Wenlack and Cimorelli (No 2)

[2019] FamCA 790

FAMILY COURT OF AUSTRALIA

WENLACK & CIMORELLI (NO. 2) [2019] FamCA 790

FAMILY LAW – CHILDREN – Where the mother seeks to have the order appointing an expert discharged – Where order appointing the expert was made with the consent of the parties – Where order appointing expert not discharged.

APPLICANT: Mr Wenlack

RESPONDENT: Ms Cimorelli

INDEPENDENT CHILDREN’S LAWYER: Ms D Smith

FILE NUMBER: SYC 2881 of 2013

DATE DELIVERED: 14 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 14 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms M Winning

COUNSEL FOR THE RESPONDENT: Mr G Simpson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

Orders

1. The mother’s oral Application to discharge Dr Y as the court expert is dismissed.

2. The assessment interview with Dr Y is to occur in Sydney on 13 November 2019 and the parties are to do all things required of them to attend at their respective appointments and to make the children available at their appointment with Dr Y.

3. The proceedings are listed for Interim Hearing at 10am on 1 November 2019 in respect to the competing applications for the interim arrangements for the children.

4. Within 7 days each of the parties are to exchange with one another and the Independent Children’s Lawyer and forward to chambers a Minute of proposed interim Orders.

5. Each party is also to file a single consolidated affidavit for the purposes of the interim hearing or nominate a single affidavit previously filed in the proceedings by 28 October 2019.

6. Each of the parties and the Independent Children’s Lawyer are to forward to chambers an outline of case and written submissions by 28 October 2019. 

7. The proceedings are listed for further directions at 9.30am on 16 October 2019 in respect to where the children are to attend school between now and 1 November 2019.

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 Wenlack & Cimorelli 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 PARRAMATTA

FILE NUMBER: SYC 2881 of 2013

Mr Wenlack

Applicant

And

Ms Cimorelli

Respondent

REASONS FOR JUDGMENT

1. First I will give reasons for decision about the application to discharge of Dr Y because I think that’s a distinctive issue. I do not propose to discharging the order for the appointment of Dr Y for the following reasons: 

2. First, contrary to the way in which this matter has been described on various occasions, the Court did not require the parties to attend on Dr Y in Melbourne. In fact, the appointment came about following a hearing in which the mother was represented by counsel on 29 May 2019.

3. At the 29 May Court event the record indicates there had been some addresses to the Court, including by the mother’s counsel, and then there was a Minute of Order handed up which records that by consent of all the parties Dr Y be appointed as the single expert witness. The mother was represented by counsel who is experienced in family law and also had a family law solicitor on the record. It is not in dispute between the parties that there are a number of reasons why Dr Y was agreed to between the parties, and they include matters in particular of availability and of cost.

4. While it is unusual for people to go to Melbourne from Sydney for expert reports to be done, it’s not totally unheard of, and in circumstances where it would appear that both of the parties had a real interest which is legitimate and proper, in resolving this dispute for the sake of their children who are caught up in the dispute. For that reason it was an appropriate order to be made in the circumstances, and particularly where it was made by consent and the mother was well-represented.

5. Since then, there have been two attempts by the mother to have those orders discharged. The first of those was on 17 September 2019 when the matter came before me. At that time there had been an Application in the Case filed which included the issue of discharging Dr Y. Even though that was dealt with out of order and was not listed before me on that day, I made arrangements to have it listed before me so that the mother could be heard on the most pressing concern and that is whether the appointments with Dr Y were to go ahead. 

6. The objections to Dr Y at that stage were that Dr Y might be biased if he was aware who was paying for the report and orders were made as sought by the mother in relation to that issue for those parts of the orders to be redacted. Secondly, it was an issue to do with convenience because the mother was taking one of the children to the Gold Coast for a gymnastic competition, but bearing in mind that the father was to pay for the airfares, there was no impediment in my view to the children being put on a plane from the Gold Coast or they could return to Sydney. In any event that whole issue was explored.

7. The third reason seemed to be objections about Dr Y and anticipated concerns about what his report might contain. There was certainly no fundamental objection such as that he was not a suitably qualified person. It was more concerns about expectations about the way in which he would approach that report. 

8. In any event, that application was considered, and it was confirmed that the assessment was to go ahead with Dr Y. It was made abundantly clear to the mother that she was to attend, and, in fact, there was also an order made that she was to take all steps to ensure that the children were in attendance. 

9. The father paid for the entirety of the report. He paid for it in advance. He himself attended, and he also paid for the airfares, even though they were foregone, because the children were not taken by plane. 

10. The mother now seeks to have the order discharged in circumstances where she does not offer to pay any part of the costs to prepare another report. The father has already paid for Dr Y’s report in full and the mother expects that he will pay for it once again. The proposed expert has not been identified, not that I’m critical at all of the mother for that; she shouldn’t be expected to have organised one in advance as it should be something that comes through the ICL. But the issues that were sought to be overcome in appointing Dr Y in the first place that is availability and cost, are still looming large. 

11. The names of possible experts that have been suggested include a number of well-qualified experts in the Sydney area. Based on past experience, this could take something like at least six to 12 months for any of those report-writers to prepare the report.  The father would have to bear the cost again of a second report plus the costs thrown away. 

12. In circumstances where the actual expertise of Dr Y is not challenged, (as opposed to concerns about expectations of what his report may contain, which, if they turn out to be correct, can always be explored under cross-examination) given the history of the matter and for all of the reasons I’ve given, I do not discharge that order, and Dr Y remains the expert appointed in the proceedings.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 14 October 2019.

Associate: 

Date:  25 October 2019