Neitz and Roden

[2010] FamCA 211

FAMILY COURT OF AUSTRALIA

NEITZ & RODEN [2010] FamCA 211

FAMILY LAW – CHILDREN – appointment of a further single expert – substance and alcohol abuse

Family Law Act 1975 (Cth)

APPLICANT: Mr Neitz

RESPONDENT: Ms Roden

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 7049 of 2008

DATE DELIVERED: 24 February 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 24 February 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	David H Cohen & Co
COUNSEL FOR THE RESPONDENT:	J Knox
SOLICITOR FOR THE RESPONDENT:	Shipton & Associates
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW

Orders

1. That Mr K is appointed a further court expert for the purpose of interviewing the parties, in particular the father, and carrying out all necessary tests and assessment which in his professional discretion he considers appropriate for the purpose of providing a report in relation to whether or not the father does suffer from any alcohol or substance abuse issues by way of:

   (a)interviews;

   (b)assessments

   (c)methodology used;

   (d)conclusions;  and

   (e)reasons for such conclusions.

2. That the parties promptly attend all interviews arranged with Mr K by the independent children’s lawyer upon reasonable notice being given.

3. That for the purpose of implementing the Orders made this day, further orders are made in accordance with the “Consent Orders” provided by the independent children’s lawyer and annexed hereto, subject to Order 5 being varied to provide for each of the parties to make the payments referred to on or before 5.00pm, 3 March 2010.

4. That upon the report of Mr K being furnished to the independent children’s lawyer and the legal representatives for the parties, the independent children’s lawyer will liaise with the Associate to Justice Rose after consultation with the other parties for the matter to be listed for directions hearing for the purpose of:

   (a)identifying the current relevant issues for determination;

   (b)such further evidence, if any, that the parties wish to adduce;  and

   (c)fixing further hearing dates, if appropriate.

NOTATION:

A.The independent children’s lawyer will provide a typescript of the “Consent Orders” by email to the Associate to Justice Rose by 5.00pm, 24 February 2010.

IT IS NOTED that publication of this judgment under the pseudonym Neitz & Roden is approved pursuant to s121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC7049 of 2008

MR NEITZ

Applicant

And

MS RODEN

Respondent

REASONS FOR JUDGMENT

1. I will give brief reasons for judgment so that the parties will fully understand the reasons for the orders that I will make.

2. The proceedings were previously before me on 5 February 2010.  On that occasion an issue arose as to whether or not the previous appointed expert, Dr L had stated in his report the methodology that he used for the purpose of reaching a conclusion as to whether or not the father in these proceedings had a medical problem arising out of the use of alcohol, or perhaps other substance abuse.

3. Following submissions made at some length in relation to those matters, the possibility of an expert in alcohol and illicit substance abuse being appointed was canvassed.  The proceedings were stood over for mention before me today.  The purpose was to enable further inquiries to be made by the independent children’s lawyer as to the availability of Mr K, an alcohol and substance abuse expert, and in the event of his availability, the fees that would be incurred and the time-frame for him to have interviews and prepare a report.

4. Today I was informed by the independent children’s lawyer that Mr K was available and after receiving copies of the relevant documents, that he was in a position to shortly thereafter conduct suitable interviews, particularly with the father, who is the party that must be assessed for the purpose of this report.

5. I was also informed by the independent children’s lawyer that the fees for Mr K would be $2,000.00 and that both parties were prepared to meet half the cost.

6. I was also informed by the independent children’s lawyer that Dr L was similarly available and an additional report, including any interview/s, would amount to $1,300.00.

7. The solicitor for the father informed me that his instructions were as follows:

   (a)The possible appointment of Mr K was opposed.

   (b)His client was not prepared to meet half the cost.

8. The reason for an apparent breakdown in communication, if indeed there really was one, between the solicitor for the father and the independent children’s lawyer was not explained.

9. The solicitor for the father reiterated the submissions previously made, which are that Dr L should be appointed as he was previously appointed to deal with this issue and that his report was also concerned with other family-related issues.

10. Counsel for the mother reiterated the substance of her previous submissions, that her client did not have any confidence in Dr L because of the deficiency in his report on an important matter to which I had previously referred and supported the appointment of Mr K.  In addition, her instructions were that her client would meet half the cost of Mr K’s fees and also pay the shortfall, amounting to $350.00 that arises due to the increased cost of Mr K’s report compared to the further costs of Dr L’s report.  In respect of the latter, the father being prepared to pay half.  Consequently, the total amount which the mother was prepared to pay is $1,350.00.

11. I drew the attention of the legal representatives to the further delays and additional legal costs that would be incurred in the event of me having to ensure that I had a transcript of the previous submissions made before a judicial registrar in relation to Dr L’s report, and the time and costs that will be incurred for each of the parties, which would necessarily arise out of a further court event.  The solicitor for the father informed me that the additional cost for his client is likely to be about $770.00.

12. In all the circumstances, I consider it to be in the interests of the parties and indirectly the children who are the subject of these proceedings, that the matter proceeds without any further delay.  The additional costs which would be incurred should be avoided if possible and it can only be for the benefit of the parties that this litigation is brought to an end as soon as possible.  Further delays do not seem to be warranted.

13. As I pointed out to the solicitor for the father, in the event that his instructions are accurate, namely that the father does not have an alcohol or substance abuse health problem, then his case could only be strengthened by the possible report to be prepared by Mr K.  In referring to that, I do accept the submissions made on behalf of the mother that Dr L’s previous report does appear to be deficient in a material respect, notwithstanding that I am told that he was retained to deal with that particular issue due to his perceived expertise.

14. The payment which the mother is prepared to make in relation to Mr K’s report will not create an additional financial impost on the father due to her being prepared to meet more than half of the fees, thereby leaving the father in a position where he is no more out of pocket than if Dr L had been appointed to prepare a supplementary report.

I certify that the preceding fourteen (14) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rose

Associate: 

Date:  19 March 2010