Canna & Besco [2025] FedCFamC1F 414 (30 May 2025)

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 Canna & Besco has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are competing parenting proceedings between the father and the mother, in respect of their child, X born 2016 ("the child").
2. By Application in a Proceeding filed on 27 May 2025, seeking the urgent listing of the matter ("the application"), the applicant seeks leave to adduce adversarial evidence from the psychiatrist Dr B, Consultant Forensic and General Psychiatrist at C Clinic.
3. The father filed two sets of written submissions but then clarified in his oral submissions that the application was in fact made pursuant to r 7.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), as opposed to r 7.04, as indicated in the application.
4. The mother opposed the father's application and sought that it be dismissed.
5. The Independent Children's Lawyer ("ICL") adopted a neutral position with respect to the application, submitting that it was a matter for the Court to determine whether a further expert report was necessary.
6. For the reasons that follow the application of the father is dismissed.

1. A single expert report was prepared in this matter by Ms E, filed on 15 July 2024 and shortly thereafter released to the parties.
2. Ms E was provided with extensive documentary evidence in relation to the father's mental health history. She spoke with the father's treating psychiatrist, Dr G, and treating psychologist, Ms H. She addressed issues relation to the father's mental health and its impact on his parenting capacity in her assessment.
3. On 23 July 2024 the following notation was made to the Orders of Judicial Registrar Mooney:

B. The Court is informed that:

1. The Independent Children's Lawyer has had discussions with the parties about a mental health assessment in relation to the Father noting that Legal Aid funding is limited to $2,200.
2. The Applicant Mother contends that a mental health assessment of the Father is required, however, the Mother is unable to fund a private mental health assessment in circumstances where the Mother paid the full cost of the Private Report of [Ms E] dated 8 July 2024, is financially responsible for the children and has spent over $100,000 in the proceedings to date.
3. The Respondent Father contends that he is unable to fund a private mental health assessment in circumstances where the Father is in receipt of a Legal Aid grant noting that the father is awaiting determination of an extension of his grant and a mental health assessment was not a recommendation made by the Single Expert.
4. The Applicant Mother disputes the Respondent Father's contention that the Father is unable to contribute to the cost of a mental health assessment.
5. The parties propose to continue discussions in relation to the mental health assessment noting that the parties are granted leave to approach the Chambers of the docket Registrar in relation to orders by consent.
6. [J Family Services] have advised the parties that interviews are available between [August 2024 and October 2024] with Reports produced within six (6) weeks.
7. All interlocutory applications remaining active on the Court system may be finalised and dismissed.
8. The parties will attend a Legal Aid COMP mediation to be organised by the Independent Children's Lawyer.
9. The matter is otherwise ready to proceed to a Compliance and Readiness Hearing.

1. On 28 November 2024, Orders were made by Judge Murdoch which transferred the matter to Division 1, and noted that:

(f) There is a Single Expert report by [Ms E] dated 8 July 2024, who will be required for the purposes of cross examination.

(g) The parties are currently arranging for the funding of a single expert report to be obtained to address the Father's mental health and it is anticipated that they will be required to give oral evidence.

(h) The Father is further proposing to call as witnesses in his case his treating psychologist and treating psychiatrist. They will also be required for cross examination.

(i) Having regard to the number of expert and medical witnesses, all parties agree that the matter will take 5 days to be heard on a final basis.

1. On 13 December 2024 the matter was set down for a five-day final hearing and trial directions were made. In these Orders the following notations were made:
   1. The ICL has been unable to secure funding for an independent psychiatrist for the father.

...

1. The mother advised the court that she intends to call two witnesses, being: herself; and the single expert.
2. The father advised the court that he intends to call four witnesses, being: himself; his treating psychologist; his treating psychologist; and a long-term flat mate [Ms F].

1. The applicant relied on the application, affidavit of his solicitor, Mr Nicolas Fuentes filed 27 May 2025, two written submissions filed 28 May 2025, and oral submissions. The respondent relied on her response filed 28 May 2025, the affidavit of her solicitor, Ms Belinda Doyle filed 28 May 2025, the outline of case document filed 28 May 2025, and oral submissions. I have read and considered the filed submissions. The applicant and respondent also referred me to certain paragraphs of the Single Expert report prepared by Ms E which I have also read and considered.
2. The ICL provided written submissions filed on 28 May 2025. An agent appeared on behalf of the ICL, who confirmed the ICL did not have a position of either supporting or opposing the application and relied on the written submission adopting a neutral position. However, I note the ICL had obtained funding for the report through Legal Aid.

1. Rule 7.02 of the Rules provides that the purpose of Pt 7.1, dealing with experts, is as follows:

(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;

(b) to restrict expert evidence to that which is necessary to resolve or determine a proceeding;

(c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;

(d) to avoid unnecessary costs arising from the appointment of more than one expert witness;

(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if that is necessary in the interests of justice.

1. Rule 7.10(1) of the Rules stipulates that "a party must apply for the court's permission to tender a report or adduce evidence at a hearing or trial from an expert witness, other than a single expert witness."
2. When considering whether to permit a party to tender a report or adduce such evidence from an expert witness, the Court may take into account following the considerations outlined in r 7.11(3):

(a) the purpose of this Part (see rule 7.02);

(b) the impact of the appointment of an expert witness on the costs of the proceeding;

(c) the likelihood of the appointment expediting or delaying the proceeding;

(d) the complexity of the issues in the proceeding;

(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only;

(f) whether the expert witness has specialised knowledge, based on the person's training, study or experience:

(i) relevant to the issue on which evidence is to be given; and

(ii) appropriate to the value, complexity and importance of the proceeding.

