Warner and Warner

[2010] FamCA 410

FAMILY COURT OF AUSTRALIA

WARNER & WARNER [2010] FamCA 410

FAMILY LAW – CHILDREN – Expert Evidence – Contested interim application for the appointment of a single expert – Applicant father seeks the appointment of a psychiatrist as a single expert – Mother opposes the application – Application granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Warner

RESPONDENT: Ms Warner

FILE NUMBER: NCC 1894 of 2009

DATE DELIVERED: 14 May 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 14 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boyd

SOLICITOR FOR THE APPLICANT: Galloway Family Law

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Graham, Attwaters

Orders

1. Dr R, Child and Family Psychiatrist, is appointed as a single expert witness to prepare a report in relation to the following issues:

   a.An opinion as to the psychological and psychiatric profile of each of the parents.

   b.An opinion as to the psychological and psychiatric profile of each of the children.

   c.An opinion as to the nature of the relationship between the children and each of the parents and the benefit to the children of having a meaningful relationship with each of the parents.

   d.An opinion as to the capacity of each of the parents to provide for the developmental needs of the children including emotional, intellectual and physical needs.

   e.An opinion with respect to how well the parties understand the children’s health and medical needs and their ability to manage those needs in a child focused way.

   f.An opinion as to whether the children are at risk of physical or psychological harm, or abuse in the care of either of the parents or other persons, and if the children are at risk of such harm, how best to protect the children.

   g.An opinion as to the willingness and ability of each of the parents to encourage and facilitate a close and continuing relationship of the children with the other parent.

   h.An opinion with respect to the maturity and lifestyle of each of the parents relevant to their parenting capacity and to parenting arrangements for the children.

   i.Any views expressed by the children and the weight to be given to those views taking into account the ages and maturity of the children and the circumstances which currently exist in their family in relation to their parenting arrangements.

   j.Any other matter that the expert thinks relevant.

2. The parties must within seven days confer for the purpose of agreeing upon the letter of instructions to be provided to the single expert and the parties shall ensure that in the letter of instructions provided to the expert the expert is furnished with copies of, or has her attention drawn to, the provisions of Divisions 15.5.2 and 15.5.6 of the Family Law Rules.

3. If the parties do not agree upon the letter of instructions to be provided to the expert, then at a procedural hearing before the Court each party must provide to the Court a draft letter of instructions, and each party is granted liberty to apply to relist the matter on seven days notice for further procedural orders in the event of disagreement about the letter of instructions.

4. In order to facilitate preparation of the single expert’s report:

   a.Each party is granted leave to provide to the single expert copies of:

   i.The documents filed by the parties in the proceedings;

   ii.The interim orders made by the Court on 18 August 2009 and 16 December 2009;

   iii.The Children and Parents Issue Assessment dated 19 February 2010;

   iv.The exhibits tendered in the proceedings to date; and

   v.Any further documents produced on subpoena.

   b.Each party must attend upon the single expert witness for such interviews and observation sessions as the expert requires at any reasonable time nominated by the single expert witness.

   c.Each party must ensure the attendance of the children at such interviews or observation sessions and at such times and places as the single expert witness reasonably requires.

5. Pending further order, the father shall pay the totality of the fees of the single expert witness.

6. The costs of and incidental to the Application in a Case filed on 6 May 2010 and the Response to an Application in a Case filed in Court on 14 May 2010, are reserved to the final hearing.

7. The less adversarial trial of this matter is listed to continue before Justice Austin at 11:30 am on Thursday, 16 September 2010.

NOTATIONS

A.Counsel for the applicant father has informed the Court that the single expert will be able to conduct consultations with the parties and the children in Newcastle during August 2010.

B.It is anticipated that the single expert’s report will be received and released in advance of the next Court event on 16 September 2010.

C.In the absence of final consent orders at the next Court event on 16 September 2010, it is expected that the matter will be fixed for final hearing as to both parenting and property adjustment orders with ancillary procedural orders to be made.

IT IS NOTED that publication of this judgment under the pseudonym Warner & Warner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1894  of 2009

MR WARNER

Applicant

And

MS WARNER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. Pending before the Court is a contested interim application for the appointment of a single expert to consult and report upon the parties and their two young children.

2. The interim application occurs in the context of parenting proceedings commenced by the father on 28 July 2009, several weeks after the parties’ final separation.

3. Despite the father acknowledging in his Amended Application, filed as recently as 21 April 2010, that the parties should be allocated equal shared parental responsibility for the children and that they should live for equal time with each party, the father contends that he has underlying concerns about the mother’s psychiatric stability which could potentially impair her parenting capacity.  It is for that reason that the father seeks the appointment of a psychiatrist as a single expert to report upon the family dynamics in lieu of a Family Consultant.

4. The mother opposes the father’s interim application. She says that a Family Consultant is eminently capable of reporting upon the circumstances of the parties and the children, which will be necessarily considered under s 60CC of the Family Law Act 1975 (Cth) (“the Act”) when the matters comes on for trial.

5. The issues for determination are therefore:

   a)Should a Chapter 15 single expert be retained in lieu of a Family Consultant to report to the Court on the family; and

   b)If so, who should bear the expense of the single expert.

Background Facts

1. The children who are the subject of these proceedings are aged four years and nineteen months respectively.  Since final separation in mid 2009, the children have lived predominately with the mother.

2. Interim parenting orders were made by Federal Magistrate Coakes on 18 August 2009, which essentially provided for the children to live with the mother and to spend time with the father for five nights per fortnight.

3. Further interim orders were made by Federal Magistrate Coakes on 16 December 2009, which orders discharged the orders previously made in August 2009 and made provision for the children to continue living with the mother and to continue spending time with the father for five nights per fortnight.  At that point in time the proceedings were transferred from the Federal Magistrates Court to the Family Court.

4. Currently in these proceedings the father proposes the allocation of equal shared parental responsibility for the children to both parties and for the children to live for equal time in each household.  Conversely, the mother proposes that the children live with her and spend substantial and significant time with the father.

Documents and evidence relied upon

1. For the purposes of this interim hearing, the applicant father relies upon:

   a)His Application in a Case filed on 6 May 2010;

   b)His affidavit filed on 6 May 2010; and

   c)A series of exhibits tendered from documents produced on subpoena by the mother’s general practitioner and the Hunter Psychology Service, comprising Exhibits F2 and F3.

2. The mother relies upon:

   a)Her Response to the Application in a Case filed in Court on 14 May 2010;

   b)Her affidavit filed in Court on 14 May 2010; and

   c)A series of exhibits tendered from documents produced on subpoena by Dr P and H Psychologists, comprising Exhibits M2 and M3.

Discussion

1. The father brings the current application pursuant to Rule 15.45 of the Family Law Rules. 

2. In determining the application, I bear in mind that:

   a)The father contends that the mother’s psychiatric stability is an issue of significance in the case, despite the tenor of his recent Amended Application;

   b)The inability of the Family Consultant, through lack of relevant expertise, to offer expert evidence about the mother’s psychiatric stability; and

   c)The proposed single expert is able to furnish a report within approximately the same timeframe as the Family Consultant would be able to furnish a Family Report, pursuant to s 62G of the Act, and so the determination of these proceedings will not be delayed.

3. The father’s concerns about the mother’s psychiatric stability are said to have a foundation on a history of facts and allegations set out within the affidavit material. 

4. The father firstly refers the Court to the mother’s consultation with her general practitioner, Dr P, on 5 September 2002 (Exhibit F3), which consultation followed closely upon an incident which occurred in August 2002 (father’s affidavit, paragraph 6).  The mother also gives her version about that incident in response (mother’s affidavit, paragraph 6).

5. I should say that I draw no inference adverse to the mother from that material.  Indeed, the father’s point is simply that the mother’s reported history of emotional disturbance may be significant, despite the passage of time since that consultation with her general practitioner.

6. In the main, the father relies upon more recent incidents.  He refers to episodes of the mother having experienced apparent difficulty in coping in the months following the birth of their second child, when it is common ground that the mother was then suffering from post-natal depression (father’s affidavit, paragraphs 30-31). Generally, the mother denies the father’s allegations referrable to that time period (mother’s affidavit, paragraphs 30-31).

7. There is also evidence before the Court of episodes during which the mother acted histrionically at and about the time of the parties’ separation in mid 2009 (father’s affidavit, paragraphs 8-28, 37-39, 45-46).  Generally speaking, the mother provides a significantly different version of those events.  While she does not deny behaving in a physically confrontational way on occasions, her position is that her behaviour was uncharacteristic and reactive to a realisation of the loss of her marriage and her perception of the father’s infidelity.

8. The father also refers to contemporaneous records of the mother’s attendance upon medical providers to support his allegations against the mother. In particular, he refers to consultations by the mother with Dr P on 6 April 2009, 8 May 2009, 15 May 2009 and 25 September 2009.  The notes of the doctor, referrable to each of those consultations, have been tendered in evidence and form parts of Exhibits F2 and F3.

9. At the consultation in April 2009 the mother reported to the doctor that she was unable to manage even the simplest of household tasks. At the consultation in early May 2009 the notes of the doctor indicate that the mother had some months earlier been prescribed an anti-depressant by another professional named Dr M but that she had not filled that script.  The notes also indicate that the mother was then aware of her need to take medication of that sort.  At the time of the consultation with the doctor in mid May 2009 the notes indicate a realisation on the part of the mother that she had a need to work through the depression that she was then feeling.  At the later consultation in September 2009, the mother reported to the doctor an incident that had occurred between herself and the father the day before and the inference is that the mother conceded having a physical confrontation with the father at that point in time.

10. It is wholly unsurprising that the mother was emotionally depressed and acting in a generally uncharacteristic manner during a bout of post-natal depression which overlapped, or was closely followed by, a realisation that her marriage had failed – particularly if she genuinely believed the failure was due to the father having a preference for a relationship with a different partner.  The blow to her self-esteem was imaginably severe.  In any event, it is beyond argument that the mother was emotionally disturbed.

11. It is possible to draw an inference from the available evidence that the mother did, or does, suffer from a diagnosable psychiatric or psychological condition.  I say nothing of the probability of such an inference.  It is also possible that any such condition could impair the mother’s parenting capacity. Again, I say nothing of the probability.

12. Given the rational possibilities that exist, it is implicitly conceded that the Family Consultant would not have the necessary expertise to comment upon those possibilities.  The mother’s opposition was really that the father could not even make out the possibility of existence of such issues in the case.  Because I do not accept the mother’s submission that her past conduct must certainly be regarded as quite normal, then even though she may probably be correct, her rebuttal of the father’s application must fail. The single expert will be appointed in accordance with the father’s wish. 

13. Given that that result will follow, there is no dispute about the qualifications possessed by the psychiatrist proposed by the father as the single expert.

14. Nonetheless, the mother’s submissions have force in relation to the subsidiary issue of responsibility for the single expert’s fees. I am presently far from convinced about the soundness of the foundation for the father’s fears about the mother’s parenting capacity, especially in light of his continuing endorsement of her as sufficiently capable to have the care of the children for equal time. Since the father wishes to explore the possibility of the mother’s emotional instability, he should bear the expense of the exercise. The order for preparation of a Family Report under s 62G of the Act would not have put either party to expense. Since the parties mutually submit that it is superfluous to have both a Family Report and a single expert report in this case, the orders will require the single expert to address the considerations arising under s 60CC of the Act, as a Family Report would have done.

15. The issues set out within the orders calling for expression of an opinion by the single expert are drawn from the orders set out in the father’s Application in a Case and the mother’s Response.

16. Accordingly, I make the following orders.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  14 May 2010