Sandwell and Sandwell - [2019] FamCA 320

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

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…

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 Sandwell and Sandwell

Details

AGLC: Sandwell and Sandwell [2019] FamCA 320
Case: [2019] FamCA 320
Decision Date: 3 May 2019

CaseChat Overview and Summary

In the matter of *Sandwell and Sandwell*, heard before Cleary J, the father sought leave to adduce evidence from Dr H concerning his mental health, contained within a report dated 2 April 2019. The wife's application pursuant to s 90K of the *Family Law Act 1975* was also before the court.

The primary legal issues before the court were whether to grant the father leave to adduce the report from Dr H, and how to manage the process of expert evidence and the listing of the hearing. The court was also required to consider the practical arrangements for the case, including expert conferences and hearing dates.

Cleary J granted the father leave to adduce evidence from Dr H, specifically limited to the father's mental health. The court further ordered that the single expert, Dr C, confer with Dr H, with the costs of this conference to be borne by the father. The Independent Children’s Lawyer was directed to provide copies of the orders and reasons to both experts. The court anticipated the hearing of the wife's application would be listed for two days commencing 25 July 2019, with the parties to confirm their availability at a directions hearing on 15 May 2019. Any disagreements regarding the expert conference or hearing dates were to be addressed by relisting the matter on short notice.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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