Eide & Yoxall
[2021] FedCFamC1F 206
•4 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Eide & Yoxall [2021] FedCFamC1F 206
File number(s): MLC 2724 of 2021 Judgment of: AUSTIN J Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – Practice and procedure – Review of decision – Where the applicant filed two Applications for Review seeking review of a suite of orders made by the Senior Registrar – Where the dispute narrowed to the competing views of the parties concerning the appointment of a single expert psychiatrist and single expert psychologist, whether an order should be made compelling the mother to submit to hair follicle drug testing, and whether a costs order should be discharged – Orders made – Single expert psychiatrist appointed, costs order discharged, Applications for Review otherwise dismissed, no order as to costs. Legislation: Family Law Act 1975 (Cth) Pts VII, VIIIAB ss 64B, 67ZC, 68B, 69ZX(1)(d), 102NA, 114(3), 117 Cases cited: Oberlin & Infeld (2021) FLC 94-017
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 4 November 2021 Place: Newcastle (via video link) Counsel for the Applicant: Dr Smith with Ms Borger Solicitor for the Applicant: Belleli King and Associates Counsel for the Respondent: Ms Swart Solicitor for the Respondent: Baker E Lawyers ORDERS
MLC 2724 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR YOXALL
Applicant
AND: MS EIDE
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Order 4 made on 23 September 2021 is discharged.
2.In lieu thereof, the parties shall forthwith do all acts and things necessary to engage and instruct Dr C as the single expert psychiatrist and shall then attend upon the single expert in person as and when required for the purpose of the single expert assessing and reporting upon the psychiatric condition of the parties, and for which purpose:
(a)The costs of the assessments and reports shall be met by the father;
(b)Each party shall provide to the single expert the documents they have individually filed in these proceedings; and
(c)Each party shall promptly provide to the single expert any other document or record concerning their medical history as is required by the single expert.
3.Otherwise:
(a)The Application for Review dated 11 October 2021 (but filed on 22 October 2021) is dismissed; and
(b)The application for orders sought by the father within Exhibit F3 is dismissed.
4.Order 1 made on 21 October 2021 is discharged.
5.Otherwise, the Application for Review dated and filed on 28 October 2021 is dismissed.
BY CONSENT, IT IS FURTHER ORDERED THAT
6.No order as to costs.
NOTATION
A.The matter remains listed before the Senior Registrar on 4 April 2022.
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 Eide & Yoxall has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
The parties to these proceedings were in a romantic relationship between about March 2017 and December 2020.
A child was born to the relationship in 2018 and she is now three years and seven months of age. She has always lived primarily with the mother in Melbourne. The father has lived between Melbourne and Queensland.
These proceedings were commenced by the mother in March 2021. Interim orders were made by consent in July 2021, providing for the child to continue living with the mother, but the proceedings were then transferred to the Family Court of Australia by the Federal Circuit Court of Australia (as those two Courts were then known).
The parties’ outstanding applications for interim relief were then listed for hearing before the Senior Registrar on 23 September 2021. On that date, relevantly, the Senior Registrar ordered:
(a)the child would spend supervised time with the father (Order 3);
(b)Dr D was appointed as the single expert psychiatrist (Order 4);
(c)Dr B was appointed as a single expert psychologist (Order 5);
(d)the mother’s oral application for a litigation funding order was adjourned for determination in chambers on written submissions (Orders 7 and 8); and
(e)any outstanding applications not otherwise determined by the suite of orders were adjourned to the duty list on 4 April 2022 (Order 10).
As ordered, the parties each then filed written submissions on the question of litigation funding.
On 21 October 2021, the Senior Registrar ordered the father to pay the mother’s legal costs of $30,000 within seven days, pursuant to s 117(2) of the Family Law Act 1975 (Cth) (“the Act”).
The father applied to review a selection of the orders made on 23 September 2021 and the order made on 21 October 2021. The two review applications were consolidated and listed for hearing before me today (4 November 2021).
As the hearing commenced, the husband announced his abandonment of the application to review the parenting order made on 23 September 2021 concerning the supervised time the child may spend with him.
Accordingly, the contentious issues were pared back to these:
(a)whether the single expert psychiatrist should be Dr D (as the mother wants) or Dr C (as the father wants);
(b)whether the single expert psychologist should be Dr B (as the mother wants) or Dr E (as the father wants);
(c)whether an order should be made compelling the mother to submit to hair follicle testing for illicit drug use (as the father wants but the mother resists); and
(d)whether or not the costs order made on 21 October 2021 should be discharged (as the father wants but the mother resists).
Evidence
The mother sought to maintain the orders made by the Senior Registrar and to resist the father’s review applications in all respects.
In support of her position, she relied upon:
(a)her affidavit filed on 12 March 2021;
(b)her affidavit filed on 16 September 2021;
(c)her financial statement filed on 4 October 2021;
(d)the affidavit of her solicitor, Mr Ostermeyer, filed on 4 October 2021;
(e)her Case Outline document filed on 16 September 2021; and
(f)her Case Outline document filed on 4 October 2021.
The father sought the orders set out in Exhibit F3 (at pages 2 to 4 inclusive).
In support of his position, he relied upon:
(a)his affidavit filed on 2 September 2021;
(b)his Case Outline document filed on 13 October 2021; and
(c)Exhibits F1 to F7 inclusive.
Single Expert Psychiatrist
Despite this being an issue in serious dispute, neither party put any evidence before the Court to assist its justiciable determination.
However, several agreed or relatively uncontroversial facts spilled out during submissions. They were as follows:
(a)Dr D assessed the father in past adversarial parenting proceedings between him and a third party, unrelated to these proceedings;
(b)Dr D has already scheduled appointments for the parties in December 2021, to see each of them in person in accordance with Order 4 made on 23 September 2021;
(c)the father is presently living in Queensland and, although he could travel to Victoria for his appointment with Dr D in early December 2021, he could not then return because Queensland still has its border shut to people travelling from NSW and Victoria due to the COVID-19 pandemic; and
(d)it is not known when Dr C could interview the parties.
The father does not want to use Dr D because of the risk that something alleged against him in the former proceedings by the third party could taint his assessment of the father in these proceedings and so, it was contended, it would therefore be better to start with a clean slate in these proceedings. The mother described such past history as an advantage, but I reject the submission. The father’s concern arises not from what information he previously gave to Dr D, but what the third party may have said against him.
No tangible prejudice flows to the mother from the use of Dr C instead. The father will be paying the costs regardless and she acknowledged that Dr C was just as eminently qualified as Dr D. The convenience of the existing appointments with Mr D in December 2021 is nullified by the difficulty the father would experience in having to attend his appointment from Queensland. There is every chance at least his appointment would need to be postponed.
Although there is no certainty about when Dr C will instead be able to consult the parties, the unavailability of evidence from the single expert psychiatrist at the next hearing scheduled before the Senior Registrar on 4 April 2022 is not a strong consideration because, even if the Senior Registrar does then intend reviewing the interim parenting orders (as was suggested), on the basis of what is currently known:
(a)the mother’s position as primary carer of the child is not under any threat, given the father consented to the order made by the Federal Circuit Court in July 2021 and he has no pending application to revise the existing residence order;
(b)the absence of any single expert psychiatric opinion evidence will not likely cause any reduction of the supervised time the child spends with the father, given the mother today wanted to preserve the parenting orders made by the Senior Registrar on 23 September 2021; and
(c)the absence of any single expert psychiatric opinion evidence means the father will be deprived of extra evidence he could use to bolster any interim proposal for the child to eventually spend more time with him.
Dr C should replace Dr D as the single expert psychiatrist.
Single Expert Psychologist
The only evidence to assist determination of the dispute over whether the family report should be prepared by Dr B or Dr E was their respective resumes (Exhibits F1 and F2).
The singular submission made by the father was that Dr E was a better choice because his CV refers specifically to professional experience with family violence. To the extent it was implied Dr B lacked similar experience with family violence because it was not overtly emphasised in his CV, I reject the implication. Review of their respective resumes enables an inference to be readily drawn that both are well qualified psychologists – both academically and by experience – well able to acquit the role of single expert.
Appointments with Dr B have already been arranged for February 2022 and it seems likely his report could be ready before the proceedings return to the Senior Registrar in April 2022. By February 2022, when Dr B’s appointments are scheduled, there should be no problem for the father in making his appointment in Victoria from Queensland. No evidence was led about the availability of Dr E.
Dr B should be retained as the single expert psychologist.
Drug Testing
This issue was said to arise from Order 10 made by the Senior Registrar on 23 September 2021, which provides:
10.All extant applications be adjourned to the Senior Registrar’s duty list on 4 April 2022 at 10:00 am.
However, Order 10 was not sought to be reviewed in the Application for Review dated 11 October 2021 as it states only Orders 3, 4 and 5 made on 23 September 2021 were reviewed.
The father’s application for an order which compels the mother’s submission to drug testing, as was pending before the Senior Registrar on 23 September 2021, was embodied within proposed Orders 12–18 inclusive in the application for interim relief contained within the Response filed on 2 September 2021.
Given no order was made in respect of that portion of the father’s application, it must follow from Order 10 made on 23 September 2021 that that aspect of the father’s application is still yet to be determined and is re-listed before the Senior Registrar on 4 April 2022.
Since Order 10 was not the subject of the review application, there is no occasion to reconsider the underlying applications with which that order deals.
Even if Order 10 had been reviewed, I would have been very reluctant to make an order for the mother’s compulsory submission to drug testing (either in the form now sought by the father in Exhibit F3 at page 4, or in any like form) for two reasons.
First, I entertain doubt about the source of statutory power to make a stand-alone order of that sought, unconnected to any parenting order, pursuant to the provisions of the Act relied upon by the father (ss 64B, 68B, 69ZX(1)(d) and 114(3)) or, for that matter, any other provision (including s 67ZC). That issue was recently broached by the Full Court in Oberlin & Infeld (2021) FLC 94-017.
Secondly, the father’s interest in garnering evidence about the mother’s alleged illicit drug use is easily sated in another way. If the mother refuses the father’s request to submit to testing at a time convenient to her and at his expense, an inference will be readily available at trial that she would prefer not to adduce any evidence to positively establish she does not use illicit drugs. She then has the freedom of choice about what evidence she brings. Presently, by reason of her complaints about having been beaten and controlled by the father, she objects to the control he would exert by way of such an enforceable order.
Costs
Since the parties are in heated dispute about whether they were in a de facto relationship, no determination has yet been made as to whether the Court has jurisdiction to entertain the mother’s intended property settlement claim under Pt VIIIAB of the Act.
Presently, the proceedings are confined to those concerning the child under Pt VII of the Act. To prosecute the Pt VII proceedings, the mother relies upon the power within s 117 of the Act to seek an order compelling the father to pay her costs of such proceedings, which she quantifies at approximately $57,000, comprising:
(a)$21,885.50 up until 1 October 2021; and
(b)another $35,200 from 1 October 2021 until the final hearing.
The mother did not make plain whether, on this hearing de novo, she wants the whole of that $57,000 or the lesser sum of $30,000 ordered by the Senior Registrar.
The mother’s application for costs incurred to date (however it is quantified) is refused. Those costs are essentially being sought by the mother on a solicitor/client basis (if not an indemnity basis) in accordance with the evidence given by her solicitor, Mr Ostermeyer. However, the mother advances no persuasive reason why any order should be made to disturb the ordinary operation of s 117(1) in relation to costs incurred by the parties in the proceedings to date.
The mother’s application for her prospective costs in the proceedings is also dismissed. While nobody disputes the width of the costs power under s 117 of the Act (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184), the power is not ripe for exercise in the mother’s favour in the circumstances of this case because:
(a)the mother will not be left without legal representation in the absence of any such costs order (even if her present lawyers desert her without payment in advance) because the provisions of s 102NA of the Act are certainly enlivened and the mother will be automatically entitled to legal aid due to the vast allegations of family violence in these proceedings, with both parties having the benefit of family violence orders against the other.
(b)the child will be represented separately in the proceedings, noting that the mother has a pending application for the appointment of an Independent Children’s Lawyer (which application is contained within Order 6 of her Case Outline document filed on 16 September 2021, adjourned to 4 April 2022 by Order 10 made on 23 September 2021). She submits the order should be made and the father concedes it. The legal representation of both the mother and the child in the proceedings, following grants of legal aid, will ensure the trial is conducted even-handedly.
(c)there is no real chance of the father recouping the money paid to the mother if he successfully resists her proof of jurisdictional facts to engage Pt VIIIAB of the Act.
(d)the mother moved about $55,000 of her savings from one bank account to an unidentified location on 12 March 2021 (Exhibit F4, pages 25, 26, 40 and 43), which transfer enabled her to swear a financial statement that same day about the reduced balance of her banking accounts (Exhibit F7).
(e)between March 2021 and October 2021, when the mother next filed a financial statement, her savings diminished by about another $50,000, which expenditure is not adequately explained by either the contents of her financial statement or her affidavits.
Disqualification of the senior registrar
Although not the subject of the review application, the father sought a supplementary order for the disqualification, from further involvement in these proceedings, of the Senior Registrar who made the orders on 23 September 2021 and 1 October 2021 (see Exhibit F3, page 2). There are no grounds for such an order. Indeed, no submission was made in support of it. The order will not be made.
The matter remains listed before the Senior Registrar on 4 April 2022.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 17 November 2021
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