Sanyal & Sanyal
[2022] FedCFamC1F 564
•8 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sanyal & Sanyal [2022] FedCFamC1F 564
File number(s): SYC 3831 of 2022 Judgment of: CHRISTIE J Date of judgment: 8 August 2022 Catchwords: FAMILY LAW – INTERIM ORDERS – where previous orders were made appointing a single expert – where subsequent orders were made for the nomination of a different expert – where the father wishes to retain the first expert appointed – where the mother opposes this Legislation: Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 8 August 2022 Place: Sydney Solicitor for the Applicant: Mr Holmes, Holmes Donnelly & Co Solicitors Solicitor for the Respondent: Mr Long, Clinch Long Woodbridge Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 3831 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SANYAL
Applicant
AND: MS SANYAL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
8 AUGUST 2022
THE COURT ORDERS THAT:
1.Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Dr B be appointed as a Single Expert Witness (“the Single Expert”) to enquire into and report upon issues relating to the welfare of X (also known as Y), born in 2015 (“the child”).
THE COURT NOTES THAT:
A.The Single Expert has availability to conduct interviews on or around July/August 2023.
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 the pseudonym Sanyal & Sanyal is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
Mr Sanyal (“the father”) and Ms Sanyal (“the mother”) (“the parents”) have one child born in 2015.
At issue in the proceedings are the arrangements in respect of that child. The child’s name as it appears on the birth certificate is X. At birth, there was no issue as between the parties that the child was male. It has emerged in the context of this litigation that the mother asserts that the child identifies as female and wishes to use the name Y. Very little evidence has been filed in the proceedings to date but it appears as though the mother and the father are not necessarily of the same view in respect of how this issue should be approached in the future. The father’s affidavit material may be read as suggesting that he believes the child’s current presentation is a consequence of actions taken by the mother. The court is not in a position to reach a conclusion about which of the parents’ positions is more accurate.
The mother’s affidavit material also raises matters which, if accepted, would constitute serious family violence. The father for his part denies these allegations.
The father alleges the mother suffers from a mental illness.
On 30 January 2022 there was an incident. The father was charged with common assault for an assault on the child. An Apprehended Domestic Violence Order was made for the protection of the child. It is not apparent from the material whether the assault proceedings have been finalised.
Accordingly the parties have called upon the Court to adjudicate any dispute which they have in respect of parenting issues.
On 12 July 2022 a Judicial Registrar made orders as follows:
Part 7 Single Expert Report (Private Child Impact Assessment)
42. Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that [Dr C] be appointed as a Single Expert Witness (the Single Expert) to enquire into and report upon issues relating to the welfare of:
a. [X] (also known as [Y]), born in 2015;
(the child)
AND IT IS NOTED THAT the Single Expert has availability to conduct interviews on or around 21 September 2021.
The matter then came before her Honour Judge Boyle on 21 July 2022 at which time each party made submissions in respect of the expert order and the mother contends that the existing order was discharged. The Independent Children’s Lawyer (“the ICL”) was directed to provide the names of three child and family psychiatrists for the parties to consider.
Ultimately, the ICL provided one name to the parties, Dr B (“Dr B”). I was told it was difficult to find other experts.
The matter came before me for case management on 2 August 2022. At that time the father’s legal representation had recently changed. The father sought that the Court confirm the appointments which had been allocated with Dr C (“Dr C”). The mother continued to object to Dr C’s appointment and initially asked that the process set out by Boyle J on 22 July 2022 be followed. At the hearing the mother agreed to appointment of Dr B.
I raised with the parties the importance of each of them and the Court having confidence in a report by a single expert. Confidence in a report by a single expert may ideally assist parties to resolve disputes or, if that is not possible, to narrow the issues.
I directed the ICL to make an enquiry of Dr C as to his qualifications and experience to provide expert evidence in respect of a case involving gender dysphoria/gender identity issues.
The ICL, in accordance with the directions, sought that information and was informed “[Dr C] has experience and training” but will not provide any further details. While I accept that Dr C was well within his rights to decline to provide the information and was not obliged to provide any information about the treatment of patients, it would have been of utility if he were able to provide, in the nature of a curriculum vitae, details in respect of the training he sees is relevant to the provision of the expert evidence particularly as it relates to gender identity/dysphoria.
The orders for appointment of Dr C were interlocutory in nature. Those orders may be discharged.
When the matter was listed for argument, Mr Holmes, solicitor for the father, said he accepted both Dr B and Dr C were appropriately qualified. He said the matter turned on the availability of the experts and their cost. Dr C was likely, on balance, to be less expensive than Dr B. I accept that on the basis of the limited evidence before me.
The most significant difference was availability. Dr C was available in September (later amended to October) 2022 while Dr B was not available until July/August 2023. The issues in this case are serious and complex. The father contended they were also urgent. At present there is no time occurring between the child and the father as a consequence of the orders of Boyle J dated 22 July 2022 which provide for the child to live with the mother. An interim decision by the Court is not determinative of the final outcome and accordingly, I accept the submission that if, on testing of the evidence in due course, there should be time between the child and father then the Court should work with the parties to minimise any delay in reaching final hearing.
The above conclusion would have led to my appointing Dr C but for the receipt (by consent) of correspondence after I reserved my decision, which indicated that Dr C had now declined the appointment as single expert. This is unfortunate.
However, the parties will have the benefit of the Child Impact Report previously ordered with interviews scheduled for November 2022.
I note both parties accept Dr B is qualified. I will make orders appointing Dr B.
I ask that the ICL ask Dr B to place the parties on a cancellation list to ensure that if an earlier appointment becomes available it is offered to this family.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 8 August 2022
0
0
1