Bartlett and Gibson (No. 2)

[2007] FamCA 1198

FAMILY COURT OF AUSTRALIA

BARTLETT & GIBSON (NO. 2) [2007] FamCA 1198

FAMILY LAW – PARENTING – COSTS OF SINGLE EXPERT WITNESS – application by father that the mother pay the costs of the attendance at the hearing of the Single Expert Witness in a parenting dispute rather than the costs being shared –  differences between Single Expert Witnesses and other witnesses under the Family Law Rules 2004 – evidence of the Single Expert Witness untouched after cross-examination by the wife – ordered that the wife should pay the costs

Family Law Act 1975 (Cth)

Family Law Rules 2004

APPLICANT: Mr Bartlett

RESPONDENT: Ms Gibson

FILE NUMBER: CAF 710 of 2004

DATE DELIVERED: 10 October 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 16 April 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar, Gesini and Dunn

SOLICITOR FOR THE RESPONDENT:  In Person

Orders

1. That the mother pay the whole of the proper expenses of the attendance of Dr W at the hearing of the children matters in this case.   

2. That this application is otherwise removed from the pending cases list.   

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 710 of 2004

MR BARTLETT

Applicant

And

MS GIBSON  

Respondent

REASONS FOR JUDGMENT

(Cost of Single Expert’s Attendance)

Background

1. By an application filed on 17 March 2006 the father in these proceedings sought an order that the mother pay the father’s costs of and incidental to the application for parenting orders.

2. When the matter was before the Court on 16 April 2007, pending the appeal filed by the father which was subsequently discontinued, the issues of costs in relation to property and children matters between the parents were the subject of preliminary consideration. 

3. Because of the nature of the appeal and because the application about costs for property was essentially to be determined by the outcome of any potential rehearing or re-exercise of discretion by the Court I determined that it was inappropriate to make any order for costs until the appeal (then pending) had been finalised. 

4. In the course of the proceedings that day (16 April 2007) however Mr Farrar, on behalf of the father, indicated that the issue about the children matters now involved only one discrete matter.  The matter in dispute related to the costs of the Single Expert Witness, Dr W, in attending Court for cross-examination during the course of the hearing.[1] 

   [1] See Mr Farrar’s confining of the issue thus on p 1 of the transcript dated 16 April 2007 and pp 3, 4, 5 ff

5. Put briefly, the proposition is as follows:  the Single Expert Witness had provided a report and prior to the matter coming on for hearing the father’s lawyers advised the mother’s lawyers by letter,

   “we have since received a copy of your report[2] and have determined that we do not require your attendance for cross-examination.  We expect that the other side may wish to cross-examine you, and in those circumstances, we may wish to ask you some questions ourselves”.

   [2] The letter was directed to Dr W but clearly was copied to the mother’s lawyers

6. Mr Farrar, in his oral submissions, commented that the “wife’s side” did require the doctor for cross-examination and Dr W did subsequently attend and was asked questions by counsel for the wife and also by counsel for the husband.

7. Mr Farrar’s contention is summarised in his own words at page 5 of the transcript of 16 April 2007 as follows:

   “Single experts are in a different category.  They are, firstly – well patently, they charge money for their participation and they are therefore a fee and the parties are bearing those costs.  In my submission, although the rules are silent on the issue, it’s our submission that you can draw a line through the requirements of the rules regarding asking questions to a single expert, they being questions in writing, and there the rules require, 15.14(4) that the person asking the questions bears the costs of the single expert associated with answering these questions”. 

8. In essence Mr Farrar says in relation to a Single Expert – ‘there are no particular Rules about this but as you required his attendance and we did not, you should bear the costs of his attendance and those costs should not be shared between us’. 

9. In the course of submissions the success or otherwise of the cross-examination of the Single Expert was canvassed.  In this case I commented in my judgment[3] that the witness was not shaken in cross-examination.  One might ask rhetorically if the witness had been “shaken” in cross-examination would that have made any difference.  If one party identifies with the Single Expert defects in his or her opinion or evidence which are subsequently exposed during cross-examination, should the cost of the witness’s attendance still be sheeted home to the party requiring him or her to attend. 

   [3] Inter alia [40]

10. In the ordinary course of events if one party’s witness is required by the other side to attend for cross-examination the person whose witness it is would ordinarily be required to pay for that persons expenses at least until there is a determination at the end of the matter about where costs should fall.  In effect the primary responsibility for payment for the witness’s attendance would be with the party whose witness it is. He or she may be reimbursed or indemnified against such cost if he or she is successful at the end of the matter in obtaining an order for costs against the other party. 

11. As noted above, Mr Farrar maintains that Single Experts are in a different category. 

12. In general terms I agree with Mr Farrar’s submission.  While it is tempting, (particularly in the circumstances of this matter where I made a finding that the evidence of the Single Expert was not affected by cross-examination) to justify an order for costs on that basis it seems to me that the primary principle which ought to apply is that if a Single Expert is required by one side and one side only to attend Court for the purposes of cross-examination that side should be responsible for that witness’s costs. 

13. That would not preclude in an appropriate case the Court from coming in its broad discretion to the opposite conclusion if the circumstances of the matter justified it.  I do not propose or intend to attempt to categorise possible events in which such an order might be made.  As has been often remarked, the discretion to award or to refuse to award costs is a broad and substantially untrammelled discretion for a trial judge.

14. Applying that principle in this matter it would be appropriate to make an order for costs being an order that the mother pay the whole of Dr W’s proper expenses in attending Court for the purposes of this hearing. 

15. As with ordinary witnesses, so with Single Expert Witnesses, in an appropriate case it may be that such a determination might effectively be neutralised by a subsequent order from the Court to the effect that the other party pay the first party’s costs of the proceedings generally.  In such circumstances the costs associated with the attendance of the witness may well reasonably fall to be part of the costs of the matter generally and therefore require an indemnity or reimbursement of the successful applicant for costs in the final cause by the other party. 

16. In this matter neither party is continuing to seek any order generally in relation to costs of the children’s proceedings and therefore the determination I make that the wife alone should be responsible for Dr W’s expenses for the attendance will remain as the only order about the children matter (which is otherwise finalised).[4] 

    [4] I note in this regard that an application about some purportedly interim children matters filed on 12 July 2007 was subsequently withdrawn or discontinued and accordingly dismissed.  

17. My order therefore is that the mother pay the whole of the proper expenses of the attendance of Dr W at the hearing of the children matters in this case.  That issue is otherwise removed from the pending cases list. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate 

Date:  10 October 2007