Rouanet & Mikatos (No 2)

[2023] FedCFamC1F 354

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Rouanet & Mikatos (No 2) [2023] FedCFamC1F 354

File number(s):	CAC 596 of 2022
Judgment of:	GILL J
Date of judgment:	9 May 2023
Catchwords:	FAMILY LAW - Appointment of a single expert
Division:	Division 1 First Instance
Number of paragraphs:	10
Date of hearing:	9 May 2023
Place:	Canberra
Solicitor for the Applicant:	Elringtons Lawyers
Counsel for the Respondent:	Ms Davis
Solicitor for the Respondent:	Vozella Lawyers

ORDERS

CAC 596 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MIKATOS

Applicant

AND:

MS ROUANET
Respondent

order made by:	GILL J
DATE OF ORDER:	9 MAY 2023

THE COURT ORDERS THAT:

1.Dr M is appointed as the single expert in this matter. 

2.I direct that the parties attend upon Dr M as required, either face-to-face or by video link. 

3.I direct that the father meet the cost of the preparation of the reports by Dr M and also the cost of the mother's travel, if the mother elects to travel for a face-to-face interview.

4.I direct that within 14 days of today's date the parties file and serve financial statements.

5.The costs of today are reserved to the trial of the matter.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. This matter concerns the application for an order for the appointment of a single expert.  The parties have identified that each faces psychiatric issues with the potential to bear upon the question of the parental capacity able to be offered by each of the parents, the benefits of meaningful relationship with the child offered by each of the parents, and the particular circumstances faced by the parents and the manner in which they will bear upon the psychiatric issues to undermine or enhance the parties’ capacity.  These issues emerge in a case where the psychiatric issues may be central and informative of the resolution of the international and domestic relocation issues that have arisen in the case.

2. The parties agree that each should be psychiatrically assessed as a necessary preparation for the hearing of the matter.  The issue in this instance is who should be the single expert in a context where the trial is shortly listed to commence on 26 June 2023. 

3. Two psychiatrists have been identified being Dr M and Dr N.  I infer from the interactions between the parties and each of these experts they both consent to their appointment as a single expert.  Each appears to be appropriately qualified and available to prepare a report prior to commencement of the trial. 

4. A number of differentials emerge in respect of these experts.  The first is that Dr M charges approximately $7,000 for the assessment of each of the parties, as opposed to Dr N who proposed to charge approximately half that amount.  The second is an issue as to time, in that Dr M indicates that he is able to release a report by 21 May 2023, as opposed to Dr N who was advised that she can release a report by 21 June 2023, which is less than a week prior to the commencement of the trial.

5. Further differential emerges in that while Dr N is able to undertake face-to-face assessment of each of the parties, due to the mother's unavailability on the day that Dr M is available, she is only able to take part in a video conference link, while the father would take part in a face-to-face assessment with Dr M.  A further potential differential arises in that Dr M has set aside an hour for the assessment of each of the parties, whereas Dr N has identified different days upon which the parties may attend, although it is not clear whether their attendance on those days is for a particular length of time being greater or less than the hour that has been allocated by Dr M.

6. There are strong factors that point in different directions.

7. In support of the appointment of Dr N, it is the features that the assessment would be face‑to‑face, that it would be at far lesser expense and that there is a potential that perhaps there will be greater time spent with each of the parties, although this is not clearly so. 

8. The matter which is in strongest favour of Dr M is that the report would be available at a much earlier stage, more than a month in advance of the trial.

9. Psychiatric issues facing the parties now loom large in the trial to an extent that they have not before.  They are matters that require careful consideration.  Due to their prominence in the trial, or potential prominence in the trial, due to their potential complexity due to the manner in which they might bear upon the various issues of the trial, the factor of the report being available at an earlier stage trumps the other benefits that would be seen with Dr N.  Given that the psychiatric assessment of the parties has the capacity to shape the whole case, the capacity of the parties to absorb, consider and determine how the case should be run in the light of potentially complex material coming from the psychiatric assessment tips what was a very fine balance in favour of appointing Dr M.

10. Whilst the default position is that the parties will equally make payment for a single expert, in this instance the father has indicated that he can meet the payment for the appointment of Dr M and has made an offer to meet airfares for the mother to attend upon Dr M face-to-face should she be able to elect to do so. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       9 May 2023