ALLEGRO & OSWALD
[2021] FCCA 1442
•21 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALLEGRO & OSWALD | [2021] FCCA 1442 |
| Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Evidence – application to strikeout expert evidence – failure of expert to give reasons for conclusion. |
| Legislation: Family Law Act 1975 (Cth) ss.69ZT, 117 Evidence Act 1995 (Cth) ss.79, 102, 135 |
| Cases cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Pownall and Others v Conlan Management Pty Ltd As Trustee For The Kalbarri Trust (1995) 12 WAR 370(1995) 16 ACSR 227 |
| Applicant: | MR ALLEGRO |
| Respondent: | MS OSWALD |
| File Number: | BRC 5239 of 2019 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 21 January 2021 |
| Date of Last Submission: | 21 January 2021 |
| Delivered at: | Brisbane |
| Delivered on: | 21 January 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Minnery |
| Solicitors for the Applicant: | Burchill & Horsey Lawyers |
| Counsel for the Respondent: | Mr Richardson SC |
| Solicitors for the Respondent: | Butler Mcdermott Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Lyons |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
THE COURT ORDERS:
That pursuant to s.102NA(1)(c)(iv) of the Family Law Act 1975:
(a)the applicant father not be permitted to personally cross-examine the respondent mother; and .
(b)the respondent mother not be permitted to personally cross-examine the applicant father.
That the affidavit of Mr B filed 3 February 2020 annexing the family report dated 30 July 2019 and the affidavit filed 13 July 2020 annexing the family report dated 17 June 2020 be struck out.
THE COURT ORDERS UNTIL FURTHER ORDER:
That pursuant to section 62G of the Family Law Act 1975 the parties and the children, X born in 2010 and Y born in 2015 (“the children”) attend upon a Family Consultant as directed by the Manager Child Dispute Services on a date and time to be advised for the purposes of preparation of a family report.
That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the family report.
That the report be released by 21 May 2021, if possible.
THE COURT FURTHER ORDERS:
That the matter be adjourned to 10.00am on 13 July 2021 in the Federal Circuit Court of Australia at Brisbane for final hearing face to face with priority allocating four (4) days.
That no further trial affidavit material be filed by the parties.
That the father’s oral application for costs be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Allegro & Oswald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 5239 of 2019
| MR ALLEGRO |
Applicant
And
| MS OSWALD |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Yesterday, the Court was to commence the hearing of a parenting proceeding in this matter of Allegro & Oswald. The parenting proceedings related to two children, 10 year old X and five year old Y. The matter could not proceed primarily because of difficulties associated with Microsoft Teams reception. However, the Court was alerted to an application to strike out certain evidence. That evidence involved two affidavits from the jointly appointed Court expert, Mr B, annexing his family reports. The mother, through her Senior Counsel, has invited the Court to strike these affidavits out, and I will address the basis for that in a moment.
Somewhat interestingly, the mother had in her outline of case document formally read those affidavits into her evidence and both the Independent Children’s Lawyer and counsel for the father complain as to the timing of the objection. Mr Richardson SC quite correctly, with respect, reminded us that the time for objections is at the trial. However, it is also prudent when parties are aware that an objection in relation to family reports is to be made – it is prudent to bring that application as soon as they are aware in case there are flow-on consequences for the conduct of the hearing. I will deal with that if necessary later in this judgment.
The first family report, as I will call it, was annexed to Mr B’s affidavit that was filed on 3 February 2020, although it was affirmed on 30 July 2019. Mr B, at paragraph 182, said this:
In essence, the writer formed an opinion that it is highly unlikely that any sexual abuse of Y has occurred by the father, or that the father represents future risks of sexually acting out with either of the children.
He had, in paragraph 181, said:
As previously documented in this report, no concerns regarding the father’s sexual risk as to minors emerged as a consequence of both targeted interview and selective objective testing.
The importance of those opinions arise as a consequence of the mother alleging that Y has made disclosures that the father has touched her inappropriately, and the mother’s case is based upon an unacceptable risk of harm for this child spending any unsupervised time with the father. The father seeks an order that both children live primarily with him. In the second report, which is annexed to Mr B’s affidavit filed on 13 July 2020, at paragraph 116, the report writer said:
Having reviewed additional briefing documentation supplied for this report, as well as specifically reviewing the previous family report, the writer reiterates professional opinion that it remains highly unlikely that the father represents any substantive risk to Y.
