BANDONI& MILIC

[2015] FamCA 693

FAMILY COURT OF AUSTRALIA

BANDONI& MILIC [2015] FamCA 693

FAMILY LAW – CHILDREN – Interlocutory Application – Where the father sought the discharge of the current Court appointed Single Expert and the appointment of another single expert – Where the conclusions of the Single Expert in an additional report may be adverse to the interests of the father in his relationship with the child, but it does not amount to bias – Where the opinions expressed are not outside his area of expertise – Where the Single Expert was not attempting to take on the role of the trier of fact – Where cross examination of the Single Expert is open – Where opinion evidence is not excluded simply because it goes to a fact in issue – Where the Court is not bound by the opinion of the Single Expert – Father’s application dismissed

Family Law Rules 2004 (Cth), rr 15.44, 15.59

APPLICANT: Mr Bandoni

RESPONDENT: Ms Milic

INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW
FILE NUMBER:	SYC	4953	of	2013

DATE DELIVERED: 21 August 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Clayhills Escobar Solicitors

COUNSEL FOR THE RESPONDENT: Ms Kennedy

SOLICITOR FOR THE RESPONDENT:	Tiyce Partners Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms O’Rourke

Orders

1. The Application in a Case filed by the father on 15 July 2015 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bandoni & Milic is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA  AT NEWCASTLE

FILE NUMBER: SYC 4953 of 2013

Mr Bandoni

Applicant

And

Ms Milic

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an Application in a Case filed by the father on 15 July 2015.  Two orders are sought:

   a)Discharge of an Order made 19 November 2013 appointing a single expert; and

   b)An order for appointment of another single expert.

2. The application is opposed by the respondent mother and the Independent Children’s Lawyer.  

3. The matter was determined on the basis of the documents set out below and oral and, in the case of the father, written submissions.

4. There is a great deal at stake. The matter has been set down for final hearing for five days commencing 14 December 2015.  If this Single Expert were to be discharged, all parties are committed to keeping those trial dates, but it may not be possible.  If another single expert was to be appointed both parties and the child would be interviewed and observed again.  

5. It is this matter which forms the first basis of opposition by the mother.  She sets out in some detail those professionals the child has spoken with or met over the last two years and strongly submits through her counsel that there should be no more of it.[1]  There is a dispute over whether the child actually met and saw the presiding judge in the criminal trial, but the material was not otherwise disputed.

   [1] Mother’s Affidavit filed 05/08/2015, par 5

6. Despite the force of that submission, and the secondary consequence of the impact of two years having passed on the memory of all parties involved, if the Single Expert Report was found to be flawed by any of the grounds asserted by the father, the order for appointment of the Single Expert would have to be discharged.

7. However I have concluded otherwise.

Evidence

1. The documents relied upon by the parties are as follows:

   The Father

   a)Application in a Case filed 15 July 2015;

   b)Affidavit of the father filed 15 July 2015;

   c)Father’s Summary of Argument;

   The Mother

   d)Response to an Application in a Case filed 5 August 2015;

   e)Affidavit of the mother filed 5 August 2015;

   Reports

   f)Single Expert dated 17 February 2014;

   g)Additional Report of the Single Expert dated 5 May 2014; and

   Orders

   h)Consent Orders made by Senior Registrar Campbell on 19 November 2013.

Brief History of Relevant Events

1. Following is a brief chronology:

Date

Event

1969

The father is born (45).

1971

The mother is born (43).

1987

The parties meet.

2003-2007

The parties have an intimate relationship over this period, but do not ever live together.

2007

The subject child is born (7).

Over the next 5-6years, the child lives with the mother and there are informal arrangements in place for the child to spend time with the father.

11.08.2013

Child spends overnight time with the father.

12.08.2013

Mother raises with the father an allegation of misconduct by him towards the child, based on what the child is alleged to have said to her on that day. 

Mother makes a report to the Department of Family and Community Services (“the Department”).

13.08.2013

The child has her first interview with the Joint Investigation Response Team (“JIRT”).

