Marlow and Marlow

[2017] FamCA 983

FAMILY COURT OF AUSTRALIA

MARLOW & MARLOW [2017] FamCA 983

FAMILY LAW – PRACTICE AND PROCEDURE – Costs of Single Expert Report – Where parties assert impecuniosity – Where Rules provide for parties to pay equally costs of such report – Where no reason to depart from such obligation – Where parties ordered to make payment to the Independent Children’s Lawyer equally – Where the Independent Children’s Lawyer has leave to seek enforcement on short notice.

Family Law Rules 2004 (Cth) rr 15.45, 15.47

APPLICANT: Mr Marlow

RESPONDENT: Ms Marlow

INDEPENDENT CHILDREN’S LAWYER: Ms Nikitin

FILE NUMBER: PAC 455 of 2017

DATE DELIVERED: 1 December 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 November 2017

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Mr Marlow in person

SOLICITOR FOR THE RESPONDENT: Ms Khalil of Claremont Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Nikitin of Legal Aid NSW Penrith

Orders

1. That the father and mother each pay to the Independent Children’s Lawyer (ICL) within 21 days from this date the sum of $7,500.00 by way of contribution to the cost of the single expert report in this matter.

2. That upon the father and mother complying with the previous order the ICL is at liberty to provide appropriate instructions to a suitably qualified family psychiatrist to provide a Single Expert Report to the Court pursuant to Chapter 15 of the Family Law Rules 2004 (Cth).

3. That in default of the father and mother or either of them, complying with Order (1) the ICL is at liberty to make application to the Court on short notice for enforcement of the said order.

The Court Notes That

1. That in the event that the father initially funds the whole of the costs of the Single Expert report the ultimate liability for same will be reserved to final trial or agreement.

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 Marlow & Marlow 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 PARRAMATTA

FILE NUMBER: PAC 455  of 2017

Mr Marlow

Applicant

And

Ms Marlow

Respondent

REASONS FOR JUDGMENT

1. The application for determination is the application by the Independent Children’s Lawyer (ICL) that the applicant father and respondent mother pay equally the costs of and incidental to a Chapter 15 single expert for the provision of a single expert report to this Court in current parenting proceedings.

2. The father, in summary, seeks final parenting orders as follows:

   a)that the father have sole parental responsibility for the children B now aged 13 and C now aged seven;

   b)that the children live with the father;

   c)that the children spend supervised time with the mother each alternate weekend from 2.00 pm to 5.00 pm and any other time as agreed between the parties.

3. The mother, for her part, seeks parenting orders in relation to the children that, in summary, provide:

   a)that the mother have sole parental responsibility for the children;

   b)that the children live with the mother;

   c)that the children spend defined time with the father including during school term from after school Thursday to before school Monday and from after school Wednesday to before school Thursday, half school holidays and time, otherwise, on festive and other special occasions.

4. The proceedings were commenced by the father in February 2017 in the Federal Circuit Court of Australia.

5. The parties attended upon a family consultant on 6 April 2017 for the purposes of a child inclusive conference memorandum being made available to the Court.

6. The father is now aged 33 and the mother 32. The subject children are the children of their relationship. The youngest child has special needs having been diagnosed with ADHD and autism.

7. The parties separated in December 2016.

8. The mother asserts that the father had been repeatedly psychologically abusive towards her about her weight.

9. The father asserts that the mother has mental health issues, has made several suicide attempts and that she has been an inpatient in relation to such issues previously. He further asserts that the mother has “thought about gassing the children in the car”. The father further asserts that the mother had been violent towards him on one occasion with it being necessary for him to remove a knife from her. He asserts that she had been charged with assault, malicious damage and intimidation and that an apprehended domestic violence order had been issued for the protection of him and the children. He further asserts that she has breached that order causing the children to become hysterical.

10. The mother for her part asserts that the father has been physically violent towards her during their relationship occasioning her significant injury. She says that the father had humiliated and denigrated her over her weight issues. She asserts that there had been an ADVO against the father for her protection in 2009 but she had withdrawn her complaint to protect his employment.