The Senior Counsel for the mother argued, firstly, that the expressing of an opinion as to the issue in question – that is, whether or not the child has been sexually abused by the father – is not a matter for which the expert is to express an opinion, but is a factual matter to be determined by this Court. I certainly accept that submission.
The argument raised by Senior Counsel was that Mr B, in his reports, advances opinions inadmissibly that fall within the sole domain of the Court. Firstly, the fact of the ultimate issue, which I have already described, and issues as to veracity of the parties’ interviews and evidence provided to Mr B. It was complained that Mr B propounded a positive view of the father’s account and questioned the mother’s veracity.
It was also argued that the report writer had failed to state the assumptions that he was making to ground his conclusions. That is an important aspect of the case, because it is important, when this Court ultimately makes a finding of fact, it then needs to determine how the report writer has formed his or her opinion, and unless any assumptions on factual issues are highlighted in the report that ground the formation of the opinions, this Court is in a difficult position to determine what weight should be given to the opinions expressed therein.
The – it was argued that the report writer did not set out clearly how his expertise, by qualification, training or experience, helped form the conclusion that he arrived at paragraph 182, and that any references to a series of psychometric testing reports is insufficient to enable the Court to be able to determine the reasoning for the conclusions drawn.
It could be said why is this relevant when section 69ZT(1) of the Family Law Act says that certain rules of evidence do not apply, and in particular, Parts 3.2 and 3.8 of the Evidence Act 1995 do not apply by virtue of 69ZT(1)(c) of the Family Law Act, and they encompass opinion evidence and evidence as to credibility .
However, the Court has been invited by Senior Counsel for the mother to apply section 69ZT(3), which reads:
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
As I will advance later in this judgment, it was argued on behalf of the father and the Independent Children’s Lawyer that if the Court was to adopt this course the Court would be able to make another order in relation to this evidence using subsection 69ZT(3)(iv). But that did not take from the argument that this was not an exceptional case.
Taking up the argument for the application of section 69ZT(3) I am satisfied that this is a case where the circumstances are exceptional. The allegations raised by the mother are serious in their implications for the child’s relationship with each of the parents – but particularly the father. And, therefore, this Court should be satisfied with the best evidence available to it that either there has been some sexual abuse of this child or there is some risk of it or there has not been. Therefore, I am satisfied that this is one of those cases that warrants the Court applying certain rules of evidence.
However, I must also be satisfied of the importance of the evidence. Well, I have addressed that. The nature of the subject matter of the proceedings – I have addressed that. And the prohibitive value of the evidence. And I will address that in a moment.
Senior Counsel for the mother argues that the Court would apply section 79, section 102 and section 135 of the Evidence Act which do not fall within the exclusion of section 69ZT, subsection (1) of the Family Law Act. I will deal with section 135 momentarily.
Section 79 subsection (1), which is the relevant subsection, reads:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person. That is wholly or substantially based on that knowledge.
Section 102 deals with credibility evidence and simply states that:
Credibility evidence about a witness is not admissible.
The argument was advanced that the family report writer did not satisfy the test in relation to opinions expressed being wholly or substantially based on the specialised knowledge. In the decision of Dasreef Pty Ltd v Hawchar[1], the High Court of Australia majority decision said at paragraph 32:
To be admissible under section 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence “has specialised knowledge based on the person’s training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”.
[1] (2011) 243 CLR 588
If we turn to the first part of the requirement I am satisfied that Mr B has the specialised knowledge based on his training, study or experience. His curriculum vitae, set out in his affidavits, indicates extensive experience in addressing issues of the risk of sexual violence by alleged perpetrators. He says, at paragraph 7 of his curriculum vitae, annexed to his second report:
I specialise in the area of assessment and treatment of sexual offenders including assessment of risk of sexual and physical violence as well as the design, implementation, supervision and evaluation of structured intervention programs for sexual abusers.
He sets out his many many years of experience in this field in both of the CVs annexed to his reports. However, that is not the end of the matter. It is the specific opinions that he expresses in his reports that – it needs to be shown – have been arrived at wholly or substantially based on that knowledge which he has.
At paragraph 42 of the majority’s decision the High Court said:
A failure to demonstrate that an opinion expressed by a witness is based on the witnesses specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.
