Arena & Arena

[2023] FedCFamC1F 392

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Arena & Arena [2023] FedCFamC1F 392

File number(s):	WOC 1226 of 2019
Judgment of:	CURRAN J
Date of judgment:	26 April 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE –family report ¬ appointment of a single expert report writer – where the court has allocated a court child expert to prepare a family report ¬ whether a single expert report writer should be appointed privately – where the qualifications of the competing experts are the same
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Division 7.1.2
Division:	Division 1 First Instance
Number of paragraphs:	42
Date of hearing:	14 April 2023
Place:	Sydney
Solicitor for the Applicant:	Ms Hewlett of Maguire & Mcinerney Lawyers
The Respondent:	Litigant in person
Solicitor for the Independent Children's Lawyer:	Ms Ung of Legal Aid NSW

ORDERS

WOC 1226 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ARENA

Applicant

AND:

MR ARENA

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	CURRAN J
DATE OF ORDER:	26 APRIL 2023

THE COURT ORDERS THAT:

1.The applicant has leave to rely on the Affidavit of Ms Arena filed 17 April 2023.

2.The application in a proceeding filed 6 April 2023 is dismissed.

3.Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary and to provide a copy of any subpoena material to the Court Child Expert for the preparation of the family report.

4.The Independent Children's Lawyer has leave to provide the report of Dr F dated 15 September 2020 to the Court Child Expert for the preparation of the family report.

5.An updated report be obtained from Dr F in relation to the parties' reportable intensive family therapy.

6.There be no order as to costs.

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 Arena & Arena has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CURRAN J:

INTRODUCTION

1. These reasons for judgment were delivered orally in court and have been corrected from the transcript.

2. This matter concerns the children X, born 2009 and Y, born 2010 ("the children"). It is significant to note that X has special needs. X was diagnosed at the age of 5 on the autism spectrum with moderate development delay and has Attention Deficit Hyperactivity Disorder ("ADHD").

3. By an Application in a Proceeding filed on 6 April 2023 by the Applicant mother, Ms Arena ("the mother"), has sought orders for the appointment of Ms B, Clinical Psychologist, as a single expert pursuant to Division 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Rules"). Mr Arena ("the father") filed his Response to Application in a Proceeding on 21 April 2023. He opposes the order.

4. Justice Altobelli made orders on 9 December 2022. Those orders included an order for a Family Report to be prepared with a notation (notation D) that says:

   "The Applicant's solicitor will take instructions regarding whether the Applicant is prepared to initially fund the cost of the Single Joint Expert Report, with the benefit that such a report will be ready earlier than a Family Report, which will allow the matter to be listed earlier."

5. The matter is listed before me for final hearing for 4 days commencing on 28 August 2023.

   THE MOTHER’S CASE

6. In the mother's case, I read and had regard to:

   (a)The Application in a Proceeding filed on 6 April 2023;

   (b)The mother's affidavit filed on 6 April 2023;

   (c)The mother's affidavit filed on 17 April 2023; and

   (d)Written submissions filed on 21 April 2023.

7. The matter was listed urgently on 14 April 2023 where the mother's lawyer sought leave to file a copy of Ms B's CV and such leave was granted. They did not seek leave to file further evidence than that. It is not clear to me when the affidavit of the mother filed on 17 April 2023 was served on the father. He has not referred to that affidavit in his submissions. Despite this I will grant leave for the mother to rely on the further evidence filed.

8. In essence the mother's case is that the order for the court child expert should be discharged and Ms B should be appointed to prepare the report. Ms B's CV was tendered into evidence on 17 April 2023 by leave granted by me on 14 April 2023. Ms C's CV was not provided and in written submissions the mother's solicitor advised "we cannot be sure of the qualifications of the Family Consultant appointed to prepare the Family Report however there is a real risk that the Family Consultant may recommend that the matter be referred to a single expert." At the time I had assumed that submission was made on the basis that the Family Consultant was not a clinical psychologist. A letter was received by Mr Arena on 11 April 2023 advising that appointments for the assessment had been made with court child expert Ms C.

   THE FATHER’S CASE

9. In the father's case, I read and had regard to:

   (a)The Response to Application in a Proceeding filed on 21 April 2023;

   (b)The father's affidavit filed on 21 April 2023; and

   (c)Written submissions filed on 24 April 2023.

10. It is the father's case that the court child expert, Ms C, should remain appointed for the preparation of the report to assist the court. The father deposes to him being advised on at least 11 April 2023 of her appointment and his belief that Ms C is a psychologist "with more than ten years' experience working as a Family Consultant."  I see now from her CV that she in fact has more than 20 years' experience as a psychologist. I had not been provided with Ms C's CV but requested it, and it was made available to me this morning by the independent children's lawyer.

