Sandwell and Sandwell
[2019] FamCA 320
•3 May 2019
FAMILY COURT OF AUSTRALIA
| SANDWELL & SANDWELL | [2019] FamCA 320 |
| FAMILY LAW – EVIDENCE – Expert evidence – Where the father seeks leave for the appointment of another expert witness – where the mother is seeking that the father’s application be dismissed – where there is currently an expert witness appointed by the court – where the professional opinions and recommendations of the single expert have most serious implications for the children – where the expert report recommended that the father engage in consistent psychiatric treatment with a qualified psychiatrist on a regular basis for at least five years – where the father lacks insight into his own illness – where the father attended upon a psychiatrist for an exclusively forensic purpose and then filed an affidavit of this psychiatrist with the Court – where its conclusions significantly differ from those drawn by the Court appointed single expert – where the psychiatrist did not have access to any other materials in the preparation of the report – where there is the risk that the father provided information in the report that was supportive of his desired outcome – where such report would likely have been refused admission if it was the only evidence put forward by the father because the psychiatrist is not a treating practitioner – where the issue to be considered by the Court is whether the father can present as mentally well when he is motivated to do so whilst suffering from a psychiatric illness – where the gravity of this situation means that there is special reason for the admission of the report – where the special reason needs to be more than a difference of opinion – where the diagnosis and recommendation of the single expert dooms the father to either supervised time or being excluded from the children’s lives – where the relationship between the children and the father is at stake – where the report is relevant on the subject of mental health. |
| Warsow & Warsow [2009] FamCA 1037 Hillier & Wootton [2016] FamCA 217 Bowen & Williams [2015] FamCA 545 Re W & W (Abuse Allegations; Expert Evidence) [2001] FamCA 216 |
| Family Law Rules 2004 |
| APPLICANT: | Ms Sandwell |
| RESPONDENT: | Mr Sandwell |
| INDEPENDENT CHILDREN’S LAWYER: | Foat Roberts Legal |
| FILE NUMBER: | NCC | 3665 | of | 2017 |
| DATE DELIVERED: | 3 May 2019 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 26 April 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page SC |
| SOLICITOR FOR THE APPLICANT: | Legal Aid NSW Newcastle Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Cummings SC |
| SOLICITOR FOR THE RESPONDENT: | Mullane and Lindsay |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Foat Roberts Legal |
Orders
Pursuant to Rule 15.49(2)(c) of the Family Law Rules 2004 leave is granted to the father to adduce evidence from Dr H in relation to the mental health of the father (and no other issue), being evidence contained in a report dated 2 April 2019.
The parties shall in accordance with Rule 15.69 of the Family Law Rules 2004 arrange for the Single Expert Dr C to confer with expert witness Dr H with the costs of that conference to be met by the father.
The Independent Children’s Lawyer shall provide a copy of these orders and reasons to the Single Expert witness Dr C and to Dr H.
It is further ordered that
It is anticipated that the hearing of the wife’s application pursuant to s 90K of the Family Law Act 1975 will be listed for 2 days commencing at 10.00 am on Thursday 25 July 2019, which dates have been placed on hold NOTING that the dates are overlisted.
The Court notes that
(A)The parties will advise the Registrar at the directions hearing on 15 May 2019 whether the proposed hearing dates are acceptable NOTING counsel for the mother is available on those dates.
(B)In the event that the parties cannot agree on the terms for the conference of experts or there is an issue arising from the proposed hearing dates, the matter can be relisted on short notice.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandwell & Sandwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A (b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3665 of 2017
| MS SANDWELL |
Applicant
And
| MR SANDWELL |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
Introduction
This is an application filed on 5 April 2019 by Mr Sandwell, the father, for the appointment of another expert witness pursuant to r 15.49 of the Family Law Rules 2004.
The matter came before me on 26 April 2019 in a duty list, and the decision was reserved.
