Pittman & Pittman (2025): Subpoena Refused for Psychologist; Paediatrician Approved to Assess Impact of Change in Primary Care

1. These reasons relate to the Court’s determination about an oral application made on 5 September 2025 during the course of this defended hearing, for the mother to be granted leave to issue a subpoena to Ms B, an educational and developmental psychologist, to give evidence in the case about three issues:^[1]

(a) First, the issue of expert evidence concerning the possible or likely impacts on the child X of the change in residence to South Australia, including the change in treatment providers in June 2024;(b) Second, the possible or likely impact on X of a further change in primary residence; and

(c) Third, the possible or likely impacts on X of a substantially shared care arrangement between the parents, whether in New South Wales or South Australia, on the assumption that a coercive order is made.

2. The application I have just described was made for the first time on the final day of a defended hearing listed between 2 and 5 September 2025, which listing had been given following the review hearing and determination of that review in June 2025.
3. There have been previous applications made by the mother, by Application in a Proceeding filed 21 August 2025, for leave to subpoena Ms B, among others, to give evidence. I heard and determined the Application in a Proceeding filed 21 of August 2025 the very next day. The basis for seeking to call Ms B to give evidence on the earlier application was said to be to give evidence of the child’s psychological wellbeing and his current treatment and management.
4. On 22 August 2025, the other parties opposed leave being granted to subpoena Ms B, submitting it was unnecessary because there was no dispute about the child’s diagnoses. Further, the treating professionals’ reports had been filed, or would be filed, which the parties agreed could be tendered into evidence by consent. This included the report of Ms B dated 17 March 2025.
5. There is no dispute that the child is diagnosed with a medical condition, level 3 autism and related delayed physical and intellectual development. Counsel for the mother then conceded that there was no need to subpoena Ms B and abandoned his application, and so I made an order refusing leave to subpoena Ms B to give her evidence.
6. The fresh application to subpoena Ms B, as I have stated, was made on 5 September 2025, the last day allocated for receiving evidence at the defended hearing, given that I had reserved the date of 23 September 2025 for closing submissions. The submission by counsel for the mother on 5 September 2025 was, and still is, that it is necessary and relevant for the Court to receive reliable evidence about the impacts on the child, being a child with serious medical conditions and vulnerability, of a change in primary care, as this is an issue in the case. He submitted that the evidence given by the Court Child Expert on 5 September 2025 was inadequate and unqualified about this topic.
7. For the purpose of determining the fresh application, I adjourned to 10 September 2025 and caused my Associate to ask the Independent Children’s Lawyer (“the ICL”) to make inquiries of the various persons who had been flagged as potential persons of suitable nature to give expert evidence about the impact on the child of a change in primary care. Those persons were Ms B, Dr E and Dr F, the latter two being paediatricians who have treated the child. I received the inquiries and their replies into evidence yesterday for the purposes of the issue I was considering on the mother’s application. I marked that evidence as Exhibit ICL11, Exhibit ICL12 and Exhibit ICL13 respectively.
8. It has been the father’s case since the start of these proceedings that the child should return to reside in New South Wales and that, if the mother declined to also return, then the child reside in his primary care. The mother’s case has, and always has been, that she has been the child’s primary carer and it is in his best interests that he remain living in South Australia with her.
9. The parties’ respective cases were each confirmed following the determination of the Application for Review which I determined on 13 June 2025.
10. The father opposes the Court granting leave to subpoena Ms B or either paediatrician. In essence, the following reasons were the reasons given for so submitting:

(a) Ms B has only seen the child once and has not had access to any of the other evidence before the Court;(b) Ms B does not consider herself qualified to give the potentially necessary evidence sought;

(c) The evidence from Ms B is so general and qualified that it does not assist the Court in determining what the impact on the child may be if there is a change in primary care; and

(d) There is other evidence already before the Court in relation to the impact on the child of a change in primary care, being the evidence given by the Court Child Expert.

11. The father’s counsel also submitted that if the Court requires probative evidence about the impact on the child of a change in primary care, the person to give the evidence is the Court Child Expert once she is briefed with all the “relevant materials”. I refer to the minute of order which the father’s counsel provided to the Court yesterday. I have considered those submissions and do not accept them for the reasons I gave orally during the hearing yesterday, being:

(a) First, the Court Child Expert would not be able to obtain the necessary information from Dr F and would only have his tendered reports;(b) Second, the Court Child Expert made it clear during her cross-examination that she does not have the medical expertise to give the evidence sought about impacts, given the child’s specific diagnoses and needs; and

(c) Third, relevant to the obligation of the Court to manage these proceedings consistent with the overarching purpose, these being child-related proceedings, my Associate’s inquiries with the Child Court Expert indicates that she would not have time to consider additional materials or provide a report for a considerable time, being weeks, this being something which I disclosed to all parties during the hearing yesterday and which the father’s counsel accepted.

