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 now 11 years old. The mother has a son, [Child B] born [in] 2004, with her former partner, [Mr D]. Mr D lives in [Country A]. Child B has lived with the mother and father, throughout the parties’ relationship.

9Following separation, Child B and Child A initially lived in a week-about arrangement with the mother and father. In [early] 2019, the mother obtained a Family Violence Restraining Order against the father, which was resolved [in] 2019, on the basis of mutual undertakings.

10Child A commenced spending time with the father on alternate weekends and intervening Thursday nights, in the presence of the paternal grandmother. Child B ceased spending time with his step‑father.

11In 2019, the father commenced parenting proceedings, raising a number of allegations including the mother suffered from mental health issues and abused alcohol, and she had behaved in an emotionally and verbally abusive manner towards Child B and Child A. He alleged the mother was attempting to damage and undermine his relationship with the children.

12The mother alleged the father had behaved in a physical, verbal, and emotionally abusive manner towards her, including in the presence of the children. She alleged the father had physically abused Child A, and behaved in an angry and aggressive manner towards both children, which had impacted on the children. She complained the father had behaved in an intimidating fashion towards her since separation.

13In the context of the parties’ competing allegations, and applications for parenting orders, the father proposed, and the mother agreed, to the appointment of Dr A, as the Single Expert Witness.

14Dr A interviewed each parent, Child B, and Child A [in] 2019. She observed each parent with the children, and also spoke with the wife’s treating psychiatrist. She was unsuccessful in her attempts to speak with the father’s treating psychiatrist. Dr A was provided with a number of documents, as summarised on pages 5 to 7 of her report.

15The salient aspects of Dr A’s report are as follows:

•Dr A observed the serious allegations raised by each parent, and the significant factual issues in dispute, would ultimately require determination by the Court, and such determinations, may change her conclusions and recommendations.[3]

[3] Affidavit of Dr A filed 6 November 2019, Annexure A Single Expert Witness Report, page 32.

•Dr A described the father as openly derogatory towards the mother, rigid in his thinking, causally superior in his attitude towards the mother, and not psychologically minded.[4] She described the mother having experienced a difficult childhood, and opined the mother likely minimised, but acknowledged problematic behaviour with her alcohol consumption.[5] Dr A did not consider either parent suffered from any personality disorder, or mental health issues.

[4] Affidavit of Dr A filed 6 November 2019, Annexure A Single Expert Witness Report, page 32.

[5] Affidavit of Dr A filed 6 November 2019, Annexure A Single Expert Witness Report, page 32.

•At the time of Dr A’s assessment, Child A was eight years of age and Child B was 15 years of age. Dr A described Child B as a troubled young boy, who perceived that his father, and step‑father were aligned against his mother and critical of her. Child B viewed their criticisms as unfair and unwarranted, and felt his step-father was not respectful of his wishes and preferences. Child B perceived his step-father was disinterested in him, and treated him differently to his sister, resulting in Child B deciding to stop spending time with his step-father. Dr A assessed Child B as considerate and mature in the expression of his views, and requiring time and space, to attempt to repair his relationship with his step-father.

•Dr A described Child A as a happy child, who had a loving, strong, and significant relationship with each parent, and Child B, as corroborated by Dr A’s observations.[6] Child A was aware of her parents’ competing proposals,[7] highly sensitised to the tensions between her mother, father, and brother, and was uncomfortable with the conflict between them.[8] Child A displayed a sense of lacking agency, to fix or ameliorate the tensions and conflict between her family, and instead, had elected to not take sides, and enjoy separate relationships with her family members. Dr A described Child A as presenting as the “peace-maker”, expressing a wish to spend alternate weeks with each parent, which Dr A considered was likely the result of wanting to find a solution which was “fair”, and an effort to manage her parents’, as opposed to a genuine preference.[9]

[6] Affidavit of Dr A filed 6 November 2019, Annexure A Single Expert Witness Report, page 33.

