Sedgley & Charton
[2024] FedCFamC1F 262
•17 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sedgley & Charton [2024] FedCFamC1F 262
File number(s): SYC 4446 of 2020 Judgment of: ALTOBELLI J Date of judgment: 17 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties disagree on which single expert should be appointed to prepare a report – Where the final hearing commences in four months – Whether a psychologist or social worker should be appointed – It is ordered that a psychologist be appointed to prepare a fulsome report and a social worker be appointed to prepare a specific report on Indigenous issues. Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 17 April 2024 Place: Sydney Counsel for the Applicant: Mr Macpherson Solicitor for the Applicant: Bridges Lawyers The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 4446 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SEDGLEY
Applicant
AND: MR CHARTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
17 APRIL 2024
THE COURT ORDERS THAT:
1.Pursuant to Division 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that Ms T (“the Single Expert”) Child and Family Psychologist, be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the children X born 2012 and Y born 2018.
2.That the parties shall:
(a)Attend all appointments made with the Single Expert.
(b)Ensure the attendance of the children at such times and dates as directed.
(c)Comply with all reasonable directions and requests made by the Single Expert to assist her in the preparation of the Report.
(d)Do all things to ensure the attendance of their current partner (if any) and any other person/s who live in the same household as the parents, should the Single Expert request to interview said persons.
3.That in preparing the Report, the Single Expert be requested to consider the following matters:
(a)The benefit of the children having a meaningful relationship with both of their parents;
(b)Whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
(c)Any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(d)The relationship between the children and each other and with each of their parents and any other relevant person;
(e)The extent to which each of the children’s parents have taken or failed to take the opportunity:-
(i)to participate in making decision about major long term issues in relation to the children; and
(ii)spend time with the children; and
(iii)communicate with the children;
(f)The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
(g)The likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
(h)The practical difficulty and expense of the children spending time with and communicating with either parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
(i)The capacity of each of the children’s parents and any other person, including a grandparent or relative to provide for the needs of the children including their emotional and intellectual needs;
(j)The maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the children and either of their parents and any other characteristics of the children that the single expert thinks is relevant.
(k)The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
(l)The impact of any family violence involving the children or a member of the children’s family; and
(m)The state of each of the parent’s mental health and, if any issue is identified:
(i)The nature, intensity and impact of the issue and the impact, if any, upon their parenting capacity;
(ii)What treatment or services are recommended to address any identified problem; and
(iii)The willingness of either of the parents to address any identified problem.
(n)Whether the children and/or parents require individual or family therapy, and if so:
(i)which type of therapy,
(ii)which type of mental health or other provider would be most suitable; and
(iii)what issues should such therapy target.
(o)The desirability and likely effect of each parent’s proposal for parenting arrangements.
(p)Any recommendation as to the live with and spend time with arrangements which may be appropriate including any plan in respect of the reintroduction of spend time arrangements between the children and the father.
(q)Any other matter the Court / Single Expert considers relevant.
4.Order pursuant to Division 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that Ms U (“the Single Expert”), be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the children X born 2012 and Y born 2018.
5.That the parties shall:
(a)Attend all appointments made with the Single Expert.
(b)Ensure the attendance of the children at such times and dates as directed.
(c)Comply with all reasonable directions and requests made by the Single Expert to assist her in the preparation of the Report.
(d)Do all things to ensure the attendance of their current partner (if any) and any other person/s who live in the same household as the parents, should the Single Expert request to interview said persons.
6.That in preparing the Report, the Single Expert be requested to consider the following matters:
(a)the children’s right to enjoy their Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(b)the likely impact any proposed parenting order under this Part will have on that right;
(c)Any other matter the Court / Single Expert considers relevant.
7.The parents shall be responsible for:
(a)Payment of the costs of preparation of the report in equal shares; and
(b)The Single Expert’s additional costs including, but not limited to, subsequent attendance at Court (if required), noting that any subsequent attendance at Court may incur costs for attendance at Court, considering further material filed by or on behalf of the parties, any additional interviews required and considering further documents which may be produced pursuant to a subpoena.
8.To facilitate payment of the costs of preparing the report, the mother and the father shall each:
(a)By 17 April, 2024 each of the parties pay into the Trust Account of Legal Aid NSW the sum of $10,494.00) for the costs of preparing the reports (a total sum of $20,988.00).
(b)In the event that there is a shortfall the father and the mother are to pay such additional sum to meet the costs of the Single Expert within 21 days of a request by Legal Aid NSW.
(c)The Single Experts shall not each be required to release her respective report to the Court until payment for that report has been made.
9.In the event that the Single Expert is required for cross examination by any party, including the Independent Children’s Lawyer, at any hearing in these proceedings:
(a)21 days prior to any final hearing dates in the matter, the mother and the father shall do all acts and things to pay into their solicitor’s trust accounts, money to cover half of any payments required to cover the Single Expert’s additional costs.