12. The ICL also opposes the Court granting leave to issue the subpoena to Ms B for the reasons advanced by counsel for the father. In addition, having explored the potential utility and availability of evidence from the child’s current paediatrician, Dr F, and his previous paediatrician, Dr E, if the Court considers that evidence of that nature is necessary, the ICL submitted that Dr E should be subpoenaed as he has expressed some willingness to assist, not as a Single Expert but as a paediatrician who treated the child.
13. Counsel for the mother maintains that it is necessary for the Court to receive evidence about the impact of a change in primary care because the Court Child Expert conceded that she did not have the necessary qualifications to give the evidence. He also disputes the submission made on behalf of the father that the CCE’s evidence adequately addressed this issue. I observed to counsel for the mother yesterday, and I reiterate today, that there has not been an expert witness identified who is willing and able to give the evidence he seeks to adduce, and that Ms B clearly did not consider herself qualified to give, based on her response.^[2]
14. Counsel for the mother submitted that it was unknown whether the paediatricians may have something to say in respect of the issue of the impact on the child of a change in primary care, and their evidence may be helpful and that the evidence is necessary and relevant evidence. He also raised the possibility of another witness, Ms D, apparently a psychologist suggested by Ms B, who was accustomed to conducting expert assessments for family law matters.
15. The upshot of Mr McQuade’s submissions was that he pressed for the Court to subpoena either of the paediatricians, did not abandon the application for Ms B, and while he also foreshadowed that he may apply for Ms D to be called, his instructor would make inquiries of her. It transpires from what I have been told today that the ICL has made those inquiries, but no reply has been forthcoming from Ms D.
16. It is uncontroversial and conceded by all parties that Ms D has never seen the child or the parents, nor has she read any of the materials in this case, nor heard the parties give their evidence.
17. As it is conceded that no reply has been forthcoming from Ms D, there is no evidence before the Court as to whether she would be willing and able to provide the evidence that the mother seeks to adduce to ensure that the Court is informed about the impacts on the child of a change in primary care, if that evidence is available at all.
18. I am not persuaded that Ms D is an appropriate or suitable person at this stage to give the evidence that the mother seeks to adduce because of the uncertainty around her qualifications, whether she would be prepared to fulfil a brief as a Single Expert, and if she would be available to give evidence in the foreseeable future. As I mentioned earlier in my reasons, furthermore, it is uncontroversial that Ms D has never seen the child, nor the parents, nor has she read any of the materials in this case, nor heard any of the evidence.
19. Mr McQuade has, during the course of the delivery of my reasons on the application that I heard yesterday, introduced a further potential expert witness to inform the Court and assist it in making the determination of parenting orders in this case, that being Ms C, whose curriculum vitae has kindly been provided by Ms Yu. I receive that curriculum vitae into evidence and I mark it as Exhibit ICL14. The curriculum vitae identifies that Ms C is indeed a social worker holding qualifications, and she has also completed a Certificate IV in Interagency Practice (Child Abuse) in 2001.
20. The evidence that Ms C may give, should she be required to give an expert report or called on subpoena, would suffer the difficulties that Mr McQuade has submitted about the Court Child Expert, as they have, in my view, comparable qualifications, although not identical. For that reason, I consider the evidence of Ms C is unsatisfactory, unsuitable and unqualified for the issue to be addressed, being the impact on the child, being a child with special disabilities, of a change in primary care.
21. I now turn to make my determination and disclose my reasoning for that determination. The submissions of the parties raise essentially two central issues for determination:

(a) First, is there a need for further evidence about the impact on the child of a change in primary care; and(b) Second, if there is a need for such evidence, is it available and is it likely be reliable and helpful to the Court in determining the issue of with whom the child should reside, which underpins or involves the question of what impact a change in primary care may have on the child X, given his special needs and disabilities.

