Staley and Birch (No 2)

[2020] FamCA 718

FAMILY COURT OF AUSTRALIA

STALEY & BIRCH (NO. 2) [2020] FamCA 718

FAMILY LAW – CHILDREN – Terms of reference for appointment of a Court Expert – psychiatric assessment – Court Expert appointed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 15.42

APPLICANT: Mr Staley

RESPONDENT: Ms Birch

INDEPENDENT CHILDREN’S LAWYER: Ms McGregor

FILE NUMBER: CAC 1456 of 2017

DATE DELIVERED: 28 August 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 28 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pyrmont Legal

SOLICITOR FOR THE RESPONDENT: Neilan Stramandinoli Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. Unless otherwise agreed by the parties, in writing, the Terms of Reference for Dr K are as follows:

   (a)That Dr K, Psychiatrist, L Medical Centre, be appointed as Court Expert pursuant to Rule 15.44 of the Family Law Rules 2004 (“the Court Expert”).

   Psychiatric Assessment of Ms Birch

   (b)That the Court Expert interview, assess and observe Ms Birch for the purpose of preparing a psychiatric report.

   (c)That Ms Birch will do such things necessary to facilitate the preparation of the report including attending upon the Court Expert as required.

   (d)That the Court Expert:

   (i)Assess Ms Birch’s current mental health state;

   (ii)Carry out an assessment of Ms Birch including a psychiatric assessment and to the extent that the expert is able to comment, if Ms Birch is suffering from a psychiatric/psychological disorder;

   (iii)Provide a report to the Court in accordance with Rule 15.48; and

   (iv)Comply with their duties and obligations pursuant to Rule 15.59.

   (e)That the Court Expert prepare a report to consider the following issues:

   (i)Any history of the psychological or psychiatric health of the Ms Birch including previous diagnoses;

   (ii)Does Ms Birch currently suffer from a mental illness, disorder or other mental health issue as outlined in the DSM-5?

   (iii)If a problem is identified, what is the severity of the illness, disorder or problem?

   (iv)If a problem is identified, in what way does the illness, disorder or problem impact on Ms Birch functioning and ability to parent?

   (v)Any concerns or comments the psychiatrist has in relation to the mother's mental/physical state at the time of the event in 2015 and post brain surgery in 2019;

   (vi)If possible, please comment on the likely cause of Ms Birch’s mental illness, disorder or problem (if any). Please include details of any predispositions or precipitating factors.

   (vii)If a problem exists, please outline your opinion as to Ms Birch’s insight into any mental illness, disorder or problem.

   (viii)If a problem exists, your prognosis for Ms Birch’s mental illness, disorder or problem.

   (ix)If a problem exists, your recommendations for treatment or management of Ms Birch’s mental illness, disorder or problem.

   (x)If a problem exists, your opinion on whether or not this impacts Ms Birch’s capacity to care for a child:

   A.On her own during the day; or

   B.On her own overnight.

   (xi)Any other comments regarding the Ms Birch’s physical, psychological or psychiatric health.

   (f)That the Court Expert assess the mental health of the Father, including providing a diagnosis (if any), a prognosis and an assessment of his mental and emotional functioning.

   (g)That the Single Expert set out the implications (if any) on the Father's;

   (i)capacity to provide for the needs of X including his emotional, physical and intellectual needs;

   (ii)the nature of the relationship with X and the nature of the benefits of that relationship to X;

   (iii)the risk of psychological or physical harm to X.

   (h)That the Court Expert interview, assess and observe the parents, Mr Staley and Ms Birch and the child X for the purposes of the Court Expert preparing a family report.

   (i)The parties will do such things necessary to facilitate the preparation of the report including attending upon the Court Expert as requested.

   (j)That the Court Expert:

   (i)investigate all matters relating to the welfare, care and development of X;

   (ii)carry out an assessment of the parents;

   (iii)carry out such assessments of X as considered necessary;

   (iv)provide a report to the Court in accordance with Rule 15.48; and

   (v)comply with their duties and obligations pursuant to Rule 15.59.

   (k)That the Court Expert prepare a report to consider the following issues:

   (i)the nature of the relationship between X and each of his parents;

   (ii)the emotional attachment of each of X with each of his parents;

   (iii)the likely effect (if any) of any change in X’s circumstances, including the likely effect on them of any separation from either of their parents, or from any other child or person with whom they have been living;

   (iv)the attitude of the parents to X and to their responsibilities of parenthood, demonstrated by each of the parents;

   (v)the capacity of each parent to provide for X’s emotional and intellectual needs including each of the parents’ attitudes to and understanding of X’s relationship with other significant people and their attitudes to X’s education;

   (vi)the likely effect (if any) on the emotional and psychological needs of X if either of the proposals made by the mother and the father respectively were implemented;

   (vii)the understanding of each party of appropriate parenting strategies and behaviours arising from their participation in parenting courses and programs, and the ability of each to implement such parenting strategies;

   (viii)assess X's views in relation to his parents and living with his parents and spending time with his parents together with an assessment of X's maturity, reasoning and understanding, and any other matters that may impact upon his views, noting that X is not to be required to express his views;

   (ix)Any aspect of the mental health of the mother or father or personality characteristics of each of them which in the opinion of the Court Expert may have an effect on:

   A.That parent’s ability to provide for the well-being of X and what that effect may be; and

   B.That parent’s ability to work together with the other parent for the benefit of X.

   (l)The material to be provided to the Court Expert:

   (i)the final trial affidavits of the parties and their witnesses;

   (ii)a copy of the CYPS s 69ZW report produced 17 December 2019 and 19 December 2019;

   (iii)a copy of the 11F memorandum dated 19 September 20 and 10 October 2018;

   (iv)these Terms of Reference in relation to this report;

   (v)a paginated and indexed bundle of documents extracted from the subpoenaed material provided by the Independent Children’s Lawyer to the Expert with such bundle to be circulated to the parties in advance and prepared in consultation with the parties, but ultimately at the discretion of the Independent Children's Lawyer.

   IT IS NOTED THAT

   (m)If ultimately a party says that other documents should have been provided to the Single Expert in excess of those provided in the bundle than that party may seek further directions from me in relation to the provision of such material.

   IT IS FURTHER ORDERED THAT

   (n)No party is to provide any other document to the Single Expert without the consent of the other parties provided in advance or leave of the Court.

   (o)In the event that the Single Expert is considering affidavits or material produced subpoena to this Court, the Expert will take into account the fact that material contained in those documents may not necessarily become evidence before the court and or may be qualified or modified by cross-examination. To the extent that the Court Expert bases their on any such statement the Court Expert shall identify the statement.

   (p)If the Expert consults anyone other than the parties and the children she must disclose the source of information and opinion and to the extent necessary to enable the report reader to determine the basis for the Expert’s reliance on the information the actual words or information used and the context in which they were used.

2. The parties shall equally bear the cost of the report.

IT IS FURTHER ORDERED THAT

1. Within 21 days of today's date the parties are each to file and serve a single consolidated affidavit from themselves and each witness they intend to rely upon in respect of the child related matters annexed to those affidavits the relevant documents provided they provide an index to those documents at the commencement of that bundle and paginate those documents.

2. Within a period of 42 days from today's date the parties are each to file and serve a single consolidated affidavit in relation to the financial matters without repeating matters relevant to the financial matters that are contained in the child related affidavits and annexing to those affidavits the documents relevant to the matter and providing an index at the start of those documents and paginating those documents.

3. The parties may not rely on any other material filed in these proceedings without first obtaining the leave of the Court.

4. The proceedings are adjourned to 4 pm on 21 September 2020 for a compliance check and further directions.

5. The parties are to attend via Microsoft teams on that occasion.

6. The parties are at liberty to issue such subpoenas as are necessary for the proper preparation of the case with the following restrictions:

   (a)The parties are to confer with the Independent Children's Lawyer before issuing a subpoena;

   (b)the parties are not to issue subpoenas that duplicate material that has either been already produced on subpoena or produced by virtue of s 69ZW order;

   (c)On the parties being able to inspect material produced on subpoena or pursuant to s 69ZW the parties may exercise photocopy access on the following conditions:

   (i)the copies are to remain within the custody of the legal representatives;

   (ii)the copies are not to be used for any purpose other than these Court proceedings without first obtaining the leave of the Court otherwise;

   (iii)the copies are to be destroyed 28 days after the expiration of the relevant appeal period.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Staley & Birch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1456 of 2017

Mr Staley

Applicant

And

Ms Birch

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Orders that were made by consent on 3 October 2019 provided that the Mother was to attend upon a psychiatrist within 90 days to obtain a psychiatric assessment report.  That has still not been done ten months later.  The Orders also provided that if it was appropriate for the person who psychiatrically assesses the Mother to provide a full family report, then that psychiatrist should be appointed for that purpose.  A psychiatrist has now been identified by the parties for those two purposes being Dr K. The Terms of Reference for Dr K as yet are not determined.

2. By an Application in a Case, the Mother seeks that they incorporate psychiatric assessment of the Father.  In seeking such, the Mother makes a raft of allegations regarding the Father, pointing to his suffering some form of mental issue to the extent of being from time to time a risk to himself and she postulates to X as well.  It incorporates evidence that the Father has sought professional psychological support from time to time, that he has been apparently depressed from time to time and it alleges that, at various points, he threatened self-harm, although that is a matter that he denies. 

3. The Father, who opposes that there be Terms of Reference for his psychiatric assessment, refutes that there were any serious threats of self-harm, although he accepts that he said something that, on the text of what it was, he said could be construed that way.  He accepts that he has suffered from periods of mental distress, including depression, and accepts that he has sought support for his mental health.

4. So the question arises, should the Terms of Reference include a psychiatric assessment of the Father?

5. Part 15.5 of the Rules deals with expert evidence.  Specifically, Rule 15.42 sets out the purpose of the parties to ensure the parties obtain expert evidence only in relation to a significant issue in dispute and to restrict expert evidence to that which is necessary to resolve or determine a case.  There are other purposes as well, but those are the most salient for the current issue.

6. Without descending into detail, key issues in this case include the benefits to X of a relationship with each parent, whether each parent presents a risk of harm, particularly psychological harm, but also potentially physical harm by neglect, and as to the parenting capacity of each the parents. 

7. Each has raised live issues about the other regarding the possibility of impairment in those areas in relation to each parent's mental health.  In the resolution of those matters, as being significant issues in the case, the mental health of both the Mother and the Father are significant components and should be the subject, despite the added cost, of expert evidence from Dr K.  The Father's mental health should form a part of the Terms of Reference. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 28 August 2020.

Associate: 

Date:  31 August 2020