MS R and MR R

[2003] FamCA 1180

[2003] FamCA 1180

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT SYDNEY  FILE NO:SY 5374 of 2002

BETWEEN	MS R (Applicant)
AND	MR R (Respondent)

DATE OF HEARING:	8 October 2003
DATE OF JUDGMENT:	8 October 2003

EXTEMPORE JUDGMENT
OF THE HONOURABLE JUSTICE BOLAND

APPEARANCES:	Mr Richardson of Senior Counsel instructed by Karras Partners, appeared on behalf of the Applicant.
Mr Doolan, Solicitor, Doolan Wagner & Callaghan, appeared on behalf of the Respondent.
Ms Wearne, Solicitor, Legal Aid Commission of NSW, appeared as the Child’s Representative.

INTRODUCTION

1. The matter before me raises the issue of whether or not an Expert Psychologist appointed under s.30A of the Family Law Act 1975 (Cth) should be discharged.

THE APPLICATION

1. The formal application before me is an Application by Ms R (“the wife”) filed on 25 September 2003.  In that Application she seeks the following orders:

“1.That the Order made on 12 February 2003 for the appointment of an Order 30A Expert to provide a Family Report, be vacated.

2.That, in the alternative to Order 1 hereof, the appointment of Mr B be discharged and another expert be appointed in lieu.

3.That the Report prepared by Mr B, Psychologist, daetd 26 August 2003 be place in a sealed envelope in a separate part of the Court file, such envelope not to be opened without further Order.

4.All parties in these proceedings are restrained from distributing or showing a copy of the Report to any other person or discussing the evidence or contents of the Report with any other person including any further expert appointed for the purpose of these proceedings.

5.That the children’s representative pay the costs of this Application.

6.That this Application be dealt with urgently.”

1. When the matter commenced before me today the wife abandoned the relief sought in proposed order 5 namely that the Children’s Representative pay the costs of this Application.

1. The Application is orally opposed by Ms Wearne the Child Representative and by Mr R (“the husband”).

THE SUBSTANTIVE PROCEEDINGS

1. The substantive proceedings before the Court are proceedings for property settlement and parenting orders they have been fixed for hearing commencing 9 December 2003.

THE ISSUES

1. The core matters in issue in this Application have been clearly identified by the parties and the Child Representative.

1. It is asserted by Mr Richardson of Senior Counsel on behalf of the wife that Mr B’s report:

·     discloses actual bias and lack of impartiality;

·     contains inaccurate representations of fact;

·     does not comply with Practice Direction No. 2 of 2003;

·     if objectionable parts of the report are held to be inadmissible then the basis for the conclusions and opinions expressed by Mr B are unsupported by evidence;

·     The expert has adopted a “dual role” offering therapeutic assistance to the parties as well as reportable counselling.

1. On behalf of the husband and child representative it is asserted that:

·     the report does not disclose bias, rather the wife objects to the report because substantial parts…