Beazley and Andreopolis (No 2)

[2008] FamCA 1276

FAMILY COURT OF AUSTRALIA

BEAZLEY & ANDREOPOLIS (NO. 2) [2008] FamCA 1276

FAMILY LAW – CHILDREN –application to rely on expert physiatrist report – application that leave be granted to  rely upon an expert physiatrist  report going to the issue of the methodology adopted by the single expert physiatrist in his diagnosis of the father

Family Law Act 1975 (Cth)

Bass v Permanent Trustee Co Ltd [1999] 198 CLR 334

APPLICANT: Ms Beazley

RESPONDENT: Mr Andreopolis

INDEPENDENT CHILDREN’S LAWYER: Ms Nash

FILE NUMBER: SYF 2624 of 2004

DATE DELIVERED: 22 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: LE POER TRENCH J

HEARING DATE: 22 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR GRIEVE SC

COUNSEL FOR THE RESPONDENT: MR BATEY

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS NASH

Orders

1. That the husband's application made orally today and particularised by his Counsel to be able to rely on evidence of Dr AS is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Beazley & Andreopolis 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

MS BEAZLEY

Applicant

And

MR ANDREOPOLIS

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the husband in the following terms:

   That leave be granted to the husband to be able to rely upon a report of Dr [AS] going to the issue of whether the husband suffers from multiple personality disorder or any other personality disorder such as to affect his capacity to care for, or spend time with, the children on either a supervised, or unsupervised basis, or would pose any risk to the children. Alternatively that leave be granted to the husband to be able to rely upon a report from Dr [AS] going to the issue of the methodology adopted by Dr [W] in his diagnosis of the husband in suffering from a multiple personality disorder or personality disorder.

2. The application is opposed by the wife.  The Independent Children's Lawyer submits that the application is unnecessary unless the parties seek a finding of fact as to the mental health of the husband. 

3. On 3 October 2008 I determined an application filed by the husband on 29 September 2008.  That application sought the same remedy as the current application, namely for the husband to be able to rely upon a report or other evidence of Dr AS in relation to his mental health.  I here incorporate the reasons delivered on 3 October 2008 into this judgment.

4. In the submissions made in support of the husband's application filed on 29 September 2008 I was told, inter alia, that one of the purposes of the intended evidence of Dr AS was to challenge the methodology of Dr W in diagnosing the husband as suffering from a personality disorder or similar.  It seems to me that the application now before the Court does in all respects seek the same result as the application filed on 29 September 2008.  Mr Grieve the Senior Counsel for the wife submitted that the husband's application is incompetent.  He relies on the decision of Bass v Permanent Trustee Co Ltd [1999] 198 CLR 334 and in particular drew my attention to page 360 where the following was said:

   Once an issue is determined at the interlocutory stage and the trial continues the primary judge's hand is tied in respect of all matters of fact and law involved in that determination.  In Fidelitas Shipping Co Ltd v V/O Exportchleb 112, Diplock LJ pointed out:

   “Where the issue separately determined is not decisive of the suit the judgment upon that issue is an interlocutory judgment and the suit continues.  Yet I take it to be too clear to be citation of authority that the parties to the suit are bound by the determination of the issue.  They cannot subsequently in the same suite advance argument or adduce further evidence directed to showing that the issue was wrongly determined.  Their only remedy is by way of appeal from the interlocutory judgment and where appropriate an application to the appellant Court to adduce further evidence.”

5. Mr Grieve submits that the current application is identical to that decided by me on 3 October 2008. I agree with the submissions of Mr Grieve and would on that basis dismiss the husband's application under consideration. There does, in my view, need to be a distinction between an application seeking an interlocutory order which is identical to an application already determined, where that further application is in the nature of an appeal, and the circumstances where a subsequent but perhaps identical application for an interlocutory order is made based upon different evidence which was not available at the time of the earlier hearing.  It was for that reason that I asked the husband to identify the evidence relied upon to support his current application.  No such further or new evidence was identified and so I cannot consider this application in that way. Consequently I will dismiss the application on that ground also.

6. There is yet another consideration. Prior to the commencement of this week of hearing this case, which commenced on 20 October 2008, the parties and the Independent Children's Lawyer, at my direction, filed a detailed trial plan which has been marked for identification “MFI14”.  That trial plan, had it been followed, would have seen us approaching the end of the husband's cross-examination.  We are but commencing that cross-examination and seven hours has been allowed for it. Already this case has run far longer than it was originally listed.  If the case does not conclude by Friday this week it will be well into next year before I can resume the hearing. The children's matters need to be determined as soon as possible. The additional evidence of Dr AS, if given, although provided for in the trial plan may not be reached in any event and would therefore potentially lengthen the trial to such that it could not be contained in this week. Given the current rate of progress of the evidence in this case that prospect seems highly likely.  That in my view is a further reason why the application should be refused.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  2 November 2010