Lambard and Lambard & Ors (No 2)
[2020] FamCA 858
•14 October 2020
FAMILY COURT OF AUSTRALIA
| LAMBARD & LAMBARD AND ORS (NO. 2) | [2020] FamCA 858 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of a single expert – Where the parties have been unable to agree on the identity of the singe expert to be appointed to consider and comment on the mother’s mental health – Where the parties have been unable to agree on a joint letter of instruction to the single expert – Where the father and paternal grandmother contend that the single expert should be a generalist psychiatrist – Where the mother and maternal grandmother contend that the single expert should have specialised knowledge of perinatal psychiatry – Consideration given the task before the Court in the substantive proceedings in considering the mother’s mental health – Orders made for the appointment of one of the single experts proposed by the father – Orders made for the parties to prepare a joint letter of instruction seeking the single expert appointment to comment on specific issues. |
| Family Law Act 1975 (Cth) s 60CC Family Law Rules 2004 (Cth) 15.52 |
| Lavin v Toppi [2016] FCA 801 R v Uduma (2013) 115 SASR 318 Reeves & Grinter [2017] FamCAFC 19 |
| APPLICANT: | Mr Lambard |
| FIRST RESPONDENT: | Ms Lambard |
| SECOND RESPONDENT: | Ms Dabell |
| THIRD RESPONDENT: | Ms M Lambard |
| FILE NUMBER: | SYC | 2664 | of | 2020 |
| DATE DELIVERED: | 14 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney by web conference |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 24 September 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie SC |
| SOLICITOR FOR THE APPLICANT: | Linden Legal |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Cantrell |
| SOLICITOR FOR THE 1ST RESPONDENT: | McAuley Hawach Lawyers |
| SOLICITOR FOR THE 2ND RESPONDENT: | Mr Ridley of Matthews Folbigg Pty Ltd |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE 3RD RESPONDENT: | Mitchell Lawyers |
Orders
That Dr NN be appointed as a single expert to prepare a report in relation to the mental health of the mother, Ms Lambard.
Within 48 hours, the parties’ shall prepare a joint letter of instruction to Dr NN and that letter of instruction will contain a request for Dr NN to consider and comment on the following matters:
(a)Any comments (to the extent possible) on previous diagnoses and the risk, if any, of relapse;
(b)Any view as to the mother’s current diagnosis and prognosis;
(c)Any view as to whether, as a result of issues relating to the mother’s mental health, the child is at risk of being exposed to any physical or psychological harm;
(d)Any view as to whether the current relationship between the child and the mother has been adversely impacted by mental health issues and, if so, how;
(e)Any view as to whether, any mental health issues adversely impact upon the mother’s capacity to provide for the needs of the child, including physical, emotional and intellectual needs and, if so, how; and
(f)Such other matters as the report writer considers relevant.
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 Lambard & Lambard 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 2664 of 2020
| Mr Lambard |
Applicant
And
| Ms Lambard and Ms Dabell and Ms M Lambard |
Respondents
REASONS FOR JUDGMENT
Introduction
This matter concerns a dispute between the parties, Mr Lambard (“the father”), Ms Lambard (“the mother”), Ms Dabell (“the maternal grandmother”) and Ms M Lambard (“the paternal grandmother”), as to what parenting arrangements are in the best interests of the child, X (“the child”) born … 2019.
This decision concerns a dispute between the parties in respect to the identity of a psychiatrist who is to be appointed as a single expert to provide a report concerning the mothers mental health including, in particular, whether the mother suffers ongoing mental health issues that impact upon her parenting capacity and/or whether any ongoing mental health issues potentially present a risk to the child.
I will shortly hand down a further decision in respect to a separate dispute between the parties concerning the issuing of subpoenas.
Background
The background to the substantive dispute between the parties is set out in my reasons for judgment dated 26 May 2020.[1]
[1] [2020] FamCA 405.
For the purpose of these reasons for judgment, it is sufficient to note the following:
·The father and mother are both aged 33 years.