There is, in this matter, a report by a single expert dated 8 August 2018 and a supplementary report dated 28 January 2019. The expert is Dr C, consultant forensic child adolescent generalist psychiatrist. The single expert Dr C was appointed on 17 May 2018 pursuant to r 15.09 of the Federal Circuit Court Rules 2001 by a judge of that Court.
The respondent, Ms Sandwell, the mother, opposes the application of the father. By her Response to an Application in a Case filed 12 April 2019, the mother proposes dismissal of the application.
The Independent Children's Lawyer did not oppose the appointment of a further expert witness. In the event the Court permitted reliance on another report, the Independent Children's Lawyer pressed for a direction that the experts should, to use his words, “caucus as soon as possible”.
The relevant rule is r 15.49.
Evidence
The documents relied on in the application are as follows:
The [Applicant]
(a)Application in a Case of the father filed 5/04/2019;
(b)Amended Response on a final basis filed 23/01/2019;
(c)Affidavit of the father filed 11/10/2018 as to paragraphs 48, 49 and 56;
(d)Affidavit of the father filed 5/04/2019;
(e)Affidavit of Dr H filed 17/04/2019;
(f)Written submissions on behalf of the applicant father;
The [Respondent]
(g)Response to an Application in a Case filed 12/04/2019;
(h)Affidavit of the mother filed 12/04/2019;
Reports
(i)Single Expert Reports by Dr C dated 8/08/2018 and 28/01/2019.
Brief History of Relevant Events
There are two subject children, girls aged three years and 18 months respectively. They presently both live with their mother. The parties met in Country G in 2012. The mother is a Country G citizen. They married in early 2015, separated in or around October 2017, a few weeks before the birth of the second child. The parties are now divorced.
Litigation commenced on 24 November 2017 with an Initiating Application in the Federal Circuit Court (“FCC”) by the mother for parenting and other orders. The application was filed a few days before the birth of the second child.
Various interim orders have subsequently been made which will not be identified with particularity in these reasons.
From August 2017 the older child lived with the father. The circumstances giving rise to that arrangement will likely be an issue at final trial.
On 17 May 2018 with the consent of all parties, the single expert was appointed to report on a range of parenting issues and the mental health of the father. A report dated 8 August 2018 was forwarded to the FCC by the single expert.
Transfer from the FCC
On 3 September 2018 before the report was released, the proceedings were transferred to this Court.
On 3 October and 10 October 2018, the report was released first to the Independent Children's Lawyer and subsequently to the parties. By consent, the father was authorised to provide a copy of the single expert report to his father, Mr J Sandwell.
Single Expert Report
The professional opinions and recommendations of the single expert have most serious implications for the children and both parties. The assessment of the father included assessment of his conduct with the children during observations[1] and also about the father’s expressed fears about the safety of the children in the care of the mother. [2]
[1] Single Expert Report dated 8/08/2018, line reference 110 and 150
[2] Single Expert Report dated 8/08/2018, line reference 270 and 280
The single expert reported on the mental health history of the father dating back to age 18. He described the father in response to questions about that history as “guarded in his manner and prevaricated when answering”.[3]
[3] Single Expert Report dated 8/08/2018, line reference 329
There was an analysis of the subpoenaed material both as to the father’s mental health and criminal records contained within the report. There is a reference to the 2003 episode for the father, an acute psychotic episode, secondary to substance abuse, possibly bipolar affective disorder. The single expert went on to touch on other episodes of mental ill health in March 2007,[4] in 2012 and, perhaps, on 16 September 2015 when the father was taken to see Dr L by the paternal grandmother.
[4] Single Expert Report dated 8/08/2018, line reference 480
In August 2017, the father’s general practitioner Dr M referred him to a psychologist, and it is noted in the report that the father did not comply with the medication that was prescribed and did not consult the psychologist.
Weeks later, the general practitioner again referred the father to the psychologist and, again, it is noted he did not attend. Also canvassed in the report is the father’s request to a general practitioner for letters about his concerns about the health of the children in the care of the mother and attendances on doctors in March and May of that year.
