Joslyne & Carrel (No 4)
[2024] FedCFamC1F 25
•31 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Joslyne & Carrel (No 4) [2024] FedCFamC1F 25
File number(s): BRC 10297 of 2021 Judgment of: SCHONELL J Date of judgment: 31 January 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Psychiatric assessment – Where the substantive proceedings are part heard – Where the mother seeks that the father attend upon a forensic psychiatrist for a psycho sexual assessment – Where the mother did not nominate a psychiatrist – Where there is no evidence as to who could do a psychiatric report or when they could do the report – Where there is no evidence as to why the psychiatric assessment would assist in resolving the issues before the Court – Where there is no evidence that the psychiatric assessment would be available in time for the final hearing – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Costs of psychiatric assessment – Where the mother seeks that Legal Aid fund the costs of a psychiatric assessment of the father, or if this is not possible, that the assessment be paid for by the father – Where there is no evidence of the costs of the assessment – Where the ICL submitted that it is most unlikely that Legal Aid would fund the assessment – Where there is no submission made as to why there should be a departure from the Rules that costs be shared equally – Application dismissed.
FAMILY LAW – INTERIM PARENTING – Spend time – Where the substantive proceedings are part heard – Where the mother seeks a suspension of interim spend time orders between the father and the child pending the outcome of a psychiatric assessment of the father – Where there is no evidence of how long the assessment will take or whether the assessment will be available in time for the resumption of the final hearing – Where the mother’s application for a psychiatric assessment of the father is dismissed – Where the need to protect the child from any risk of harm is not subservient to the maintenance of a meaningful relationship – Application for suspension of time dismissed.
Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.03(1), 7.04(1), 7.04(2), 7.04(3), 7.06(1))
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 30 January 2024 Place: Sydney (via Microsoft Teams) Counsel for the Applicant: Ms Jardine Solicitor for the Applicant: ASD Family Legal Counsel for the Respondent: Ms Eviston Solicitor for the Respondent: Freedom Family Law Counsel for the Independent Children's Lawyer: Ms Wardle Solicitor for the Independent Children's Lawyer: Gary Rolfe Solicitors ORDERS
BRC 10297 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JOSLYNE
ApplicantAND: MR CARREL
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
31 JANUARY 2024
THE COURT ORDERS THAT:
1.The mother’s Application in a Proceeding filed 17 January 2024 is dismissed.
2.The costs of the Independent Children’s Lawyer and the father are reserved to final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Ex Tempore 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 Joslyne & Carrel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
By Application in a Proceeding filed 17 January 2024 the mother seeks orders for the appointment of a forensic psychiatrist to assess the father, and seeks suspension of time orders pending release of that assessment. The mother’s application is opposed by the father and the Independent Children’s Lawyer (“the ICL”). Some context to the mother’s application and the wider proceedings necessarily informs in part the determination of the application. These reasons need to be read in conjunction with judgments delivered by me on 22 August 2023 and 30 August 2023, and the judgment delivered by Justice Rees (as she then was) on 11 December 2023.
The wider proceedings involve financial and parenting issues. The parenting proceedings relate to the parties’ child born 2018. The final hearing commenced on 21 August 2023. The competing applications of the parties at that time were: on the mother’s part, orders for sole parental responsibility; that the child live with her; and that the father spend time with the child on a supervised basis for a period of two hours, occurring once a month. There was also an application by her for relocation. The father’s then application was that the child live with the mother; that the parties share parental responsibility; and that time increase from the current time to, ultimately, an arrangement whereby he spend time with the child from after school on Fridays to before school on Mondays in alternate weekends and half school holidays.
On the second day of the hearing the father changed his application to seek orders that the child live with him and spend time with the mother. The hearing was adjourned as a consequence of this late amendment to allow for the preparation of an updated report addressing the question of the father’s changed position. My reasons for adjourning were as follows:
12These are proceedings that relate to the welfare of a very young child. I am required to make orders ultimately that are in that child’s best interests. I have heard the mother’s cross-examination. I have not yet heard any cross-examination of the mother’s partner or for that matter the father. There is no evidence before me as to what the Family Consultant would view of the father’s proposed Further Amended Response should I grant him leave to rely upon that document. There is currently no evidence before me that if leave were granted of how that child would deal with a separation from his primary carer or for that matter separation from his half-siblings. There is no evidence from the Family Consultant of her view of the father’s parenting capacity as a primary carer of a very young child.
13Weighing all of the relevant considerations that I am required to have regard to, I am satisfied that leave should be granted to allow the father to amend the relief that he currently seeks to prosecute an application for primary care of the subject child. The consequence, however, of granting that relief involves a consideration of what is to happen to the balance of the hearing and whether the matter can proceed to finality in the course of this week.
14The father and the ICL contend that it can. The mother asserts that it cannot. I am not satisfied that it is procedurally fair to the mother or for that matter to the parties, albeit that the father and the ICL would contend otherwise, that they hear the views of the Family Consultant for the first time either orally during some mooted telephone conference or when she comes to give her evidence later on this week.
15Parties are entitled to know the case they are to meet and all of the evidence that is marshalled for or against their case. To permit otherwise is in my view to permit a matter to proceed in a procedurally unfair way and thus is contrary to law. I do not propose to proceed contrary to law. The inevitable consequence is that the proceedings must be adjourned and I will propose now to deal with when I hear further submissions from the parties as to how that is to occur. Accordingly, I will make the following orders:
(1)I grant leave to the father to rely on a Further Amended Response and direct that that Amended Response be filed in the usual way by 4.00 pm today and served upon all parties.
(2)I adjourn the final hearing of these proceedings to a date to be fixed.
Orders were made by me on 30 August 2023 for the father to spend increasing periods of supervised time with the child. Orders were also subsequently made for the preparation of an updated Family Report. As a consequence of the mother requiring urgent surgery, the mother did not attend on the initial appointment date for the preparation of an updated report. Dates have been allocated for further interviews to take place on 14 February 2024, and the matter is listed for resumption of the part-heard hearing on 1 March 2024.
There are competing allegations of risk raised by all parties. In my judgment delivered 30 August 2023 I observed as follows:
8There is no issue that the parties’ relationship was marked by episodes of family violence, albeit the parties are at significant issue about the extent of it and the relevant indicia.
9The mother alleged that she suffered significant family violence at the hands of the father that included physical, verbal, emotional and psychological abuse as well as coercive and controlling conduct including seeking to exploit the mother’s experience of family violence at the hands of her former partner. The mother contended that since separation she and the children have continued to be exposed to acts of emotional harm, controlling and stalking behaviour, and intimidation by the father.
10The father denied any physical violence but conceded that there was mutual name calling and verbal arguments. He contended that the mother intimidated him and put him down. The updated Family Report recorded as follows:
44.…[Mr Carrel] stated acceptance of previous family violence behaviours expressing ‘I know my behaviour was unacceptable ... the yelling and screaming. I was feeling down all the time’. The renewed insight for impact for the mother and children was related to be ‘into how [Ms Joslyne] was feeling ... upset, scared, and feeling unstable. The kids ... scared. DV is detrimental to his growth and development’.
11 By any measure, the parties’ relationship was dysfunctional.
12The parties agree that the separation followed an event where the father [attempted to self-harm].
13The father did not spend any time with the child for over twelve months following the parties’ separation. This is notwithstanding orders having been made in December 2021 for the father to spend supervised time.
14The parties are at issue as to why time did not occur. The father contended that it was part of an attempt by the mother (which he said is ongoing) to prevent the child from having a relationship with him.
15Notwithstanding the orders, supervised time did not commence until July 2022; it occurred on approximately three occasions and thereafter was suspended, not resuming again until November 2022.
16Despite the orders providing that the father is to spend two hours each alternate Tuesday with the child, the evidence seems to be that he has spent only one hour. Remarkably, the mother’s counsel indicated during her submissions that there is no reason why the father could not spend two hours a fortnight pursuant to the current orders for time. The reasons why this has not occurred to date will no doubt be the subject of some debate at the resumed hearing.
On that date, as I referred to earlier, orders were made over the opposition of the mother to increase the father’s time with the child. The father asserts the mother has frustrated his time and not complied with orders. In his affidavit in the current application he says:
12.The application filed 17 January 2024, is [Ms Joslyne’s] sixth application in a proceeding in this matter.
13.At no time did [Ms Joslyne] contact me or my lawyer to seek an explanation about the incident she alleges [in early] 2024.
14. [Ms Joslyne] waited until 17 January 2024 to file her Application. I believe this was a calculated move to ensure that this matter would not be heard until after [X] was due to spend time with me next as [Ms Joslyne] did not intend to facilitate that time, and in fact did not facilitate that time. [Ms Joslyne] has prevented [X] from seeing me on 29 other occasions with no make up ever having been offered.
15. [Ms Joslyne] has the legal knowledge […] and experience to run her own matter. I do not. I am not entitled to a means tested grant of legal aid due to the value of the property pool. I require a private solicitor.
16. [Ms Joslyne] is using her knowledge of this Court system and doing everything in her power to prevent [X] from having a meaningful relationship with me, and also to drain my funds, and continuously force me to litigate this matter. I simply want [X] to have a relationship with me and to be protected from the emotional harm [Ms Joslyne] is causing him by doing everything in her power to prevent that relationship.
17. [Ms Joslyne] is using the system to harass, intimidate, control, financially drain and abuse me, all while impacting our son's ability to have any relationship with me. [Ms Joslyne] has been able to do this in a more covert way than other perpetrators of systems abuse due to her knowledge of and experience in this very system.
The mother makes allegations that the father poses a continuing risk of harm to the child and records that he has made various allegations against the mother alleging mental health issues, which she says have no proper foundation. In her Case Outline she makes various assertions including:
28.The mother asserts that prior to and during the proceedings the Respondent has engaged in a consistent pattern of aggressive conduct or conduct that can be construed as aggressive and/or intimidating towards the Applicant and exposed the child [X] to that behaviour.
29.The Applicant asserts that there has been a continuing pattern of conduct that has purported to blame the Applicant for acts, actions and/or omissions of the Respondent and assert Parental Alienation.
…
50.The Applicant asserts that incidents have continued to occur throughout supervised visitation with the most recent events occurring [in late] 2023 and [early] 2024 causing the child emotional distress and present an unacceptable risk.
On 30 October 2023 the mother filed another application seeking to reduce the father’s time with the child, and for the discharge of the Family Report writer and for another report writer to be appointed. That application was heard by Justice Rees, and her Honour dismissed the mother’s application for discharge of the Family Report writer and varied the father’s time with the child, but not in the manner sought by the mother.
The mother’s current application seeks the following orders:
2. That the father attend upon a Forensic Psychiatrist for the purpose of a full Psycho Sexual Assessment and;
3. That the Psychiatrist conducting the assessment be provided with copies of all relevant material, filed material and reports in this matter.
4. That consideration be made for Legal Aid (QLD) to fund the assessment and where Legal Aid cannot do so that the father fund the assessment.
5.That time between the father and child be suspended pending the outcome of the assessment.
(As per original)
The mother in her affidavit points to events that occurred in late 2023 and early 2024. In her affidavit she says:
12. [In late 2023], [X] had supervised contact with [Mr Carrel]. [X] was himself and morning changeover occurred, he left with [Mr K]. I collected [X] from changeover at McDonalds [Suburb Q] in Queensland.
l3. I walked with [X] a distance to the nearby shopping complex not far from McDonalds. I met up with my daughter [R] and [Mr C]. We were in a shop and [X] started crying and I asked what was wrong as he was quite upset and crying loudly. [X] said words to the effect that no-one was going to play with him and that [S] (brother) and [R] (Sister) don' t want to play with him and he is sad. I consoled him and said we all love him and his brother and sister love him and play with him all the time. I further said words to the effect that his friends play with him at daycare and the kids in the court play with him. [X’s] sister [R] gave him a hug and told him she loved him. [X] calmed down and we left for home.
14. I returned home with [X], [R] and [Mr C]. [X] watched some TV and had quiet time and I was in my bedroom sitting on the bed having a pre-dinner cuppa next to [Mr C] (my partner). I was sitting resting and [X] came in and said words to the effect, mum guess what? I replied what? [X] said words to the effect, mum in 100 sleeps I won't have to see you, [S] or [R] ever again. I said pardon? [X] informed me that in 100 sleeps he would not have to see myself, [R] or [S] ever again. [X] then informed me he was going on a plane to granny's house because Granny said it snows there at Christmas. [X] informed that he had spoken on the phone to [Mr Carrel’s] mother with [Mr Carrel] who resides (to my knowledge) in [a] region of Victoria. I informed [X] that it snows in winter not at Christmas and he would continue to see [S], [R] and myself and Dad. I then said let's get something to eat. [X] had trouble settling and falling asleep.
15. After [X] was asleep I called [a domestic violence hotline] and informed them of what [X] said at the shop and his distress and what was said later at home. I was advised that I should notify child protection.
16. [X] had been his usual self-prior to changeover and as normal with his siblings. I believe [X] has been told something by [Mr Carrel] and/or [Mr Carell’s] mother to the effect that he won't be seeing myself or his brother and sister again and that no-one will play with him. On speaking with [the domestic violence hotline] it was mentioned to me that what was said, would have the effect of isolating [X] from his mother, brother and sister with whom he has a relationship.
17. [In early] 2024, I collected [X] from changeover, left McDonalds and went to pick [Mr C] and my daughter [R] up and then drove home. On the morning changeover I was abruptly instructed by [Mr K] not to hand over the drink bottle. I didn't hand the drink bottle over and said see you later to [X] and left.
18. On [the same day], on returning home after the evening changeover/pickup, [X] had some quiet time and started watching TV and I had a cuppa before making something to eat. [Mr C] and myself were sitting in the bedroom having a brief rest.
19. At somewhere around 7pm or thereabout [X] came into my room where I was having a cuppa before making dinner. [X] came in and asked if he could have a cuddle and I said of course. [X] said that he felt strange and weird. I said oh, how come? [X] then said because I saw Dad's you know ([X] pointed to his penis) bits mum but I can't say or people will go to the police. I said to [X] I'm not sure what you mean. [X] said I was sitting on Dad's knee and it was just there, it just popped out and I felt strange. I asked [X] what popped out? [X] said (pointing to his penis) Dad's penis. I said oh, what happened? [X] said I told Dad, look ([X] indicated he pointed to the penis) and he popped it back in and then I went inside to [Mr K] and told him. I asked [X] what did [Mr K] say? [X] went quiet and said I don't know what language he used; like you know mum when I say what to you because I don't know what you're saying. I said, OK. [X] again said mum can I have a cuddle I feel strange ...I don't want to be on my own. [X] was clingy and kept wanting to cuddle me. I explained to [X] if anything happens that makes him feel sad, strange, weird he can talk to friends, family, doctors, teachers, police etc. [X] mentioned that he did Arts and Crafts and that Dad had shorts like him. [X] again said he felt strange and asked for a cuddle. A time after [X] made comment saying the thing that freaks him out is snakes. I said what? [X] said at Dads house I have to wear shoes because of the snakes. I said yeah that's right its best to wear shoes in long grass. I could see [X] was not going to leave me and I suggested we go out to the kitchen and make something to eat. My partner [Mr C] was present and next to me when [X] was saying what had happened but did not say anything.
20. I went to the kitchen with [X] and we made something to eat and [X] wouldn't really leave me alone nor ate much, he had half a sandwich. Somewhere around 8.00pm or thereabouts I suggested that we all get ready for bed and have an early night. [X] asked if he could sleep in my bedroom and that he did not want to be on his own. I informed [X] he could not sleep in my bedroom and he needed to sleep in his room. I said to [X] what I could do is leave the bathroom light on so it is not dark. [X] asked if I could sleep in his room and I said no I can't. I further said to [X] what I can do is sit at the end of the bed and we can think of things to do tomorrow until to you go to sleep. [X] did not settle until around 9.00pm - 9.30pm. or there about.
21. After [X] was asleep, I contacted [the domestic violence hotline] and repeated what I heard from [X] and sought advice as to how to deal with it. I was informed I should notify Child Protection. I notified child protection. Upon notifying child protection they informed me to make a report to police link which I did.
Fathers Residence
22. [Mr Carrel’s] address as known is [1 T Street, Town U]. The physical location is not known to me and I have not been to that area. I have previously requested disclosure as to living arrangements. [X] has informed me that when he goes to his dads he does down a [small road] to his Dad's house.
23. [Mr Carrel] has given information that he resides in a home that has been built for him. It is not known exactly where this property is and if emergency services needed to be called where such services would be directed to attend other than a [small road] at [1 T Street, Town U] (QLD). It is not known whether the 'new home' has a certificate of occupancy. [X] has said words to the effect that there is another house that has snakes and spiders. It is not clear or identifiable as to what location [X] is being taken to. [X] has reported after a visit that there was a snake. [X] has reported there being [bodies of water] and [X] does not know yet how to swim.
24. I believe [X] is at risk of Neglect, Psychological and emotional harm and that inadequate supervision of [Mr Carrel] with [X] is taking place. I am concerned at the information [X] is conveying being 5 years of age. I am concerned that there is little or no information as to the actual location of the dwelling that [Mr Carrel] stays at more specifically, if an emergency did occur and emergency services were required there is a lack of detail as to where to direct such services to other than a [small road]. Information regarding [Mr Carrel’s] living arrangements has been previously requested. All that is known is someone has built a house for [Mr Carrel] to live in. It is not known whether the house is actually located at [1 T Street, Town U] (Queensland).
(As per the original)
Her Case Outline refers to various matters of history and annexes extracts from articles and reports as follows:
i.United Nations, General Assembly. Human Rights Council. Fifty Third Session 19 June – 14 July 2023 Agenda Item 3, Protection and Promotion of All Human Rights, civil, political, economic, social and cultural rights including the right to development. “Custody, Violence against women and violence against children”. Report of the Special Rapporteur on violence against women its causes and consequences, Reem Alsaleem; Part IV “Parental Alienation and its link to Domestic Violence. A. Invoking Parental Alienation as an extension of Family Violence”.
j.Para 33 “With regard to the Pseudo Concept of Parental Alienation, the committee issues a number of concluding observations in which it directed states to abolish the use of parental alienation in court cases and to conduct compulsory Judicial Training on domestic violence, including its impact on children”.
k.Para 73;“The report demonstrates how the discredited and unscientific pseudo-concept of parental alienation is used in family law proceedings by abusers as a tool to continue their abuse and coercion and to undermine and discredit allegations of domestic violence made by mothers who are trying to keep their children safe”.
l.Para 74 (a) Building on these findings the Special Rapporteur recommends that (a) States legislate to prohibit the use of Parental Alienation or related Pseudo Concepts in Family Law Cases and the use of so called experts in parental alienation and related Pseudo Concepts.
(Emphasis in original) (As per the original)
None of these articles or reports were referred to in oral submissions and their relevance to the current application is not immediately obvious.
The father in his affidavit responds to the mother’s allegations and says:
4. In response to paragraph 13, [X] had a wonderful visit, he made comments that no one at home will play with him, I said to him to ask his mother, brother and sister to play with him and reassured him that they would if they weren't busy. He also made comments that he wishes to stay at my house and see his mum occasionally like he does with me. He also asked to stay the night several times.
5. ln response to paragraph 14, during [X’s] time with me he spoke to his grandmother and asked about her place. My mother told him about her place in Victoria and mentioned that it snows sometimes. No one discussed [X] going there. On our way back to drop off [X] slept in the car the whole way, we then stopped for something to eat and a drink before my father dropped him back to [Ms Joslyne].
6.ln response to paragraph 16, I deny telling [X] any words to the effect that he won’t be seeing his mother or siblings. I deny that my mother said anything to that effect either.
7. In response to paragraph 19, [X] was sitting on my knee while he played with his remote controlled car. He got up to get it unstuck from the grass and when he turned around he said he could see up my shorts. I immediately stood up said words to the effect “oh sorry mate” and went inside and changed my shorts. [X] did not say anything further and I thought nothing of the incident until receiving [Ms Joslyne’s] affidavit. [X] wears shoes here on the [property] as a safety measure as I have a wide variety of animals on the [property], he knows he must wear shoes [and other protective clothing], and shoes when he is outside.
8. In response to paragraph 22, I do live on a [small] road that is a main thoroughfare for travelling from [Town V] to [Town W], all services are available here.
9. ln response to paragraph 23, my house is brand new it was built by a reputable [City Y] based builder and all compliances have been met.
10.In response to paragraph 24, my address is now [2 T Street, Town U] Queensland. I lived previously at the home at [1 T Street, Town U]. The owner of the property has built a new […] house on the other side of the road to where I was living previously. My home has a driveway that leads directly from [T Street] to the carport and the house is easily accessible and easy to find using Google Maps or the like. I have previously deposed to my living arrangements, including my expected move in date to this new property. I have previously provided photos of [X’s] bedroom in the house as well exterior photographs. My home has all the modern amenities and is situated on a normal, albeit [small], road.
(Emphasis in the original) (As per the original)
DISCUSSION
The mother’s counsel submits that what the child said he observed in early 2024 gives rise to a possibility that the father was “sexually excited”. The father’s counsel and the ICL contend that there is nothing sinister in what was reported by the child. The ICL in his Case Outline submits as follows:
It is the view of the Independent Children's Lawyer that inadvertent or accidental exposure by the Father fails to meet the threshold for sexual abuse and/or sexually inappropriate behaviour.
The Mother has a history of ceasing or not allowing time between the Child and the Father.
The Mother has a history of making allegations about the Father based on very limited grounds or information.
The Independent Children's Lawyer has been unable to meet with the Child owing to the refusal by the Mother to comply with requests made by the Independent Children's Lawyer.
It is the position of the Independent Children's Lawyer that the Mother's application should be dismissed.
There is no evidence that the father was sexually excited. All that counsel for the mother submits is that there is a possibility that he was sexually excited. Counsel for the mother also relies upon assertions by the mother referred to in pages 31, 34, and 35 of her tender bundle to support the conclusion that the father poses an unacceptable risk.
I am unable to resolve the competing assertions in the circumscribed nature of these proceedings and accept that I must proceed cautiously. The need to protect the child from any risk of harm is not subservient to the maintenance of a meaningful relationship.
The resolution to the issues I have to determine are in part informed by the relief that the mother seeks. The mother seeks the appointment of a forensic psychiatrist to assess the father. The mother does not nominate a psychiatrist and consequently there is no evidence as to who could do a report or when they could do a report. The mother seeks an order that Legal Aid Queensland meet the costs, and where they cannot, the father meet the costs.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provide a procedure for the appointment of an expert. The Rules provide as follows:
7.03 Appointment of single expert witness by parties jointly
(1)If the parties agree that expert evidence may help to resolve a substantial issue in a proceeding, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue.
…
7.04 Order for single expert witness
(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.
(3)The court may appoint a person as a single expert witness only if the person consents to the appointment.
…
7.06 Single expert witness’s fees and expenses
(1)Unless the parties agree otherwise or the court otherwise orders, the parties (but not an independent children’s lawyer) are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.
No submissions were made by the mother’s counsel in conformity of the Rules. It is not apparent to me why there is a necessity for a forensic psychiatrist to prepare a “full Psycho Sexual assessment” of the father. There is no evidence, nor was a submission made by the mother’s counsel, as to why such an assessment, if ordered, will assist in resolving the issues I have to determine, nor any submission made as to a lacuna in the existing expert evidence. No submission was made as to why such an application was not made at an earlier point in time to me. If it arises only as a consequence of the events referred to in the mother’s affidavit, then again, no submission is made as to why those events provide a proper basis for the particular proposed further expert evidence. There is no evidence that, even if such an assessment were ordered, it would be available in time for the hearing.
There is no evidence as to what the cost of such an assessment would be. I am informed by the ICL that it is most unlikely that Legal Aid would fund the assessment and that, either way, it would take a long time to obtain approval. No submission was put by the mother’s counsel as to why there should be a departure from the Rules that provide that the costs be shared equally. In those circumstances, I am unable to determine that even if such an assessment were ordered, the parties could afford it.
CONCLUSION
The mother bears the onus to establish the requisite elements for the making of the orders she seeks. For the above reasons I am not satisfied that the appointment of another expert is necessary to resolve the current issues in the proceedings. In those circumstances I decline to make orders 2, 3, and 4 of the mother’s application. Order 5 is curiously, but I presume deliberately, framed given the mother is a family law practitioner. Order 5 only sought suspension of the father’s time pending the outcome of the assessment by a forensic psychiatrist. As no assessment is to be ordered there is no foundation, on the basis of the mother’s relief, for the making of order 5.
If, contrary to what I had assumed, the order was in fact infelicitously as opposed to deliberately drafted, and the mother in fact seeks a suspension of time irrespective of the appointment of another expert, having regard to all of the relevant s 60CC considerations within the Family Law Act 1975 (Cth), I decline to make such an order. My reasons for doing so are as follows:
(a)the mother’s reliance on historical matters of risk do not inform this decision as to the suspension of time, as it is contrary to the case the mother ran before Justice Rees on 8 December 2023, where she sought not a suspension of time but rather one seeking to change supervision and limit time to five hours a fortnight;
(b)there is no evidence that I can rely upon to determine that the supervisor was acting inappropriately;
(c)I am not satisfied that there is any new event or change of circumstances sufficient to warrant consideration of the existing spend time orders;
(d)acting cautiously and weighing the possibilities of whatever risk that might exist based on the mother’s evidence, which is yet to be fully tested; the suspicions she harbours; and the observations of the Family Report writer in her reports and referred to in part in my judgment of 30 August 2023, I am satisfied the possibilities of such risks existing are managed by the orders for supervision.
Accordingly, I dismiss the mother’s application and will reserve the costs of the father and the ICL to the final hearing for determination.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 31 January 2024
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