Malone v Malone [2019] NZFC 7583

Published 15 July 2020

Guardianship dispute — trial period of medication — autism — application for critique of expert report — jurisdiction — Care of Children Act 2004, ss 4, 46R, 133 & 134(6) — Family Court Rules 2002, rr 186 & 187 — Schillinger v Jarvis [2015] NZFC 5500, [2016] NZFLR 269. The parties were in a guardianship dispute over whether their 12-year-old son should be trialled on a medication for his diagnosis of Autism Spectrum Disorder (ASD). This short cause hearing involved an application by the father for a critique of the psychiatric report prepared by the court-appointed specialist doctor. The father submitted the psychiatric report should be critiqued or a second report should be ordered, as it was unfair because his new wife was not interviewed when the expert was seeking information. He also said it was unfair that the report-writer spent more time with the mother than with him. He believed for these reasons the report was biased. As with all decisions under the Care of Children Act (the Act), the primary consideration is the welfare and best interests of the child. Under s 133 of the Act, a range of specialist reports can be obtained. When assessing whether or not to direct a report, each type of report requires discrete and different analysis. Lawyer for the child submitted that there was no jurisdiction under the Act to critique psychiatric reports. There was specific provision for critique of psychological reports under s 133(10) but no equal provision for psychiatric reports. The Judge accepted this submission. As the Act is a code for judges to deal with these kind of matters and unless a matter fell under those provisions, there was no jurisdiction to direct a second opinion or critique the report. Even if there was jurisdiction, to make a critique the Judge would have to be satisfied there were exceptional circumstances that required and demanded there be further cost and delay in getting a second opinion. The Judge was not convinced there were exceptional circumstances. There was no requirement that his new partner be interviewed for the report. Further, the report set out the opinions of both the father and mother. As most of the behavioural issues occurred in the mother's care or at school, it was not surprising that more of the report may be dedicated to the mother's explanations. Even if the Court had jurisdiction, there were no exceptional circumstances warranting a critique. Further, it was not in the welfare and best interests of the child to have the substantive hearing delayed. The father's application was declined. Judgment Date: 13 September 2019. * * * Note: names have been changed to comply with legal requirements. * * *