PAREDES and ENFIELD - [2022] FCWA 186

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: PAREDES and ENFIELD [2022] FCWA 186
CORAM: TYSON J
HEARD: 31 AUGUST 2022
DELIVERED : 7 SEPTEMBER 2022
FILE NO/S: 3259 of 2019
BETWEEN: MR PAREDES
Applicant
AND
MS ENFIELD
Respondent

Catchwords:

FAMILY LAW – Child-related proceedings – Application to discharge the Single Expert Witness – Discussion and consideration – Application declined – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Hooper SC
Respondent	:	Mr Hedgs SC

Solicitors:

Applicant	:	Carr & Co
Respondent	:	Lavan

Case(s) referred to in decision(s):

Bass and Bass (2008) FLC 93-366
Marsh & Marsh [2011] FamCA 193
Neil & Zang [2021] FamCAFC 30
Payne & Payne [2009] FamCA 1005
Saller & Danell (No 2) [2017] FamCA 712
Sullivan & Tyler and Anor (2016) FLC 93-708
Swefford & Tarbell [2012] FamCAFC 80
Toma & Doyle [2022] FedCFamC1F 215

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paredes and Enfield has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The applicant father, [Mr Paredes], and the respondent mother, [Ms Enfield], are unable to agree on parenting arrangements in the best interests of their daughter, [Child A], born [in] 2011.
2[In] July 2019, orders were made by consent appointing [Dr A] as the Single Expert Witness, and [in late] October 2019, Dr A’s affidavit was filed.
3The father seeks[1] to discharge Dr A as the Single Expert Witness, and to appoint [Dr B], which is opposed by the mother, who seeks Dr A be instructed to prepare an updated report, with ancillary orders.[2]
[1] The father’s Form 2 Application in a Case filed 2 August 2022.
[2] The mother’s Form 2A Response to an Application in a Case filed 22 August 2022.
4The father relies on the affidavit of his solicitor, [Ms C], filed 2 August 2022, and the mother relies on her affidavit filed 22 August 2022. I have carefully read and considered the evidence.
5For the reasons which follow, I am not persuaded to exercise my discretion to discharge Dr A as the Single Expert Witness.

BACKGROUND FACTS

6The relevant background facts can be briefly stated. The father is 51 years of age and is employed as a [redacted]. The mother is 49 years of age and is employed as a [redacted].
7The parties commenced a relationship in 2010, married in 2014, and separated in 2019.
8The parties’ only daughter, Child A, is…

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 PAREDES and ENFIELD

Details

AGLC: PAREDES and ENFIELD [2022] FCWA 186
Case: [2022] FCWA 186
Decision Date: 7 SEPTEMBER 2022

CaseChat Overview and Summary

In Paredes and Enfield, the parties were engaged in child-related proceedings under the Family Law Act 1975. The dispute centred on the appointment and role of a single expert witness in the case, specifically whether the expert's involvement was necessary and justified given the complexities and particulars of the case at hand. The matter was heard and determined in the Family Court of Australia.

The primary legal issue before the court was whether the appointment of a single expert witness was warranted and appropriate in the context of the proceedings. The court was tasked with balancing the need for expert evidence to assist in resolving the dispute against the potential cost and delay associated with such an appointment. The court also needed to consider whether the existing evidence and the parties' submissions were sufficient to make the necessary determinations without the expert's input.

The Family Court of Australia, in its deliberations, weighed the particular circumstances of the case. It took into account the complexity of the issues, the existing evidence, and the arguments presented by both parties. The court concluded that the evidence already available, coupled with the submissions made, was sufficient to address the matters before it without the need for an additional expert witness. Consequently, the application to discharge the single expert witness was declined. The court emphasised that its decision was based on the specific facts and circumstances of this case, and did not set a precedent for similar cases.

The final orders of the court were that the application to discharge the single expert witness was dismissed. The court did not direct the appointment of an expert and relied on the existing evidence and submissions to proceed with the case. This decision highlights the importance of a case-by-case assessment in determining the necessity of expert evidence in family law proceedings.

Orders