The child does not repeat the allegation and withdraws the statements made to the mother, “I was playing”.

14.08.2013

The father is interviewed by JIRT and denies any misconduct.

27.08.2013

The father files his Initiating Application:

-    Final orders sought: Child to live with the father; undefined time with mother.

-    Interim orders sought: Supervised time for the child with the father; restraint on therapy for the child.

30.08.2013

The child has her second interview with JIRT, at school, in the presence of her teacher. There is no disclosure of abuse.

03.10.2013

The mother files her Response:

-    Final orders sought: Child to live with the mother; no contact with the father.

-    Interim orders sought: Time between the child and the father by telephone only.

03.10.2013

Interim Orders were made by Registrar Filippello (Ords 1-13), which provided for time between the child and the father, up to three times per week, supervised by professional contact service, and by telephone.

21.10.2013

The proceedings were allocated into the Magellan Protocol.

13.11.2013

The child has her third interview with JIRT and the child made a disclosure of abuse by the father.

19.11.2013

Orders are made by Registrar Filippello suspending Orders 2 and 3 made 3 October 2013, which provided the for child and father to have supervised time and telephone contact.

Orders were also made by consent, providing for the appointment of a single expert.

02.12.2013

Telephone contact between the child and father is reinstated.

13.12.2013

The Single Expert interviews both parents and the child.

24.02.2014

The Single Expert Report dated 17 February 2014 is released (“the first Expert Report”).

07.03.2014

Directions are made by the Registrar for preparation of the matter for final hearing.

March 2014

The Single Expert makes his first attempt to view audio visual material after he learns it is available for viewing.

The father is charged with sexual assault of the child.

17.04.2014

An adjournment of the final hearing is sought by the father, pending the outcome of the criminal proceedings.

An adjournment is granted with the consent of all parties.

22-29.04.2014

The Single Expert views the audio visual material at Court and subsequently wrote, on his own initiative to the Court, “to modify the opinions expressed in the previous report” (pg 2, par 1).

13.05.2014

The additional report of the Single Expert dated 5 May 2014 is released to the parties (“the Additional Report”).

05.03.2015

The criminal trial is heard at the District Court and the father is acquitted of sexual assault of the child.

15.07.2015

The Application in a Case is filed by the father, seeking a discharge of the Single Expert.

13.08.2015

Interlocutory hearing on the discharge of the Single Expert. Judgment reserved.

Appointment of the Single Expert

1. Pursuant to Division 15.5.2 of Part 15 of the Family Law Rules 2004 (Cth) (“the Rules”), Orders were made on 19 November 2013, with the consent of all parties, appointing Dr B as the Single Expert:

   Order 1

   […] to enquire into and report upon matters relating to the welfare of the child […] and that in preparing his report to the court, [Dr B] be requested to consider the following matters:

   a)whether [the child] is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;

   [(b)-(k) not repeated here]

   l)your opinion concerning the allegations of sexual abuse of [the child].

2. There was some dispute over which party had nominated Dr B as the proposed expert. That issue is irrelevant.

3. The relevant issue is that the Single Expert was appointed pursuant to r 15.44 of the Rules. That is, the parties agreed that expert evidence may help to resolve a substantial issue in the case and jointly appointed an expert, suitably qualified by inference from their agreement.

4. A substantial issue in this case is the probability of past abuse, and the possibility of future harm through abuse, of this child.

5. Dr B is a psychiatrist and an Adjunct Professor of Psychiatry and Psychology at the University of C.  A Curriculum Vitae for Dr B is not attached to the original report on the court file.  In the circumstances of his appointment, I did not require its production.

6. In any event, the expertise of Dr B in psychiatry and psychology was not put in issue.  His expertise in analysing the interviews conducted by JIRT was however, at least to some extent.

The work undertaken by the Single Expert

1. Consent Orders for the appointment of the Single Expert were made on 19 November 2013, and the first Expert Report was released on 24 February 2014.