[7] Affidavit of Dr A filed 6 November 2019, Annexure A Single Expert Witness Report, page 25.

[8] Affidavit of Dr A filed 6 November 2019, Annexure A Single Expert Witness Report, page 35.

[9] Affidavit of Dr A filed 6 November 2019, Annexure A Single Expert Witness Report, page 33.

•Dr A considered the greatest risk to the children was the “chronic stress due to exposure to parental conflict and tensions, if not resolved quickly”.[10]

•She did not consider either parent had unreasonably influenced either child’s views, but assessed the father’s handling of Child B had contributed to their estrangement, and the father’s misunderstanding of Child B’s rejecting behaviour, had perpetuated it. Dr A expressed hope that if the father made a concerted effort with Child B, the prospect of repairing their relationship was optimistic, with therapeutic intervention.

•Dr A did not recommend a change in either child’s residence, and predicted Child A and Child B would be “significantly affected” if orders were made to live with the father. Dr A assessed Child A’s strong relationship with her mother and brother would be undermined by a change in residence, and stated the father’s proposals represented an “aspect of his lack of insight about her needs”.[11]

•Dr A recommended Child A live with the mother, and spend substantial and significant time with the father, in accordance with the existing arrangements.

•Dr A assessed Child A’s time with the father did not require supervision, stating:

“any complaints [Child A] might make about him are likely related to seeking approval from her mother in the context of the high degree of animosity and mistrust between her parents. This is a common reaction for children in a high conflict separation where they are disturbed by the conflict, not able to talk freely with either parent, and are invested with the power to obtain sympathy by criticising one parent to the other and vice versa. Poor communication between parents and an environment of mistrust is fertile ground for allegations to be exaggerated”.[12]

[10] Affidavit of Dr A filed 6 November 2019, Annexure A Single Expert Witness Report, page 35.

[11] Affidavit of Dr A filed 6 November 2019, Annexure A Single Expert Witness Report, page 36.

[12] Affidavit of Dr A filed 6 November 2019, Annexure A Single Expert Witness Report, page 37.

16Presently, Child A lives with the mother, and spends time with the father from after school on Friday until the commencement of school on Monday in week one, and from after school on Thursday until the commencement of school on Friday in week two.[13] Recently, the parties agreed to trial a week about arrangement, which according to the father, the mother unilaterally ceased.[14]

[13] Pursuant to orders dated 21 February 2020.

[14] The father’s affidavit filed 29 August 2022.

17The parties are presently polarised in their proposals for Child A, noting Child B is now an adult. The father seeks an order for the parents to have equal shared parental responsibility, and for Child A to live with the parents on a week about basis.[15] The mother seeks orders for sole parental responsibility, for Child A to live with her and spend time with the father, on a two weekly roster, in week one from after school Friday until the commencement of school Monday, and in week two, from after school Thursday until the commencement of school on Friday, in addition to time during the school holidays, and on special occasions.[16]

[15] The father’s Minute of Orders sought filed 2 March 2021.

[16] The mother’s Minute of Proposed Final Orders filed 31 March 2021.

18The parenting proceedings were listed for a Readiness Hearing [in] April 2021, and the matter was placed into the list of cases awaiting Call-Over.

19In January 2021, the father’s solicitors wrote, suggesting an updated expert report be obtained from a new single expert, “largely due to the COVID-19 pandemic”,[17] in circumstances where Dr A was then prevented from travelling to Western Australia, due to COVID-19 restrictions.

[17] The father’s affidavit filed 2 August 2022, paragraph 10.

20The mother’s solicitors responded, advising the mother (1) agreed an updated report from Dr A would be required prior to trial, (2) did not agree to the appointment of a new expert, given Dr A had been appointed, had met with the parties and Child A, (3) had concerns about Child A being subjected to a different expert, (4) considered it was premature to obtain an updated report, when the trial dates were not known, and (5) noted Dr A had been appointed prior to the pandemic, and no enquiries had been made to ascertain whether Dr A may now be prepared to conduct interviews by way of electronic means.[18]

[18] The mother’s affidavit filed 22 August 2022, paragraph 13.

21In [early] 2022, the father’s solicitors wrote to the mother’s solicitors, alleging the mother had been denigrating the father and his family in the presence of Child A, and sought an updated expert report be prepared “immediately”, preferably by an expert based in Western Australia. The mother rejected the father’s proposals.

22In [mid] 2022, the father’s solicitors wrote to the mother’s solicitors again, noting the proceedings were in the June Call-Over, and suggest an updated expert report be obtained.

23[In] June 2022, the mother’s solicitors provided a draft joint letter to Dr A, for the father’s approval. [In late] June 2022, a joint letter was subsequently sent, seeking Dr A’s availability and costs for preparation of an updated report. Dr A replied, [in late] June 2022, advising she could conduct an assessment in Perth on 23 September 2022, at a cost of $11,000 inclusive of GST.

24The father then expressed concerns about Dr A’s estimated costs, and availability, and indicated he would be making enquiries with alternate potential experts. The mother repeated her objection to the discharge of Dr A, confirmed the parties could afford the costs, and they had agreed to Dr A’s appointment, knowing she lived interstate and conducted interviews in person.[19]

[19] The mother’s affidavit filed 22 August 2022, Annexure A.

25On 24 June 2022, the case was listed for trial, fixed to commence [in late] October 2022, with an estimated hearing time of five days.

26On 29 June 2022, the Principal Registrar wrote to the parties, confirming a procedural hearing was listed [in] August 2022, and asking the parties to confer about the preparation of an updated Single Expert Witness report prior to trial.

27On 20 July 2022, a joint letter was sent to Dr A, advising of the trial dates, and asking about her availability to attend trial, and prepare an updated report. On 21 July 2022, Dr A confirmed (1) she had booked the family in for assessment on 23 September 2022, (2) she “typically” takes “about 4 weeks to complete reports”, and (3) she was available to attend trial [in late] October 2022 “but the report may not be ready by that time”.[20]

[20] The mother’s affidavit filed 22 August 2022, paragraph 23.

28The husband raised concerns if Dr A’s report was received shortly prior to trial, the parties would not have the opportunity to put any questions to her, in accordance with the Family Court Rules 2021 (WA) (“the Rules”) “noting that these questions may be put to the Single Expert during the course of her cross-examination at trial”. The mother agreed to that approach.[21]

[21] The mother’s affidavit filed 22 August 2022, paragraph 24.

29Dr A has since provided confirmation of the proposed appointments on 23 September 2022, and her invoice.[22]

[22] The mother’s affidavit filed 22 August 2022, Annexure C.

30The father’s solicitors made enquiries with a number of other potential Single Expert Witnesses. On 2 August 2022, the father filed his Application in a Case, seeking the discharge of Dr A, and the appointment of Dr B as the Single Expert Witness.

WHAT IS THE FATHER’S CASE?

31The father’s case is the mother has engaged in a pattern of alienating Child A and Child B from each of their fathers, and considers she continues to do so. The father alleges, amongst other matters, the mother has denigrated the father, and his family, to and in Child A’s hearing, she has encouraged Child A to refer to her now husband, as “Dad”, she has discussed the proceedings with Child A, and is ignoring Child A’s expressed wish, to spend week about with each parent.

32The father deposes “it is appropriate that [Dr A] be discharged from her role as Single Expert Witness, and a new Single Expert be appointed to produce an updated report”, in circumstances which include:[23]

Dr A’s high costs, the fact she is based interstate and her lack of availabilities to undertake the report until late September all shed (sic) considerable doubt as to whether she will be able to provide to the Court an updated report prior to the commencement of trial.

[23] The father’s affidavit filed 2 August 2022, paragraph 31.

33The father deposes Child A has been displaying signs of significant stress,[24] which he opines have been caused, and/or contributed by separation, the court proceedings, the current care arrangements, the mother’s marriage to her now husband, the mother denigrating the father and discussing court proceedings with Child A, and the mother’s refusal to agree to arrangements in accordance with Child A’s expressed wishes.

[24] The father’s affidavit filed 29 August 2022, paragraphs 6–10.

34Child A was attending on [Ms E], a psychologist, on a weekly basis in term 3 last year. The father continued to take Child A in term 4, and term 1, when the sessions ceased, at Child A’s request. Child A has recently resumed attending on Ms E, at her request.

35The father deposes in light of Child A’s expressed desire to spend alternate weeks in his care, coupled with the stress Child A is experiencing, “the longer it takes for the interviews to take place, the more pressure which might be placed on [Child A] by [the mother] and the more stress and emotional damage this will cause for [Child A]”.[25]

[25] The father’s affidavit filed 29 August 2022, paragraph 20.

36The father proposes Dr B, a forensic psychologist, be appointed as the Single Expert Witness. Dr B has consented to the appointment, and advised her estimated costs to be $6,900–$7,300 plus GST. A copy of her curriculum vitae is in evidence.

37[In late] July 2022, Dr B advised she anticipated starting her assessment within two weeks of receipt of Orders, and the assessment could be completed within six to eight weeks, subject to receipt of the required documents. Dr B anticipated her report could be ready before the end of September 2022, “if materials are made available, Orders are received quickly, and the parties agree to arrange assessment appointments in a timely manner”.[26]

WHAT IS THE MOTHER’S CASE?

[26] The father’s affidavit filed 2 August 2022, Annexure A, email from Dr B dated 28 July 2022.

38The mother deposes she is concerned the father is “simply unhappy” with Dr A’s report, “and is now seeking any opportunity to have her replaced, including raising new issues such as her being in the Eastern States and her costs, which were not an issue when [the husband] suggested [Dr A]”.[27]

[27] The mother’s affidavit filed 22 August 2022, paragraph 26.

39The mother asserts Child A has been displaying “significant sources of stress”, including recently vomiting at the father’s home, and at her home, immediately after spending time with the father, when Child A has not otherwise been unwell.[28] The mother says despite her efforts to shield and protect Child A, she is a bright an intuitive child, and the “stress of the court case must be taking its toll on her. I therefore seek to maintain some continuity and familiarity for [Child A], who has built up a rapport with [Dr A]”.[29]

[28] The mother’s affidavit filed 22 August 2022, paragraph 27.

[29] The mother’s affidavit filed 22 August 2022, paragraph 28.

40The mother opposes the appointment of Dr B, and questions her expertise, and experience. The mother’s solicitors have made further enquiries with Dr B, who advised [in] August 2022, she usually completes assessments within six to eight weeks of commencing, subject to receipt of the relevant documents, the cooperation of the parties with proposed appointments, and she “would aim to have the report completed by mid-October at the latest”.[30]

[30] The mother’s affidavit filed 22 August 2022, Annexure A.

41The mother says there is no guarantee, if appointed, Dr B could produce a report prior to trial, given the time which has lapsed since her last correspondence, noting Dr B is not aware of the volume of material she would be required to review, as part of an assessment.

DISCUSSIONS AND CONCLUSIONS

Discharge of Single Expert Witness

42Part 15, Div 5 of the Rules regulates expert evidence in proceedings pursuant to the Act.

43The purpose of Div 5 is expressed in r 268 as follows:

The purpose of this Division is ––

(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute; and

(b)to restrict expert evidence to that which is necessary to resolve or determine a case; and

(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness; and

(d)to avoid unnecessary costs arising from the appointment of more than 1 expert witness; and

(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.

44Rule 284 provides the duties a Single Expert Witness has to the Court, which include:

284.Expert witness’s duty to court

…

(3)The expert witness has a duty to —

(a)give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability; and

…

(d)consider all material facts, including those that may detract from the expert witness’s opinion; and

(e)tell the court —

(i)if a particular question or issue falls outside the expert witness’s expertise; and

(ii)if the expert witness believes that the report prepared by the expert witness —

(I)is based on incomplete research or inaccurate or incomplete information; or

(II)is incomplete or may be inaccurate, for any reason; and

(f)produce a written report that complies with rules 287 and 288.

45The Rules do not provide any guidelines for the Court in considering an application to discharge a single expert.[31] It is a power that is assumed to exist, including at an appellate level,[32] and by a number of single instance judges.[33] A review of the authorities establish Courts have been reluctant to discharge a Single Expert Witness and, in the absence of exceptional circumstances, will not do so until other mechanisms available under the rules for testing and clarifying an expert’s opinion are exercised.

[31] Marsh & Marsh [2011] FamCA 193, [49].

[32] For example, see Bass and Bass (2008) FLC 93-366; Payne & Payne [2009] FamCA 1005; Neil & Zang [2021] FamCAFC 30at [28]–[29]; Sullivan & Tyler and Anor (2016) FLC 93-708 at [240] and [352]; Swefford & Tarbell [2012] FamCAFC 80 at [70]–[88], [98].

[33] For example, Saller & Danell (No 2) [2017] FamCA 712 (McClelland J (as His Honour then was)) Swefford & Tarbell (No 4) [2012] FamCA 888 (Watts J), which was upheld by the Full Court on appeal in Swefford & Tarbell [2013] FamCAFC 50.

46Senior counsel for the mother referred the Court to a recent first instance decision, in which a judge concluded in the absence of an express power in the relevant Rules,[34] the Court lacked the power to make an order to discharge a Single Expert Witness.[35] With respect, I disagree.

[34] Being the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

[35] Toma & Doyle [2022] FedCFamC1F 215 at [15] and [28].

47The Rules are subject to the overriding provisions contained in Part 1 of the Rules which include:

(a)The main purpose of the Rules is to ensure each case is resolved in a just and timely manner, at a cost to the parties and the Court that is reasonable in the circumstances of the case;[36]

(b)The Court must apply the Rules to promote the main purpose and actively manage each case including by ensuring that parties and their lawyers comply with the Rules and consider whether the likely benefits of taking a step, justify the cost of that step;[37]

(c)To achieve the main purpose the Court must apply the Rules in a manner that deals with each case fairly, justly and in a timely manner, that is proportionate to the issues in a case and their complexity, and the likely cost of the case, and that promotes the saving of costs.[38]

[36] Family Court Rules 2021 (WA) r 5.

[37] Family Court Rules 2021 (WA) r 6.

[38] Family Court Rules 2021 (WA) r 7.

48Where the Court has the power to make orders to appoint a Single Expert Witness,[39] and the power to set aside or vary any order made in the exercise of a power under the Rules,[40] I am satisfied the Court has the power to discharge a Single Expert Witness.

[39] Family Court Rules 2021 (WA) rr 270, 271(c).

[40] Family Court Rules 2021 (WA) r 11.

49Turning to the current application, the parenting proceedings have been on foot since 2019. Both parents say Child A is experiencing a degree of distress, as recognised by Dr A during her assessment. I am unable to make any findings as to the causes of, or current state of, Child A’s stress or mental health.

50The parties agree an updated expert report is required, and seek to have that report in advance of the trial. It is accepted that will entail both parents, and Child A, being interviewed.

51The father’s senior counsel acknowledged the father (1) did not seek the discharge of Dr A on the basis of any alleged bias or apprehension of bias, (2) made no suggestion Dr A had failed to discharge her duties as a Single Expert Witness, and (3) accepted Dr A was an experienced, and respected, Single Expert Witness.

52While the father raised complaints about Dr A’s estimated costs, he conceded the parties could meet those costs. That concession was sensibly made.

