Shamon & Shamon (No 8)
[2023] FedCFamC1F 216
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shamon & Shamon (No 8) [2023] FedCFamC1F 216
File number: SYC 2375 of 2021 Judgment of: REES J Date of judgment: 30 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –Where the single expert sought to provide evidence to the judge alone – Principles of natural justice – Evidence must be properly before the court and available to all parties – Single expert to consider reissuing a report. Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 30 March 2023 Place: Sydney Solicitor for the Applicant: Mr Jacobs, LawBridge Lawyers & Consultants Solicitor for the First Respondent: Ms Brochut, Barkus Doolan Winning Independent Children's Lawyer: Ms Bleier, Steiner Legal Pty Ltd ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHAMON
Applicant
AND: MR SHAMON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
REES J
DATE OF ORDER:
30 MARCH 2023
THE COURT ORDERS:
1.That the parties communicate with the single expert by way of joint letter drafted by the Independent Children’s Lawyer (“the ICL”) and signed by the parties and their lawyers to request that the single expert meet with the children to explain that she is not able to provide information to the judge alone and following the meeting with the children the single expert give consideration to reissuing a report which contains details of the children’s views, age, maturity and any matters which relate to the weight to be attached to those views – which report may be provided to all parties in the parenting proceedings.
2.That the ICL provide a copy of these reasons to the single expert.
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 Shamon & Shamon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
REES J:
In this matter there are proceedings on foot relate, inter alia, to the parenting of the children of Ms Shamon (“the mother”) and Mr Shamon (“the father”).
An Independent Children’s Lawyer (“ICL”) has been appointed for the children and a single expert, Dr RR who is a child, adolescent, forensic and adult psychiatrist, has been appointed.
Dr RR conducted interviews in late 2022 and prepared a report dated 3 January 2023. Dr RR also provided an Addendum Report which stated, on the cover sheet that it was intended only for the presiding judge.
The Addendum Report contained evidence which was not contained in the body of the report which was released to the parties.
Dr RR’s report and the Addendum Report have been referred to me because it would be entirely inappropriate if the presiding judge was aware of evidence which was not available to the parties.
The matter is docketed to Christie J who will hear and determine the parenting proceedings.
Justice Christie has not read the Addendum Report.
On 7 March 2023, Christie J made orders releasing the report to the parties and further ordered that the matter be listed before me “in respect of paragraph 1060 of the single expert report”. Paragraph 1060 reads:
The assessments of [X] and [Y] are contained in “Addendum A” and is intended solely for Judge Christie or the presiding Judge. The document “Appendix 1 and 2” is an accompaniment to Addendum A and is intended solely for Judge Christie or the presiding Judge”.
Having read the Addendum Report, I am of the view that the evidence contained therein is relevant to the determination before the court.
It is a fundamental principle that judges make decisions, in contested proceedings, based only on the evidence properly before the court and that evidence must be known to all of the parties, who must be given an opportunity both to consider the evidence and to cross-examine the person from whom the evidence emanates.
The principles of natural justice do not permit evidence to be available only to the judge.
The orders that I will make are not intended to fetter or direct the single expert’s evidence or her expression of her expert opinion, but only to ensure that, whatever evidence the single expert gives, that evidence is to be available to all of the parties.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 30 March 2023
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