Sloan & Bendon
[2024] FedCFamC2F 76
•25 January 2024
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
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
These property proceedings commenced in February 2023. There is no dispute that the parties were in a de facto relationship within the meaning of the Family Law Act 1975 (Cth) (“the Act”) and that the Court has jurisdiction to make orders in respect of the parties’ property interests.
By amended application filed on 10 February 2023, the applicant seeks an adjustment of net property on the basis of 65% in her favour and 35% in the respondent’s favour. By his response, the respondent seeks orders for an adjustment of net property on the basis of the applicant receiving 22.5% and the respondent 77.5%.
The parties attended an external financial mediation conference on 23 March 2023 and a compliance and readiness hearing on 25 August 2023, at which time I made trial directions and listed the proceedings for defended hearing commencing on 13 May 2024.
At the time of making trial directions there was some discussion as to whether expert evidence would be required in relation to the applicant's health and related work capacity and needs. Accordingly, I made an order that in the event a party sought to rely on expert opinion about this, the parties were to agree on the identity of the single expert and submit a consent minute to Chambers with agreed terms of reference for the appointment of the single expert.
On 23 November 2023, the applicant filed an application in a proceeding concerning the appointment of a single expert as apparently no agreement had been reached about it. She also filed an affidavit in support of the application on 23 November 2023, which I have read and considered.
On 10 January 2024, a response to the application in a proceeding and an affidavit were filed by the respondent. I have read and considered both. He opposes the order sought by the applicant for Dr B to be appointed as the single expert.
Each party filed a case outline that they relied upon for the hearing of the application in a proceeding, which I have considered together with the oral submissions of Ms Dwyer and Ms Courtney.
The competing submissions reveal that the issues for the Court in determining the application in a proceeding are:
·Whether there should be a single expert appointed for the purpose of assessing the applicant's capacity, being particularly her capacity to work and her earning capacity now and in the future; and
·If “yes” to the first question, whether Dr D, the applicant's treating specialist neurologist, or Dr B, an occupational physician, should be appointed as the single expert.
Related to these questions is the issue of the cost of the single expert assessment and report and how it is to be paid if the Court makes an order for the appointment of a single expert.
SHOULD A SINGLE EXPERT BE APPOINTED BY COURT ORDER?
The respondent contends that there is no significant issue in dispute in respect of which expert evidence is required. Relying on Keevers & Keevers [2021] FedCFamC1F 338 (“Keevers”) at [16], he says that there is no controversy that the applicant was diagnosed with a medical condition in 2022. Further, the respondent submits that Dr E, the applicant’s treating neurologist at the time, provided a report in July 2023 that has already addressed the applicant's capacity in the context of her condition, its likely progression and the severity of symptoms.
In oral submissions Ms Courtney for the respondent expanded upon this submission and referred me to [2] of Dr E’s report.[1] She submitted that the Court routinely and uncontroversially made assessments of what adjustments should be made for a party's future needs based on historical and present facts. In short, she suggested that the expert opinion was not needed and the Court would be armed with all relevant evidence to address s 90SF(3)(b) of the Act based on Dr E’s report of 18 July 2023.
[1] Annexure B-1 of the respondent’s affidavit filed 10 January 2024.
In suggesting that there was no issue in dispute about the applicant's health and condition, Ms Courtney submitted that the financial questionnaires filed by the parties each sought a 5% adjustment for future needs. Accordingly, the dispute between their percentage adjustments sought at the defended hearing was about contributions only.
For the applicant, Ms Dwyer submitted that it was incorrect to say that the dispute was only about contributions. She identified that the applicant’s financial questionnaire had been filed at the commencement of proceedings, before full financial disclosure, and that the issues at the financial mediation were about future needs as well as contributions.
I observed that in the absence of a case outline to be relied upon at final hearing or contentions about adjustments, I was left with the practitioner’s competing submissions about what was in issue. However, Ms Courtney properly conceded that the apparent dispute was about contributions and future needs because the questionnaires were dated and not binding, and further because she had not been present at the financial mediation.
In the alternative, Ms Courtney submitted that as the applicant claimed her condition was now different to when Dr E had prepared his report (due to her current medication), Dr D, the prescriber of the medication and the applicant’s current specialist neurologist, was more qualified to express an opinion about symptoms, prognosis and related future needs, including work capacity. Consequently, the respondent contends that if the Court is persuaded to make an order for a single expert, Dr D should be appointed.
EVALUATION
Noting that during the course of the interim hearing both legal practitioners accepted that contributions and future needs will be in issue at the defended hearing, there is plainly a controversy about which the Court may require expert evidence.
Although there is no dispute that the applicant suffers from a medical condition, the Court will likely hear factual evidence from her about how the condition impacts her day-to-day life and care of the children. However, because it is an agreed fact that the applicant did not work during the relationship and before or after her diagnosis in 2022, this evidence will be of a subjective and personal nature. Further, it will not address how the condition impacts on her ability to work as the applicant has not apparently worked or tried to work since the diagnosis.
In these circumstances, the Court will need to make findings about whether the applicant has any capacity to work or earning capacity in the future because of the statutory considerations in s 90SF(3)(b). I consider that in discharging the task of making these findings, the Court will be greatly assisted by expert opinion about the likely symptoms of the condition and its impact on ability to work and earn an income.
I do not accept the submission that [2] of Dr E's report adequately addresses work capacity given the applicant's medical condition. It is clear from the terms of [2] that Dr E is primarily addressing diagnosis and prognosis in the context of potential deterioration in the applicant's condition. He is not addressing the impact of the condition on the applicant’s capacity to undertake particular activities or, relevantly, work duties and employment. I consider this is made very clear by his answer to question five, being that he is “unable to comment” on “[h]ow [Ms Sloan]’s condition is likely to impact on her capacity.”
While I may be able to make inferences about work capacity and future earning capacity based on the applicant's own subjective factual evidence, it is preferrable that the findings be made on the basis of probative expert opinion and not left to inference.
For the purposes of the interim hearing, the respondent did not concede that the applicant had “zero” work capacity nor was there apparent agreement about what, if any, percentage adjustment should be made in the applicant's favour pursuant to s 90SF(3)(b).
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) require that a single expert be appointed for the reasons of efficiency and cost as discussed in Keevers. Ms Courtney conceded that she carried the onus of demonstrating that the suitable expert the respondent proposed, Dr D, was available to be appointed and was prepared to abide by the Chapter 7 of the Rules in providing an expert opinion.
The evidence before the Court is silent as to Dr D's availability and preparedness to comply with the expert witness rules of Court. By contrast, there is evidence before me that Dr B is available and has considerable experience as an expert witness for legal proceedings.
On the basis that Dr E was unwilling to comment on the impact of the applicant’s medical condition on her capacity, I infer that Dr D may also be unwilling. I have no information about what cost Dr D may charge if she were willing to be engaged as a single expert or, indeed, whether she could produce a report before the hearing.
Dr B is an occupational physician. It is not suggested by the respondent that he is not suitably qualified, but rather that a neurologist is most qualified.[2] I disagree. If the issue were one of diagnosis then the respondent's submission would likely have merit, but there is no dispute about the applicant's diagnosis. The issue is confined to the effect of the symptoms on the applicant’s ability to work and earning capacity.
[2] Respondent’s outline of case document filed 22 January 2024 at [14](f).
Annexure B-2 to the respondent's affidavit outlines Dr B's services and areas of practice. This outline makes it plain that he provides expert opinions, including jointly engaged expert opinions for court proceedings, and further, that he has been a specialist in occupational rehabilitation medicine for at least 25 years. In particular, Dr B states that he undertakes assessments, including those relating to work capacity and impairment.[3] This is precisely the nature of expert medical opinion that will be relevant to the factors in s 90SF(3) of the Act and aid the Court in its final determination.
[3] Annexure B-2 of the respondent’s affidavit filed 10 January 2024, p 12.
Additionally, the documents annexed to the applicant's affidavit of 23 November 2023 satisfy me that Dr B is available to accept an engagement as a single expert under the Rules.
I am persuaded that Dr B is an expert in occupational capacity assessments for a wide range of diagnosed conditions. He meets the requirements for the appointment as an expert pursuant to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and Dasreef v Hawchar (2011) 243 CLR 588. I am also satisfied he is available for appointment and will produce a report before the final hearing.
While I accept that there is no current information about the prescription of medication and that this is likely to be relevant to the applicant’s symptoms and capacity, this is capable of being addressed by Dr B conferring with Dr D for the purpose of preparing the single expert report.
The Terms of Reference should be tailored to the confined need for expert evidence in this case. As presently drafted, they are not, in my view, likely to be most helpful and may well involve the parties incurring unnecessary costs for the assessment and report.
Having heard the submissions of the practitioners and being directed to the evidence of the parties’ respective financial positions, it is clear that the respondent is in a superior position and has ample means to pay for the cost of the expert opinion. That aside, the applicant is prepared to pay for half of the fee, which she will reimburse upon final orders being made. I consider her proposal to be eminently fair and does justice between the parties based on their respective financial positions.
There will be Orders broadly according to [2] to [5] of the applicant’s application in a proceeding but substituting the Terms of Reference with those determined by the Court.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 25 January 2024
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