·On … 2017, the father and mother married.
·On … 2019, the child was born. She is currently aged 19 months.
·On 10 April 2019, after the child’s birth, the mother suffered an acute mental health episode which resulted in her attempting to take her own life.
·As result of that incident, the mother sustained severe injuries resulting in a period of protracted hospitalisation. The mother is and will remain confined to a wheelchair as a result of those injuries.
·This matter is set down for final hearing over seven (7) days commencing on 14 December 2020.
Applications
The father is seeking orders be made in accordance with his Application in a Case filed on 18 September 2020, as follows:
1. That the matter be relisted before His Honour Justice McClelland on an urgent basis and in any event within 48 hours' notice to the Court and to the other parties.
2. That within 48 hours of the Orders being made the Respondent Mother and Second Respondent shall select and advise the Applicant Father's solicitors of their selection, one from the following three psychiatrists to be appointed to prepare a report in relation to the Mother's mental health:
2.1 Dr PP;
2.2 Dr NN;
2.3 Dr QQ.
3. That simultaneously with Order 2 above, the parties shall prepare a joint letter of instruction to the appointed psychiatrist and that letter of instruction will contain a request for the appointed psychiatrist to consider the following matters:
3.1 Please comment (to the extent possible) on previous diagnoses and the risk if any of relapse;
3.2 Please express a view as to current diagnosis and prognosis;
3.3 Please comment on whether the child is at risk of being exposed to any physical or psychological harm;
3.4 Please comment (to the extent possible) on the current relationship between the child and the mother;
3.5 Please comment on the capacity of the mother to provide for the needs of the child, including physical, emotional and intellectual needs;
3.6 Please comment on the effect on the child of spending equal time, or substantial and significant time, with each parent having regard to mother’s mental health;
3.7 Please discuss any other matter the Court Expert considers relevant.
4. That no later than 72 hours from the date of these Orders being made, the Applicant Father's solicitors will send the joint letter of instruction to the appointed psychiatrist.
5. That within 7 days from the date of these Orders:
5.1 The Applicant Father and the Third Respondent shall confer and agree to a bundle of documents from subpoena material produced in these proceedings which the Applicant Father and the Third Respondent intends to be provided to Dr G and the appointed psychiatrist and provide copies of the agreed bundle to the Respondent Mother and the Second Respondent;
5.2 Within a further 7 days, the Respondent Mother and Second Respondent are to confer and agree to any further documents proposed to be provided to Dr G and the appointed psychiatrist (if any) which are to be added to the bundle collated by the Applicant Father and the Third Respondent pursuant to the above order;
5.3 Upon expiry of the time provided in the above Orders, within a further 7 days, the Applicant Father shall provide the bundle of subpoena documents collated pursuant to this Order to the appointed psychiatrist and Dr G and provide a copy of Dr G's report of 1 August 2020 to the appointed psychiatrist.
6. That the Respondent Mother and Second Respondent shall pay the Applicant Father's costs of and incidental to this Application in a Case.
The paternal grandmother is seeking orders be made in accordance with her Response to an Application in a Case filed 23 September 2020, as follows:
1. Orders no 3,4,5 and 6 sought in the Application in a Case filed on behalf of the Father on 18 September 2020 shall be made.
2. As to Order no 2 sought in the Application in a Case filed on behalf of the Father on 18 September 2020, the jointly appointed psychiatrist shall be Dr PP.
3. The orders sought in the Response filed on 22 September 2020 on behalf of the mother are dismissed.
…
The mother and maternal grandmother are seeking orders be made in accordance with the Response to an Application in a Case filed 22 September 2020, as follows:
1. That the application in a case filed by the father on 18 September 2020 be dismissed.
2. That pursuant to Division 15.5.2 of the Family Law Rules 2004, Professor RR be appointed as a joint single expert (“the appointed psychiatrist”) to prepare a report in relation to the mental health of the mother Ms Lambard.
