Smagulova & Bartos
[2024] FedCFamC1F 906
•17 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Smagulova & Bartos [2024] FedCFamC1F 906
File number(s): BRC 3675 of 2021 Judgment of: HOGAN J Date of judgment: 17 December 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant sought to appoint a psychiatrist to assess the respondent and provide a report for the same – Where the respondent was previously assessed by a psychiatrist and a report was provided for the same – Where the previous psychiatrist is no longer available to be cross-examined – Where the previous psychiatrist found no overt psychiatric abnormalities of the respondent – Where the respondent opposes the application – Where the application is dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Division: First Instance Number of paragraphs: 14 Date of hearing: 17 December 2024 Place: Brisbane Solicitor for the Applicant: Ms Sibley, Legal Aid Queensland Solicitor for the Respondent: Mr McKinnon, JMR Lawyers and Mediators Solicitor for the Independent Children's Lawyer: Ms Keyworth, Keyworth Harris & Lowe Family Lawyers ORDERS
BRC 3675 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SMAGULOVA
Applicant
AND: MR BARTOS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
17 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 27 November 2024 and sealed on 3 December 2024, filed on behalf of the father, is dismissed.
2.By no later than 4.00 pm on 20 December 2024: the respondent file and serve any amended Response to the amended Initiating Application.
3.By no later than 4.00 pm on 10 January 2025: each party file and serve one consolidated affidavit from each witness upon which they intend to rely at final hearing.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Smagulova & Bartos has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
I have before me, by way of Application in a Proceeding filed on behalf of the father, an application seeking that the Court appoint Dr C, a psychiatrist, to undertake a psychiatric assessment (and provide a report about the same) of the mother for use in the proceedings which are listed for trial in mid-February of next year.
These proceedings have been within the Family Court system for a significant period of time.
The submissions made by the mother's solicitor included that the first listed hearing for trial of this matter in the Federal Circuit and Family Court of Australia (Division 2) did not proceed, following an application by the father for the appointment of a psychiatrist to assess the mother and provide a report. Orders were ultimately made, by consent, by Judge Lapthorn on 13 May 2022 appointing Dr B, a psychiatrist, to undertake that process. Dr B ultimately authored a report dated 9 November 2022, which has been exhibited to an affidavit sealed 1 March 2023, albeit that it appears from the face of the affidavit that Dr B affirmed that document on 2 December 2022.
The Independent Children's Lawyer’s submissions included that Dr B's assessment of the mother was that he did not find her to suffer from any psychiatric disorder, illness or condition; did not believe that she required medication or treatment for any psychiatric disorder, illness or condition; and that there were no psychiatric issues or determination which affected her ability to control (to use Dr B's term) or parent the child, Z (the subject of these proceedings) in a safe manner.
Dr B also noted that his mental state examination of the mother persuaded him that, amongst other things, her effect and mood were normal; she was not psychotic; the form, possession and stream of her thoughts were normal; there was no evidence of perceptual abnormalities; and the thought content examination revealed no overt abnormalities. Clinically, her gross cognitive functioning was normal; her intelligence was assessed by him to be in the above average range, assessed clinically.
Dr B is no longer available to be cross-examined.
It seems, on the evidence before me, that that position was conveyed by correspondence dated 27 March 2024, which is exhibited to the affidavit of Mr McKinnon sealed 27 November 2024. Mr McKinnon is the father's solicitor.
The Application in a Proceeding, as I have said, was sealed 3 December 2024, albeit that the evidence also establishes that the issue of the potential appointment of another psychiatrist to undertake a second psychiatric assessment and provide a report of the mother was raised prior to that – in around October of this year.
The mother's position in relation to the current application is that she opposes the making of an order requiring her to undertake a further psychiatric assessment. The submissions made on her behalf by Ms Sibley, who appears for her, included, in essence, that there is insufficient evidence before the Court to persuade it that a psychiatric assessment of the mother is now necessary. Particular reference was made to applicable Rules of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) including r 7.04 and r 7.08. It seems to me, those matters set out in r 7.04 are particularly applicable, obviously, given that that Rule provides that the Court may order that expert evidence be given by a single expert witness.
I am not persuaded by the submissions made by Mr McKinnon that it is necessary, given the matters outlined in r 7.04(2), for there to be a further expert appointed to undertake a psychiatric assessment of the mother.
The submissions made by the Independent Children's Lawyers, which referred – in my view, permissibly – to Dr B's evidence, for the purpose of this interlocutory application, make it clear that his assessment of the mother was, as I have already recounted, such that he did not assess her as suffering from any sort of psychiatric condition or illness.
In addition, I take into account the information conveyed to the Court by Mr McKinnon, on behalf of the father, to the effect that the father intends to file (albeit out of time, given the Directions made on 10 October of this year) a further Amended Response to the Amended Initiating Application, and that that document, it seems, will not contain and not seek orders for the mother to continue to attend upon a psychiatrist or psychologist for the purpose of receiving treatment.
Whilst the father may well have wished to cross-examine Dr B, if his evidence is accepted at trial – something that I am not determining this morning – to raise whatever issues he may have in relation to that report, I am not persuaded, on the evidence before me, as identified by Mr McKinnon and relied upon by him in support of the application, that, having regard to the overarching purpose of the Rules, there is a necessity for expert evidence in relation to the mother's mental health condition.
Given those reasons, then, which I consider sufficient in the circumstances of the manner in which the application was advanced, I intend to dismiss the Application in a Proceeding sealed 3 December 2024.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 28 January 2025
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