Galantas & Diakos

[2021] FedCFamC1F 253

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Galantas & Diakos [2021] FedCFamC1F 253

File number(s):	SYC 1522 of 2011
Judgment of:	HANNAM J
Date of judgment:	3 December 2021
Catchwords:	FAMILY LAW – Where parenting proceedings are on foot and a report by an expert child and family psychiatrist has been obtained in relation to matters concerning the child’s welfare – Where the father raises a number of shortcomings in the expert’s report particularly in relation to the expert’s opinions regarding risk to the child and his own mental functioning, and seeks the preparation of a report from another expert nominated by him – Where for the purposes of preparing a second report the father seeks various material in the proceedings be provided to this second expert – Where the father’s application is opposed by the Independent Children’s Lawyer and the mother in its entirety – Consideration of applicable Rules in relation to tendering a report or adducing evidence at a hearing or trial from an expert witness other than a single expert witness – Where the Court considers the expert evidence proposed does not relate to a significant issue in dispute, nor is it necessary to resolve or determine the proceeding – Father’s application dismissed.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 7.02, 7.10, 7.11
Division:	Division 1 First Instance
Number of paragraphs:	56
Date of last submission/s:	24 November 2021
Place:	Parramatta
Solicitor for the Applicant:	Adam Jones Solicitor
Counsel for the Respondent:	Ms Giacomo
Solicitor for the Respondent:	Shelly Legal
Solicitor for the Independent Children's Lawyer:	Mark Macdiarmid Family Law Specialist

ORDERS

SYC 1522 of 2011
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GALANTAS Applicant
AND:	MS DIAKOS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	3 DECEMBER 2021

THE COURT ORDERS THAT:

1.The father’s Application in a Proceeding filed 2 November 2021 is dismissed.

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 Galantas & Diakos has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION

1. The parties (“the mother” and “the father”) are engaged in a dispute concerning the future parenting of their only child, a son aged 11.

2. The parties separated in mid-2010 when the child was a small infant after a short marriage. Following separation, the child has lived with the mother at all times.

3. After proceedings were instituted in the Federal Circuit Court (as it was then known), the parties reached agreement in July 2012 for a parenting arrangement in which the child spent time with the father each alternate weekend, overnight in each alternate week and half of the school holidays.

4. For a number of years the child spent time with the father in accordance with these orders but from about February 2018 the mother ceased making the child available to the father and thereafter commenced parenting proceedings.

5. To assist the court in resolving the parental dispute, an expert child and family psychiatrist (“the expert”) was appointed in January 2020. The expert’s report dated 30 November 2020 was released to the parties a short time later.

6. In the application being considered in these Reasons, the father seeks orders for the preparation of a report from another expert (“the second expert”) for the purposes of the proceedings and that the second expert be provided with various documents filed in the proceedings. This application is opposed by the Independent Children’s lawyer (“ICL”) and the mother who both seek that the father’s application be dismissed.

7. For the reasons that follow, the father’s application is dismissed.

   BACKGROUND

8. The parties married in 2008. Their only child, who was born in 2010, was only two months old when the parties separated in June of the same year.

9. Earlier proceedings initiated in the Federal Circuit Court were resolved by way of final orders in July 2012 pursuant to which the child lived with the mother who held sole parental responsibility for him and spent increasing time with the father until finally spending each alternate weekend, overnight mid-week in the “off-week” and half of the school holidays in his care.

10. As I understand it, for a number of years the child lived with the mother and spent time with the father in accordance with the 2012 parenting orders until February 2018 when the mother ceased making the child available to spend time with the father.

11. In March 2018 the mother commenced these proceedings by filing an Initiating Application, once again in the Federal Circuit Court. Subsequently, the proceedings were transferred to this Court and dealt with pursuant to the Magellan Protocol[1]. One of the concerns raised by the mother in these proceedings related to the question of a risk of harm to the child that the mother argued the father may pose as a result of allegations of sexual abuse. These allegations had been reported to the Department (then known as Family and Community Services and now known as Communities and Justice) (“the Department”), and referred for investigation to a Joint Investigation and Response Team (“JIRT”)[2].

    [1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.

    [2] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

12. In August 2018 interim orders were made with the consent of the father that the child’s time with him be suspended until the JIRT investigation was complete.

13. In February 2019 a family consultant met with the family for the purposes of the Child Responsive Program. At that time, the mother proposed that she have sole parental responsibility for the child, that the child live with her and spend no time with the father. The father proposed at that time that the child live with the mother, that the parents share parental responsibility for the child and that the child spend time with him in an almost equal time arrangement being at least three days one week and two days on alternate weeks.

14. When interviewed by the family consultant, the mother raised a number of issues relevant to the best interests of the child and risks associated with the father. The mother reported that the father was sexually abusive towards her when the relationship was intact and that he also behaved in an extremely controlling manner, especially in relation to money. The mother also described the father being verbally abusive including that he threatened and belittled her.

15. The mother also raised some significant issues concerning the father’s mental health difficulties and in particular unusual beliefs which she described as delusions. The mother reported that the father had received a preliminary diagnosis of a paranoid schizophrenia while the father reported that he had previously had “a little bit of” Obsessive Compulsive Disorder. The mother also reported that she had a diagnosis of Post-Traumatic Stress Disorder caused by her relationship with the father but denied that it generally had an impact upon her parenting other than causing her to be hyper-vigilant at times in relation to the child when the father is involved.

16. The mother raised a number of issues in relation to the father’s care of the child and in particular reported that she had initiated the current court proceedings because the child returned from an extended stay with the father stating that if he was made to spend time with the father that he would kill himself and that he had nearly run away. The mother was at this time particularly concerned about a decompensation in the father’s mental health and an awareness that the father was becoming increasingly violent towards the paternal grandmother.

17. The mother reported that the child disclosed to officers from the Department during an interview that the father had touched him inappropriately and that the child had previously reported to her that he did not like it when the father wrestles him but she had not then realised that there was touching involved. The mother reported to the family consultant that although JIRT had taken the allegations against the father no further, the Department had substantiated the allegation that the father had sexually abused the child and advised her that the child should spend no time with him.

18. The Magellan Report[3] indicates that when the child was interviewed on two occasions in 2018 he disclosed that the father had taken photos of him naked in the shower which were said by the father to be taken for “family memories”. The child had also reported that the father had pulled on the child’s penis (which the child described as “strangling his penis”) and claimed to be cleaning it but the child reported that the father was not using soap and the child had told the father that he did not require his help. The Magellan Report confirms that JIRT substantiated the allegations of sexual abuse, that is, JIRT considered that the allegations were proved on the balance of probabilities.

    [3] A Magellan report sets out the involvement of the Department with the family.

19. When interviewed by the family consultant the father denied that he had inappropriately touched the child but did report that he had taken one video of the child “rolling around the bathroom having fun”.

20. When evaluating the family for the purposes of the Child Responsive Program, the family consultant recommended that the child spend no time with the father until the allegations of sexual abuse and of the father acting in an abnormal and distressing manner around the child and exposing the child to confusing and frightening material had been tested in court and until it can be determined whether or not the father presents a serious risk to child’s psychological and emotional safety.

21. The family consultant also opined that if the mother’s serious allegations of family violence were found to be accurate, ongoing contact between she and the father may have a negative impact on the mother’s mental health and parenting capacity. The family consultant recommended in March 2019 that no action be taken to re-establish the child’s relationship with the father until determination is made regarding whether he poses an unacceptable risk of harm to the child or the mother, and that a single expert report providing an assessment of parental mental health may assist the Court in resolution of the matter.

22. At a court event in April 2019 the parties agreed that a report from a single expert psychiatrist was required and that it would be appropriate for the expert to be re-appointed as she had also provided an expert report in the previous proceedings. There were ongoing lengthy difficulties in relation to securing funding for the report but the parties ultimately met with and were assessed by the expert in October 2020 and the expert’s report was released in December 2020.

    The expert’s report

23. Under the heading of “Summary and Discussion” in her report, the expert gives consideration to the child’s allegations about sexual abuse at the hands of the father being reflective of actual events or a fabricated account of personal experiences. She also considered the harm which may be occasioned to the child if either of these alternatives are found proved.

24. Quite properly, the expert did not herself make an assessment of the likely veracity of the child’s account as she was neither asked to do so and as she correctly understood this is a matter for the Court to determine.

25. The expert devoted significant attention to the child’s clear expression of very strong views about not spending time with his father. She opined that given the allegations of sexual abuse, about which no findings have been made, as well as events alleged by the mother, there were no adequate reasons to oppose the child’s wishes. The expert in these circumstances expressed support for the child’s wish for no contact with the father until a time of his choosing.

26. The expert raised a number of matters of concern about the father’s presentation stating that “there were several behaviours which raised questions about a chronically disordered mental state or a neurodiverse brain or both”. The expert identified the matters of concern which raised some questions about the father’s mental functioning. She stated that at best she could postulate several different diagnoses of psychiatric disorders given the observations described in her report. In this regard, the expert said:

    Should he wish to pursue this issue of diagnosis, I recommend [the father] undertakes a psychiatric assessment over several sessions with a treating forensic psychiatrist, who has access to this report.

27. With respect to his parenting, the expert did not assess the father as having the capacity to address the rupture in his relationship with the child nor meet the child’s needs in adolescence which the expert described as “that most challenging developmental stage”.

28. Overall, the expert recommended orders which support the child’s wishes to spend no time with the father until the child initiates the contact. She also recommended that it is advisable for the child to continue his counselling and for the father to have a further psychiatric assessment “particularly to provide him with a neutral and safe place to help him process his grief at the loss of contact with [the child]”.

    THE FATHER’S APPLICATION  

29. On 6 August 2021 at a compliance check before a Registrar, the father’s legal representative made an oral application for orders that the Magellan Family Report (presumably a reference to the expert’s report) together with documents produced on subpoena be provided to a second expert for the purposes of a “psycho-sexual” assessment. At that court event, orders were made for the father to file and serve written submissions in support of the orders sought within 14 days and for the mother and ICL to file any written submissions in reply within a further seven days.

30. At a court event again before a Registrar on 17 September 2021, it was noted that the father had not filed submissions in accordance with the August 2021 orders and he was provided a further 48 hours to do so.

31. Following receipt of written submissions, the Registrar declined to make orders as sought by the father. On 8 October 2021 orders were made for the father to file and serve an Application in a Proceeding and supporting affidavit within 14 days if he continued to seek such orders.

32. On 2 November 2021 the father filed an Application in a Proceeding on an urgent basis seeking that leave be granted to provide the second expert with a copy of the single expert report, the trial affidavits of both the mother and father and all documents produced on subpoena in the proceedings for the purpose of this second expert preparing a psycho-sexual assessment. The father sought that the matter be dealt with urgently in circumstances where he had booked an appointment for his assessment with the second expert in late November.

33. In my view, the father’s application could be appropriately dealt with in chambers by way of written submissions and an email was sent by my chambers to each of the parties’ legal representatives and the ICL enquiring whether they each consented to such a course.

34. On 9 November 2021, upon receipt of such consent from the parties and the ICL, orders were made in chambers providing that the father file and serve short written submissions in support of his application within three days and for the mother and ICL to provide any written submissions in reply within a further seven days.

35. It is clear from the submissions made on behalf of the father that he seeks the appointment of another expert in the proceedings, being a clinical and forensic psychologist. It is equally clear from the written submissions made on his behalf that the father considers it be of significance that the purposes for which the expert was appointed did not include psychiatric evaluation of the father or “any assessment of his capacity to commit such [sexual abuse] offences alleged by the mother”. In his submissions, there is particular focus on the expert not having been engaged to “opine conclusively as to the veracity of the allegation or the father’s risk to the child”. As I understand it, the tenor of the written submissions on behalf of the father is that there is a lacuna in the expert evidence as to these matters.

36. It is further submitted on behalf of the father that although the expert raised matters concerning the father’s “mental functioning” and postulated several different diagnoses of psychiatric disorders (and recommended that should the father wish to pursue the issue of diagnoses that he undertake a psychiatric assessment with a treating forensic psychiatrist), the absence of such a diagnosis is, in effect, a shortcoming in the expert’s report.

37. On the basis of the two identified shortcomings in the expert’s report, the father seeks to obtain a report from a forensic clinical psychologist said to have the appropriate expertise. Specifically, the father proposes that the second expert undertake a psycho-sexual assessment of the father commenting specifically on the veracity of the allegations of sexual abuse and the level of risk the father may pose to the child. For the purposes of this assessment, the father contends that it is appropriate that this further expert evidence be obtained. He does not propose that his nominated second expert meet with either the mother or the child but does propose that the second expert be provided with a copy of the expert’s report, the parties’ trial affidavits and the documents produced on subpoena.

38. Curiously, when summarising the submissions made on the father’s behalf it is stated that the second expert’s report “will not be in the form of an adversarial report”.

39. The mother and ICL oppose the father’s application that the nominated documents be provided to the second expert for the purpose of obtaining the further expert report.

40. The mother submits that the expert appointed in the proceedings did provide an opinion concerning the veracity of the child’s allegations of sexual abuse and also opined as to the risks posed by the father to the child if the child were to spend time with him. It is also the mother’s case that the father will be able to test the expert though cross-examination about her opinion.

41. The mother also submits that the father has not followed the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) in relation to the appointment of another expert witness. The mother submits that the Rules also provide for a process to clarify a report prepared by a single expert witness which has not been followed in this application. It is also submitted on her behalf that as a litigation guardian was appointed for the father on 11 May 2021, questions arise as to his capacity to engage in the assessment he proposes. It is also submitted that as the father proposes that the assessment of risk be undertaken without the second expert assessing the mother and child, the report, even if obtained, is likely to be given little weight.

1. Finally, it is submitted on the mother’s behalf that the appointment of a second expert is inconsistent with the overarching purpose of the Rules in the circumstances of this case, particularly where the expert has expressed an opinion on the adverse impact that the proceedings are having on the child and given these proceedings have already been on foot for a lengthy period of time.

2. The ICL in his written submissions adopts the mother’s submissions. It is also contended by the ICL that the expert’s report is not incomplete and that the expert’s recommendation that the father undertake psychiatric assessment is not made on the basis that this is necessary for the purposes of these proceedings. The expert makes that recommendation only if the father wishes to pursue obtaining a diagnosis of a psychiatric disorder and if he decides to pursue such a course the expert’s recommendation is that he undertakes a psychiatric assessment over several sessions with a treating forensic psychiatrist.

   Permission for expert’s evidence

3. Although the order sought by the father in this application is framed as an application for leave to provide the second expert with certain documents for the purpose of a psycho-sexual assessment, the submissions filed on his behalf are variously directed to “the appointment” of the second expert or described as being in support of an application to adduce further expert evidence.

4. In considering the relevant Rules applicable to this application, I have treated this as an application under Division 7.1.3 of the Rules, as the clear purpose of seeking leave to provide certain documents to the second expert is to assist the second expert to carry out an assessment and provide a report to be admitted into evidence at the final hearing (albeit that it is stated in the submissions that the father may rely upon such a report in the proceedings).

5. Rule 7.10 provides that a party must apply for the Court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness other than a single expert witness. Rule 7.11(3) refers to matters which may be taken into account when considering whether to permit a party to tender such a report. Relevantly, these matters include the following:

   (a)the purpose of this Part (see rule 7.02);

   (b)the impact of the appointment of an expert witness on the costs of the proceeding;

   (c)the likelihood of the appointment expediting or delaying the proceeding

   (d)the complexity of the issues in the proceeding;

   (e)whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only;

   (f)whether the expert witness has specialised knowledge, based on the person’s training, study or experience:

   (i)relevant to the issue on which evidence is to be given; and

   (ii)appropriate to the value, complexity and importance of the proceeding.

6. The first of the matters to be taken into account under this sub-rule is the purpose of this part of the Rules. Rule 7.02 provides the purpose of the part of the Rules dealing with expert evidence to be:

   (a)To ensure the 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.

7. In my view, particular weight should be attached in this application to those matters set out in sub-rules (a) and (b) above. For the following reasons, I consider that the expert evidence sought to be obtained in this application does not relate to a significant issue in dispute and such evidence is not necessary to solve or determine a proceeding. For these reasons, and having regard to the balance of the matters set out in r 7.11(3), I do not consider the further evidence envisaged in this application necessary in the interests of justice.

8. In my view, the report of the expert does not have the features which form the basis of the father’s application for a further report as identified in his submissions.

9. The expert provided an opinion for the purposes of assisting in the resolution of the parenting dispute as sought in her letter of appointment which addressed all relevant matters.

10. In two parts of her report the expert either recommends that the father undergo further psychiatric assessment or recommends the same in particular circumstances as follows:

    [at page 26] at best I can postulate several differential diagnoses of psychiatric disorders which may be attributable to [the father] given the previously described observations. Should he wish to pursue this diagnosis, I recommend [the father] undertakes a psychiatric assessment over several sessions with a treating forensic psychiatrist, who has access to this report.

    …

    [at page 27] it is advisable [the child] continues his counselling and [the father] has a further psychiatric assessment particularly to provide him with a neutral and safe place to help him process his grief at his loss of contact with [the child].

11. There is no basis upon which it can be concluded that the expert considered that such further psychiatric assessment of the father is necessary for the purposes of resolving the parenting dispute in relation to which parenting arrangement is in the best interests of the child. In particular, there is no suggestion that a “psycho-sexual assessment” is necessary or appropriate. The report proposed by the father in his application is also not in accordance with the recommendations of the expert for the purposes of diagnosing a psychiatric disorder which may be attributable to the father or to assist the father in processing his grief at the loss of contact with the child.

12. Further, a determination about whether the father poses an unacceptable risk of harm to the child arising from sexual abuse and other relevant matters including those identified by the expert, is a matter for the Court taking into account all of the evidence in these proceedings. In this regard, it is noted that the expert does consider the question of the reliability of the child’s disclosures, in particular at page 24 and 25 of her report.

13. Of greater significance, however, it is clear from the totality of the expert’s report that her opinion regarding the living arrangements that would meet the child’s best interests takes into account many matters other than the veracity or otherwise of the child’s complaints of sexual abuse. These include the child’s long held, often repeated and adamant views, the father’s vulnerabilities, and in particular concerns about his mental functioning, and an assessment of the father’s incapacity to address the rupture in his relationship with the child or meet the child’s needs in the most challenging developmental stage, adolescence. 

14. I also consider that obtaining a further report will delay the proceedings which have been protracted even further as the proceedings are otherwise ready to be listed for final hearing. Although, as submitted by the father, the appointment of his second expert will not impact on the costs of the proceedings as the father alone is prepared to pay for the report and the second expert proposed does have the relevant knowledge, these matters are not weighty in determining the dispute.

15. For all of the foregoing reasons, and in particular as the expert evidence proposed does not relate to a significant issue in dispute, nor is it necessary to resolve or determine the proceeding, the father’s application is dismissed. Orders are made accordingly.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate:

Dated:       3 December 2021