I repeat that. It goes to the admissibility of the evidence, not its weight. In other words, if it is not admissible it is simply that – not admissible. The Court goes on:
And if, as the Court of Appeal observed[2], his opinion on that matter lacked reasoning, the absence of reasoning pointed (in this case inexorably) to the lack of any sufficient connection between a numerical or quantitative assessment or estimate and relevant specialised knowledge.
[2] [2010] NSWCA 154 at [44]
Now, it is argued in this case that in drawing his conclusion at paragraph 182, the report writer failed to establish how he arrived at that conclusion from his specialised knowledge based on the training, study or experience that he has.
The High Court has said that in the decision of Dasreef v Hawchar that there is a concern about the risk of injustice that may flow from unsatisfactory expert evidence. The stricter the admissibility requirements for section 79 tenders the greater the chance that evidence carrying that danger will be excluded.
Hayden J delivered a separate judgment in that case and had this to say at paragraph 91:
At common law there is no doubt that an expert opinion is inadmissible unless the expert states in chief the reasoning by which the expert conclusion arrived at flows from the facts proved or assumed by the expert so as to reveal that the opinion is based on the expert's expertise. The court does not have to be satisfied that the reasoning is correct: "the giving of correct expert evidence cannot be treated as a qualification necessary for giving expert evidence."[3] But the reasoning must be stated. The opposing party is not to be left to find out about the expert's thinking for the first time in cross-examination.[4]
[3] Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 at 303[4] Lewis v The Queen (1987) 88 FLR 104 at 124
Now in this particular case the reports were court ordered joint reports of the parties. However, I am satisfied that the principles still apply and that the Court needs to know the assumed facts by which the expert has based his conclusions. Heydon J went on to say at paragraph 99:
…the links between the expert’s training, study and experience and the opinion should be spelt out unless they are apparent from the nature of the specialised knowledge.[5]
And his Honour further went on to say at paragraph 108:
Failure by the tendering party to comply with the proof of assumption rule makes the opinion evidence irrelevant.
[5] Adler v Australian Securities and Investments Commission (2003) 179 FLR 1 atIn HG v The Queen[6] the High Court and in particular Gleeson CJ said at paragraph 39:
An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question.
His Honour went on to say at paragraph 41:
It would have required identification of the facts he was assuming to be true, so that they could be measured against the evidence; and it would have required or invited demonstration or examination of the scientific basis of the conclusion.
[6] [1999] HCA 2, 197 CLR 414, 73 ALJR 281, 160 ALR 554
His Honour of course was referring to a psychologist’s evidence in that particular case. I note that counsel for the father argued the applicability was somewhat different because that was a criminal case. However, I accept the submission by Senior Counsel that the principles remain the same.
His Honour said at paragraph 40:
It is not in dispute that psychology is a field of specialised knowledge,[7] and that a psychologist may be in a position to express an opinion based on his or her specialised knowledge as a psychologist.[8] However, the witness had to identify the expertise he could bring to bear,[9] and … his opinions had to be related to his expertise.
[7] It is unnet:essary for present purposes to enter into issues of the kind considered in Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993). It is the language of s 79 which has to be applied. Even so, warnings have been expressed as to the care to be taken in the use in cases such as the present of certain aspects of the behavioural sciences: see, for example, R v F (1995) 83 A Crim R 502; R Underwager and H Wakefield "A Paradigm Shift for Expert Witnesses" Issues in Child Abuse Accusatwns (1993) vol 5 pp 156 67
[8] Murphy v R (1989) 167 CLR 94; 86 ALR 35
[9] Murphy v R (1989) 167 CLR 94 at 111; 86 ALR 35
His Honour went on to say at paragraph 44:
…it is important that the opinions of expert witnesses be confined in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture “opinions”, (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact finding may be subverted.
It was argued that is exactly what Mr B has done in this case. I am not sure if I am in position to find that that is what Mr B has found but I am certainly satisfied that Mr B has failed to set out in his report the basis of his conclusion of the factual issue that there was unlikely to have been any sexual abuse of Y by the applicant or that there is unlikely to be a risk of him doing so in the future. In the matter of Pownall & Conlan Management Proprietary Limited[10], Ipp J had this to say,
In my opinion, expert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it. I form this view as to admit such an opinion would be to admit, indirectly, the inadmissible evidence itself. If an opinion, based solely on evidence that the Court by law is required to exclude, is itself admitted, the inadmissible evidence would have some influence over the Court’s decision. Such a result would defeat the purpose of the law which excludes the inadmissible evidence. If the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant, and in my opinion, should be excluded.
It is for this reason the court of appeal in R v Turner[11] observed (at 73) that an expert in examination in chief should be asked to state the facts in which his opinion is based and that it was wrong to leave it to the other side to elicit the facts by cross-examination. It is only when the primary facts upon which the opinion has been based and established that the opinion should be admitted into evidence.
[10] Pownall and Others v Conlan Management Pty Ltd As Trustee For The Kalbarri Trust (1995) 12 WAR 370(1995) 16 ACSR 227
[11] [1975] 1 All ER 70
Because the family report writer has not established the assumptions – or did not set out the assumptions on which he relied to form the opinion that he expressed in paragraph 182 and again in the second report, I am satisfied that that part of his evidence is inadmissible. The question then remains, can that part of the evidence be extracted and the remaining parts of the opinion maintained.
It was argued that it is impossible to unscramble the egg. This is a case where the issue of the risk of harm permeates the whole consideration of the future parenting orders. And I am satisfied that it has formed a significant part of the consideration by the report writer. Consequently, I accept the submission that the egg has been scrambled and cannot be put back together.
It was further argued that if I was not with the mother that I would use my discretion otherwise under section 135 to refuse to admit evidence if it is prohibitive value is substantially outweighed by the danger that the evidence might a, be unfairly prejudicial to a party or b, be misleading or confusing, or cause or result in an undue waste of time. Having found that I should apply section 69ZT subsection (3) and applied section 79 of the Act, I do not need to consider my discretion under section 135.
I am not satisfied that the issue that is causing us concern can be readily cured under section 69ZT(3) or (4) and therefore I strike out the two affidavits that I have been referred to.
I took into account the implications of striking out the affidavits and my concern for the child being exposed to further interviews but if a matter is inadmissible, it is inadmissible and we need to proceed otherwise.
Oral application for costs
I am asked today by way of an oral application that the respondent mother pay the father’s costs both for preparation and appearances on an indemnity basis or in the alternative at a lessor amount because the trial has been adjourned. That application is opposed. The father’s application is based on a premise that the mother has briefed Senior Counsel interstate and Senior Counsel was unavailable to be here for a face to face hearing. Through no fault of his own but as a consequence of the positions taken by government in relation to lockdown and COVID prevention measures. I am satisfied that the matter has originally been set down at an earlier date for a teams hearing and that ultimately the Court opted for a face to face hearing and we were thwarted in that by virtue of those COVID prevention measures that I have referred to.
The fact that the mother has retained counsel from interstate is not something that should be considered in the negative against her. I note the Independent Children's Lawyer has also retained counsel from interstate albeit from a different part of the state that is not caught in that lock down. The Court would normally apply the principle that each party would bear their owns costs of any application before it. However, if the court is of opinion that there are circumstances justifying a costs order it may make such order as it considers just. Having regard to a number of factors set out in section 117(2)(a).
I accept the submissions made by Senior Counsel for the mother that as the application has been pressed orally the Court is not in a position to make any factual findings in relation to the financial circumstances of any of the parties. I am satisfied that neither party is legally aided. However the Independent Children's Lawyer is. I am satisfied that the matter has been adjourned as a consequence of the inability of the Microsoft Teams connection to work sufficiently to enable the Court to both record and to hear the parties legal representatives and I was concerned about the ability to be able to determine this matter under that forum. I am satisfied that notwithstanding the fact that the matter needed to be adjourned, legitimate issues in relation to the admission of certain documents or certain evidence has been able to be determined by a telephone connection and that the matter was adjourned to today at the request of the father and the Independent Children's Lawyer to enable those submissions to be heard.
I am not satisfied that these proceedings were necessitated by a failure of any party to comply with previous orders and I am therefore satisfied that this is not a matter that warrants a departure from the usual rule that each party should bear their own costs. Before I leave this judgment though I want to acknowledge that the parties have been put to considerable expense and I do not in any way dismiss the significant impact on each of the parties in that regard. But I am satisfied that it is through no fault of either party that the matter needed to be adjourned. I dismiss the application for costs.
I will direct that no further trial affidavit material be filed. Obviously if there has been a significant change of circumstances you will prepare one, file it and seek my leave.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 28 June 2021
per Menzies J.
138 [631]-[632].
[12] Ibid at page 234
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