Atkins and Caldwell and Anor (No.2)
[2011] FMCAfam 74
•31 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ATKINS & CALDWELL & ANOR (No.2) | [2011] FMCAfam 74 |
| FAMILY LAW – Expert evidence. |
| Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 J.D. Heydon, Cross on Evidence, (Eighth Australian Edition) (Sydney: LexisNexis Butterworths, 2010) |
| Applicant: | MS ATKINS |
| First Respondent: | MR CALDWELL |
| Second Respondent: | MS BURNS |
| File Number: | CAC 689 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 2 December 2010 |
| Date of Last Submission: | 13 December 2010 |
| Delivered at: | Canberra |
| Delivered on: | 31 January 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Pappas J Attorney |
| Solicitors for the first Respondent: | Strong Law Pty Ltd |
| Solicitors for the second Respondent: | Watts McCray McGuiness Eley |
| Solicitors for the Independent Children’s Lawyer: | Barker & Barker |
ORDERS
The application to call Ms H as an additional expert witness is refused.
IT IS NOTED that publication of this judgment under the pseudonym Atkins & Caldwell & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 689 of 2008
| MS ATKINS |
Applicant
And
| MR CALDWELL |
First Respondent
| MS BURNS |
Second Respondent
REASONS FOR JUDGMENT
In these long-running proceedings, which stand ‘part-heard’, a further, discrete issue has arisen regarding “expert evidence.”
By way of an oral application, the solicitors for the Second Respondent Mother contend that, in addition to the evidence already provided (and the further evidence to be provided at the conclusion of the part-heard proceedings) by the Family Consultant, Ms L, at least one additional expert, Ms H, should also be called.
The solicitors for the Father, Mr Caldwell oppose Ms H being called. The Independent Children’s Lawyer, Mr Ridge, does not support the calling of Ms H. At the commencement of the trial proper, Counsel for the Applicant Grandmother supported the position of her daughter,
Ms Burns, which was later pressed in the oral application to which I have referred.[1]
[1] See the Transcript (27th October 2010), p.5.
Some brief background history will assist.
The child ([X]) involved in this matter is now aged just over 3, having been born [in] 2007. In an earlier chapter of the contest between [X]’s parents, Ms H, who is an expert in what is called “attachment theory”, was involved at the suggestion of the then Family Consultant, Ms W. Obviously at that time Ms H saw the parties (and the respective Grand-parents, who are relevant “players” in the matter) and the then very young child.
Courtesy of Ms H’s significant involvement (and, of course, many others as well), the matter was resolved in, and Consent Orders signed on, 21st May 2009. Prior to that date, Ms H had prepared a report, dated 24th December 2008.
It is not disputed that Ms H has not seen the parties, or the child, for the better part now of two years.
On the other hand, Ms L has seen the parties (and the child) now on a number of occasions, and quite recently so.
Ms L is a highly qualified and experienced family consultant. In my view, she readily meets the criteria of an expert witness specified in cases such as Makita (Australia) Pty Ltd v Sprowles,[2] and Australian Securities and Investments Commission v Rich.[3]
[2] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]
[3] Australian Securities and Investments Commission v Rich (2005) 218 ALR 764. See further the detailed discussion in J.D. Heydon, Cross on Evidence, (Eighth Australian Edition) (Sydney: LexisNexis Butterworths, 2010) pp.1010 [29045] ff.
It is no disrespect to Ms H to say that Ms L’s evidence, in my view, is and could only be the best evidence to assist the Court precisely because of her very significant experience and expertise, and because she is the expert who has been most recently involved with the parties and the respective families, and the child.
Whatever of Ms H’s expertise, her evidence could only be considered on the basis of certain scenarios – assumed or otherwise – rather than having the benefit of seeing the parties and the child, as Ms L has done on a number of occasions in more recent times.
In the course of the trial I indicated my concern about a possible contest between experts which, in my view, would not assist the Court in the resolution of the matters that were before the Court.[4]
[4] For the particular caution and “careful evaluation” required in relation to conflicting expert evidence, see the comments of Gummow & Callinan JJ in Velevski v R (2002) 187 ALR 233 at pp.274-275 [178] – [182], albeit in the context of criminal trials.
At the hearing of this application on 2nd December 2010 I allowed the parties to provide, if they wished, any further written submissions in relation to the current issue before the Court. Only the Independent Children’s Lawyer (“the ICL”, Mr Ridge) did so.
In the course of his submissions, the ICL stated:
Ms L is able to give expert evidence on attachment issues and will have the opportunity of doing so having had recent involvement with the parties and the child (and possibly having had further involvement before the hearing resumes).
Any evidence now given by Ms H will be as to expectations of how attachment issues would have progressed based on her 2008 assessment, rather than on any more recent observations or assessment.
It is not clear that Ms H’s expertise would better qualify her to give evidence as to current attachment ... than can be given by
Ms L ....
Ms H’s 2008 assessment is not without controversy as to methodology and as to the assessment involving the father. That controversy may be time consuming at the resumed hearing, but may not be able to be resolved in a satisfactory manner. The Court may not be assisted by an airing of the controversy in the decision the Court is to make about the best interests of this child.
On balance, the ICL did not, and does not, support Ms H giving evidence.
I respectfully agree with the comments and observations of the ICL.
For the reasons I have stated, I do not see that Ms H would be able to assist the Court in determining the limited range of issues that remain before me. Indeed, there is the risk, as I have previously indicated to the legal representatives, that any evidence given by Ms H could set up a conflict of evidence between experts. Such contests should, if at all possible, be avoided. In the circumstances of this case I do not see that the Court would be assisted by any evidence that could be given by
Ms H when the Court has available to it the ready and extensive expertise of Ms L.
Accordingly, I do not allow Ms H to be called as an additional expert witness. The application to call Ms H is formally refused.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 31 January 2011
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