11. The mother denies that she suffers from any mental health difficulty save for post-natal depression after the birth of the youngest child. She acknowledges however that she has made several attempts of self-harm during her relationship with the father and has on occasions been hospitalised. The mother acknowledged to the family consultant for the purpose of the memorandum that her emotional reactions to difficulties in her relationship with the father had been excessive and had caused the children emotional distress.

12. She suspects that the father, whilst not having been diagnosed with any mental health difficulty, suffers with “narcissistic behaviour”. She further asserts that the father is unable to tolerate the youngest child’s challenging behaviours for long periods of time and has slapped the child.

13. Both parents concede they have no capacity to cooperate or communicate in regard to the children.

14. The family consultant in the Memorandum expresses the following view:

    It appears that this is due to a number of factors, including the nature of their relationship breakdown, allegations of psychological and physical abuse and allegations that both parties suffer with mental health problems or a personality dysfunction that negatively impact on their capacity to manage anger and distress appropriately.

15. Both children, reports the family consultant, are struggling in the context of their relationships with both parents. The eldest child B is clearly distressed about the parental conflict and is conscious of the father’s negative views of the mother. She expresses a preference to the family consultant to reside with her mother and a concern that she and the youngest child might be separated.

16. The family consultant recommends that given the allegations regarding each parent’s mental health it is likely that a single expert report prepared by a child and family psychiatrist may best assist the Court in resolving this matter.

17. The mother and father have no issue with the ICL appointing an experienced family psychiatrist for the purposes of preparing a report. However, the issue has arisen as to how the report will be funded.

18. Neither party is prepared to make funds available for the preparation of a single expert report as is clearly needed in the context of this matter.

19. The ICL seeks appropriate orders that facilitate the ICL nominating an appropriately qualified family psychiatrist to prepare the Chapter 15 report and an order that each of the parties contribute equally to the costs of and incidental to the preparation of that report. The earliest available appointments with an appropriate single expert are in February 2018 with the ICL required to be in funds to confirm such appointments.

The Rules

1. Rule 15.45 of the Family Law Rules 2004 (Cth) (the Rules) provides:

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 factors relevant to making the order, including:

(a)the main purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 15.42);

(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; and

(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.

(4)A party does not need the court's permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).

1. Rule 15.47 provides:

Single expert witness's fees and expenses

(1)The parties are equally liable to pay a single expert witness's reasonable fees and expenses incurred in preparing a report.

(2)A single expert witness is not required to undertake any work in relation to his or her appointment until the fees and expenses are paid or secured.

1. Rule 1.11 permits the Court to vary or set aside an order made in the exercise of the powers in the Rules, thus any determination as to the single experts fees can later be varied if circumstances warrant.

Context

1. The parties commenced their relationship in their late teens and resided together from 2004 until about 2008/2009 before separating at that time for about six months. They then reconciled and later married in 2012. They subsequently separated in December 2016.

2. On 3 February 2017 orders were made that prevented the mother from removing the children from the father’s care.

3. On 23 March 2017 interim orders were made by consent that, in summary, provided:

   a)that the children live with the father;

   b)that the child B spend time with the mother from after-school or 3.00 pm Thursday until Monday 9.00 am in each alternate week and in the other week from after-school Wednesday until 9.00 am Thursday and at other times as agreed;

   c)that the child C spend time with the mother for a period of one month from 9.00 am to 2.00 pm each Saturday and thereafter from 9.00 am Sunday to 9.00 am Monday on the same days that B is to spend time with the mother.

4. On 5 July 2017 the child B’s time with the mother was varied to be from after-school or 3.00 pm on Wednesday to before school or 9.00 am the following Monday in each alternate week.

5. On the same day proceedings were transferred from the Federal Circuit Court of Australia to this Court by reason of the complex issues for determination and the likely length of trial. On 22 September 2017 proceedings were listed for judicial case management and upon noting an issue as to the funding of a single expert report proceedings were adjourned to 22 November 2017 in an endeavour to resolve the issue.

