Bolkvadze & Bolkvadze (No 2)
[2024] FedCFamC1F 561
•22 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bolkvadze & Bolkvadze (No 2) [2024] FedCFamC1F 561
File number: SYC 2018 of 2022 Judgment of: CHRISTIE J Date of judgment: 22 August 2024 Catchwords: FAMILY LAW – APPOINTMENT OF A SINGLE EXPERT – Where children have various developmental, psychological and medical needs – Where mother seeks appointment of court assessor in place of single expert – Where Independent Children’s Lawyer’s orders to appoint single expert made – Mother and father to pay costs of single expert jointly. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.04, 7.31, 7.33, 7.34, 7.35. Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 21 August 2024 Place: Sydney Solicitor for the Applicant: Ms Boyce, Boyce & Boyce Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Steiner Legal Pty Ltd ORDERS
SYC 2018 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOLKVADZE
Applicant
AND: MS BOLKVADZE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
22 AUGUST 2024
THE COURT ORDERS THAT:
1.Pursuant to r 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), Mr F be appointed as a single expert witness to conduct an assessment and report upon the following matters:
(a)A comprehensive assessment of each of the children, X, born in 2009; Y, born in 2011, and Z, born in 2015, to identify whether each child has, or may have, any of the following conditions or symptoms of the following conditions:
(i)A mental health disorder, including but not limited to certain disordered behaviours;
(ii)Attention deficit hyperactivity disorder;
(iii)Autism spectrum disorder;
(iv)Anxiety;
(v)Depression; or
(vi)Any other mental health or developmental condition.
(b)If you are unable to conduct a diagnostic assessment of any of the above conditions, please explain why.
(c)If the children (or any of them) have any of the above conditions, or symptoms of the above conditions, your recommendations as to:
(i)How such symptoms should be managed;
(ii)Any particular treatment that ought to be undertaken, including the nature and purpose of such treatment, and the timeframe in which the treatment ought to be obtained; and
(iii)The reasons for your recommendations.
(d)Any recommendations as to additional assessments which would be of benefit to any of the children, including the nature and purpose of such assessments, and reasons for your recommendations.
2.Within 14 days of these Orders, the Independent Children’s Lawyer shall forward to Mr F a joint letter of instruction in the same terms as Annexure A, together with a copy of the documents set out in that letter, omitting documents 3-6 and replacing those with copies of the parties’ trial affidavits.
3.Both parties are to attend all appointments scheduled by Mr F for the purposes of his assessment and report.
4.Each party will ensure that the children attend all appointments scheduled by Mr F for the purposes of his assessment and report.
5.The costs of Mr F’s assessment and report, and any subsequent costs associated with his attendance at the final hearing for the purposes of cross-examination, are to be shared equally between the parties and this Order shall serve as authority for the father’s solicitors, Boyce & Boyce, to make payment to Mr F from funds held in trust on behalf of the parties jointly to Mr F in respect of his report, his attendance at trial for cross-examination and any other costs, such payment to be made within 14 days of receipt of invoice.
6.In the event Mr F indicates that he wishes to speak with any of the children’s treating practitioners for the purposes of his assessment, each party do all acts and things necessary including signing all necessary documents to authorise such communications.
7.The parties do all acts and things necessary to facilitate the preparation of a short addendum report by Dr C and for that purpose Dr C may be provided with all documents contained in the letter of instruction to Mr F and any further documents agreed in writing by the parties.
8.That within 7 days of release of the report of Mr F or Dr C (whichever is the latter) both experts are to confer in accordance with r 7.31 of the Rules.
9.Within 2 business days of the conclusion of the conference Mr F and Dr C provide a Joint Statement to the Court, which may be tendered by either party or the Independent Children’s Lawyer in accordance with r 7.31(5) of the Rules.
THE COURT NOTES THAT:
A.Mr F has indicated he will be available to conduct his assessment of the children in late September/early October 2024 and anticipates completing his report by mid-October 2024.
B.Mr F has estimated the cost of his assessment and report will be $21,120 including GST, comprising reviewing documents (up to 8 hours); clinical reviews of each child and the parties (up to 8 hours); and preparation of his written report (up to 8 hours).
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym Bolkvadze & Bolkvadze has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for appointment of a single expert witness in parenting proceedings.
The proceedings concern parenting arrangements for the parties’ three children (“the children”):
(1)X born in 2009 (aged 14);
(2)Y born in 2011 (aged 13); and
(3)Z born in 2015 (aged 9).
The matter is listed for final hearing at the end of November 2024.
The parties and the Independent Children’s Lawyer (“ICL”) accepted that in theory it would be useful for the Court to have evidence from an independent court appointed paediatrician to assist with the resolution of what orders (parental responsibility and time) would best meet the needs of the children.
On 25 June 2024 I heard and determined a Review Application. In that context I made the following (uncontroversial) findings:
Children’s developmental, psychological and emotional needs
X
(a)In 2006, the parties’ daughter, X was diagnosed with ADHD. Both parties accept this diagnosis.
(b)X would appear to have experienced some depressive symptoms in recent years although the mother is of the view that these may be symptomatic of her ADHD.
(c)X has been prescribed medication. The mother is concerned about side effects.
Z
(a)Z has a medical condition. The mother takes the position that Z’s growth is within normal parameters.
(b)In 2021 Z was diagnosed with ADHD.