The report also canvasses the father’s allegations against the mother lying and stealing $50,000 from him to buy apartments in Country G. The single expert reported that the father was “strictly defensive, guarded and vague”. Significantly, the single expert reported that the father was “insistent in his unshakable belief that the children were being harmed by the mother.”[5]
[5] Single Expert Report dated 8/08/2018, line reference 660
The recommendation of the report[6] was that the father engage in consistent psychiatric treatment with a suitably qualified consultant psychiatrist for at least fortnightly for five years. The opinion was that the father would need antipsychotic medication by injection due to his reluctance to accept the need for it.
[6] Single Expert Report dated 8/08/2018, line reference 719
The reporter considered that the father lacked insight into his own illness. In relation to the children, the single expert found that there was a strong emotional bond to both parents, more towards the mother and that neither of the children were aligned to either parent. The diagnosis by the single expert was as follows:[7]
The father has underlying persistent delusions regarding the mother freely voiced in front of the children which is emotionally harmful to them, that the father suffers the following differential diagnoses: has psychiatric diagnoses as per DSM-5 consistent with delusional disorder (multiple episodes currently in acute episode, untreated, persecutory and grandiose type) and alcohol, cannabis and amphetamine use disorders (in reported remission). The differential diagnosis to delusional disorder was schizophrenia with a prognosis for slow improvement over years, even if an identified medication regime was complied with.
[7] Single Expert Report dated 8/08/2019, pages 22-23
On 11 October 2018, orders were made by her Honour Justice Rees imposing a restraint on the father photographing the children for the purpose of demonstrating harm by their mother.
The interim applications were adjourned for hearing before his Honour Justice Austin.
On 26 October 2018 Austin J made orders pending further order for both children to live with the mother and the father to have defined supervised time with the children. Also, an order was made as follows:
[15] Leave is granted to the father to furnish to his intended treating psychiatrist, Dr [E] a copy of the single expert report dated 8 August 2018.
On or about 30 October 2018, the father instructed his solicitors to submit questions to the single expert. The thrust of the questions was a challenge to the factual bases relied on by the single expert in concluding that the father suffered the differential diagnoses as set out above.
On 15 November 2018, the father lodged an appeal against the interim orders of Austin J of 26 October.
On 22 November 2018, the father attended on Dr E, whom he had advised the Court would become a treating practitioner.
On 4 December 2018, the father is reported by Dr E to have attended on him for a second time.[8] The leave granted on 26 October 2018 for the father to provide Dr E with a copy of the single expert report may have been taken up, but there is no evidence of that happening either from the father in his affidavit material or from Dr E in his report annexed to the father’s affidavit dated 4 February 2019.
[8] Exhibit 1
An extension of time was granted for the administration of questions to the single expert.
On 7 December 2018, 23 questions were forwarded in a letter from the solicitors for the father to the single expert, and he was asked to respond within 21 days. That proved to be impractical.
On 4 January 2019, Dr E, wrote to the father asking if the father wished to return to see him.[9] The doctor noted the two attendances by the father on him in November and December 2018. There is no reference to receipt of the single expert report. There is also no evidence before me of the father’s response to Dr E as to his treatment intentions or at all.
[9] Ibid
On 23 January 2019 before the responses to the questions were received, the father filed an Amended Response proposing that the parents share parental responsibility, that the children live with him and spend time with the mother on a three-day/two-night block each week. There were other orders.
On 28 January 2019 in a report titled Strictly Confidential Supplementary Forensic Child Psychiatric Court Report, the single expert responded to the questions of the father. The responses to questions did not reveal any change in the single expert’s opinion as to diagnosis. There is information provided of conversations with the paternal grandparents, who appeared to be fully supportive of the father but not entirely supportive of all his factual assertions.
On 4 February 2019, Dr E provided a report to the father’s general practitioner.[10] That report concluded that the father did not have delusional disorder, was well, and had no need for psychiatric treatment. There is no reference to what prompted the report back to the general practitioner or whether it was a response from the father to his request or something else.
