In his own words,

'The issue at the heart of this matter is the relationship

thatshould exist between managerial and professional

authority. To the extent that management promotes and

facilitates professional excellence (or at least optimal

performance) their (sic) is no conflict between the values

and aims of these two activities. On the other hand, when

management is inept and heavy-handed, showing little regard

for the expertise and sensibility of its professional

workers then conflicts and disputes arise. When management,

as has occurred in the Counselling Section at the Parramatta

Registry, demonstrates a profound ignorance of the technical

and ethical principles of the work they are intended to

organise and supervise; when such management attempts to

conceal and overlook policies and organisational practises

(sic) which contribute to, or, of themselves perpetrate

child mistreatment, then such management forfeits its right

to determine or direct professional practice.'

Simply put, this is an unacceptable view for a person working

within an organisation to hold. Mr Preston seems incapable of

recognising that it is untenable for him to maintain that position

while accepting the benefits of employment. He has had ample

opportunity to reconsider but has, whenever an issue has arisen,

reverted to the view which is summarised above.

An examination of his views on the professional issues involved

has been conducted by a number of people, including the Assessment

Committee, and there is no support for them.

2. Mr Preston's conduct in using a family report to the Court

pursuant to section 62A of the Family Law Act 1975 to advance his

own interest in the debate about the handling of child abuse cases

at Parramatta was highly unprofessional behaviour with the

potential to operate to the detriment of the parties in the

particular case. It is further evidence of his conviction that

his own professional superiority overrides all other

considerations.

3. Mr Preston's behaviour and inter-personal relationships are

demonstrably disruptive in the Registry.

4. While acknowledging the right of Mr Preston to comment on and

criticise the Case Management Guidelines issued by the Chief

Justice, he is not free to disobey them. The risk of him doing so

in the future appears to be unacceptably high.

I am satisfied, for the reasons given above, that Mr Preston is

inefficient within the meaning of section 76S of the Public Service Act

In considering the options for action as a result of my conclusions, I

agree with the Assessment Committee that the matter is too serious for

no action to be taken. He could not be transferred to another

Counselling Section because his attitude is not dependent upon a

particular locality but would probably arise in any Registry. I do not

think it appropriate to transfer him to non-counselling duties which

relied on his existing skills because of his attitude to authority and

his lack of wider experience. The only possibility of research work is

not available because no such position is vacant.

I therefore conclude that Mr Preston should be retired from the

Australian Public Service."

[38]

"29. The most significant issue in our decision is Mr. Preston's

willingness and capacity to comply with the supervisory

requirements of his position. This was the most contentious issue

in written and oral submissions before our Committee and while it

is only one of the reasons for the inefficiency finding by the

Family Court, the submissions presented for and against the other

three reasons impact to varying degrees on this core issue.

30. We recognise that Mr. Preston is in a unique professional position

and his work requires a degree of independence in making client

assessments and reports. We also recognise the assessment by the

Family court (sic) and witnesses that he is capable of performing

the duties of the position. We were also impressed with the

written submissions Mr. Preston had made on issues that have

emerged from his casework. A number of witnesses also attest to

his research skills and his specialist knowledge.

31. We are mindful nonetheless that, like all Public Servants,

Mr. Preston is accountable in the normal supervisory chain of command.

This is a basic requirement for all staff whatever role they

perform. While noting Mr. Preston's unique professional duties,

he is not immune from direction from supervisors who, in his case,

are also professionally qualified. We consider that Mr. Preston

is free to discuss with his supervisors the nature of his

supervision but the balance of evidence before our Committee has

established that the ongoing dialogue and debate has lead to an

unworkable situation. Mr. Preston's supervisors have attempted to

accommodate him but there is no indication that he will comply

with a normal supervisory relationship in the future.

32. The pattern of Mr. Preston's uncompromising attitude is

disturbing. Supervisors prior to the assessment period referred

to the time-consuming discussions with Mr. Preston about how he

was to be supervised. Ms. Turner, Mr. Preston's supervisor in the

assessment period noted some favourable aspects about his

performance but overall her reports did not lead the Assessment

Committee to conclude that he had changed his attitudes.

33. In response to the Assessment Committee's findings, Mr. Preston

in his letter to Mr. Glare of 7 December 1992 ... maintains his

position of assuming the right to decide when management forfeits

its right to determine or direct professional practice.

34. We accept that statements like this are written in anger and

frustration and in the heat of the moment, but Mr. Preston left us

with the strong impression that not only had his attitude not

changed but he was not displaying any willingness or capacity to

compromise his stance.

35. In Mr. Preston's letter to our Committee of 11 January 1993

... he sees the problem not in himself but with his supervisors.