(c)Z has been diagnosed with another medical condition. Z may also have further health issues. The parents have not historically agreed on an approach.
(d)Z may have sleep issues.
Y
(a)Y has been diagnosed with ADHD.
(b)Y may experience some anxiety.
(c)In respect of Y and Z, the father takes the view that a diagnosis of ADHD may not be accurate. The mother accepts that both children have been appropriately diagnosed. As a consequence of their difference of opinion the parties also differ in their approach to medication.
In that context I encouraged the parties to seek to engage a single expert paediatrician. In the absence of agreement I made directions for the matter to be listed for an interim hearing.
I am told that it has been difficult to find a paediatrician who undertakes court reports and I accept that that is the case.
The parties have already obtained a report from a child and family psychiatrist, Dr C. In addition, a Court Child Expert has produced a Child Impact Report.
The father, through an affidavit by his solicitor, said that he had identified a psychologist and a psychiatrist who could prepare a report but ultimately accepted that the proposal of the ICL was appropriate.
The mother’s response sought a number of orders some of which related to appointment of a single expert and some which dealt with case management more generally.
I set out the orders which the mother sought in her Outline of Case Document:
1. That the mother is given sole medical responsibility for the children until final trial.
2. leave to serve and file an additional Notice to inspect in response to the other parties response to her Notice to admit emailed and processed for filing 6 August 2024, in a bid to narrow the issues and ascertain which witnesses and how many witnesses will be useful to the court at final trial prior to the case management hearing.
3. That the father provide the court with documentation that support the statement that [G Holdings] was not part of the Estate of [Mr J] assets in the Will and probate of [Mr J].
4. That a court assessor be appointed to assist the court in establishing what the best interests of the children are in place of a Single expert paediatrician
5. If the mother is granted SPR, that the final trial be moved to Feb 2025 providing time for the end of year reports to be released to serve as evidence for final trial. The mother will provide updated assessments on [X] and [Y] prior to the final hearing to serve as evidence to the court in determining the children’s interests.
(Mother’s Case Outline filed 21 August 2024).
The evidence to which I have had regard when determining the application includes the report of Dr C, the Child Impact Report, the parties’ affidavits relied upon on this application, an affidavit by Ms D and documents contained in two tender bundles. The ICL had filed an affidavit and also otherwise relied on the previous expert reports. I have also previously heard and determined an interim parenting application.
The mother’s application sought appointment of an assessor. I am not aware of the appointment of an assessor occurring in a parenting matter although I accept that there is nothing in r 7.33 that would prevent it if appropriate. The tension about the suitability of appointment of an assessor in a parenting matter arises by reason of the operation of r 7.35(4). Where the adoption or rejection of an opinion may turn on acceptance or rejection of, as yet, unproven facts the use of an assessor in parenting matters presents as generally problematic.
The mother’s material did not set out the matters required by r 7.34. I do not intend to appoint an assessor.
At the hearing I explained to the mother that while she sought an interim order for sole parental responsibility I could not conduct an interim hearing on this issue for a number of reasons including: I had recently determined the same issue, there is a final hearing scheduled where the evidence can be tested and the other parties were working on the correct assumption that the matter was listed only in respect of expert evidence so hearing a substantive interim parenting application would not be procedurally fair.
The other matters which the mother raised in her Minute of Order were the subject of discussion but have not resulted in the making of orders for reasons discussed during submissions.
The ICL sought an order to appoint Mr F, a child and adolescent psychiatrist.
Mr F is able to complete a report within an acceptable time frame having regard to the hearing dates.
During the hearing I raised with the parties whether they should return to the existing single expert psychiatrist.
I was informed by the ICL that Dr C would be unable to undertake the task of comprehensive update together with medical review in a timeframe which would allow the parties to keep the existing hearing dates.
I was therefore faced with two competing proposals: the mother’s proposal for an assessor which was only faintly pressed following discussion and her proposal that the children’s existing treaters (or some of them) provide evidence.
The appointment of an expert is governed by Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
As I understand the issues the parties have a difference of opinion about treatment options for their children. This difference may (or may not) arise out of differences in opinion about diagnosis. At the final hearing I will be asked to make orders in respect of both parental responsibility and the time the children spend with each parent. Both parents appear to link the orders for parental responsibility and time to the ways in which the children’s treatment may be facilitated. For this reason while in the usual course I would not be persuaded to appoint a further single expert with the same primary qualifications: a psychiatrist; there are two factors which warrant that approach here:
(a)The fact that the existing single expert cannot attend to the task of comprehensively reviewing the documents from treaters and updated interviews in time to accommodate the hearing; and
(b)The fact that the proposed additional expert has extensive experience in an area which may be of utility to the Court.
Ultimately even if there is some overlap, I accept there is utility in this matter for the Court to have a range of opinions: see r 7.04 of the Rules. I think it will be important for there to be a conference of experts so that areas of agreement and disagreement (if they exist) could be the subject of a joint conference and memorandum.
I am concerned that reliance upon the children’s treating practitioners is replete with potential difficulties: not all the practitioners have the trust of both parents and the children’s further treatment may be compromised by involvement in proceedings.
I also raised case management more generally with the parties and proposed that each of the parties seek to reach agreement about case management directions ahead of the scheduled case management hearing. I will deal with any areas of disagreement on that day.
I will therefore make orders largely in accordance with the ICL’s Minute of Order but also provide for a further report of Dr C and a conference of experts.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 23 August 2024
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