Carr & Carr (No 2)
[2022] FedCFamC1F 722
Federal Circuit and Family Court of Australia
(DIVISION 1)
Carr & Carr (No 2) [2022] FedCFamC1F 722
File number(s): SYC 1806 of 2011 Judgment of: CHRISTIE J Date of judgment: 21 September 2022 Catchwords: FAMILY LAW – APPOINTMENT OF A SINGLE EXPERT – where the mother seeks appointment of a single expert psychiatrist – where orders have already been made for a family consultant to complete a family report – where the father opposes the appointment of a single expert psychiatrist – where the father will not pay costs for the single expert psychiatrist. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 7.02, 7.04, 7.06. Division: Division 1 First Instance Number of paragraphs: 55 Date of hearing: 21 September 2022 Place: Sydney Solicitor for the Applicant: Ms Morozov, Barkus Doolan Winning Family Lawyers The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Ms Tin, Legal Aid NSW ORDERS
SYC 1806 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARR
Applicant
AND: MR CARR
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
21 september 2022
THE COURT ORDERS THAT:
1.Pursuant to Division 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Dr H (“Dr H”), Consultant Child, Family and Adult Psychiatrist, be appointed as a single expert witness to enquire into and report upon matters relating to the welfare of the children, Y born 2006 and X born 2008 (“the children”), and that in preparing his report to the court, Dr H be requested to consider the following matters:
(a)whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
(b)any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(c)the relationship between the children and each of their parents and any other relevant person;
(d)the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and each of their parents;
(e)the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
(i)either parent;
(ii)any other child/ren, or other person with whom the children have been living with;
(f)the capacity of the parents or any other person to provide for the needs of the children, including physical, emotional and intellectual needs;
(g)the maturity, sex, and any other characteristics of the children or either party that the expert thinks are relevant to the welfare of the children;
(h)the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the parents (or any other relevant person);
(i)the effect on the children of any psychological harm or risk of psychological harm to which the children may have been exposed;
(j)the effect on the children if spending equal time, or substantial and significant time, with each parent having regard to each of the parent’s current and future capacity to:
(i)implement such an arrangement; and
(ii)communicate with each other and resolve difficulties that might arise;
(k)the mental state of each of the parents in so far as it is relates to parenting issues;
(l)the mental health/special needs of the children;
(m)what, if any, parenting or relationship education and/or training and/or counselling would be of benefit to any of the parents in order to improve his or her parenting capacity and relationship with the children and the other parent;
(n)the consumption of drugs by the father and his partner; and
(o)any other matter the single expert considers relevant.
2.Each party is equally liable for the cost of Dr H’s report and within 14 days of receiving notice of such fees, each party pay Dr H’s estimate of fees into the Trust Account of Legal Aid NSW for payment to Dr H upon completion of the expert report.
3.The Independent Children’s lawyer is to furnish the estimate referred to in Order 2 on or before 30 September 2022.
4.In the event that there remain monies available subsequent to the receipt of the memorandum of fees from Dr H, these monies are to be returned to the parties in proportion to their contribution.
5.In the event that there is a shortfall, each party is to pay such additional sum to meet the costs of Dr H within 21 days of a request by Legal Aid NSW.
6.In the event that any of the parties request the Independent Children's Lawyer to make arrangements for the attendance of the single expert witness appearing in this matter, each party shall be responsible for the single expert’s costs in respect of such attendance.
7.The parties shall facilitate the preparation of the expert report including attending on and arranging for the children to attend upon the single expert witness.
8.Leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to Dr H and that the fees in respect of that photocopying be waived.
9.The Independent Children’s Lawyer is under no obligation to brief the single expert witness in terms of Order 1 above until there has been compliance with Order 2.
10.In the event the father fails to comply with Order 2, on or before 15 November 2022, orders for the appointment of Dr H will be discharged unless the mother elects to meet the whole of the cost upfront.
11.The Independent Children’s Lawyer shall provide notification to the Court and the parents about compliance with the orders for payment on 14 November 2022 by email to ...@....
12.The matter is listed for hearing in the rolling list commencing 6 March 2023.
THE COURT NOTES THAT:
A.The parties are scheduled to attend interviews with Dr H on 6 and 7 February 2023.
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 Carr & Carr has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for appointment of a single expert to provide a report in parenting proceedings concerning the two children X born 2008 (“X”) and Y born 2006 (“Y”) (“the children”).
BACKGROUND
The history of this matter is contained in my reasons for judgment dated 23 August 2022.
On 3 August 2022 I made orders including an order for a Family Consultant to prepare a Family Report.
The interviews for the Family Report are scheduled for 4 and 10 October 2022. It is anticipated that a report would be released about six weeks after the interviews.
On 3 August 2022 I also made orders which provided that Ms Carr (“the mother”) file and serve any application for appointment of a single expert psychiatrist on or before 2 September 2022, with a view to that matter being listed before me today. The time frame for filing of the application was extended by agreement to 9 September 2022.
This matter was again before me on 23 August 2022. On that day I made an order giving the Family Consultant discretion to decline to conduct a face to face interview with X if he or she felt that it was appropriate to adopt that course having regard to the evidence in a psychologist’s report which was marked as an exhibit in the proceedings.
On 23 August 2022, orders were also made in respect of contested subpoena issues relating to the records of the child X.
This application
The mother seeks that Mr Carr (“the father”) nominate one of four psychiatrists being Dr H (“Dr H”), Dr J, Dr L or Dr K. The father declined to nominate an expert as he opposes the order for appointment of a single expert. Accordingly, at the hearing the solicitor for the mother submitted that Dr H should be appointed as single expert.
The father opposes the application and seeks that there be no single expert appointed to interview the children or in the alternative seeks that, should a single expert psychiatrist be appointed, the financial responsibility for payment of the fees be that of the mother alone.
The independent children’s lawyer (“the ICL”) supports the appointment of Dr H as single expert.
There is an issue as between the parties about the costs of the single expert.
There is an existing order providing for a Family Consultant to undertake a report. That order was made on 3 August 2022 and the appointments are on 4 October 2022 and 10 October 2022.
The application in a proceeding filed 9 September 2022 on behalf of the mother did not seek to disrupt that existing order in circumstances where the arguments seeking to discharge the Family Report order had previously been advanced and rejected. Notwithstanding the absence of an application, at the hearing, the mother sought orders for a single expert in substitution, and in the alternative, in addition to, any evidence which may be provided by a Family Consultant.
At present, one of the difficulties in determining whether it is necessary to appoint a psychiatrist is the tension, identified by the father in his affidavit material, between the mother’s argument that interviewing the children and in particular X, will be experienced as difficult by that child and on the other hand, the desire that should occur.
The question of whether or not it is appropriate to order the appointment of a single expert is also further complicated by the scope of the dispute as between the parties. The father says that, by way of final order, he seeks time with each of the children in accordance with their views. If that is his position, it is difficult to understand why it would be necessary to appoint a single expert psychiatrist.
The father in his material says that he will not pay for a single expert psychiatrist. It was not apparent from his affidavit material whether or not “will not” should be read as synonymous with cannot or whether or not it is a position taken by the father on principle. From the father’s submissions, as discussed below it seems that he is disinclined as opposed to unable to contribute to the costs.
THE LAw
Rule 7.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provides:
The purpose of this Part is as follows:
(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b)to restrict expert evidence to that which is necessary to resolve or determine a proceeding;
(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d)to avoid unnecessary costs arising from the appointment of more than one expert witness;
(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if that is necessary in the interests of justice.
Rule 7.04 of the Rules provides:
(1)The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.
(2)When considering whether to make an order under subrule (1), the court may take into account any matters relevant to making the order, which may include the following (without limiting the matters which may be relevant):
(a)the overarching purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 7.02);
(b)whether expert evidence on a particular issue is necessary;
(c) the nature of the issue in dispute;
(d)whether the issue falls within a substantially established area of knowledge;
(e) whether it is necessary for the court to have a range of opinion.
…
Consideration
The mother proposed that Dr H, Dr J, Dr L or Dr K be appointed as single expert. She was not heard against the ICL’s proposed form of order. That order nominated Dr H who has availability in February 2023.
Although it was not in her application, the mother argued that, in the event an order was made to appoint a single expert, the Court should discharge the order for preparation of a Family Report.
The father opposed the appointment of the single expert and any order that required him to contribute to the fees. He was asked what his position was concerning Dr H in the event that the Court acceded to the application for appointment of a single expert and he conceded he did not have a particular opposition to Dr H.
The ICL submitted:
(a)There is a benefit to the parties (and the children) in the family report interviews as the dates are set and the parties will have access to the views of the expert within about six weeks of interview;
(b)There is no cost to the parties of the Family Report;
(c)There is value to a psychiatrist’s report given the complex presentation of the child X; and
(d)The psychiatrist may be able to assess whether the father has a substance abuse disorder.
The mother seeks to revisit the orders made for the children to meet with a Family Consultant. She says that the task of providing expert evidence should be undertaken by either a child and family psychiatrist or a Family Consultant and not both. I identify, from the submissions made on behalf of the mother, the following points:
(a)The matter is complex and may be outside the expertise of a Family Consultant – whose qualifications are at this stage unknown;
(b)The expert (be he or she internal or external to the Court) will be required to read significant material and the Family Consultant may not be in a position to undertake the scope of reading that is required in this matter;
(c)The single expert should be able to determine whether the mother is correct in her position that the father lacks insight as to his role in bringing about the current circumstances; and
(d)The children, but in particular, should not be required to meet with multiple people.
It was submitted, on behalf of the mother, that it is unnecessary to require the parents and children to engage in both exercises (family report and single expert interviews). It was said that it is the same process and thus if repeated would place unnecessary pressure on the children, particularly X.
The mother, through her lawyer, accepted that a Family Report was appropriate in respect of the issues which face Y.
I was taken to the trial evidence of the mother which includes detail about X’s presentation: distressed, panicking, expressing suicidal ideation. I accept these are serious issues and may impact on the orders which the Court, in due course, would consider appropriate.
The most significant argument against there being two reports advanced by both the mother and the ICL was the concern that X (and more faintly Y) may experience the interaction with the respective report writers as themselves problematic or, in the case of X, traumatic.
In a similar vein it was submitted on behalf of the mother that the historic difficulties experienced by X in opening up or developing rapport spoke against the proposition that there be interviews with more than one person.
The most significant evidence concerning the question of whether multiple interviews were contraindicated on account of X’s presentation remained the statement in the NDIS report of Ms M, registered psychologist (part of exhibit 1):
[X] experiences a MODERATE – SEVERE level of difficulty within this domain [communication skills]. These difficulties have a negative functional impact on her ability to communicate her ideas, thoughts, needs and concerns to others in family, school and social settings without experiencing significant overwhelm following such interactions. These difficulties also have a negative functional impact on her ability to understand and correctly interpret both the content and context of ideas, throughs, needs and concerns expressed by others. This can impact [X’s] ability to regulate during these contexts. The outcome of [X’s] deficits in this domain significantly reduce her ability to build and maintain friendships, and participate effectively and successfully in community activities.
In my reasons for judgment of 23 August 2022 I acknowledged that the possibility of X “experiencing significant overwhelm”[ing] emotions in the context of being interviewed is relevant and should be brought to the attention of both proposed report writers. I have done so in respect of the Family Consultant and anticipate that the ICL will ensure the single expert is similarly alerted.
I have considered the evidence by X’s previous treating psychologist, Dr N. That evidence echoes the theme that confrontation of past trauma causes unhealthy coping mechanisms and may overwhelm the child.
The father in oral submissions acknowledged significant mental health difficulties faced by X and her diagnosis of Autism Spectrum Disorder.
The father appeared perplexed that the matter could not resolve in circumstances where he is firmly of the view that the children should be permitted (rather than required) to spend time with him. Since the mother is not convinced that orders allowing the children to spend time with the father, in accordance with their views, are appropriate, the matter remains unresolved.
The mother says that the father’s lack of insight is an issue which would support the making of the order for appointment of Dr H as the single expert. She says the father’s correspondence to the children in the aftermath of his hospitalisation demonstrated a lack of insight and that his ongoing conduct leaves her concerned that he holds her responsible for his own failings and has conveyed as much to the children.
Having had the opportunity to read and consider the (untested) trial material of both parties I formed the view that the expert evidence in this case should address:
(a)The children’s views (and matters related to the weight that should be attached to them including their ages, maturity, the manner in which their views have been formed and any issues touching on capacity);
(b)The parents’ relationships with each child; and
(c)Risk issues as they relate to time proposed to be spent with the father and any factors which may be thought to ameliorate risk.
The complex issues which face X are relevant considerations but from the Court’s perspective their chief relevance, given the scope of the parties’ dispute, is whether those issues dictate that one approach (or another) to her time with the father is to be preferred.
I remain of the view that the issues for both children have cross-over but that given the complexity of the issues in respect of X, it is essential that the Court not lose sight of the needs of Y.
As is discussed below in the context of the costs of the single expert I am concerned that the father’s unwillingness to fund a single expert has the potential to result in either:
(a)Delay; and/or
(b)The matter proceeding without any expert evidence.
Neither of those options is appropriate having regard to the needs of these children, their ages and the length of time the matter has been in the Court, so, notwithstanding some overlap in the role and function of the family consultant and that of the single expert, I intend to make orders which have the effect of confirming both witnesses.
The ICL, in oral submissions, accepted that the parties and the Court would in all likelihood be assisted by having more than one source of information.
I raised with the parties whether it was appropriate to assign to the single expert psychiatrist a more circumscribed role – namely to evaluate/assess the psychiatric issues for X and make recommendations as to the appropriateness or otherwise of the parenting proposals of each parent having regard to the specific needs of X. The mother submitted that this ran the risk of depriving the single expert of material which may be relevant and I accept that may be so.
Ultimately, I formed the view that I should make the orders for appointment of Dr H as single expert but should not discharge the orders for a Family Report. I am concerned that there be at least one source of expert evidence before the Court. I am satisfied that the protection of bringing to the attention of the Family Consultant the concern about X’s specific vulnerabilities addresses the concern about the potential that there may, in due course, be interviews with more than one expert.
There is a risk that there may be some duplication of the roles and hence the reports but on balance this is to be preferred to a situation where the Court is without evidence.
Cost of the single expert report
The mother and the ICL sought an order that implemented Rule 7.06 of the Rules: that the parties (not including the ICL) share equally in the costs of the single expert.
The father resisted the application of the usual rule on the basis not that he could not contribute but that he would not contribute.
The father referred to the fact that he is acting for himself while the mother anticipates legal fees according to her costs notice well in excess of $200,000. He spoke of having recently bought and sold a house. I understood his position to be that he would not (even if ordered to pay) pay the costs of the single expert.
The dilemma for the Court is that there is no question that a single expert report would be of utility in the determination of the case. If the father is ordered to meet half of the cost and if he fails to do so then the single expert would (appropriately) decline the appointment. The matter would then proceed without the report.
If these were commercial proceedings and a person refused to obtain the necessary evidence then it may be open to the Court dismiss the claim, but these are not commercial proceedings. This is a case about minor children which centre around an evaluation of their best interests.
As I identified in my exchanges with the parties and lawyers I formed the view that the best interests of these children would be in part met by this matter being concluded (by consent or otherwise) and accordingly, barriers to resolution should be removed.
I accept that the father has not filed any material which would persuade me that the usual rule that each party meet the costs of the expert should not apply.
However, conscious of the realities of the situation I propose to make an order for the report and an order that each party pay half of the costs on or before 31 October 2022.
In the event that the father refuses or declines to pay by the due date then I will discharge the order for the single expert as and from 15 November 2022.
I will request that the ICL provide notification to the Court and the parents about compliance with the orders for payment on 14 November 2022 by email to my associate. That mechanism will give the mother the opportunity to meet the whole of the cost at her election. In the event that the mother meets the whole of the cost then, as a consequence of the order made today that each party pay half, she will be entitled to recover her half from the father.
If the mother declines the opportunity to meet the whole cost then the order for the single expert will be discharged.
FINAL hearing
I will list this matter for final hearing for 3 days in the rolling list commencing 6 March 2023.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 21 September 2022
0
0
0