36. When questioned by our Committee on 4 March 1993 about the

supervisory issue Mr. Preston stated he would still have problems

if there was not 'congruence' and 'compatibility' with

supervisors.

37. Finally in his summary of the case on 5 March 1993, Mr.

Preston stated

'... the professional supervision was unsatisfactory,

whether this was due to me or Ms. Talevski, or as I have

contended to problems in the supervisory relationships, I

will leave open' and '... I did not refuse supervision, but

did have difficulty with the form and nature of that

supervision'.

38. We accept that Mr. Preston has a right to criticise his

supervisors and negotiate an appropriate relationship, but he does

not have the final say on the matter. While Mr. Preston has not

established a pattern of wilful disobedience his attitude to

supervision is nonetheless intractable. Unfortunately we saw no

evidence of a change, or capacity to change, this attitude

pattern. This has lead to an unworkable situation for his

supervisors and there was no evidence before our Committee to

establish that he can attain or sustain a standard of efficiency

on this matter that he could reasonably be expected to attain or

sustain. To this extent we find him inefficient. His attitude

furthermore detracts from the overall efficiency of the

Counselling Service of the Family Court.

39. In relation to the other three reasons of the Chief Executive

Officer for the inefficiency finding, we consider there was some

overlap with the 'supervision' issue which was crucial in our

deliberations and therefore we do not deal with them in the same

detail. We did conclude however that

(1) The balance of evidence did not establish that Mr.

Preston'sbehaviour in using a Family Report to advance his own views

on child abuse was so 'highly unprofessional', in itself, to

render him inefficient.

(2) Mr. Preston's behaviour and inter-personal relationships

were of concern in relation to his intransigence on

supervision but there is insufficient evidence to conclude

that he is inefficient in 'non supervisory' situations.

(3) Mr. Preston's continued criticisms of the Case Management

Guidelines, while irritating to some Family Court staff, if

harnessed in the right way, could have been beneficial to

the Family Court.

40. It is a serious matter that Mr. Preston did not report the

suspected child abuse to the appropriate welfare body. The

legislation does not allow for such autonomy. On the evidence

submitted, this appears to be an isolated incident, however, and

one not corrected by his supervisors at the time. On balance we

would not find him inefficient on this issue. What is of more

general concern is the degree of independence Mr. Preston confers

on himself which is the basis of our assessment of his incapacity

to accept supervision.

41. In summary, because of our significant concerns about Mr.

Preston's attitude to supervision we have concluded he has not

attained or sustained a standard of efficiency that he may

reasonably be expected to attain or sustain. We therefore confirm

the retirement decision."

[50]

31. Mr Gageler pointed out that s.76S(2) defines the notion of inefficiency in terms of failure "to attain or sustain a standard of efficiency". As the word "efficiency" is not defined in the Act, he argued that it is necessary to apply the ordinary meaning of this term. In that regard he drew attention to definitions in two dictionaries. The Macquarie Dictionary relevantly defines "efficiency" as "the fact or quality of being efficient; competency in performance". The word "efficient" is said to mean "adequate in operation or performance; having and using the requisite knowledge, skill, and industry; competent; capable". The Shorter Oxford English Dictionary defines "efficiency" by reference to "efficient" and, in relation to persons, gives the meaning of that word as "adequately skilled and active". Mr Gageler said that there is nothing in any of these definitions going to a person's compatibility with, or attitude to, others. According to him, s.76S(2) requires that there be asked two questions, and only two questions: what are the duties the officer is required to perform?; and is the officer competent in the performance of those duties? The duties that Mr Preston had to perform were those set out in the job specification, Mr Gageler submitted; and it was conceded that he was competent to perform them all. Accordingly, he could not properly be adjudged inefficient. The respondents did not look to the applicant's standard of performance, counsel said, but to his attitude; nobody doubted that he could perform the duties of a court counsellor at an acceptable level and he had performed those duties at an acceptable level during the assessment period. Mr Gageler said that both Mr Glare and the Appeal Committee adopted an incorrect test of efficiency; each of them found inefficiency while accepting that the applicant had the knowledge, skill and industry necessary for a performance of his duties. They erred in considering the applicant's attitude rather than his performance of his duties and in considering the efficiency of the organisation (the Family Court) rather than the efficiency of the individual officer. He said that, in taking this course, each of the respondents failed to take into account the job specification applicable to the applicant's position.

At a glance

Court

Decision date

Before

Source

Judgment (85 paragraphs)

Geoffrey Preston v L Carmody, J Cauchi and J Mcauliffe and Chief Executive Officer of the Family Court of Australia [1993] FCA 377; (1993) 44 FCR 1 (1993) 31 ALD 309 (Extract) (12 August 1993)

Parties

Legislation Cited (4)

Cases Cited (6)