Argyros and Argyros (No 2)

[2011] FamCA 735

FAMILY COURT OF AUSTRALIA

ARGYROS & ARGYROS (NO 2) [2011] FamCA 735

FAMILY LAW – CHILDREN – appointment of a single expert to investigate whether either party suffers a mental illness or personality disorder – where another expert previously appointed who had the necessary qualifications and experience to express an opinion – where there is no appropriate forensic reason to appoint another expert – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Argyros

RESPONDENT: Mr Argyros

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1771 of 2010

DATE DELIVERED: 31 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 31 August 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mervyn Finlay Thorburn & Marshall

SOLICITOR FOR THE RESPONDENT: Slade Manwaring

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission NSW

Orders

1. That the Application in a Case filed by the mother on 24 August 2011 is dismissed.

2. The costs of the respondent father and the Independent Children’s Lawyer of the mother’s Application in a Case are reserved to the trial.

IT IS NOTED that publication of this judgment under the pseudonym Argyros & Argyros (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1771 of 2010

Ms Argyros

Applicant

And

Ms Argyros

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application by Ms Argyros for the appointment of Dr D as a single expert.  Dr D, it is contended, should be asked to investigate whether either party suffers a mental health or personality disorder and to make recommendations in relation to the treatment of any diagnosed disorder, as well as comment upon the impact this may have in relation to parenting capacity.

3. The application is brought in the context of disputed parenting proceedings and there having been an expert previously appointed to investigate, inter alia, whether either of the parties has a personality disorder or mental illness.  Dr E, by consent, was appointed to this task, in relation to which he produced a report which is dated 1 August 2010.  Essentially, Dr E expressed the view that neither party demonstrated behaviour which is indicative of a frank mental illness.  It is his view, relevantly in relation to the father, that while there exists personality traits which can be found in those who have an obsessive compulsive disorder, these were not present to sufficient degree to elevate a personality trait to a personality disorder.

4. It is the mother’s contention that the Court would benefit from the best available evidence in relation to issues concerning the parties’ mental health.  In this regard Dr D, who is a psychiatrist well known to the Court, should be retained.  It is appropriately conceded that Dr E has the qualifications and experience to express the opinion declared by him about the parties’ personalities and the presence or absence of a personality disorder.

5. Notwithstanding the detailed and cogent submissions made by the solicitor for the applicant, in relation to which it is difficult to see that anything more could have been said to construct an argument in favour of the application, I am not satisfied that there is an appropriate forensic reason to appoint another expert to explore an issue which has already been dealt with by a person qualified to report on that issue.

6. The application will be dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 31 August 2011.

Associate:

Date:  31 August 2011