Nicolas & Nicolas
[2021] FedCFamC1F 369
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nicolas & Nicolas [2021] FedCFamC1F 369
File number(s): HBC 1179 of 2020 Judgment of: BENNETT J Date of judgment: 1 December 2021 Catchwords: FAMILY LAW – EXPERT EVIDENCE – where instructions to expert witness must identify relevant medical condition which the party to be examined alleges precludes her from working. Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 1 December 2021 Counsel for the Applicant: Ms Eddington Solicitor for the Applicant: Ogilvie Jennings Counsel for the Respondent: Mr Foster Solicitor for the Respondent: Murdoch Clarke Counsel for the Intervener: Ms Schulz Solicitor for the Intervener: Jacobs Family Law ORDERS
HBC 1179 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NICOLAS
Applicant
AND: MR NICOLAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
1 DECEMBER 2021
THE COURT ORDERS THAT:
1.Subject to paragraph 7 of this Order, pursuant to Rule 7.03(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Mr K be appointed as a single expert to assess the applicant’s capacity to work and report address the following:
(a)Details of initial consultation including but not limited to:
(i)Date;
(ii)History given; and
(iii)Results of examination.
(b)What ongoing condition or illness the Applicant suffers as a result of her treatment for medical condition 1 in March 2011 and medical condition 2 in October 2011, if so:
(i)What is the condition or illness;
(ii)Does the applicant have an incapacity to work as a result of the condition or illness; and
(iii)The nature, extent and duration of the said incapacity.
(c)By reason of the condition or illness referred to in 2(a) does the Applicant require any ongoing treatment, if so:
(i)What is the ongoing treatment;
(ii)The nature, frequency and duration of said treatment; and
(iii)The likely cost of said treatment.
(d)Advice as to the prognosis of the condition or illness from the Applicant’s treatment.
IT IS FURTHER ORDERED BY CONSENT THAT:
2.Pursuant to Rule 7.03(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Mr K be appointed as a single expert to assess the Respondent’s capacity to work and that report address the following:
(a)Details of initial consultation including but not limited to:
(i)Date;
(ii)History given; and
(iii)Results of examination.
(b)What injury does the Respondent suffer as a result of his motor vehicle accident on about 28 May 2008, if so
(i)What is the injury,
(ii)Does the Respondent have an incapacity to work as a result of the injury; and
(iii)The nature, extent and duration of the said injury.
(c)By reason of the injury referred to in 2(a) does the Respondent require any ongoing treatment, if so:
(i)What is the ongoing treatment;
(ii)The nature, frequency and duration of said treatment; and
(iii)The likely cost of said treatment.
(d)Advice as to the prognosis of the Respondent’s injury.
3.Within 28 days of the date of this Order the Applicant and Respondent confer for the purpose of:
(a)preparing an letter of instruction to the Court Expert to provide with this Order; and
(b)reaching agreement on the medical records and/or reports to be provided to the Court Expert.
(c)That the parties have liberty to apply on short notice if there is a dispute in respect of 3 (a) and (b) above.
4.The Court Expert have leave to examine the Court file in these proceedings and to request that any documentation upon the Court file be copied and provided.
5.Leave is granted to the Court Expert to inspect and copy (including electronically) all material produced to this Court pursuant to subpoenas issued in these proceedings.
6.The Applicant and Respondent share the costs associated with this report equally.
7.The Applicant forthwith obtain a specialist diagnosis in relation to the symptoms which she alleges limit her capacity to work outside the home including Medical condition 3 and recurrent bowel function problems and a report outlining that diagnosis and a prognosis be published to the single expert witness Mr K and the practitioners for the other parties as soon as practicable.
8.My reasons for decision this day be transcribed and, when settled, placed on the Court file and a copy be provided to the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nicolas & Nicolas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BENNETT J:
In short compass, I am determining the oral applications for the appointment of a single expert witness or witnesses for the assessment of the mother and father’s capacity to be gainfully employed outside the home. This is in the context of financial and parenting proceedings. On the last occasion it was agreed that the matter would proceed without undue formality, providing it was fair, and to do so in order to minimise the parties’ costs. Accordingly I take the matter as an oral application.
The parties, through their practitioners, have been able to agree on the identity of a single expert witness to assess the father’s capacity to work. The father’s incapacity to work is said to arise from a motor vehicle accident in approximately 2008, after which he was extensively hospitalised, received treatment and continues under specialist medical care. The orders I make in that respect appear as paragraphs 2 to 6 of a minute of order prepared on behalf of the mother, so that is an order made by consent.
The issue that I am required to determine appears at paragraph 1 of the mother’s minute, which would appoint Mr K, the same single expert witness to be the witness in relation to the mother’s incapacity to work outside the home. Mr Foster for the father takes issue with the qualifications of Mr K to undertake the single expert report.
On 14 September 2021 the solicitor for the mother wrote to Mr K introducing herself and providing some preliminary information and a request about Mr K’s availability to prepare an assessment of the parties’ ability to work. In relation to the mother, it was said her incapacity:
…arises out of ongoing side effects from cancer treatment that occurred in approximately 2015.
The balance of the letter refers to the rules pursuant to which Mr K would be retained and the provision of documentation to him, and requests some information about his fees. That was responded to by Mr K on 21 September 2021 in an email addressed to Ms Eddington’s assistant saying that he would be interested to accept a retainer to undertake the assessments within three months. He also says:
I doubt I need access to entire medical records, perhaps only available documents in the first instance.
Mr Foster draws a distinction between the father’s condition and the mother’s condition inasmuch as the father’s condition followed on a specific trauma, was the subject of hospitalisation for an extensive period, then extensive treatment in respect of which a complete medical record has been made and retained. That is in contradistinction to the condition of the mother. Mr Foster, in my view, correctly identifies that what counsel for the mother has today addressed as the conditions which prevent her from working, being lymphedema and some bowel function problems, are not conditions per se but are likely to be symptoms of an underlying condition.
I note for my own part that the minute of order prepared by the solicitor for the wife at paragraph 1(b) refers to:
…an ongoing condition or illness the applicant suffers as a result of her treatment for medical condition 1 in March 2011 and medical condition 2 in October 2011.
Whereas the letter to Mr K refers to the effects of cancer treatment that occurred in approximately 2015. It is not clear to me whether there is an underlying condition or whether what is being sought is the impact on the mother of the treatment that she received for her cancer condition in either 2011 or 2015. I don’t want to prolong the matter for the parties, but neither do I want them to arrive at a final hearing and realise that the expert evidence they have is insufficient.
It seems to me that an order can be made in the terms of paragraph 1 as sought by the wife, providing it is preceded by the mother obtaining a specialist opinion of all of the symptoms which she says inhibit her capacity to work. If that can be done before Mr K assesses the mother, it seems to me that Mr K will have an underlying diagnosis upon which to work. With a diagnosis should come a prognosis of future need and that is where, on my understanding, Mr K’s expertise as an occupational physician kicks in and would be of assistance to the Court.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 1 December 2021. Associate:
Dated: 16 February 2022
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