FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sloan & Bendon [2024] FedCFamC2F 76
File number(s): HBC 123 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 25 January 2024 Catchwords: FAMILY LAW – interim proceedings – whether expert evidence needed – appointment of medical single expert – applicant diagnosed with a medical condition – work and earning capacity in issue – whether neurologist or occupational physician suitable expert – order made for occupational physician to be appointed as single expert Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Dasreef v Hawchar (2011) 243 CLR 588
Keevers & Keevers [2021] FedCFamC1F 338
Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 24 January 2024 Place: Hobart Solicitor for the Applicant: Ms Dwyer, Butler McIntyre & Butler Solicitor for the Respondent: Ms Courtney, PWB Lawyers ORDERS
HBC 123 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SLOAN
Applicant
AND: MR BENDON
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.Dr B of C Clinic (“the Single Expert”) is appointed as Single Expert pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to assess Ms Sloan and to report addressing the Terms of Reference set out hereunder:
(a)The Single Expert is to adopt the contents of the report of Dr E, neurologist, dated 18 July 2023 as to the diagnosis of a medical condition, symptoms and prognosis, and examine and assess Ms Sloan (born in 1989) and report as to the following:
(i)The impact of her diagnosis, symptoms and effects on her employability and her capacity to obtain and maintain appropriate gainful employment whether that be full-time, part-time or casual employment.
(ii)The likely or possible employment for which she may be suited given her diagnosis, education, qualifications, skills or experience, now and in the foreseeable future.
(iii)What recommendations, if any, you are able to make as to treatment, therapy and management of her diagnosed medical condition and her potential re-entry to the workforce.
(iv)The rationale for the prescription of medication for treatment of a medical condition to Ms Sloan, and its effects on symptoms, prognosis and capacity for work.
(b)The Single Expert, Dr B, may gather information and opinion from Ms Sloan's treating neurologist, Dr D, for the purpose of assessing and reporting. For this purpose, Ms Sloan is to provide any necessary authority to Dr B within seven (7) days of such a request.
2.This Order is a general authority to the Single Expert to:
(a)Access any medical information in the name of Ms Sloan relevant to his inquiries in accordance with the Terms of Reference outlined in Order 1 of these Orders; and
(b)Contact and discuss Ms Sloan with anyone who is providing her with medical advice and treatment relevant to the…
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- Sloan & Bendon [2024] FedCFamC2F 76
- Case
- [2024] FedCFamC2F 76
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CaseChat Overview and Summary
The court considered the nature of the dispute and the necessity of expert evidence to properly evaluate the applicant's condition and its implications for her employment. The primary legal issue was to determine the appropriate type of expert to assess Ms Sloan's condition and its impact on her employability and capacity to work. The court had to balance the need for a comprehensive assessment with the practicalities of the proceedings, including cost and efficiency.
The court concluded that an occupational physician was the more suitable expert to assess Ms Sloan's condition and its impact on her work and earning capacity. The court reasoned that an occupational physician would be better equipped to address the specific issues related to Ms Sloan's employability and potential employment opportunities. The court further ordered that Dr B of C Clinic be appointed as the single expert to assess Ms Sloan and report on various aspects of her condition, including its impact on her employment and recommendations for treatment and re-entry to the workforce. The respondent was ordered to pay the full cost of the expert's assessment and report, with the applicant's share to be reimbursed upon the conclusion of the proceedings.
Orders
Orders of the court
HBC 123 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS SLOAN
Applicant
AND:
MR BENDON
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1. Dr B of C Clinic (“the Single Expert”) is appointed as Single Expert pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to assess Ms Sloan and to report addressing the Terms of Reference set out hereunder:
(a) The Single Expert is to adopt the contents of the report of Dr E, neurologist, dated 18 July 2023 as to the diagnosis of a medical condition, symptoms and prognosis, and examine and assess Ms Sloan (born in 1989) and report as to the following:
(i) The impact of her diagnosis, symptoms and effects on her employability and her capacity to obtain and maintain appropriate gainful employment whether that be full-time, part-time or casual employment.
(ii) The likely or possible employment for which she may be suited given her diagnosis, education, qualifications, skills or experience, now and in the foreseeable future.
(iii) What recommendations, if any, you are able to make as to treatment, therapy and management of her diagnosed medical condition and her potential re-entry to the workforce.
(iv) The rationale for the prescription of medication for treatment of a medical condition to Ms Sloan, and its effects on symptoms, prognosis and capacity for work.
(b) The Single Expert, Dr B, may gather information and opinion from Ms Sloan's treating neurologist, Dr D, for the purpose of assessing and reporting. For this purpose, Ms Sloan is to provide any necessary authority to Dr B within seven (7) days of such a request.
2. This Order is a general authority to the Single Expert to:
(a) Access any medical information in the name of Ms Sloan relevant to his inquiries in accordance with the Terms of Reference outlined in Order 1 of these Orders; and
(b) Contact and discuss Ms Sloan with anyone who is providing her with medical advice and treatment relevant to the Terms of Reference outlined in Order 1 of these Orders.
3. The parties will not provide any document to the Single Expert which has not been firstly agreed to in writing by the other party and for the purpose of engaging the Single Expert, the applicant’s solicitor is to confer with the respondent’s solicitor and prepare an agreed bundle of documents to be sent to the Single Expert.
4. The respondent must pay the total cost of the Single Expert’s assessment and report at the first instance, with the applicant’s share, being one half of the report, to be reimbursed to the respondent upon the conclusion of these proceedings.
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.
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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