22. I begin by observing that leave is required to subpoena any of the witnesses identified by the mother’s counsel in his various submissions to the Court. That is by virtue of Rule 6.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The obvious purpose of that rule is to ensure that only relevant evidence which assists the Court in determining the issues in dispute between the parties, consistent with the overarching purpose in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the provisions of s 95 of the Family Law Act 1975 (Cth), is called by subpoena, as subpoenas force third parties to become involved in what are essentially inter partes disputes.
23. As the child lives with severe disabilities, his care and parenting needs and coping may be different to those of a child without those disabilities. The capacity of each parent to provide the nature and level of care required of him is relevant to the parenting orders that the Court makes.
24. During cross-examination, the Court Child Expert conceded that she did not have the qualifications to give a specific opinion about the impact on the child of a change in primary care. She gave more general evidence about the impact on children of changes in residence based on her non-medical experience and qualifications and her assessment of the parties’ parenting capacity following interviews with them and observations of them with the child.
25. I accept that expert evidence of the impact on the child of a change in primary care, being a child with special needs due to his medical diagnoses, is relevant and may assist the Court’s determination of what is in his best interests, including the making of orders relating to the transition of care if an order for a change in primary care is made. However, it has been relevant from the beginning of this case, and no party has sought to adduce such evidence until the last day of the hearing.
26. Although I have found the relevant evidence may assist in the Court’s determination of the child’s best interests, I am of the view that there already is some evidence before the Court about the impact of a change in the child’s care. That is because the parents and other witnesses have given evidence about the changes and impacts occasioned on the child from when he was moved from New South Wales to South Australia by the mother. The mother, her father and her stepmother have given limited evidence about this topic. In addition, the Court Child Expert has given qualified or general evidence about this topic.
27. Whether the mother’s application is allowed in any of its forms also involves considering what relevant and probative expert evidence is likely to be available in the near future or the foreseeable future. That is because it is wholly contrary to the interests of the child and the overarching purpose of the Rules and the Act to indefinitely delay the conclusion of this final hearing, especially so because it may not be possible to obtain a single expert report of the nature concerned or to identify a qualified expert who is willing and able in the foreseeable future to provide a single expert report.
28. I pause to observe that the primary position in this Court is that single expert reports are to be obtained either by agreement between the parties under the Rules, or alternatively, by the parties making an application to the Court, which has not occurred in this case in respect of the particular evidence that the mother now seeks to adduce. For that reason, I asked the ICL to make inquiries of Ms B and the two paediatricians, who are medical experts who have treated the child, as to their capacity to provide evidence.
29. I turn to whether the evidence that is required or considered to be relevant is available. The outcome of the ICL’s inquiries are in evidence before the Court and I find, based on the responses in evidence, as follows:

(a) Ms B did not realise that she was being asked to provide an expert opinion that may be adduced at a trial until the ICL sent emails clarifying the purpose of which the mother’s solicitor Ms Spizzo had made her inquiries. I consider she was not aware that she was being asked to provide a single expert report;(b) There was no application for adversarial expert evidence, and leave had never been granted for that purpose; and

(c) Ms B states that she is not qualified to give evidence about the relevant issues and that it is outside of her scope of practice.

30. Accordingly, I find that Ms B is not a suitable expert, and it would serve no purpose to issue a subpoena to her, particularly where it would drag her away from the important clinical work and treatment to which she refers in her responses to the ICL.
31. Turning to Dr F:

(a) He has previously declined to provide a report to the ICL pursuant to directions that I made on or about 22 August 2025. His reasons appeared to be related to time constraints and treatment demands upon him, and in any event, his evidence about the nature of the child’s conditions and treatment are already before the Court; and(b) Upon the more recent inquiries made of him by the ICL on 8 and 9 September 2025, he has not indicated a willingness to answer a subpoena or provide a report addressing the relevant issues. I infer on this basis, particularly his non-responses, that he is a reluctant witness, and given the high demands on him of a treating paediatrician in a public health system, I am concerned that it would take him away from important clinical work when there is no level of satisfaction that the evidence he may give would be of assistance to the Court in determining the issues.

