Bass and Bass

[2007] FamCA 622

FAMILY COURT OF AUSTRALIA

BASS & BASS [2007] FamCA 622

FAMILY LAW - EVIDENCE - Expert evidence - Allegation of bias - Application for appointment of second adversarial expert

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Bass

RESPONDENT: Mrs Bass

INDEPENDENT CHILDREN’S LAWYER: Ms. Alex

FILE NUMBER: SYF 2801 of 2006

DATE DELIVERED: 6 June 2007

PLACE DELIVERED: Sydney

EX TEMPORE JUDGMENT OF: Steele J

HEARING DATE: 6 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Adrian Twigg & Co

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Barkus Edwards Doolan

INDEPENDENT CHILD’S LAWYER SOLICITOR: Legal Aid Commission of NSW

Orders

1. That the husband’s oral application to amend his Application in a Case filed 13 April 2007 to discharge Professor C as the Court Expert is refused.

2. That the husband’s Application in a Case filed 13 April 2007 is dismissed.

3. That the Wife’s Application in a Case filed 28 March 2007 and the husband’s Response filed 26 April 2007 be stood over to a date to be fixed for 2 hours.

4. That the Independent Children’s Lawyer is excused from attendance on that date.

5. That the parties’ costs of today are reserved to the trial judge.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2801  of 2006

Mr Bass

Applicant

And

Mrs Bass

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter consent orders were made by the parties to retain a single expert, Professor C, to provide the usual form of report relating to this family following the physical separation of the parents which occurred ultimately in December 2005, although a separation under one roof occurred in July 2004. 

2. There are six children and orders are sought in this Court only in respect of one of the children, B, who is known as "[P]", and was born on … August 1997 and is currently nine, going on to 10 years of age. 

3. The report was provided by Professor C at the not inconsiderable cost of $8000, or $4000 for each of the parties.  The proceedings are being conducted with proceedings for property settlement involving not inconsiderable sums of money.  Nonetheless, the cost of expert's report and the effect upon the children can be significant.

4. The children involved, as I said, are six in number.  The children, other than P, to whom I earlier made reference, are aged 22, 20, 17, 15 and 13 years of age.  I have not read the material but I am informed that there are affidavits filed by, I assume, the two older children, in the proceedings relating to the impact of the father's relationship with P.  It seems the older children may be alienated from the father.

5. Professor C's report is comprehensive and counsel for the husband in this Application in a Case filed 13 April 2007 sought to have an order made for leave to adduce evidence from Dr W as an adversarial expert.  When the Application commenced Mr. Givney of counsel sought to amend and seek an order for the absolute discharge of Professor C as single expert.  I refused the amendment sought.

6. What I am now then being asked to deal with is an order for the appointment, pursuant to Rule 15.49, of a second expert.  Initially that was to be Dr W, but for reasons of which I am not informed, it is not suitable to have him and Dr R is the person who is nominated.  There is no suggestion that Dr R would not be a suitable appointment if another person is to be appointed.

7. We come then, however, to the question of whether the husband should have leave to appoint an expert to prepare a further report in his case and to give evidence in his case.  Of necessity it will be that the granting of such an application and the making of an order for that report would involve further interviews with the whole family, but in particular, the children and would occasion further delays.

8. Counsel for the husband has conceded that Professor C comes before the Court with some status and as a very well-respected reporter in these family matters that regularly come before the Court.  She is, of course, a regular witness before the Court and he has properly conceded that she is a respected reporter.  The effect of that, of course, is that views expressed by her carry some weight with the judiciary and possibly with the legal representatives of the parties.

9. The difficulty that I see in the order that is sought on behalf of the husband is that, pursuant to the provisions of Rule 15.49(2) which sets out the basis upon which a second expert's report may be required, there is no question of any technical defect in the report itself, except that Professor C has expressed herself in a way which leaves the husband to have an asserted concern about bias because of her failure to put things to him which have been recorded in the report. 

10. It is not suggested that she has wrongly applied the science associated with what she was doing or anything of that sort.  It is not suggested that there is another school of psychiatric medicine which is completely at odds with views she has expressed.  Professor C's report is peppered with conclusions which she has drawn subject to the proviso "if the wife and children's version of events can be accepted."

11. That, of course, is always a difficult task for a psychiatrist in these circumstances because she does not have the opportunity to observe the parties being cross-examined as a Judge at trial would.  Ultimately, the course envisaged in a case of this sort with Professor C's report, if it remains as the only report, or even if a second report is obtained, would be that she would be cross-examined, perhaps extensively, on the form of the report.  If it be established, either because the evidence does not support factual matters which she has relied upon, or for reasons of omission, there are parts of the report which may be excluded, and a judicial officer may well have no regard or limited regard to other parts which are perhaps wrongly based on material which ultimately is not proved.

12. On the face of the report it could not be concluded that Professor C is biased.  It seems to me that the real remedy for the problems that the husband has in terms of the report is for her to be cross examined.  There is no doubt that Professor C's report, ultimately, is adverse to the husband, so much could not be denied; but if a second expert is to be appointed then it seems to me that there are, given what appears to be the marginal psychological state of some of the children, risks associated with the need for a further report with the interviews and so on that are involved, and the stress for the children involved in all that.  That, of course, is one of the reasons why the Rules provide for one independent expert's report only.

13. It seems to me, having regard to all these matters, that I am not satisfied that Professor C's report is biased and the evidence which she puts forward cannot be adequately dealt with at trial, and I refuse the application for the appointment of Dr R as a second adversarial expert.

14. It follows that the husband's application in the case filed on 13 April 2007 will be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele.

Associate: 

Date:  27 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BASS & BASS