Syms v Syms (No 2)

[2020] FamCA 1059

FAMILY COURT OF AUSTRALIA

SYMS & SYMS (NO. 2) [2019] FamCA 1059

FAMILY LAW – EVIDENCE – Expert evidence – Objection to affidavit evidence – Whether the evidence of a psychiatrist is admissible – Application of Part 15.5 and 15.5.2 of the Family Law Rules 2004 (Cth) – Where the deponent has not been appointed as a single expert witness – Where the evidence is outside the scope of the operation of Rule 15.41 – Objection to affidavit of psychiatrist paragraphs 2-8 and 11, 12 – upheld - Where it would be unwise for the Court to rely on remaining evidence

Family Law Rules 2004 (Cth) r 15.41

APPLICANT: Mr Syms

RESPONDENT: Ms Syms

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1457 of 2018

DATE DELIVERED: 19 August 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 19 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: Gillard Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Weightman

SOLICITOR FOR THE RESPONDENT: Warwick Hill Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guyder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Objection upheld.

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 Syms & Syms (No.2) 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 NEWCASTLE

FILE NUMBER: NCC 1457 of 2018

Mr Syms

Applicant

And

Ms Syms

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. An affidavit has been filed in the wife’s case by Dr O. Dr O is a qualified psychiatrist with all of the qualifications as set out in paragraph 1 of his affidavit.

2. The affidavit has been prepared on the basis that Dr O is an expert witness[1] who has been engaged to provide a retrospective opinion as to whether the mother suffered from Postnatal Depression after the birth of her son, Z.

   [1] Affidavit of Dr O filed 9/07/2019, para 2.

3. It is doubtful that that evidence, if accepted by me, could make any particular difference to the outcome of these proceedings.  I have evidence from the Single Expert appointed in the matter but whether or not the mother had Postnatal Depression, or as Dr O says it has now been renamed as Peripartum Onset, the difficulty is that although Dr O is undoubtedly an expert in psychiatry, he has not been appointed as a Single Expert on this issue in these proceedings. 

4. That deprives both the father and the solicitor on behalf of the children of the opportunity to give any information or bring forward any evidence which would have a bearing on that question.

5. More particularly, Dr O says:[2]

   At my initial assessment of Ms Syms on 3 July 2018, I can attest to the fact that I did not elicit a history of past deliberate self-harm, suicidal ideation, or previous hospitalisations for depression or any form of mental illness. I did not make the diagnosis of recurrent major depression.

   [2] Affidavit of Dr O filed 9/07/2019, para 9.

6. The significance of that is that in the context of the preparation of what is a forensic report by Dr O he has relied exclusively on the information given by the mother.  That is not to say that that information is, or is not correct, but it is given in the context of an adversarial dispute between the parents and it would be unwise for the Court to rely on that assessment in those circumstances.

7. Accordingly, I uphold the objection.

I certify that the preceding seven (7) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 19 August 2019.

Associate: 

Date:  19 August 2019