[10] Affidavit of the father filed 5/04/2019, annexure 1
On 5 February 2019, the Full Court of the Family Court upheld, in part, the appeal of the father. Orders (4), (5) and (6) relating to supervised time for the children with the father through a contact service was set aside. Days and times were slightly varied, and supervision was lifted.
On 22 March 2019, solicitors for the father sent an urgent letter to Dr H, psychiatrist, noting that the father had an appointment with the doctor at midday on that day. It is apparent that the appointment was for an exclusively forensic purpose. No application had been made for release of the report for treatment purposes. It was clearly not the intention. The letter contained eight questions for the doctor to answer. The questions related, as to the first five, to diagnoses, treatment and prognosis. The other three questions related to opinions on the impact of any mental health condition of the father on his capacity as a parent.
On 5 April 2019, the father filed the current Application in a Case and an affidavit of the expert witness, Dr H. Annexed to that affidavit was a report dated 2 April 2019 described as an independent medical assessment of Mr Sandwell (the father). Dr H is a psychiatrist and addiction specialist.
The report did not acknowledge the possibility of the father providing information supportive of his desired outcome, which might have been expected in such a forensic setting. There was no reason, of course, why Dr H should understand the process of the appointment of a single expert and what is involved. Of course, also, Dr H had not had access to the single expert report, although he had been told some things about it by or on behalf of the father.
Dr H had no access to the subpoenaed material, particularly relating to the mental health of the father between 2003 to date, nor any of the other subpoenaed material, affidavits, court orders, reasons from the FCC which had been supplied to the single expert, nor information from the paternal grandparents.
Dr H interviewed and assessed the father on 22 March 2019. He took a social history in the way that is usually done. Provided to the doctor in a letter dated and apparently delivered on that day was a chronology of events, including a summary of episodes of ill health, current drug testing results and three pieces of correspondence from the solicitors for the father in July and August 2018 raising alleged injuries to the children and requiring the mother to provide explanations. The eight questions were asked as outlined above.
The information provided by the father to Dr H differs from the information provided to the single expert in certain respects. For instance, the father is reported to have said prior to 26 October 2018 he had primary custody of his children and there were no concerns regarding his ability to care for them. The parties, in fact, lived together until about August 2017 and after the mother returned from overseas the older child remained living with the father. The younger child has at all times lived with the mother. There was also the order of Rees J restraining the father from taking photographs of the children to establish harm. There was apparently no reference made to the fact that the father’s new partner had been the older child’s nanny when the parties were together. The father reported that the mother took in excess of $20,000, rather than $50,000, and said that it was to send money back to Country G. This is in comparison to the father reporting the mother stealing $50,000 to buy several apartments in Country G and lying about it.
There are other disparities between the information given to the single expert and to Dr H. Dr H reports as follows, “I understand that he has been seeing a psychiatrist, Dr E, for several months.”
It raises the inference, but may not be the case, that Dr H believed that the father had received from Dr E or had attended on him on more than two occasions. That is not supported by evidence and will be a matter for final trial. In fact, the father had been seen twice, and also gave Dr E a social history. Dr E had regarded him as well on the two occasions that he was seen.
Dr H also refers to the father having seen a doctor who, he reports, found no mood disorder. In fact, on 16 September 2015 the father was seen by Dr L, psychiatrist, whose report became exhibit 2.
There is no explanation in that report as to why the father was being assessed at that time. Dr L refers to a difficult interview, as the father was “defensive and I suspect had no wish to be assessed…what was distinctive across the interview was his poor memory.”
At that time, Dr L recorded that the father had no general practitioner. He recommended that the father obtain a general practitioner who could undertake investigations to pursue drug or alcohol damage to his liver and brain. Ideally, there should be a brain MRI.
I note that this letter was provided to Dr C, the single expert, and was referred to in the list of material provided to Dr H. The original documents were not supplied in addition to the summary.