2. The Single Expert undertook work as follows in that three month period:

Interviews

1. Both parents and the child were interviewed in various combinations on

   
   

   13 December 2013. A detailed history across many areas of life was taken from the parties and observations of each parent with the child were undertaken.

Documents

1. The Single Expert was supplied with, and read:

   a)Court Orders dated 3 October 2013, 21 October 2013 and 19 November 2013;

   b)Contact Service Reports dated 6 November 2013 (the period from October to November 2013);

   The father’s documents

   c)Initiating Application filed 27 August 2013;

   d)Affidavit of the father filed 27 August 2013;

   e)Application in a Case filed 13 September 2013;

   f)Application in a Case filed 14 October 2013;

   g)Affidavit filed 14 October 2013;

   h)Affidavit filed 29 November 2013;

   The mother’s documents

   i)Response to an Application in a Case filed 18 November 213;

   j)Affidavit of the mother filed 18 November 2013;

   k)Response to Initiating Application filed 3 October 2013;

   l)Notice of Child Abuse filed 3 October 2013;

   m)Affidavit of Ms C filed 28 November 2013;

   n)Affidavit of Ms D filed 28 November 2013;

   o)Further affidavit of Ms D filed 28 November 2013;

   p)Affidavit of the mother filed 28 November 2013;

   q)Response to an Application in a Case filed by Crown Solicitors Office on 29 November 2013;

   r)Affidavit of Ms E filed 29 November 2013; and

   Subpoena

   s)Material produced in response to subpoena. This material included written transcripts of the three JIRT interviews, reports of police, Family and Community Services, treating psychologist and school records.

Chronology

1. The Single Expert prepared a chronology of reports and interviews of the child, mother and the Department.[2]

   [2] First Expert Report dated 17/02/2014, pp 32-39

2. The original statements about “fishy rubbing” and “kissing fishy” said by the mother to have been made by the child to her on 12 August 2013 are set out with particularity in the first Expert Report and closely considered.[3]

   [3] First Expert Report dated 17/02/2014, p 25, pars 2-7

3. This part of the report culminated in a detailed analysis of the written transcript of the third JIRT interview on 13 November 2013 with the child, where she makes allegations of “fishy licking” of her by the father; “fishy” being the word the child uses for her genitals.

4. The Single Expert’s interview with the child was about four weeks after this third JIRT interview took place.

5. The Single Expert identified that the parties, whilst never easily agreeing on an overall approach to parenting, had agreed on arrangements amicably for the child to live with the mother and spend time with the father, until 12 August 2013. The child was then aged five years and eight months old. Thereafter everything changed.

6. The Single Expert confronts the issue of assessment of the allegations of abuse.[4]  He provides a detailed analysis of the literature and research, including areas of uncertainty, such as the impact of multiple interviews.

   [4] First Expert Report dated 17/02/2014, pp 62-67, sub-par e.

7. A close analysis of the three JIRT interviews (transcripts only) follows.

8. The Single Expert refers to the second JIRT interview being prompted by “statements that are alleged to have been made by [the child] that she was worried about her father being in trouble with the police”.[5]   I note that the Single Expert apparently refers back to this issue in the Additional Report as a probable explanation for why the child did not make allegations about the father during the first and second JIRT interviews.

   [5] First Expert Report dated 17/02/2014, p 65

9. The first Expert Report analyses the possible responses of the Court, dependent on findings made:[6]

   a)If inappropriate sexual interaction: Ongoing contact supervised; therapeutic treatment for the father; and

   b)If allegations not well founded and/or bias in investigation and/or undue influence on the child: Re-establishing of the relationship between the father and the child, with ultimate return to unsupervised time.

   [6] First Expert Report dated 170/02/2014, pp 66-67

The Additional Report

1. On 5 May 2014 the Single Expert provided an additional report directly to the Court. The Additional Report was by way of a five page letter.

