Bolton and Bolton
[2010] FMCAfam 140
•5 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOLTON & BOLTON | [2010] FMCAfam 140 |
| FAMILY LAW – Children – parenting orders – interim orders – single expert’s report – whether notes taken by another psychiatrist should be supplied to the single expert. |
| Family Law Act 1975 (Cth) s.10E |
| Applicant: | MR BOLTON |
| Respondent: | MS BOLTON |
| File Number: | SYC 210 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 February 2010 |
| Date of Last Submission: | 5 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Smyth |
| Solicitors for the Applicant: | Watts McCray |
| Solicitor for the Respondent: | Mr Cameron |
| Solicitors for the Respondent: | Cameron Gillingham Boyd |
ORDERS
The Minute of Order will be Exhibit “1”. BY CONSENT orders in accordance with paragraph 1 thereof.
The application is adjourned to Monday 1 March for further mention at 2:15 pm.
Liberty to apply on 48 hours notice.
IT IS NOTED that publication of this judgment under the pseudonym Bolton & Bolton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 210 of 2010
| MR BOLTON |
Applicant
And
| MS BOLTON |
Respondent
REASONS FOR JUDGMENT
Application
This application concerns the father’s claim that the two children of the marriage, a boy born [in] 2005 and a girl born [in] 2007, should live with him and that he should have sole parental responsibility. The present proceeding refers to an order for a report to be prepared by a single expert, Dr R. The controversy to be resolved concerns whether Dr R should have access to the notes made by Dr M when he met with the father and the mother.
Background
The history of this matter, so far as it is relevant, is that the father filed an application for a recovery order and other parenting orders on
14th January 2010. The application came before Altobelli FM on
15th January 2010. His Honour made orders, including a recovery order, on an ex parte basis.
On 22nd January 2010 an interim hearing was held before Altobelli FM, who made an order by consent that the child (children) should spend time with the mother in the presence of the maternal grandmother or another adult person and adjourned the matter to 28th January for delivery of interim judgment.
On 28th January 2010 his Honour made orders discharging several of the earlier orders and providing that the children should live with the mother and spend time with the father on a regular basis. His Honour then transferred the matter to my docket and adjourned it for mention before me on 5 February 2010.
The Current Application
The solicitors for the parties mentioned this matter and advised the Court that it was proposed to seek an order that the parties would instruct a psychiatrist, Dr R, to prepare an expert report for the purposes of the proceedings. It was agreed that copies of relevant affidavits would be provided to Dr R, along with copies of all relevant Court orders. Where the parties did not agree was whether Dr R should also be provided with copies of notes made by Dr M.
Attached to the affidavit of the applicant filed on 14th January 2010 were several documents prepared for another proceeding in the District Court of New South Wales, all dated 20 October 2009. One of them was a letter from Dr M, written in his capacity as treating psychiatrist who had met “on a regular basis with Mr & Mrs Bolton since
2 September 2009”. Dr M stated:
The purpose of my involvement has been to provide assistance for the couple in the context of their history of conflict. This has escalated on occasions, resulting in the matters currently before the Court.
During our sessions, I have had the opportunity to explore the nature of the couple’s interactions. There is no doubt that there has been a challenging dynamic between the parties, resulting in emotional escalation. Both parties have been committed to address this concerning scenario.
It is my understanding that in the context of such arguments, [Mr Bolton] has been charged with assault. He has acknowledged frustration and anger. When confronted in such circumstances, [Ms Bolton] has felt agitated and threatened, in the context of emotional vulnerability dating back to early experiences of abuse. I have formed the opinion that at these times, her perception of threat and risk is amplified.[1]
[1] Letter dated 20 October 2009 from Dr M, Annexure “A” to the affidavit of the applicant sworn 14 January 2010.
Mr Cameron, who appeared for the respondent, submitted that the notes of Dr M should not be sent to Dr R because:
a)It would be in breach of s.10E of the Family Law Act; and
b)
The notes are difficult to read and would be of little use to
Dr R.
Ms Smyth, who appeared for the applicant, submitted that the notes should go to Dr R, because:
a)It would not be in breach of s.10E;
b)The evidence from the file formed part of the matters considered by Altobelli FM when he made his interim decision; and
c)The notes would be of pertinence and relevance to Dr R in the preparation of his report.
After I indicated my reluctance to direct that Dr M’s notes should go to Dr R and mentioned my misgivings about a potential breach of s.10E, Ms Smyth submitted that this issue had already been the subject of a ruling by Altobelli FM. The written reasons for his Honour’s decision are not on the Court file, and I am unable to consider them.
My own view is that the parties clearly consulted Dr M together for the purpose of counselling about their relationship. Whether or not the parties’ joint sessions with Dr M brings the notes within the operation of s.10E is a matter of conjecture, but I believe it to be undesirable for such notes to be used in this way for the purpose of these proceedings.
The letter from Dr M, prepared for the purposes of the proceeding in the District Court, is certainly before the Court and forms part of the affidavit of the applicant included in the material to go to Dr R.
The parties will be interviewed by Dr R for the purposes of his report. They are at liberty to tell him anything that they consider to be relevant. It is preferable, in my view, that the report from Dr R reflect what is told to him by the parties, rather than notes taken by another practitioner.
It is for these reasons that I decline to order that the notes taken by
Dr M be supplied to Dr R for the purposes of his expert report.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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