6. The mother and father both now assert incapacity to contribute to the single expert’s report.

7. The ICL in submissions filed 15 November 2017 provides a range of fees for the provision of a report from a family psychiatrist of about $14,000.00 to $16,500.00.

8. The ICL supports the views of the family consultant as to the necessity for a single expert report from a family psychiatrist. The ICL contends that the father who is in a superior financial position to that of the mother should be given the opportunity to raise funds for the report with the ultimate liability for the costs of the report reserved to trial with the prospect that the mother will be required to contribute at least one half from the proceeds of her prospective property settlement claim.

9. The father on 28 August 2017 filed a financial statement. He is a police officer of some years standing with a yearly income of about $110,000.00 per annum ($2,100.00 per week). He asserts mortgage payments of about $600.00 per week together with fixed expenses for health cover and motor vehicle registration of about $110.00 per week. Otherwise, it is to be assumed that he meets the living expenses of himself and the children in his household. He has about $81,000.00 in accrued superannuation.

10. The parties own jointly a home at Suburb D having a value asserted by the father of about $666,000.00 and asserted by the mother of about $820,000.00. The property is subject to a mortgage encumbrance of about $500,000.00.

11. The mother on 15 August 2017 filed a financial statement. She is working in casual employment earning about $44,000.00 per annum ($840.00 per week). She receives a family tax benefit of $122.00 per week. She pays rent of $430.00 per week and has motor vehicle and credit card obligations totalling about $185.00 per week. She has about $11,500.00 in accrued superannuation.

12. The father in his amended application filed 28 August 2017 seeks property orders primarily facilitating a sale of the home at Suburb D and a division of the net proceeds of sale as to 70 per cent to him and 30 per cent to the wife with he and the wife then retaining assets and personalty otherwise in their respective entitlement or possession.

13. The mother in her further amended response filed 4 October 2017 seeks property orders primarily facilitating a sale of the home and a division of the net proceeds of sale as to 60 per cent to her and 40 per cent to the husband. Otherwise, she seeks a splitting order in her favour as to $40,000.00 of the husband’s superannuation.

14. The husband in his short written submissions indicates his initial willingness to pay for one half of the single expert report fees estimated at $15,000.00. He has since indicated that he is no longer willing to do so. He has the predominant care of both of the children, he makes mortgage repayments in respect to the matrimonial home (having sole use and occupation of that property) and provides for himself and the children with no contribution from the mother. He complained that the mother has taken some $18,000.00 from their joint savings and since the commencement of proceedings holidayed in Europe. He does not accept the mother’s assertions about her income suggesting that she earns cash in hand.

15. The mother in her short submissions acknowledges that the issues for determination require a report from a suitably qualified single expert. The mother contends that she has limited capacity to contribute to the cost of the report having limited income to meet her expenses including accumulated credit card debt of about $23,300.00. She asserts that the matrimonial home should be sold to fund the report.

16. It is clear that all parties, the mother, father and the ICL all concur as to the need for the expert report. The primary obligation imposed by the Rules referred to above is that each of the parties is equally liable for the costs of that report.

17. There is nothing in the matters discussed above that would be sufficient to displace that primary obligation particularly where the parties have a substantial asset that they both seek to have sold that would realise funds for the purposes of the report.

18. In all of the circumstances, it is appropriate that there be an order that the parties pay equally the cost of the report estimated at $15,000.00 and that in default of funds being made available by either or both of them the ICL have liberty to apply as to enforcement of the order as to payment.

19. Should the father wish to avoid what appears to be inexorably a sale of the home he may at his election fund the cost of the report with the ultimate liability for the cost of that report being reserved to trial noting, however, the mother’s primary obligation under the rules to contribute as to one half of the report.

20. Orders will be made accordingly.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 December 2017.

Associate:

Date:  1 December 2017