2. The Single Expert provided certain information:

   a)That at the time of preparing the first Expert Report, he had believed that that audio visual record of the JIRT interviews had not been released to the Court;

   b)That he had subsequently learned from the Independent Children’s Lawyer that the audio visual tapes were at Court and able to be viewed;

   c)That he had attempted to view the material in March 2014; and

   d)That on 22 and 29 April 2014 he attended the Court with the Independent Children’s Lawyer and viewed the audio visual material.

3. The Single Expert viewed and listened to the first and third JIRT interviews.  He listened to, but was unable to view, the second JIRT interview.

4. As a result, the Single Expert revealed that he wished to put on record some modification of opinions previously expressed.

5. The non-verbal and verbal interactions of the child in the third JIRT interview on 13 November 2013 were of most significance:[7]

   I have formed the opinion following this that the disclosures in this interview indicate that there is an unacceptable risk for [the child] in having unsupervised and possibly supervised contact with her father.

   [7] Additional Report dated 05/05/2014, p 2, par 1

6. The Single Expert supplies his reasons, and identified his own perceived misconstructions which viewing, as opposed to reading, had revealed.

7. The Single Expert expresses the opinion, “I am much more certain” that the child had made a specific disclosure.[8] There follows a fresh analysis of each of the three JIRT interviews.

   [8] Additional Report dated 05/05/2014, p 2, par 4

8. The Single Expert identifies the significance of “non-verbal interactions” in the third interview.[9]  He expresses a strong opinion that the child is truthfully relating an incident of sexual misconduct by the father.

   [9] Additional Report dated 05/05/2014, p 3, par 2

9. The Single Expert then repeated some earlier observations about the father’s style of interacting.

10. The Single Expert then identifies possible courses of action, dependent on the outcome of the criminal trial, in combination with findings by this Court about best interests and unacceptable risk.[10]

    [10] Additional Report dated 05/05/2014, p 4

11. In this Additional Report the Single Expert reveals his changes of opinion and their basis.  He clearly has formed an opinion that the child truthfully described a single brief incident of abuse.

12. The Single Expert acknowledges his role by reference to the Court making the ultimate decision.

13. The Additional Report/letter concludes with the relevant declarations of independence and impartiality. In my view the letter to the Court is a diligent exercise of disclosure pursuant to r 15.59(5)(b) of the Rules:

    Expert witness's duty to the court

    (5)  An expert witness who changes an opinion after the preparation of a report must give written notice to that effect:

    (a) …

    (b)if appointed by the court--to the Registry Manager and each party.

Challenges to the Single expert

1. At least three challenges are made on the work of the Single Expert:

   a)Bias;

   b)Going outside his area of expertise; and

   c)Attempting to usurp the role of the judge.

The obligation to provide an objective and unbiased opinion

1. The submission of the father is that the Single Expert has revealed apprehended bias towards him in his Additional Report, although not in the first Expert Report, and that both reports should be excluded from evidence on that account. Actual bias is not asserted.

2. It is submitted that after viewing the audio visual versions of the JIRT interviews, the Single Expert came to biased conclusions about the truth of the allegations made by the child, that is, the Single Expert concluded that the child was telling the truth in the third JIRT interview.

3. Further it is asserted that the Single Expert formed and stated an opinion about why the child “told the truth” in the third JIRT interview, without providing a credible explanation for why the child had raised no allegation in the first and second JIRT interviews.

4. The explanation given was as follows:[11]

   Her denials in the first two interviews in my opinion having seen the video material is that she must have wished to protect him from what she concluded would be legal consequences.

   [11] Additional Report dated 05/05/2014, p 3, par 4

5. This explanation was condemned by Counsel for the father as “preposterous”.

6. Without more, that might be so. However in the first Expert Report, there was the reference to the second JIRT interview, conducted at school, having been prompted by statements made by the child to the mother that she was worried about the father being in trouble with the police.  Indeed in the Additional Report, the Single Expert goes on to refer to the reported fear of the child that “the police may shoot him [the father]”.[12]

   [12] Additional Report dated 05/05/2014, p 3, par 4

7. I do not consider that the Single Expert was representing that the child used the words “legal consequences”; rather he was referring to the fears stated above.