The opinion section of Dr H’s report stated that the father did not have a psychiatric diagnosis consistent with delusional disorder or schizophrenia. Further, it stated that the father did have a psychiatric diagnosis of alcohol use disorder, cannabis use disorder, cocaine use disorder of the severe type, probably abstinent long-term. Thus, it is apparent that there is clear disagreement by Dr H with the diagnosis of mental illness by the single expert but, generally, agreement as to the impact of drugs.
Conclusion
Such a report as prepared by Dr H would likely be refused admission if it was the only evidence put forward by the father as to his mental health. The reason for that is that it is not a report from a treating practitioner and, in the forensic setting, the doctor did not have the advantage of input from the mother, the children, subpoenaed material, historical information and information from the paternal grandparents. In that sense, the report represents largely a re-telling by the doctor of what the father had said to him.
There are no reservations expressed by the doctor about the possibility of distortions and lack of candour as a consequence of the father very much wanting to achieve a result in litigation. Nevertheless, the significant point is that the father presented to Dr H, in the doctor’s view, as mentally well on that day.
The issue for the Court is that, if the father does have a delusional disorder or schizophrenia, could he present well through motivation to do so, or chance, or remission, and the provision of information similar, but not the same, as that given by him to the single expert?
The Court would be assisted on that issue. Would it be possible or not for the father, motivated to present well, to be capable of doing so whilst, in fact, suffering a delusional disorder or schizophrenia?
This is the gravity referred to in the decision of Warsow & Warsow by Ryan J,[11] which elevates this matter into the category (c) of special reason. Could the father be ill, but in remission? I accept submissions that the admission of a second report will likely see extended trial time. Time will be spent on factual differences between what the father told the single expert, Dr H and perhaps even Dr E.
[11]Warsow & Warsow [2009] FamCA 1037 par 25
On behalf of the father, it was said that it would be impossible to get another perspective. In my view, Dr E was that path as a potential treating practitioner. The father could have been provided the report and been completely open to the possibility that he was suffering an illness into which he had no insight. This is a powerful factor against allowing for Dr H’s report to come into evidence.
However, what is at stake is the relationship, or not, between the father and the children, now aged three and one. Either the father is mentally well, or he is mentally ill and does not believe or accept that it is so. And it is not, in my view, a case where there are just differences of opinion, although there clearly are differences of opinion.
I have considered the judgments of Watts J in Hillier v Wootton[12] of 4 April 2016, and Tree J in Bowen & Williams,[13] and respectfully agree that a simple difference of opinion, and even as to prognosis, would not be sufficient to persuade the Court to exercise a discretion to permit another expert report. It is not the case here that there is a substantial body of opinion. Otherwise, there are different conclusions by the single expert and Dr H.
[12]Hillier & Wooton [2016] FamCA 217
[13]Bowen & Williams [2015] FamCA 545
The special reason is that the submission on behalf of the father is that the diagnosis and recommendation of the single expert dooms him to limited supervised time with his children, if there is to be any time at all, or, at worst, exclusion from their lives.
The father does not deny problematic mental health since at least 2003. He cannot, given the material produced on subpoena and the information supplied by his parents. The father has chosen not to be open with Dr E and, apparently, not to give him the single expert report. He did not, of course, have to accept the recommendations of the report, but he could have taken that course. He chose not to. I am unable to conclude whether that is because he is well, as Dr H says, and behaving rationally, or is mentally ill and lacks insight, as the single expert has concluded.
In those circumstances, the special reason for the expert opinion on mental health is established. In relation to those parts of the report that relate to parenting, they should be excised from the report. The lawyers for the father acknowledged that the report was relevant on the subject of mental health.
For reasons which should be well-known arising from the authority of Re. W Abuse Allegations; Expert Evidence (2001) FLC 93-085, the assessment in the circumstances where neither the other parent nor the children were seen, could not assist the Court.
The single expert should probably be provided with the report of Dr H, and Dr H perhaps should get the report of the single expert, but I have decided to give the parties the opportunity to arrange a conference between the two psychiatrists, and in the event they cannot agree on how to go about that, the matter can be relisted.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 3 May 2019.
Associate:
Date: 3 May 2019
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