3. That within 48 hours of the Orders being made, the parties shall prepare a joint letter of instruction to the appointed psychiatrist and that letter of instruction will contain a request for the appointed psychiatrist to consider the following matters:
3.1 Previous mental health diagnoses (to the extent possible) and the risk if any of relapse;
3.2 Current mental health diagnosis and prognosis;
3.3 Any other matter the Court Expert considers relevant.
4. In the alternative to Order 3, that the parties shall, within 48 hours of the Orders being made, jointly provide instructions to Professor RR in accordance with the joint letter of instructions that is annexed hereto and marked A.
5. That no later than 72 hours from the date of these Orders being made, the solicitor for the mother shall send the joint letter to the appointed psychiatrist.
6. That in relation to the expert report pursuant to Order 2 above:
6.1 The parties shall attend interviews with the appointed psychiatrist on the dates and times and in the manner as nominated by the appointed psychiatrist.
6.2 Leave is granted to the parties to provide a copy of the report of Dr G dated 1 August 2020 to Professor RR.
7. That within 7 days from the date of these Orders:
7.1 The father and the paternal grandmother shall confer and agree to a bundle of documents from subpoena material produced in these proceedings which the father and the paternal grandmother intends to be provided to Dr G and the appointed psychiatrist and provide copies of the agreed bundle to the mother and the maternal grandmother;
7.2 Within a further 7 days, the mother and maternal grandmother are to confer and agree to any further documents proposed to be provided to Dr G and the appointed psychiatrist (if any) which are to be added to the bundle collated by the father and the respondent paternal grandmother pursuant to the above order;
7.3 Upon expiry of the time provided in the above Orders, within a further 7 days, the father shall provide the bundle of subpoena documents collated pursuant to this Order to the appointed psychiatrist and Dr G and provide a copy of Dr G report of 1 August 2020 to the appointed psychiatrist.
7.4 The mother is granted leave to file subpoenas to the following persons, a copy of those subpoenas being Annexed hereto and marked with the letter B.
7.4.1 Ms M Lambard
7.4.2 Mr O Lambard
7.5 That the applicant father and third respondent maternal grandmother shall pay the mother’s costs of and incidental to this application.
Consideration
The mother and maternal grandmother contend that the mental health issues that gave rise to the incident which occurred on 10 April 2019 were related to the mother’s pregnancy and those issues have now resolved. It is contended that with the assistance of her mental health care professionals, the mental health issues, which it is conceded severely impacted upon the mother, are now in remission.
The father and the paternal grandmother, on the other hand, contend that the mother and the maternal grandmother have provided a simplistic analysis of the mental health issues impacting upon the mother. Specifically, they contend that the mother’s mental health challenges must be seen in the context of concerning behaviour which they contend the mother exhibited prior to and subsequent to 10 April 2019. Having regard to that context, they contend that it would be unsafe for the Court to conclude that the mental health issues impacting upon the mother are in remission. They contend that, after considering the totality of the evidence, the Court would find that those mental health issues impact upon the mother’s parenting capacity and, in the absence of appropriate mitigation, present an ongoing risk to the child.
In a further decision in this matter, dated 25 August 2020,[2] I granted an application by the father and the paternal grandmother for the hearing dates to be adjourned until 14 December 2020. The purpose of the adjournment was to enable the parties to obtain additional evidence from a single expert psychiatrist.
[2] [2020] FamCA 789.
In that decision dated 25 August 2020, at [13], I noted my understanding that, “All parties agree that there is no necessity for the single expert to be a perinatal psychiatrist.” An examination of the transcript, however, indicates that statement did not correctly represent the position of the mother. The relevant discussion in respect to that issue was as follows:
[Senior counsel for the father]: And I was suggesting that [Dr G] was the proposal of the mother. Now, if I’m wrong about the father agreeing to it then I withdraw that. Could I say about the question of perinatal versus generalist child and family psychiatrist my concerns about it being limited to just someone with perinatal expertise is that that person will then, potentially, not have the broad psychiatric background to comment upon the evidence about pre-existing conditions predating pregnancy and also about the issues which arise in respect of the spinal cord injury and their interaction with pre-existing depression, anxiety and the different diagnoses which are expressed in the hospital material.