11. On 14 April 2023, the father was directed to file a response and affidavit and to provide written submissions (if he wished to do so), by no later than 21 April 2023. His written submissions were filed on 24 April 2023. I have read and considered the Response to Application in a Proceeding and the father's supporting affidavit filed on 21 April 2023 and the submissions he filed on 24 April 2023.

12. I note the independent children's lawyer ("ICL") did not file any submissions, but I note that she has made some further oral submissions today which I take into account. First of all, the possibility of psychometric testing being undertaken, and secondly, the additional cost of the funding of the expert if that expert was required to give evidence at the trial.

13. The father in effect articulated two reasons which are interrelated as to his opposition to the Application. The first being cost and the second being that it will not expedite the trial.  To use his words there is "no benefit" in appointing the single expert.

    The cost of the single expert

14. The first of the two reasons being the cost of the single expert is a valid consideration. The Central Practice Direction sets out "the overarching purpose to be achieved is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible." Although the cost is to be borne by the mother in the first instance, the costs are sought by the mother to be shared by the parties. The determination of the burden of the costs of the single expert is something that the mother seeks to be determined after the final hearing of the matter. The mother contends in her written submissions that it is only after testing the father's capacity in cross examination at the final hearing that the assessment of financial capacity can properly be undertaken. I agree with the submission that I cannot determine financial capacity at this time. I agree however with the father's submission that in the circumstances of this case the cost is a relevant consideration and I further note the overarching purpose as set out in the Central Practice Direction as I referred to above.

    The notation to the orders of Altobelli J

15. The notation referred to in the father's submission contends is a reason not to accede to the Application in circumstances where there will be no impact on the efficient disposal of the case. I do not accept that the notation binds the court in any way, that is that there would necessarily need to be an earlier hearing date for me to vary that order. It is however a relevant factor in assessing the merit of the mother's Application. There is, in reality, no capacity for an earlier hearing date to be allocated in this case regardless of which of the experts is appointed.

    THE CORRESPONDENCE ABOUT THE SINGLE EXPERT

16. On 14 March 2023, the mother's legal representatives emailed the father in relation to the potential appointment of Dr D as the single expert. The father replied on 15 March 2023, rejecting the proposal, noting the cost and the requirement of travel to and from Melbourne.

17. Subsequently on 4 April 2023, the ICL proposed the appointment of Ms B as the single expert. The mother's legal representatives agreed.  The father rejected the proposal in effect for the reasons that he referred to in response to the proposal of Dr D - one of the reasons was the cost, although at the time no party was aware of the allocation of the matter to a court child expert. The allocation to Ms C, apparently occurred in early April 2023, and the parties were notified of this appointment by at least 11 April 2023, which is the date referred to in the letter that was forwarded to Mr Arena that he has annexed to his affidavit.

18. Somewhat curiously the mother has not included in her material filed on 17 April 2023 any reference to when she was notified of the appointment of Ms C, nor of her enquiries, if any were made, of the qualifications and experience of Ms C.

    The expertise of Ms B

19. The mother's case is set out in her written submissions filed on 21 April 2023. In summary, her submission is that Ms B is the appropriate single expert with her particular level of expertise as a clinical psychologist with over "over 20 years' experience assessing and treating children, adults and families", with a particular specialised knowledge in family disputes including family violence and the impact of mental illness upon parenting capacity, when children reject a parent. The mother seeks that Ms B be appointed as the single expert in circumstances where there are allegations made by the mother and allegedly reports made by Y, of family violence perpetrated by the father.

20. The mother further asserts that Ms B has written a thesis on the subject of ADHD.  I infer that it is this specialised knowledge that the mother submits would support a determination that Ms B is the most appropriate single expert, particularly given X's diagnosis.

    PRELIMINARY CHILD INCLUSIVE CONSULTATION MEMORANDUM TO COURT

21. Dr E prepared a Preliminary Child Inclusive Consultation Memorandum to the Court dated 20 December 2019. Dr E recommended "expert advice will be necessary to assist the court in its deliberations. One option may be to order a Part 15 single expert report…another would be to order RIFT" which is Reportable Intensive Family Therapy. Dr E recommended that the parties attend the Reportable Intensive Family Therapy with Dr F or Ms B as the "best alternative" at that time.

    DR F'S REPORT

22. Dr F had undertaken RIFT with the family. Dr F provided a report dated 15 September 2020 which set out her involvement with the family in completing the RIFT from 11-14 September 2020 and an indication of an intention for ongoing involvement. Apparently this ongoing involvement has not occurred. I have no evidence before me as to why this has not occurred despite requests being made by the former ICL.

23. The report of Dr F states that "[Mr and Ms Arena] are to be congratulated on their cooperation with therapy and prioritising of their children's needs." She also observed that the parents "showed pleasing capacity to work together, despite recent conflicts and a high degree of mistrust between them" and recognised that "they each have loving relationships with the children."

24. The mother asserts that during the RIFT Dr F reported to the mother that she had concerns for the mother's safety. The date of this conversation is not in evidence before me. These concerns are not articulated in the report dated 15 September 2020.

    THE COURT CHILD EXPERT

25. There is no doubt that X has special needs and that an opinion from an expert with appropriate specialised knowledge and training is going to be of most benefit to the court in making orders that are in the best interests of X and Y.

26. The father asserts that the court child expert equally has an appropriate level of specialised knowledge in that she too is a psychologist who has been employed as a court child expert (practising under her appointment as a family consultant) for some "[…] years with the court."

27. Until this morning I had not been provided with any evidence in relation to the background, training, experience, and specialised knowledge of the court child expert. The mother submitted that it is a real risk that the court child expert "may recommend that the matter be referred to a single expert." If this recommendation was made, delay could be caused in obtaining a further single expert report which could endanger the readiness for trial commencing in August 2023.

28. It is difficult to understand the submission that a court child expert, who is a psychologist with more than 20 years' experience would seek to refer this matter to another person with the same qualifications as herself for a single expert report. In circumstances where disciplines and training may be different, I have no difficulty accepting such a submission, but as it transpires from the ICL's enquiries of today, and me being provided with a copy of Ms C's CV, the father's understanding of the court child expert's qualifications and experience are accurate, save that rather than over ten years' experience she's been in practice much longer, although not all of that time has been with the court.

    CONCLUSION

29. I accept that Ms B, is a person with specialised knowledge in relation children with ADHD and family disputes involving family violence, and that she has over 20 years' experience. She is a clinical psychologist well placed by reason of her expertise to assist the court.

30. I also accept, as the father submits, that the court child expert, who is also a clinical psychologist, is equally a person with specialised knowledge and relevant experience.

31. I must be mindful of the objects of the Central Practice Direction and I am also mindful of possible delay and balancing the cost of the proceedings for the parties. In this case there is no significant variation between the timing of the appointments for either of the proposed experts.

32. I note as pointed out by Mr Arena in his submissions that the notation made by Justice Altobelli about the single expert was focussed on the timing of the available evidence, in circumstances where a single expert report may have been available earlier than a court child expert report. Fortunately for these parties in this case, this is not a relevant factor. 

33. The court child expert appointments are arranged for 15 May 2023. The Ms B interviews could have been undertaken on 2 May 2023. The timing of those interviews are so close in time that either should be available well in advance of the August hearing date. This consideration is neutral.

34. The overwhelming consideration from my point of view however is what is in the children’s best interests, noting in particular X's diagnosis.

35. It is in both boys' best interests to have a final hearing in this case that has before it the best evidence in relation to what is in their best interests.

36. The appointment of Ms B as a single expert in these proceedings, given her experience and specialised knowledge would obviously be one where she is an appropriate expert.  However, as referred to above, the court child expert has very similar experience and qualifications.

37. I must weigh the concern, as expressed by the father, of the cost of the single expert and the hardship he asserts this will create for him. Appointing a single expert does not conclude that the father will indeed be paying half of the cost, if the evidence supports such a determination after the hearing, I could make an order that either of the parties meet the costs.

38. However, there is no discernible difference in the expertise of the court child expert as distinct from Ms B. They are both experienced and respected in their field. They are both trained psychologists with significant experience in family law. They are both available for interviews to prepare the report ordered in May to have the report ready for the final trial in this matter. I also note the submission of the ICL that there will be additional cost in the single expert being funded privately for the purposes of giving evidence at the trial. There is no opportunity for the matter to be listed earlier than August, which is a factor if relevant, that would have weighed heavily in favour of the mother's Application. Indeed, it appears likely that the mother's enquiry and preparation of the Application coincided with the allocation of the court child expert's dates, noting the Application was filed on 6 April 2023 and the letter sent to the father was sent out on 11 April 2023.

39. However, for these reasons I am not satisfied that any variation to the orders made by Justice Altobelli are necessary and the Application is dismissed.

40. It is necessary that the existing report of Dr F and any updated report from Dr F be provided to the court child expert in preparation of her report. I grant leave to the ICL to issue any subpoena as may be necessary and to provide such material to the court child expert.

41. I also expect that there will be a request for an updated report from Dr F.

42. This is not an appropriate matter in which I will make an order for costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran.

Associate:

Dated:       30 May 2023