53The central plank of the father’s application, appears to be based upon the comparative availability of Dr A, as opposed to Dr B, and the convenience of having a local expert appointed. The current evidence does not allow the Court to conclude precisely when either Dr A or Dr B would be in a position to prepare a report.

54The wife questioned Dr B’s experience and expertise. It was submitted Dr B was not qualified as a child psychologist, and it was not known what experience Dr B had interviewing and dealing with children in the context of family law proceedings, and as a Single Expert Witness. The father’s senior counsel conceded Dr B did not have an equivalent level of expertise to Dr A, but submitted the Court could readily be satisfied, based upon Dr B’s curriculum vitae, that she was a suitably qualified expert, as defined by the Rules. For the purposes of the application, I proceed on the basis Dr B is suitably qualified as an expert.

55Based on the available evidence, there is no certainty a report from either Dr B, or Dr A, can be obtained prior to trial. Dr B’s most recent prediction, made a month ago, was she hoped to have the report available by mid-October 2022. Given the delays since that time, it is not known if there have been any changes to her availability. Dr A has not confirmed when her updated report may be available.

56Each parent complains about the other parent’s conduct and lays blame at their feet, for the potential delays. I do not intend to repeat the chronology to which I have referred, nor do I propose to apportion responsibility for the delay, as between the parents. In my view, there is a real risk the parties will not be in receipt of the anticipated expert report in a timely manner, which may result in the trial being vacated.

57Dr A has arranged appointments to conduct interviews as indicated. There are currently no scheduled appointments with Dr B. It does not appear Dr A has yet been provided with the parties’ trial material, or any other agreed material as part of an updated assessment. Dr B does not appear to have received any documents, or information, apart from a brief two page note, for the purposes of providing an estimate of costs. It was conceded Dr B, if appointed, would need to read Dr A’s report. There is a dispute about whether Dr B should also receive all of the documents which Dr A had as part of her report.

58Dr B is not presently aware of the potential volume of material she would be required to assimilate, and consider. In my view, there is a prospect that may lead to delay.

59If I were satisfied Dr B could prepare a report prior to Dr A, and prior to trial, I do not consider that factor supports an order to discharge the Single Expert Witness. I reject the submission on behalf of the father that Dr B’s availability amounted to what could be considered a special reason. If convenience, and the promise of a faster report from a different expert, was a broadly applicable criteria for discharge of a Single Expert Witness, such discharges would occur on a regular basis. Such an outcome would have a detrimental impact on the proper conduct of parenting proceedings, and would not be consistent with the Rules.

60The father’s senior counsel submitted the Court may not need to discharge the Single Expert Witness, and could instead appoint Dr B as a new Single Expert Witness. Firstly, the father’s application is to discharge Dr A. No oral application was made to amend his application, which the mother’s senior counsel indicated would be opposed. Secondly, such an outcome would be inconsistent with the Rules, and potentially result in a situation where there could be two expert witnesses appointed on the same issue, and both would be required to attend trial. That would likely increase the estimated hearing time at trial, cause each party to incur additional costs, and put further strains upon the Court’s limited resources.

61Having carefully considered the evidence, and taking into account the Rules, including the requirement that expert evidence is to be given on an issue by a Single Expert Witness, without compromising the interests of justice, I am not persuaded by the father to exercise my discretion to discharge Dr A. I have reached that conclusion for the following reasons:

(a)There has been no complaint or criticism of Dr A’s conduct as the Single Expert Witness, nor any suggestion she has failed to discharge her duties, in accordance with the orders made by the Court. There is no dispute about Dr A’s experience and expertise. She is an expert witness who is well-known in this Court.

(b)There is no assertion of any substantial body of opinion contrary to any opinion given by the Single Expert Witness, and that the contrary opinion is or may be necessary for determining the issues in dispute, or that Dr B knows of matters, not known to Dr A, which may be necessary for determining the issues in dispute. To the extent the father suggested Dr B’s availability amounted to a special reason, I reject that claim.