[Counsel for the maternal grandmother]: I agree with [senior counsel for the father], your Honour. I think you will need a general psychiatrist, not a narrow perinatal. I think you need...
HIS HONOUR: Okay.
[Counsel for the mother]: And I think we’re looking for someone who has all of those bits of expertise, which we will need some time to find. I don’t have a difficulty with that either and I think that...
[Senior counsel for the father]: Okay.
HIS HONOUR: All right. Well, look - - -
[Senior counsel for the father]: We are not wedded to the psychiatrist that we put forward. We are very concerned - - -
HIS HONOUR: Look, I don’t think he should necessarily be ruled out, but what about I make an order that the applicant nominate three psychiatrists and the mother choose from that list one of those? And I don’t think Dr PP should necessarily be ruled out. I found him to be a fair-minded man.
[Senior counsel for the father]: In the first instance I’m - - -
[Counsel for the maternal grandmother]: Yes, your Honour. We’re happy with …
[Senior counsel for the father]: I’m sorry, [counsel for the maternal grandmother].
[Counsel for the maternal grandmother]: I’m just saying we agree. I’m trying to agree with you.
[Senior counsel for the father]: Okay. Your Honour, I’m content with that approach if we on reviewing those believe that there’s an issue about availability or expertise then perhaps we could all have a liberty to relist, but that’s a good way forward.
In referring to the possibility of Dr PP being included on the list of potential single experts, it was acknowledged that Dr PP is a generalist psychiatrist and not a specialist perinatal psychiatrist. No objection was taken to my suggestion that Dr PP be included on that list as a result of him not being a specialist perinatal psychiatrist. It appears, however, that the reference to agreement being reached by counsel for the maternal grandmother was a reference to agreement being reached between himself and senior counsel for the father as opposed to an agreement being reached between all counsel who appeared in the proceedings.
In any event, at the further hearing of this matter on 24 September 2020, both the mother and the maternal grandmother argued that the single expert psychiatrist appointed should be a general psychiatrist with expertise in perinatal psychiatry. Both the father and the paternal grandmother continued to press for a generalist psychiatrist to be appointed as the single expert in these proceedings.
Legislation
Rule 15.52(2)(f) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that, for a person to be appointed as a single expert to provide evidence to assist the Court, that person must have relevant “training, study or experience that qualifies the expert witness as having specialised knowledge” on the particular issue or issues before the Court.
Relevant authorities
In Reeves & Grinter [2017] FamCAFC 19 at [15]-[17], the Full Court stated:
[15] Numerous authorities of the Full Court of this court make it plain that the ultimate decision is for the trial judge and it is a matter for the trial judge’s discretion as to what weight is to be given to expert evidence in the context of all the evidence to be considered (see for example Hall and Hall (1979) FLC 90-713; D & P [2006] FamCA 170; Gaffney & Gaffney [2012] FamCAFC 140; Gelbvieh & Senepol [2007] FamCA 476; Andrew & Delaine [2009] FamCAFC 182; Friscioni & Friscioni [2010] FamCAFC 108; Hannigan & Sorraw [2010] FamCAFC 257; Kennedy & Kennedy [2010] FamCAFC 195; Malak & Mairie [2010] FamCAFC 170; Salvati & Donato [2010] FamCAFC 263; Lindsay & Baker [2012] FamCAFC 189; Muldoon & Carlyle (2012) FLC 93-513; Yates & Yates [2012] FamCAFC 138).
[16] In Muldoon & Carlyle, the Full Court said at 86,576:
104.It is not in doubt that the evidence of an expert, suitably qualified and based on an appropriate foundation, will carry substantial weight. Departure from it in such circumstances requires careful consideration; however the ultimate decision must be that of the trial judge…
(References omitted)
[17] In Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 S.C. 34, Lord President Cooper said of an expert witness at 40:
…Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court ... Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury.
(Citation omitted)
Consistent with those authorities, in Lavin v Toppi [2016] FCA 801 at [17], Gleeson J said:
[17] It is not the case that a court is always required to accept as “paramount” an expert opinion, even if that opinion is based upon the observations of the expert, as Mr McDonald, counsel for the applicant, suggested. In Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 645, the High Court said:
That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?
In the case at hand, the Court will have the task of determining matters relating to the mother’s mental health including but not necessarily limited to:
·the cause of the mother’s mental health condition that resulted in her being admitted for mental health treatment in the period subsequent to the child’s birth;
·the extent to which those causal and/or aggravating factors continue to exist;
·the appropriateness of treatment provided to the mother both in terms of therapeutic intervention and/or medication;
·the mother’s diligence in adhering to her mental health plan;
·the effectiveness of the treatment received by the mother; and
·the mother’s mental health prognosis in the context of both;
oongoing professional support; and
oongoing social support.
The Court will also have the important task of attempting to predict a likely course of the mother’s mental health including, most relevantly:
·whether the mother is currently in remission in terms of any mental illness;
·whether the mother is likely to remain in remission or whether she is likely to have relapses of mental health episodes and, if so, what impact is that likely to have on;
othe mother’s parenting capacity; and
owhether the child would be exposed to an unacceptable risk of harm in the mother’s care; and
·having regard to those matters, what measures, if any, are required to mitigate against the possible manifestation of any such risk.
In considering whether the mother’s parenting capacity is adversely impacted by poor mental health and/or whether the child would be at risk in her care, the Court will also be required to consider:
·the nature of mental health treatment that the mother has, in the past, received;
·the nature of mental health treatment that the mother is continuing to receive;
·the extent to which the mother has or has not been diligent in participating in that treatment;
·the effectiveness of the mother’s ongoing mental health plan in the context of the nature of the treatment she is receiving and the mother’s diligence in complying with any recommended treatment and/or positive mental health maintenance regime;
·the physical support networks available to the mother;
·the social support networks available to the mother; and
·the possible impact of this litigation, including the impact of any orders made at the conclusion of these proceedings.
Clearly, the Court will be assisted by expert psychiatric evidence concerning those matters, however, the expert evidence will not, in itself, be determinative of those issues. In other words, the Court will not delegate its task of making those significant findings of fact to the expert.
Is a perinatal psychiatrist required?
The question becomes whether, to be “suitably qualified” to give evidence concerning those matters referred to above, the Court should appoint a psychiatrist who is a specialist in perinatal psychiatry.
In considering that issue, is to be noted that the parties’ respective contentions are, broadly expressed as follows.
Contentions by the mother and maternal grandmother
The mother and maternal grandmother contend that the mother’s mental health difficulties were in the nature of postnatal depression. It is acknowledged that the mother suffered an acute mental health episode in those circumstances. It is contended, however, that the cause of the mother’s poor mental health in the period subsequent to the child’s birth, has resolved and any mental illness suffered by the mother can now be considered to be in remission.
Contentions by the father and paternal grandmother
The father and paternal grandmother contend that the mother’s mental health history is far more complex than that represented by the mother and maternal grandmother. They contend that the mother exhibited signs of poor mental health even prior to becoming pregnant. In terms of causal factors, the father and paternal grandmother contend:
·in the context where the mother’s father, that is, the maternal grandfather had poor mental health which, unfortunately, resulted in his untimely passing, the mother has a genetic predisposition to poor mental health;
·the mother’s mental health has, in any event, been adversely impacted by the trauma of her father’s untimely passing;
·the mother’s conduct prior to becoming pregnant demonstrated that she suffered poor mental health;
·the mother’s mental health deteriorated when she became pregnant;
·the mother’s mental health further deteriorated during the postnatal period following the child’s birth;
·the mother’s mental health has been impacted upon by the traumatic stress of the incident where she attempted to take her own life; and
·the mother’s mental health has been impacted by the nature of injuries she sustained in that incident including the ongoing impact those injuries have had on the mothers mobility and physical capability.
Consideration of the identity of the single expert
Having regard to the totality of those issues, it can be seen that the postnatal aspect of the mother’s mental health is but one aspect of many issues to be considered by the Court. It may be that a psychiatrist with specialty in perinatal psychiatry may not necessarily have expertise in respect to other potential issues including, for instance, the post-traumatic consequences of the mother’s attempted suicide and ongoing injuries and disabilities.
In that context, in R v Uduma (2013) 115 SASR 318 at 139, , Gray J stated:
[49] …It is one of the skills of an expert to know whose studies and research may be regarded as reliable.
[50] Ormiston JA expressed the principle in R v Noll [[1999] 3 VR 74; [1999] VSCA 164] in the following passage:
[3] As a matter of principle … experts can speak of many matters with authority if their training and experience entitle them to do so, notwithstanding that they cannot describe in detail the basis of knowledge in related areas. Professional people in the guise of experts can no longer be polymaths; they must, in this modern era, rely on others to provide much of their acquired expertise. Their particular talent is that they know where to go to acquire that knowledge in a reliable form.
Similarly, Wigmore on Evidence states:
The data of every science are enormous in scope and variety. No one professional man can know from personal observation more than a minute fraction of the data which he must every day treat as working truths. Hence a reliance on the reported data of fellow scientists, learned by perusing their reports in books and journals. The law must and does accept this kind of knowledge from scientific men. On the one hand, a mere layman, who comes to court and alleges a fact which he has learned only by reading a medical or a mathematical book, cannot be heard. But, on the other hand, to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on finical and impossible standards.
(Emphassis in original) (References omitted)
Accordingly, the Court will expect that any single expert, who is appointed to assist the Court, will be up-to-date with relevant recent scientific and academic literature concerning the subject matter of their report. The Court would also expect the single expert psychiatrist to confer with the mother’s treating psychiatrist, Dr BB, who the parties acknowledge is, herself, a specialist perinatal psychiatrist.
Additional considerations
In not appointing, Professor RR, the one (1) psychiatrist who has been proposed by the mother and the maternal grandmother, the Court notes that, while Professor RR has expertise in both general psychiatry and also perinatal psychiatry, she is based in Melbourne. It is conceded that it would be difficult for Professor RR to travel to Sydney for the purpose of conducting interviews with the parties in this matter. This is because of the current restrictions on persons travelling from Victoria to New South Wales, as a result of the continuing transmission of the COVID-19 virus in the population in Melbourne. Similar difficulties would occur in the event that it was necessary for the parties to travel to Melbourne to attend interviews with Professor RR.
It was contended, by the mother and the maternal grandmother, that the inability to conduct face-to-face interviews would not present a substantial difficulty because Professor RR and the parties would have access to video-conferencing.
I accept that communication through such electronic means would be possible, however, it is my view that such communication would, on the facts of this case, be less than optimal in circumstances where the mother is confined to a wheelchair and it may be relevant to the single expert’s assessment of the mother’s parenting capacity to assess the mother’s physical interaction with the child. To be clear, this is not to say that the single expert psychiatrist will be examining the mother’s physical capabilities. Rather the mother’s physical capability to interact with the child may well be a matter that the single expert psychiatrist would consider from the point of view of providing a prognosis of the mother’s mental health.
Finally, I note that, in her Affidavit dated 22 September 2020, the mother indicated that there was a significant difference in the cost that would be charged by Professor RR as compared to those single experts that have been proposed by the father and the paternal grandmother. I accept that Professor RR’s fees, in the context of charges that are ordinarily rendered by New South Wales based experts, are very reasonable. However, as against her immediate single expert report fee is the potential costs in the event that she is required to travel to Sydney for the hearing. Those costs would potentially include not only airfares but also the cost of quarantining in the event that Professor RR is required to self-isolate for a period of time before giving evidence.
Perception of fairness
While it is very much a secondary consideration, I note that Dr G, who has been appointed as a single expert to assist the Court in considering the totality of matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), was originally proposed to be appointed as a single expert by the mother and maternal grandmother. In those circumstances, as noted by senior counsel for the father, there would be a potential issue of perception of fairness if both of the single experts, who are appointed in these proceedings were, in each case, the sole single experts proposed by the mother and maternal grandmother.
Conclusion in respect to the identity of the single expert
Having regard to all of those matters, I am of the view that the appointment of a single expert from among the list of names of the three (3) qualified psychiatrists proposed by the father and paternal grandmother is the appropriate course of action to pursue in this matter. That is despite the fact that it is acknowledged that none of those three (3) psychiatrists are specialists in perinatal psychiatry. To be clear, based on the curricula vitae of each of those three (3) psychiatrists nominated by the father and paternal grandmother, I am satisfied that they each have the required training, study and experience that qualifies them as having specialised knowledge on the issue of the mother’s mental health and to provide a prognosis in respect to that issue.
The legal representatives for the mother and the maternal grandmother advised the Court that, in the event of the Court arriving at that decision, their preference would be for Dr NN to be appointed. Dr NN is a senior consultant forensic adult and child psychologist. Details regarding her experience qualifications and training are set out in her curriculum vitae which commences on page 65 of the father’s tender bundle in these proceedings. For reasons which I have explained, I will therefore make an order to appoint Dr NN as the single expert psychiatrist in this matter.
Letter of instruction
The parties have, fortunately, been able to reach agreement regarding the proposed letter of instruction to the single expert.
The mother and maternal grandmother propose that a letter be sent to the single expert requesting that the following issues be the subject of the single expert report:
1. Previous mental health diagnoses (to the extent possible) and the risk if any of relapse;
2. Current mental health diagnosis and prognosis;
3. Any other matter [the single expert] considers relevant.
Comparatively, the father and paternal grandmother propose that the following questions be asked of the single expert:
3.1 Please comment (to the extent possible) on previous diagnoses and the risk if any of relapse;
3.2 Please express a view as to current diagnosis and prognosis;
3.3 Please comment on whether the child is at risk of being exposed to any physical or psychological harm;
3.4 Please comment (to the extent possible) on the current relationship between the child and the mother;
3.5 Please comment on the capacity of the mother to provide for the needs of the child, including physical, emotional and intellectual needs;
3.6 Please comment on the effect on the child of spending equal time, or substantial and significant time, with each parent having regard to mother’s mental health;
3.7 Please discuss any other matter the Court Expert considers relevant.
In circumstances where orders have previously been made for Dr G to provide a report commenting on those matters relevant to the Court’s consideration of what orders are in the best interests of the child, having regard to those considerations set out in s 60CC of the Act, it is unnecessary for the single expert psychiatrist to provide a report that provides a duplicate opinion in respect to those same issues.
Having regard to the parties’ submissions in this matter, it is my view that the issues identified by the mother and maternal grandmother as being the subject of the single expert psychiatrist report are, with respect, too narrow. On the other hand, the issues in respect to which the opinion is sought by the father and paternal grandmother are, with respect, too broad and should be restricted to issues related to the mother’s mental health.
Accordingly, I propose to order that the single expert psychiatrist be requested to consider and comment on the following in their report:
1.Any comments (to the extent possible) on previous diagnoses and the risk if any of relapse;
2.Any view as to the mother’s current diagnosis and prognosis;
3.Any view as to whether, as a result of issues relating to the mother’s mental health, the child is at risk of being exposed to any physical or psychological harm;
4.Any view as to whether the current relationship between the child and the mother has been adversely impacted by mental health issues and, if so, how;
5.Any view as to whether, any mental health issues adversely impact upon the mother’s capacity to provide for the needs of the child, including physical, emotional and intellectual needs and, if so, how; and
6.Such other matters as the report writer considers relevant.
Conclusion
Accordingly, for the reasons provided in the body of this decision, I make the orders set out at the commencement of these Reasons for Judgment.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 14 October 2020.
Associate:
Date: 14 October 2020
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