Abner & Tesarik (No 2)
[2023] FedCFamC2F 660
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abner & Tesarik (No 2) [2023] FedCFamC2F 660
File number(s): SYC 6811 of 2020 Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND Date of judgment: 24 May 2023 Catchwords: FAMILY LAW – PARENTING – Oral application to appoint a further expert psychologist – Where the child has already attended for interviews with a Child Impact Report and a Family Report – Potential for systems abuse – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 69ZN
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.08
Division: Division 2 Family Law Number of paragraphs: 7 Date of hearing: 24 May 2023 Place: Sydney Solicitor for the Applicant: Ms Wood, Willis & Bowring Solicitors Solicitor for the Respondent: Mr Sareen, Norris Somers Maait Lawyers Solicitor for the Independent Children's Lawyer: Mr Samuel, Brian Samuel & Associates ORDERS
SYC 6811 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ABNER
Applicant
AND: MR TESARIK
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
DEPUTY chief JUDGE MCCLELLAND
DATE OF ORDER:
24 MAY 2023
THE COURT ORDERS THAT:
1.The matter remains listed for a chambers hearing before Judge Eldershaw on 13 June 2023.
2.The respondent’s oral application to appoint an adversarial expert is dismissed.
3.Orders 2 and 5 of the orders made on 13 February 2023 are varied to the extent that an extension of time for each party to file their evidential material is granted to 4pm on 11 June 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abner & Tesarik has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
In this matter, the solicitor for the father has applied for orders to appoint a further expert to give evidence in these proceedings, primarily in respect to what the father believes is the occurrence of “alienating” conduct on the part of the mother that he contends has fractured the relationship between the parties’ child and the father.
The mother disputes that such alienating conduct has occurred. That is an issue that will require determination at final hearing. The Court notes that the child has already attended interviews for both a Child Impact Report that occurred in 2021 and also a Family Report that occurred in April 2022. The Family Report has addressed issues including the child’s relationship with his parents and what is acknowledged to be, on the part of the child, reluctance to spend time with his father, at least, at this point in time.
In circumstances where there is already expert evidence before the Court, r 7.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:
Appointing another expert witness
(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2)The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and the contrary opinion is or may be necessary for determining the issue; or
(b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c)there is another special reason for adducing evidence from another expert witness.
Addressing the first of those matters set out in r 7.08(2), there is no evidence that there is a substantial body of opinion contrary to any opinion given by the single expert and that any such contrary opinion is or may be necessary in determining the issue, being whether the child has or has not been the subject of alienating conduct. In that respect, the extent to which the child is reluctant to spend time with his father and the reasons for that are issues that have been traversed in the family report.
In respect to the second sub-rule, that is, whether another witness knows of matters not known to the single expert that may be necessary for determining the issue, there is no indication that there are any such additional matters not known to the Family Report writer.
Finally in terms of the third sub-rule, whether there is another special reason for adducing evidence from another expert, it has not been contended that there is another special reason for adducing evidence from a witness other than the expert witness.
For completeness, in considering the application of r 7.08 of the Rules, I have also had regard to the principles relating to the conduct of child-related proceedings as set out in s 69ZN of the Family Law Act 1975 (Cth). The first such principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. It has been put to me by both the legal representative for the mother and also the Independent Children’s Lawyer that, in circumstances where the child has now already attended several interviews for the purpose of these proceedings, to require the child to attend yet a further interview has the potential to amount to systems abuse. I respectfully agree with those submissions and for that additional reason and the reasons I set out above, I decline the application to appoint a further single expert psychologist.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Deputy Chief Judge McClelland. Associate:
Dated: 27 June 2023
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