(c)While the father suggests the circumstances of the case do not warrant the ongoing involvement of an expert with Dr A’s expertise and experience, I observe Dr A was appointed by consent, at the father’s suggestion.

(d)Dr A has already met with both parents, Child A and Child B, reviewed extensive material as part of her appointment, spoken to third parties, and prepared a detailed, thorough report, of some 37 pages. She is familiar with the parties. I do not accept the changes to the father’s proposals with respect to Child B, and the fresh issues raised with respect to Child A, results in a changed complexion of the proceedings, which somehow supports the discharge of the Single Expert Witness. It is common, throughout the course of parenting proceedings, for parties’ to amend their proposals, and for the circumstances of the parties, and the children, to change. A change in circumstances, or proposed parenting orders, does not warrant the discharge of the single expert witness.

(e)In my view, one of the benefits from a Single Expert Witness preparing more than one report, is the opportunity to assess a family over a passage of time. It provides the advantage of an expert assessing, comparing and contrasting presentations, and progress (or lack thereof). Such evidence is likely to be of relevance and assistance to the Court, and the parties, in determining what parenting orders may be in Child A’s best interests. I do not agree or accept the father’s submissions, to the contrary.

(f)Dr A has had involvement since the orders made by consent in 2019. In my view, it is appropriate she prepare an updated report, in accordance with the arrangements which have now been made.

(g)There is nothing put to me by the father which persuades me the appointment of a new Single Expert Witness would serve Child A’s best interests, as opposed to retaining Dr A. Where both parents refer to Child A’s levels of stress and the impact the proceedings upon her, it cannot be in her best interests to be interviewed by a new expert. It is preferable the Single Expert Witness, who is familiar with Child A, conducts an updated report, which may involve interviews not only with Child A, but potentially Child B as well.

62I accept that delay in receipt of an updated report from the Single Expert Witness, may mean the trial cannot proceed. That is an outcome which both parents are anxious to avoid, in light of the length of the proceedings. Both parents emphasise the need for the proceedings to be brought to finality as soon as possible, in the best interests of Child A. I am not persuaded there is any particular urgency in these proceedings. A review of the chronology, would suggest each party bear some responsibility, for the current situation.

63I will dismiss the father’s application, and make orders for Dr A to prepare an updated report. I do not intend to make orders with respect to the documents to be provided to Dr A, which were not the subject of any detailed submissions. It would not appear that aspect is likely to be controversial.

64I will cause these Reasons to be distributed from chambers, to allow the parties an opportunity to consider whether any further orders are sought, in light of my determination. The parties will have the opportunity to make further enquiries with Dr A to ascertain when her updated report is likely to be available, and based upon that indication, consider whether orders should be made with respect to the trial.

65I do not consider it would be procedurally fair to either party, nor consistent with the Rules,[41] for Dr A to provide an updated report orally at trial, or a report effectively on the eve of a trial, as was suggested throughout the hearing. The parties should have the benefit of Dr A’s report well in advance of the trial. That will afford each of them the opportunity to pose any questions in accordance with the Rules.[42] It is hoped that upon receipt of the report, the parties can explore whether any agreement can be reached, which may lead to a resolution of matters. Such an outcome would undoubtedly be in Child A’s best interests. I decline to make an order as sought by the mother, in terms of paragraph 5.

FORM OF ORDERS

[41] Family Court Rules 2021 (WA) r 273(1).

[42] Family Court Rules 2021 (WA) r 292.

66Subject to hearing from the parties, I propose to pronounce orders as follows:

1.The Applicant’s Form 2 Application in a Case filed 2 August 2022 be dismissed.

2.The Single Expert Witness, [Dr A] prepare an updated report, with the parties’ to share equally the costs, except in relation to any cancellation fee incurred, which is to be paid by the party who cancelled the appointment or caused the appointment to be cancelled.

3.Paragraphs 3, 5, 6 and 7 of the Respondent’s Form 2A filed 22 August 2022 be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

7 SEPTEMBER 2022