1. The father has a long history of mental health issues and his current treating mental health professionals include his psychiatrist Dr G, who has treated him for over a decade, and his current treating psychologist.
2. In circumstances where Dr G has been the father's treating psychiatrist for over a decade, it is appropriate that evidence in relation to the father's diagnosis, symptoms, and treatment, be given by him. He is proposed to be called as a witness. There is no necessity for another expert to be appointed to give that evidence, particularly one who will only have the benefit of a single interview with the father and access to only a limited selection of the available medical and documentary history.
3. The father seeks orders for the appointment of Dr B, Psychiatrist, as a single expert witness to prepare a limited issues report in relation to the following matters:

(a) The father's current diagnosis;

(b) The father's current symptoms;

(c) The father's parenting capacity;

(d) The likely impact of the father's mental health diagnoses on his parenting capacity;

(e) The father's insight into his mental health and the impact of same on his parenting capacity; and

(f) Any recommendations as to future treatment or therapy for the father, and any other matter the expert considers relevant.

1. Dr B can conduct an assessment and provide a report within 15 working days thereafter, which allows sufficient time for the report to be considered by all parties prior to the final hearing commencing on 18 August 2025. This weighs in support of the application.
2. There is no financial impediment or impost on the mother in terms of the cost of obtaining the report, given the ICL has secured legal aid funding for $4,300 for the purposes of the father's psychiatric assessment. This factor also weighs in support of the application. However, there could be a financial cost on the mother if the proceedings were extended as a consequence of this additional witness.
3. The father's treating professionals, given their ongoing role as his treatment providers, will be required to give evidence as to the father's current diagnosis, symptoms, and any recommendations as to future treatment or therapy for the father. The father has made it clear he intends to rely upon these witnesses. That evidence will be important in this case.
4. The father's submission that the therapeutic relationship between the himself and his long-standing treaters will cause an inherent conflict with the duty owed to the Court, is not accepted by me. His treating professionals are a professional psychiatrist and a psychologist. They will be provided with the expert code of conduct. Their opinion as to the relevant identified matters as his treatment providers will be of assistance to the Court in understanding those factors of the father's diagnosis, the father's symptoms, and the father's future treatment or therapy. They will be able to be cross examined.
5. The father contended that Dr B could conduct a structured forensic risk assessment based on his expertise as a forensic psychiatrist, and that the Court at trial will be better assisted by his evidence than that of the father's treaters.
6. However, Ms E has assessed the parties and the child, has had access to evidence and subpoenaed material, and has spoken with relevant treaters. Dr B will not be better placed than Ms E to opine as to the father's parenting capacity; the likely impact of his mental health diagnoses on his parenting capacity; and the father's insight into his mental health and the impact of this on his parenting capacity.
7. There is no doubt a level of complexity to the matter arising from the father's long-standing mental health issues, and his diagnosis and its impact on his parenting capacity, but these are matter about which Ms E has opined in her report, and these are matters about which she will be able to be cross examination. The evidence as to parenting capacity should be given, where it can be, by a single expert. In this case this is possible. These factors weigh against the application.
8. The matter is listed for five days commencing 18 August 2025; this hearing date was allocated last December. There is no doubt that an additional witness will increase the time required for the trial and this may have the impact of the matter not concluding in the allocated time thereby continuing part heard. The timetable proposed will be tight, that is the matter should conclude within the five days with the current expected witness list, but to add an additional witness to this list might jeopardise that timetable. This is a factor that I give some weight given the closeness of the final trial commencing, and it is a factor that weighs against the application being made.
9. The overarching purpose of the Court's rules is to facilitate the just, safe, efficient and timely resolution of disputes. The risk in appointing a further psychiatrist, as sought by this application with the purpose of preparing a subsequent report in this matter, may infringe upon the overarching purpose, by impacting the efficiency and timely resolution due to the likely hood the matter not being completed in the time that has been allocated. As I said, last December the trial dates were allocated and the parties indicated that five days would be sufficient to conclude the witnesses.
10. As stated above, there is an existing single expert witness, Ms E, a clinical psychologist who prepared a report in July 2024. Ms E is not a psychiatrist, but rather a registered psychologist. There is also a Child Impact Report which was prepared by Ms D in April 2024.
11. The Child Impact Report recommended an expert assessment of each party's mental health. Specifically in relation to the father, Ms L noted, "it may be of assistance to the Court, in considering level of risk to [X], if [Mr Besco] engages in a mental health assessment with a Single Expert Psychiatrist and provide a report to the Court." The fact that the father has a long-standing treating psychiatrist who can provide evidence of the factors identified in relation to mental health assessment, the diagnosis, the prognosis, and ongoing treatment of the father, and the fact the father has indicated his intention to call evidence from his treating providers, also weighs against the application being granted.
12. The report prepared by Ms E addresses the dynamics between the parties and includes general observations of the father. Although, the report does not include a formal psychiatric diagnosis of the father, it raises a number of concerns regarding the father's mental health, for example, his historical suicidal ideation, the father's general psychiatric history, and his substance use. Again, each of these matters can be dealt with by his treating psychiatrist, if they are relevant factors in cross examination.
13. I am not persuaded that it is necessary to adduce evidence from a further single expert witness when balancing all of the competing considerations. The father's treating psychiatrist and psychologist will provide the evidence relevant to the father's mental health and will provide insight into compliance with treatment, medication effects, and prognosis.

1. On balance after considering the relevant factors, in the circumstances of this case the appointment of a single expert is not warranted, and the application is dismissed.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran.