Andreopolis and Beazley

[2008] FamCA 1274

FAMILY COURT OF AUSTRALIA

ANDREOPOLIS & BEAZLEY [2008] FamCA 1274

FAMILY LAW – CHILDREN – leave to tender a report or adduce evidence from a further expert psychiatrist in relation to father’s mental health – leave not granted

Family Law Rules 2004 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Andreopolis

RESPONDENT: Ms Beazley

FILE NUMBER: SYF 2624 of 2004

DATE DELIVERED: 3 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: LE POER TRENCH J

HEARING DATE: 3 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Grieve and
Mr Schonell

COUNSEL FOR THE RESPONDENT: Mr Tockar

INDEPENDENT CHILDREN'S LAWYER: Mr Harper

Orders

1. That the husband's application filed on 29 September 2008 be dismissed.

2. I reserve the wife's and the Independent Children's Lawyer's costs of the application determined by me today.

IT IS NOTED that publication of this judgment under the pseudonym Andreopolis & Beazley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2624 of 2004

MR ANDREOPOLIS

Applicant

And

MS BEAZLEY

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the father to be granted leave to tender a report or adduce evidence from Dr AS in relation to the father's mental health.   That application is opposed by the mother and the Independent Children's Lawyer.

2. In support of his application an affidavit by his solicitor, Ms Coleman, is relied upon, together with an affidavit of L.M. Bennett which annexes Dr AS’s CV.  There is no issue as to Dr AS’s expertise.

3. The affidavit of Ms Coleman wrongly asserts/suggests that Dr W’s report of 10 October 2006 did not provide the diagnosis which raised concerns about the husband's mental health.  Ms Coleman says the husband did not seek to bring any adversarial witness about the diagnosis of Dr W because the diagnosis was not identified as relevant to the recommendations made by Dr W in his final report dated 16 March 2008.

4. It is submitted on behalf of the husband that Dr W moved away from his recommendation in his final report dated 16 March 2008 in his cross-examination by the mother's Counsel.  It is suggested by the husband that following the cross-examination of Dr W the husband appreciated the possible serious nature of the diagnosis of Dr W and at that time he came to appreciate the impact of the diagnosis of his mental state on the competing applications in relation to the children before the Court.

5. Mr Tockar submitted that no additional time would be required for the hearing if the husband was allowed to call this evidence as the trial plan currently before the Court provides time for Dr AS to give evidence.  Mr Tockar took me to Rule 15.49(2).  This rule permits a party to tender a report or adduce evidence from another expert on the same issue as that canvassed by a single expert if the Court is satisfied :

   a)There is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue.

   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.

6. The husband relies particularly on sub-paragraph (2) (a) and sub-paragraph (2) (c) of the rule as to the reasons why the evidence should be allowed.  In relation to sub-paragraph (a) it is predicated upon the existence of available evidence.  In this case the husband has not yet subjected himself to interview with Dr AS to ascertain that there is any such evidence contrary to the diagnosis put by Dr W.  It is further submitted under sub-paragraph (2) (c) of the rule that there is a special reason for adducing the evidence.  That special reason is that Dr W was not provided with sufficient longitudinal history to be able to move from a suspicion of a diagnosis to one of a clear diagnosis in his report in respect to the husband.

7. The Independent Children's Lawyer opposes the application.  The Independent Children's Lawyer says the husband has had ample opportunity to consider the appointment of another expert at a much earlier time than two thirds of the way through the trial.  The Independent Children's Lawyer provided an outline of argument and a chronology.  The chronology was agreed to by the husband in all relevant respects.  In that chronology the husband agreed that on 10 October 2006 Dr W’s first report provides what is a diagnosis of the husband having a personality disorder.

8. On 20 April 2007 the husband filed an application which sought permission to engage an expert to conduct a shadow report in relation to the report of Dr W dated 10 October 2006.  In July 2007 the husband obtained from Dr AS a list of questions to be put to Dr W arising out of Dr W’s report.  On 13 August 2007 the husband filed an application seeking a new expert be appointed in lieu of Dr W.  He selected three well-known expert psychiatrists.  He no longer sought orders in relation to Dr AS. 

9. The husband's application for a new expert was dismissed on 31 August 2007 by Judicial Registrar Loughnan.  No review of that decision was sought.  The husband was ordered to provide to each party a list of the questions he wished to ask Dr W.  The cost of answering the questions was to be first ascertained by the Independent Children's Lawyer.  The questions were provided to the Independent Children's Lawyer to obtain the quote from Dr W.  Those questions have been tendered in this application only.  Questions 29, 30, 31 and 32 touch directly on Dr W’s diagnosis of personality disorder (mixed type) and its consequence to the husband's parenting capacity. 

10. The Independent Children's Lawyer advised the parties that the cost of having the questions answered was $9,680.  On 23 October 2007 the husband's solicitor advised the Independent Children's Lawyer that the husband would not pay the $9,680 for the questions to be answered and wished to proceed instead on an update report from Dr W.   On 16 March 2008 Dr W produced his update report.  What he said on page 11 of that report clearly showed Dr W had not changed his view about the husband's diagnosis. 

11. On 4 July 2008 the matter was listed before me.  On that day the question of the possible involvement of Dr AS giving evidence in the case was again raised.  On that day I noted Ms Bennett, appearing for the husband said:

    It is not intended that Dr [AS] would become a witness to the proceedings.

12. The trial commenced on 26 August 2008.  On 9 September 2008 the matter was before me again, on that occasion for a mention.  I am informed by the Independent Children's Lawyer that the husband's Counsel raised on that occasion the question of being able to rely on further evidence from Dr AS.  I have no note of that on the Court record.  On 18 September 2008 the matter was before me again and I did, on that occasion, note an oral application by the husband to be able to rely upon evidence from Dr AS as to any diagnosis of mental health of the husband. 

THE WIFE'S SUBMISSIONS

1. The wife supports the Independent Children's Lawyer's submissions.  It is pointed out that paragraph 9 of Ms Coleman's affidavit is plainly wrong.  It was submitted that the chronology provided by the Independent Children's Lawyer shows that the husband has had a number of opportunities to pursue this evidence from Dr AS at a time well before the trial commenced.  It was submitted that this application is ill-conceived as there is no report from Dr AS which might justify a finding to satisfy the criteria set out in Rule 15.49(2).  It is submitted that if the husband is permitted to obtain further evidence from Dr AS and if that evidence was contrary to the diagnosis of Dr W then the wife should be offered an opportunity to have the husband examined by a psychiatrist of her choice.  Dr W is not her witness.  She could not seek his advice or assistance to marshal any questions to ask Dr AS in relation to any alternative diagnosis that Dr AS may offer.  There is some force in that argument.

CONCLUSION

1. I agree with the submissions of the Independent Children's Lawyer and the wife in relation to this application.  Already the case has run over the time originally allocated for hearing.  The dates were set on the advice of the parties’ lawyers.  Although some time was lost due to other Court commitments of mine, in the original time allocated, (originally allocated ten days) it has now been necessary to allocate a further five days, all of which have been fully occupied by the trial plan now settled for that time.  I should add that the latest trial plan was modified at my direction because the first trial plan placed before me provided no time for submissions in the five days set aside. 

2. Shortly put; the husband has been given a fair opportunity to address the question of obtaining further evidence as to his mental health at a time before the trial commenced and he chose not to.  He should not, in the circumstances of this case, now be permitted to do so.  Accordingly, I order.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date: