Khalifa and Khalifa (No 2)

[2017] FamCA 926

FAMILY COURT OF AUSTRALIA

KHALIFA & KHALIFA (NO. 2) [2017] FamCA 926

FAMILY LAW – PARENTING - INTERIM PROCEEDINGS - Where there is a dispute between the parties as to the appointment of a single expert - Where the mother suffered a recent mental health episode - Where the father and Independent Children’s Lawyer sought that the single expert be a qualified psychiatrist - Court finds that a qualified psychiatrist should be appointed - Orders made appointing a single expert to prepare a report that provides a detailed analysis and explanation of the pathology and toxicology tests from the urine testing and blood testing (CDT) of the parties - Court finds that Rule 15.47 of the Family Law Rules 2004 (Cth) is to apply in relation to costs of the single expert.

Family Law Rules 2004 (Cth), r 15.47

Khalifa & Khalifa [2017] FamCA 726

APPLICANT: Mr Khalifa

RESPONDENT: Ms Khalifa

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: SYC 5834 of 2017

DATE DELIVERED: 6 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 6 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Doolan Wagner Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Christaki of Legal Aid New South Wales

Orders

THE COURT ORDERS THAT:

1. The matter be expedited.

2. The father’s Response to an Application in a Case filed on 3 November 2017 is stood over generally with liberty to apply on 7 days notice to the Court and the other parties.

3. Leave is granted for the solicitors for the parties and the Independent Children’s Lawyer to inspect the material produced under subpoena.

4. The costs of the single expert Dr E are to be met in accordance with Rule 15.47 of the Family Law Rules 2004 (Cth) save insofar as, in the first instance, the father is directed to provide such funds as required by the Independent Children’s Lawyer and to pay that amount into the Trust Account of Legal Aid NSW prior to 1 December 2017.

APPOINTMENT OF DR E:

1. That Dr E (“Dr E”) be appointed as the Single Expert to enquire into and report upon matters relating to the welfare of the children C born … 2013 and B born  … 2015 (“the children”).

2. In preparing the Report to the Court, Dr E be requested to consider the following matters:

   6.1 Whether the children are at risk of being exposed to any physical and/or psychological harm in either household and/or from being subjected to and/or exposed to abuse, neglect or family violence;

   6.2 The relationship between:-

   6.2.1The children and each of the parties;

   6.2.2The children and the Maternal Grandmother;

   6.2.3The children and the Maternal Grandfather; and

   6.2.4The children and any other significant person(s).

   6.3 The Mother’s mental health;

   6.4 The Mother’s mental state in so far as it relates to parenting issues;

   6.5 The likely effect of any significant change in the children’s circumstances, taking into account each parents proposal including the likely effect on the children of any separation from either of the parents and/or any other significant person(s) with whom the children has been living;

   6.6 The effect on the children of family violence to which they may have been exposed and the need to protect the children from being exposed to family violence in the future;

   6.7 The  willingness and ability of each of the children’s parents to facilitate and encourage a relationship between the children and the other parent and the children and any other significant person(s);

   6.8 The capacity of each parent or any other significant person(s) to provide for the needs of the children, including emotional and intellectual needs;

   6.9 The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents and any other significant person(s);

   6.10    Any other matter identified by the Independent Children’s Lawyer in the letter of instruction; and

   6.11    Any other matters the Expert considers relevant.

3. That the parties do all acts and things and sign all documents necessary to facilitate the preparation of the Report including attending on and arranging for the children to attend upon Dr E, including the Maternal Grandmother, the Maternal Grandfather and the Mother’s child from a previous relationship F born … 2005.

4. The Independent Children’s Lawyer shall circulate a letter of instruction Dr E’ to each of the parties legal representatives by 10.00am on 4 December 2017 to take into consideration any suggestion made by their legal representatives and thereafter the Independent Children’s Lawyer shall settle the letter to Dr E’ by no later than 4.00pm on 6 December 2017.

5. That the Independent Children’s Lawyer forward to Dr E’s copies of all material filed by the parties in these proceedings by no later than 4.00pm on 7 December 2017.

6. That leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under Subpoena for the purposes only of providing same to Dr E and that the fees in respect of that photocopying be waived.

7. That Dr E shall be authorised and at liberty to speak to the day care and/or any other organisations that the children may currently be attending or has previously attended upon and any medical and/or mental health professional that the children and/or the parents may be attending upon and/or have previously attended upon.

APPOINTMENT OF DR PAUL G:

1. That Dr G be appointed as the Single Expert for the purpose of preparing a Report that provides a detailed analysis and explanation of the pathology and toxicology tests form the urine testing and blood testing (CDT) with respect to both the Mother and the Father.

2. The Independent Children’s Lawyer shall circulate a letter of instruction Dr G, to each of the parties legal representatives by 10.00am on 4 December 2017 to take into consideration any suggestion made by their legal representatives and thereafter the Independent Children’s Lawyer shall settle the letter to Dr G by no later than 4.00pm on 6 December 2017.

3. That the Independent Children’s Lawyer forward to Dr G copies of all results of the urine testing and blood testing (CDT) undertaken by the Mother and the Father by no later than 4.00pm on 7 December 2017.

4. Each party meet one half of Dr G’ fees and pay into the Trust Account of Legal Aid NSW not later than 10.00am on 1 December 2017  the sum advised by Dr G for completion of the Report.

AND THE COURT NOTES THAT:

A.The Court notes that Dr E has available dates to meet with the parties in February 2018.

B.The matter remains listed on 17 November 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalifa & Khalifa (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5834 of 2017

Mr Khalifa

Applicant

And

Ms Khalifa

Respondent

And

Independent Children’s Lawyer
Legal Aid New South Wales

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter I gave a decision dated 11 September 2017 which outlines, at least on a very preliminary basis, the background to the issues in dispute between the parties which concern parenting matters.[1] In those proceedings I made mention of a concern regarding an event that occurred on 26 August 2017 which was described in my judgment as an event requiring the mother to be admitted for care. There is some dispute as to whether the mother was admitted to care or scheduled, however, it is now acknowledged that the relevant event was an incident where the mother attempted to commit suicide. I have today expressed my concern that the Court was not advised of the details of that event prior to preparing my decision.  

   [1] Khalifa & Khalifa [2017] FamCA 726.

2. As against that background, a dispute has arisen, between the parties, as to who should be appointed as a single expert in these proceedings. The mother submits that Dr H should be appointed on the basis that he has appropriate skills and that his report can be obtained prior to this matter being listed before a Registrar for further consideration on 17 November 2017. The father and the Independent Children’s Lawyer (“ICL”), on the other hand, submit that the Court should appoint a single expert who is a qualified psychiatrist to provide a report in this matter.

3. For reasons that I will explain, I am of the view that an expert who is qualified as a psychiatrist should be appointed despite the fact that it will be at least until February 2018 before such an expert will be available.

4. In that context, the significance of the event that occurred on 26 August 2017 cannot be underestimated. The mother contends that the event occurred as a result of circumstances that arose and, in particular, that she had been subject to ongoing abuse by the father and a specific act of abuse that triggered the event.  The mother further contends that the circumstances that gave rise to that event are no longer present and, accordingly, she is capable of caring for the children if the orders she seeks, for the children to be in her full time care, are made.

5. I acknowledge Dr H’s qualifications and experience. However, in my view, issues have arisen that do require the Court to examine the mother’s mental health and the Court would be most assisted in that respect by a single expert who is a qualified psychiatrist.

6. A very relevant issue before the Court at final hearing will be the state of the mother’s mental health.  An expert, who is a qualified psychiatrist, will be able to provide advice to the Court regarding the mother’s mental health, whether there are ongoing issues, whether those issues are or are not related to drug or alcohol abuse, whether the mother was or was not the subject of family violence and if so, what impact it had on the mother’s mental health. Further issues will be what steps are being taken to address any mental health issues and what the prognosis is. Importantly, the expert will be able to provide advice as to what parenting arrangements are appropriate in light of that prognosis.

7. I also note that, at this stage, the parties are still gathering their evidence through subpoenas addressed to relevant treating practitioners and therapists.  Accordingly, even if he was a qualified psychiatrist, I have concern that a report prepared by Dr H would, without the benefit of that information, be a report without what senior counsel for the father described as a “reasonable quantity of baseline material” to support his opinion.

8. I recognise that the consequence of this order will result in a situation which is less than satisfactory. That is, as noted by the ICL, where the mother will not be spending a great deal of time with her children and, equally, the children will be distressed about not spending a significant amount of time with their mother.

9. The ICL has proposed that I adjourn the interim hearing on 17 November 2017, pending receipt of a single expert’s report.  However, as a result of the concern I have expressed, I decline to do so.

10. I invite the mother to consider conferring with her mother (the maternal grandmother) as to possible arrangements that can be made for the maternal grandmother to supervise additional time between the children and the mother.  If that can be achieved, I would sincerely request the father to look sympathetically at any application that may be made by the mother to expand the amount of time that the children spend with her, albeit on a short term basis, pending receipt of the expert report. The listing on 17 November 2017 will provide an opportunity for the parties to confer in respect to those matters.

11. In the circumstances where I do not propose appointing Dr H, it has been proposed by the ICL that I appoint Dr E. Senior counsel for the mother acknowledged that in the event that I made a decision not to appoint Dr H that, with his objections duly noted, the appointment of Dr E is appropriate. I therefore propose to make an order to that effect.

12. I further note that the ICL has also proposed the appointment of Dr G to advise the Court in respect to pathology and toxicology tests. The ICL has proposed that tests up until 7 December 2017 be provided to Dr G. On that basis, senior counsel for the father neither consented nor opposed that course of action.  In those circumstances, I propose to make orders 2, through to 13, as well as the notation proposed by the ICL.

13. Finally, the father has made an application for the mother to attend for hair follicle testing. In my decision of 11 September 2017, that issue was noted as one that would need to be revisited. In that decision, I was concerned that any order for hair follicle testing would simply produce a positive result. This is because the mother has made admissions regarding the use of illicit substances shortly prior to the parties’ separation.  I note it has not yet been three months since the event of 26 August 2017 and, accordingly, I do not, at this stage, propose to make orders for hair follicle testing. Therefore, the father’s Response to an Application in a Case filed on 3 November 2017 is stood over generally with liberty to apply on 7 days’ notice to the Court and the other parties.

14. Rule 15.47 of the Family Law Rules 2004 (Cth) will apply subject to any application being made in respect to the costs, and rule 15.47 says the parties are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.

15. The order I propose making in respect to the costs of the expert report is that that the costs of Dr E are to be met in accordance with rule 15.47, that is, by the parties jointly, save insofar as in the first instance I direct the father to provide such funds as required by the ICL to facilitate obtaining the report from Dr E.

16. Finally, I will make an order for the matter to be expedited.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 6 November 2017

Associate: 

Date:  16 November 2017