(b)Any costs shall be paid within 7 days of receipt of a Tax Invoice from the Single Expert.
(c)In the event that there remain monies available subsequent to the receipt of the memorandum of fees from the Single Expert these monies are to be returned to the father and the mother in equal shares.
10.That leave be granted to the Independent Children’s Lawyer to have photocopy and electronic access to material produced under subpoena for the purpose of providing the same to Ms T and Ms U and that the fees in respect of that photocopying be waived.
11.The father and the mother shall do all acts and things to authorise any mental health practitioner attended by the parents and/or children to speak with the Single Expert.
12.In the course of preparation of their report, the Single expert is authorised to speak to and obtain information from any school teacher, or school Principal, or school counsellor of the children.
13.The mother and/or father shall each be restrained from providing any material to the Single Expert without the written consent of the other party and the Independent Children’s Lawyer.
14.That the Independent Children’s Lawyer has leave to relist the matter on 7 days’ notice before The Honourable Justice Altobelli in the event either party failed to comply with order 8 or in relation to settling the Letter of Instruction to the Single Expert.
THE COURT NOTES THAT:
A.The Independent Children’s Lawyer is under no obligation to brief the Single Expert in terms of Order 1 above until there has been compliance with the Order 8.
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 Sedgley & Charton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
In this matter, I provide the following short ex-tempore reasons. By way of background, this is a long running matter. It is now in its fourth year and it involves two children, X who is 11, and Y who is five (“the children”). The children live with their mother (“the mother”) and currently do not spend time with their father (“the father”).
The matter is listed for hearing for five days commencing 26 August 2024. On my reckoning, this is either the third or the fourth court event where I have tried to establish what orders should be made for a single joint expert or experts in this matter. I recall in one of my first court events involving the father, he explained to me with deep commitment and passion that he was concerned about the welfare of the children in the care of the mother. Of course, the welfare of the children is the most important consideration in this case, and it is certainly the foremost consideration for this Court in deciding what is the best expert evidence to assist the Court in making a decision in what is a complicated but a very important case for both parents.
The matter was listed as early as the Court possibly could, in circumstances where dockets are crowded and there are many other complex and challenging cases that require the Court’s attention. It is critically important that this matter be heard and that there be the right expert evidence before the Court. A number of options have been raised, not just today, but on previous occasions. The options today seem to come down, in practical terms, to a choice between Mr E, who has already provided a report in this case, or Ms T and Ms U, or Ms U.
I am not prepared to make an order that Mr E be reappointed. He does not enjoy the father’s confidence. The father has made a complaint against him and in those circumstances, I am not going to appoint him. Ms T is a single joint expert child psychologist who has frequently given evidence in the Federal Circuit and Family Court of Australia. Ms U is a Regulation 7 Family Consultant who also apparently has given expert evidence in this Court, but her particular specialty, and this is the reason why she was suggested by Ms Smith the Independent Children’s Lawyer who caused this matter to come before the Court, is in indigenous issues.
I acknowledge this is an important issue in this case. The father suggested that Ms U could provide the report in its entirety. Indeed, he very generously offered to pay the entire cost. It is a generous offer, given that the cost is unknown, but nonetheless, he has made that offer. Both Mr Macpherson for the mother and Ms Smith for the children have expressed concern about that on the basis that psychological issues and mental health issues have been raised so far in this case, including, in the submissions made by the father himself. I think it would be much more difficult to make that decision in the best interests of the children if I did not have the requisite expertise. It is not just my experience, but I believe it is also consistent with the cases, that the weight that can be given to the evidence of a social worker about mental health issues is probably less than the weight that can be given to a psychologist about mental health issues.
In the circumstances, I am going to make the order proposed by the Independent Children’s Lawyer which sees the appointment of Ms T and Ms U. I am satisfied that for the children’s case, it is in their interests and that provides the best chance of getting the expert evidence we need and importantly, getting it in a timely fashion. The effect of the order will be that each party pays half of the cost of this. Given that the father has offered to pay the entire cost of Ms U, I am going to infer in the circumstances that that is an order that he could manage somehow. An issue has arisen about the practicalities of the appointments. I cannot get involved in that. I am going to have to leave it to the parties and the Independent Children’s Lawyer to sort out the practical details of that.
For the reasons that I have articulated, and particularly from the perspective of maximising the opportunities of the evidence being ready for a final hearing commencing 26 August, I am going to make the orders in terms of that proposed by the Independent Children’s Lawyer, in a document that I have marked “A”, initialled and dated today’s date. I was intending to make trial directions today, but I am in the middle of a final hearing. I need to go back to that. I will do this in chambers if necessary and consider whether the matter should come back for case management before the hearing itself.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 17 April 2024. Associate:
Dated: 17 April 2024
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