32. Finally, I find that Dr E, due to his prompt responses to the ICL, has demonstrated some willingness to participate in this legal process. I infer that he is more likely to provide probative evidence to assist the Court. Furthermore, he has seen and interacted with both parents, where Dr F has not. In addition, he can be provided with Dr F’s reports and other relevant medical reports identified in Annexure A, all of which can be done in preparation of him giving evidence.
33. I need to weigh the potential of receiving further evidence about the impact on the child with his serious disability, against the prejudice to the parties and the child due to the delay in the context of the overarching purpose of the Federal Circuit and Family Court Act. This weighing and discretionary assessment is one that is consistent with the guidance given by the Full Court in Simmons & Simmons [2023] FedCFamC1A 44 (“Simmons & Simmons”) at [44] and [48].
34. Conducting this weighing and assessment implicitly involves being able to identify, with a degree of clarity, what evidence is available and potentially probative, and when it can be put before the Court. There will be prejudice to all parties if there is indefinite delay in finalising the proceedings and making final parenting orders for the child. I have been told that each of the parties considers it desirable for final orders to be made without unnecessary delays. The mother, and her treating psychologist Mr R, gave evidence about the negative psychological impact on the mother of uncertainty due to the pending litigation and the failure to finalise it.
35. There will also be cost involved in calling further evidence of the nature sought to be adduced by the mother, and this may be prejudicial to the party who bears the cost at first instance, but I do not consider this a significant prejudice because it can always be remedied, either wholly or in part, at a later time, if necessary, by a costs order.
36. In my view, it is possible, but not necessarily likely, that the evidence of a paediatrician who has treated the child, rather than Ms B or any of the other proposed witnesses mentioned by the mother, will assist in informing the Court about the impacts on the child with his particular needs of a change or potential change in primary care arrangements.
37. As I consider Dr E is more likely, as a qualified paediatrician, to be able to provide some evidence about this impact, I consider that I should make an order granting leave to the ICL to issue a subpoena to him to give evidence on 23 September 2025. To the extent that the mother may say that this expert is not able to express a view about the psychological impacts on the child, or physical impacts, of a change in primary care, I do not accept that that is the case. It depends on what he says. This was a point that Mr McQuade made at the hearing yesterday.
38. In arriving at this view that Dr E is best suited to give the evidence that may be of assistance to the Court, it is relevant that the child does not have a treating child psychologist or psychiatrist who would be better placed to give specific evidence about the impact on X of a change in primary care. Furthermore, it is relevant that no other person has been identified as suitable or needed.
39. Although the mother’s counsel submitted that Ms D is a possible psychological expert to give evidence, as I have stated earlier in my oral reasons, there is no evidence that she would be prepared to give the necessary report or clarity about who would pay for it. Also, it is not desirable for her to give evidence on a subpoena when she has not been privy to any of the information in this case. Her position is markedly distinguishable from Dr E, who has been a treating specialist for X.
40. I decline to make the order sought by the mother to call Ms B on subpoena, because her evidence would be useless, in my view, in serving the purpose for which it is sought to be adduced. As she plainly said, it would be operating outside the scope of her practice. In addition, she has only seen the child once and has no knowledge of the father’s parenting capacity, personality, demeanour or otherwise, having never met with him. We have considerable information about the child’s autism diagnosis in Ms B’s report of 17 March 2025, and that report can be given to Dr E prior to him giving evidence on subpoena.
41. I may consider receiving into evidence the email Ms B sent to Ms Spizzo, being Exhibit ICL10, for the purposes of giving some information to the Court, but I will make a determination about that after I have heard from Ms Shea and Ms Yu. I have concerns that the various and many caveats that are expressed in that email render the information she has provided as having very low value, and am not presently persuaded that it would provide any assistance to the Court, in accordance with the principles expressed by the Appeal Court in Simmons & Simmons.
42. Although no specific application has in fact been made by counsel for the mother to subpoena Dr F as a fresh application, as opposed to the application that was made on 21 August 2025, I decline to make an order for leave to issue a subpoena to him to give evidence, for the reasons I have given earlier. Clearly, his reluctance and non-responses are concerning, and he has not met both parties.
43. Finally, in determining the issues that I have just addressed, I am also mindful of, and have taken into account, the principles in Lainhart & Ellinson [2023] FedCFamC1A 200 at [30] to [31], and I am mindful that the additional evidence that is being called may not elicit any helpful evidence about the possible or likely impacts on this child of a change in primary care. That is because the preliminary impression I have from Ms B’s email and the evidence of the Court Child Expert is that the question involves speculation, and the possible impacts which the Court must weigh in conducting a risk assessment may in fact not be capable of identification or elucidation to a relevant level that assists the Court. That is, it may not be predictable.
44. Nonetheless, informed by the Appellate Division authority, in particular Simmons & Simmons, I feel compelled to issue a subpoena to Dr E for the reasons I have fulsomely given.
45. I make that order for these reasons.
46. As I have amply demonstrated in the reasons I have given, it is highly undesirable to adjourn off the conclusion of a defended hearing indefinitely for months. The Court has taken great care in stipulating a case management pathway to achieve the objectives that both parties told me they wanted to achieve, namely to finalise the parenting dispute between the parties, and it is not consistent with justice and all the factors that I have mentioned that inform justice between the parties and which inform the best interests of the child, that we keep digging for possible evidence that might assist the Court in making what is going to be a difficult decision.
47. Accordingly, it is in the interests of justice and procedurally fair to both parties that there be a strict limit imposed on any further applications being made for expert evidence to be given. I have given the mother extensive liberty since they raised the need for further evidence.
48. There is a marked distinction, in my view, between subpoenaing a witness on a fishing expedition for the possibility that they may have something of relevance to the dispute between the parties, and on the other hand, having a clear, considered, fulsome report obtained pursuant to the single expert Rules of the Court, the objectives for which I have explained in my reasons earlier, and simply going off and asking people ad hoc questions that have not been carefully considered or formulated, and tend to obscure, rather than clarify, the question that the Court has to determine ultimately, being whether there should be a change of primary residence.

Associate:

 

Dated: 30 September 2025