Area of expertise

1. It is also asserted that the Single Expert stepped outside his area of expertise in viewing and analysing audio visual versions of interviews with the child and coming to a conclusion about the truth of the child’s statements as a result.

2. I reject that submission.

3. The Single Expert had observed the child in person.  He had read her JIRT interviews.  Later he had the apparent benefit of observing her, on tape, whilst she was being interviewed.  He reports a clarifying effect from doing so.

4. His expertise includes observations of behaviour and analysis both of behaviour and provision of information.  He appears to exercise skills in analysing affect, consistent and inconsistent with her statements.  I accept the submission of the Independent Children’s Lawyer that such matters are squarely within the Single Expert’s area of expertise.

1. The Single Expert came to conclusions in the Additional Report and formed the stated opinions.

Usurping the Judicial Role

1. The Single Expert in his Additional Report used the words “I have formed a different judgment”[13] in the context of risk to the child. These words were described by Counsel for the father as an “appalling choice of words […] although alarmingly accurate”.  

   [13] Additional Report dated 05/05/2014, p 2, par 1

2. I do not agree.  I consider that the words were used in the lay sense of making a decision and/or coming to a conclusion. In the same paragraph, the Single Expert used “modify the opinions …” and “formed the opinion …” in the same context.

3. Throughout both Reports, there were references to “assisting the Court in its deliberations” and speculative references to “what the decision of the Court might be”.  I do not accept that the Single Expert misunderstood his role or understood it and attempted to go beyond it into the judicial role.

4. It is also submitted that by expressing the following opinion, the Single Expert was wrongly taking on the role of the judge:[14]

   […] it is my opinion that there is an unacceptable risk of sexual abuse from her father and that unsupervised access would not be advisable.

   [14] Additional Report dated 05/05/2014, p 3, par 5

5. I cannot accept the proposition that the expression of this opinion is an attempt to take on the role of the trier of fact.  

6. In the first Expert Report, the Single Expert contemplated findings of abuse and a conclusion of unacceptable risk of future abuse.  He exposed the competing factors about the father but came to no conclusive opinion.  Seeing the child demonstrate events as she spoke and watching her non-verbal body language led to the Single Expert forming an opinion about abuse and future risk.

Conclusion

1. The Single Expert revealed additional work undertaken after the completion of the first Expert Report. He revealed the impact of hearing, and hearing and seeing interviews.

2. The Single Expert was asked to give his opinion on the allegations. He did, in two stages.   He was asked to consider risk to the child, arguably in the future as well as to date. Again, he explored that area.

3. The conclusions of the Single Expert in the Additional Report may be adverse to the interests of the father in his relationship with the child. In my view that does not amount to bias.

4. The opinions are not outside his area of expertise. He has done what he was asked to do as a component of the overall analysis of the level of function of the parties and the child.

5. Cross-examination of the Single Expert is open, based on other evidence. His willingness to reveal the impact of further information is a positive indication of the open and impartial approach brought to the task.

6. Opinion evidence is not excluded simply because it goes to a fact in issue or even the ultimate issue.  It was not argued otherwise by the father.

7. Rather, the argument was that the Single Expert could not hold the opinion that the child was telling the truth when she spoke of the father’s conduct and that the statement that she must have wished to protect the father from what she concluded would be legal consequences was so biased as to be obvious.

8. I have not accepted those submissions. As was conceded, such a “stumbling into opinions on the ultimate issue” does not exclude the evidence necessarily.

9. Further, the Court is obliged to consider expert evidence, to accept it or reject in whole or in part, as for affidavit evidence. Expert evidence, including expert opinion evidence, is not a special category. The Court is not bound by the opinion of the Single Expert.  Single experts do not have all the information a judge ultimately has.

10. For all these reasons I dismiss the application for the discharge of the Single Expert. It follows that the application for appointment of a further single expert must also be dismissed.

11. Accordingly the Application in a Case is dismissed.

I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 21 August 2015.

Associate: 

Date:  19 August 2015