Nepean & Treloar - [2010] FamCA 781

FAMILY COURT OF AUSTRALIA

NEPEAN & TRELOAR

[2010] FamCA 781

FAMILY LAW – PRACTICE AND PROCEDURE – application for disqualification of single expert psychiatrist – documents provided to single expert psychiatrist without the parties’ joint consent – breach of Rule 15.54(3) – single expert’s report took into account the material in making various statements concerning the father – fair minded observer might reasonably come to the conclusion that a breach of the provisions of the Rules had occurred

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Kernot and Matson [2008] FamCA 756

APPLICANT:

Mr Nepean

RESPONDENT:

Ms Treloar

FILE NUMBER:

SYC

7700

2009

DATE DELIVERED:

23 August 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

16 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC with Ms Christie

Orders

The orders of 29 April 2009 appointing Associate Professor Carolyn Quadrio as single expert are hereby discharged.
The mother, on or before 4.00 pm on Friday, 27 August 2010 provide to the father the names of three persons qualified as Child and Family Psychiatrists, to enquire into and prepare a report into the parenting arrangements for the child, X, born … June 2003, and who are able to prepare that report in a timely fashion, and in time for the days on which this matter is fixed for hearing.
The father is to choose one of the proposed experts and each party is instructed jointly with the other to do all such acts and things in accordance with the Rules necessary to instruct the expert and attend on the expert so appointed with the child at such times and places nominated by him or her to permit the report to be produced.
The parties are to equally bear the costs of the report prepared pursuant to these Orders.
The costs of this application are reserved to the final hearing of the matter.
Liberty is granted to the parties to apply on 48 hours’ notice in relation to any difficulty arising in respect these Orders.

THE COURT NOTES that this matter is tentatively listed for final hearing for five days commencing Monday, 13 December 2010, subject to the matter being able to proceed and ready to proceed.

IT IS NOTED that publication of this judgment under the pseudonym Nepean & Treloar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7700 of 2009

MR NEPEAN

Applicant

And

MS TRELOAR

Respondent

REASONS FOR JUDGMENT

The proceedings before the Court are interim proceedings in which the father seeks that orders appointing an independent expert, Associate Professor Quadrio, made on the 29 April 2009 should be discharged.
Consequential orders are sought for the appointment of a further Child and Family Psychiatrist to be appointed as a single expert witness to enquire into and prepare a report in relation to the parenting arrangements for the parties’ child,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nepean & Treloar

Details

AGLC: Nepean & Treloar [2010] FamCA 781
Case: [2010] FamCA 781
Decision Date: 23 August 2010

CaseChat Overview and Summary

In the matter of *Nepean & Treloar*, Justice Fowler of the Family Court of Australia considered an application concerning parenting arrangements for the child, X. The dispute involved the appointment of an expert to prepare a report on these arrangements.

The court was required to determine whether to discharge an existing order appointing a single expert and, if so, to establish a new process for the appointment of an expert to report on the parenting arrangements for the child. The court also had to consider the timing of such an appointment in light of the scheduled final hearing.

Justice Fowler reasoned that the previous appointment of Associate Professor Carolyn Quadrio as a single expert was no longer appropriate and ordered its discharge. The court then directed the mother to provide the father with three names of qualified Child and Family Psychiatrists who could prepare a report on the parenting arrangements in a timely manner. The father was to select one of these proposed experts, and both parties were ordered to cooperate in instructing the chosen expert and facilitating the assessment of the child. The costs of this new report were to be borne equally by the parties, with the costs of the current application reserved for the final hearing. The court also noted the tentative listing of the matter for a five-day final hearing commencing on 13 December 2010.

Orders

Orders of the court

The orders of 29 April 2009 appointing Associate Professor Carolyn Quadrio as single expert are hereby discharged.

The mother, on or before 4.00 pm on Friday, 27 August 2010 provide to the father the names of three persons qualified as Child and Family Psychiatrists, to enquire into and prepare a report into the parenting arrangements for the child, X, born … June 2003, and who are able to prepare that report in a timely fashion, and in time for the days on which this matter is fixed for hearing.

The father is to choose one of the proposed experts and each party is instructed jointly with the other to do all such acts and things in accordance with the Rules necessary to instruct the expert and attend on the expert so appointed with the child at such times and places nominated by him or her to permit the report to be produced.

The parties are to equally bear the costs of the report prepared pursuant to these Orders.

The costs of this application are reserved to the final hearing of the matter.

Liberty is granted to the parties to apply on 48 hours’ notice in relation to any difficulty arising in respect these Orders.

THE COURT NOTES that this matter is tentatively listed for final hearing for five days commencing Monday, 13 December 2010, subject to the matter being able to proceed and ready to proceed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.