Bass & Bass
[2008] FamCAFC 67
•23 May 2008
FAMILY COURT OF AUSTRALIA
| BASS & BASS | [2008] FamCAFC 67 |
| FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – EXPERT EVIDENCE – Where the primary Judge refused the father’s applications to discharge a single expert witness (who had prepared a report for use in parenting proceedings) and to be permitted to adduce further evidence from another expert witness – Where the father asserted a bias against him in the report of the single expert witness – Leave to appeal refused – Procedure in Division 15.5.6 for clarifying matters in a report prepared by a single expert witness had not been employed – Assertion of bias on the part of the single expert witness would best be established through cross-examination of that witness. |
| Family Law Act 1975 (Cth) Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 |
| APPLICANT: | Mr Bass |
| RESPONDENT: | Mrs Bass |
| FILE NUMBER: | EA | 81 | of | 2007 |
| APPEAL NUMBER: | SYF | 2801 | of | 2006 |
| DATE DELIVERED: | 23 May 2008 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Finn, Warnick and Thackray JJ |
| HEARING DATE: | 5 October 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 June 2007 |
| LOWER COURT MNC: | [2007] FamCA 622 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hallen SC |
| SOLICITOR FOR THE APPLICANT: | Adrian Twigg and Co. |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Barkus Edwards Doolan |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Commission of NSW |
Orders
That the application for leave to appeal be dismissed.
That the applicant father pay the costs of the respondent mother and of the Independent Children’s Lawyer as assessed in default of agreement.
IT IS NOTED that publication of this judgment under the pseudonym Bass and Bass is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: SYF 2801 of 2006
File Number: EA 81 of 2006
| Mr Bass |
Applicant
And
| Mrs Bass |
Respondent
REASONS FOR JUDGMENT
This is an application for leave to appeal and, if leave is granted, an appeal by the father of a child known as “P”, who is now aged ten, against orders made by Steele J on 6 June 2007. By those orders his Honour, in effect, refused the father’s application to discharge the single expert witness who the father and the mother of the child had earlier agreed should prepare a report for use in proceedings concerning the living arrangements for the child, and who had already prepared such a report. His Honour also refused the father’s application to be permitted to adduce further evidence from an expert witness other than the previously agreed single expert.
The application for leave to appeal and the appeal are opposed both by the mother and by the Independent Children’s Lawyer.
Background
It emerges from the chronologies provided to us by both parties and by the Independent Children’s Lawyer that the parties married in May 1984 and finally separated either in July 2004 (according to the father) or December 2005 (according to the mother).
In addition to P, who was born in August 1997, the parties had five other children born, respectively, in March 1985, March 1987, August 1989, February 1992 and February 1994. It appears that save for P, none of the children have had contact with the father since 3 December 2005, and according to Steele J (in his reasons for judgment of 6 June 2007), “may be alienated from the father”.
It also appears that in the period December 2005 to January 2006, P was the subject of a shared living arrangement with each parent, but that since late January 2006 he has lived with the mother, and at least for the most part, only had contact with the father on Sundays during the daytime.
On 26 April 2006 the father filed an application apparently seeking residence of P, or alternatively substantial time with him. (That application is not before us.)
On 12 July 2006 an order was made by consent providing for a psychiatrist, Professor Q, to prepare a single expert report “pursuant to Rule 15.45 of the Family Law Rules 2004 … upon matters pertaining to the welfare of [P]” (for purposes of the parenting proceedings initiated by the father).
Professor Q proceeded to interview the parties and all six children. She then prepared and released a report dated 9 October 2006. By a letter dated 24 October 2006 Professor Q answered two questions from the Independent Children’s Lawyer.
On 13 April 2007 an application was filed on behalf of the father seeking that “pursuant to Division 15.5.3 of the Family Law Rules, [he] be permitted to adduce evidence in the form of a report from Dr [W] (or other suitably qualified expert) in relation to [P]”. The father also sought an order that “the Mother present herself and [P] and any other relevant persons for any interviews reasonably required by Dr [W] to complete his report”.
The father’s application was heard by Steele J on 6 June 2007, with his Honour making the orders which are the subject of this application for leave to appeal/ appeal on that day.
The relevant family law rules
Before referring to the course of the proceedings before Steele J on 6 June 2007 and to his Honour’s reasons for judgment delivered that day, it will be useful to set out the relevant provisions of the Family Law Rules2004 (“the Rules”).
Part 15.5 of the Rules is concerned with “Expert evidence”. The purpose of Part 15.5 is stated in R 15.42 to be (emphasis added):
(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b)to restrict expert evidence to that which is necessary to resolve or determine a case;
(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d)to avoid unnecessary costs arising from the appointment of more than one expert witness; and
(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.
The expressions which we have emphasised in R 15.42 and certain other related expressions are then defined in the following rule:
15.43 In this Part:
expert means an independent person who has relevant specialised knowledge, based on the person’s training, study or experience.
expert’s report means a report by an expert witness, including a notice under subrule 15.59 (5).
expert witness means an expert who has been instructed to give or prepare independent evidence for the purpose of a case.
single expert witness means an expert witness who is appointed by agreement between the parties or by the court to give evidence or prepare a report on an issue.
Rules 15.44 and 15.45 (which are in Division 15.5.2) then provide for the appointment of a single expert witness either by agreement or by court order:
15.44 (1) If the parties agree that expert evidence may help to resolve a
substantial issue in a case, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue.
(2)A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).
15.45 (1) The court may, on application or on its own initiative, order
that expert evidence be given by a single expert witness.
(2)When considering whether to make an order under subrule (1), the court may take into account factors relevant to making the order, including:
(a)the main purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 15.42);
(b)whether expert evidence on a particular issue is necessary;
(c)the nature of the issue in dispute;
(d)whether the issue falls within a substantially established area of knowledge; and
(e)whether it is necessary for the court to have a range of opinion.
(3)The court may appoint a person as a single expert witness only if the person consents to the appointment.
(4)A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).
As we indicated earlier, in the present case the parties entered into a consent order expressly pursuant to R 15.45 for the appointment of Professor Q as a single expert witness described variously in the order as a “Single Court Expert” or “Court Expert”.
Rules 15.46 and 15.47 provide, respectively, for other orders which the court may make in relation to a single expert witness.
Rule 15.48 provides that a single expert witness must prepare a written report.
Rule 15.49 then provides that if a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission; such permission may be given if the court is satisfied of any of the matters set out in sub-rule 15.49(2):
15.49(1) If a single expert witness has been appointed to prepare a report
or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2)The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
(b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c)there is another special reason for adducing evidence from another expert witness.
Rule 15.49 was the rule applied by Steele J in determining the father’s application to adduce evidence from an expert other than the single court expert, Professor Q.
Rule 15.50 then makes provision for the cross-examination of a single expert witness.
Division 15.5.3 of Part 15.5 which is headed “Permission for expert’s evidence” and which was the Division expressly relied on by the father in his application filed 13 April 2007 seeking to be permitted to adduce evidence in the form of a report from Dr W or other suitably qualified expert, then contains the following rules:
15.51 (1) A party must apply for the court’s permission to tender a report
or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.
(2)An independent children’s lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission.
15.52 (1) A party may seek permission to tender a report or adduce
evidence from an expert witness by filing an Application in a Case.
(2)The affidavit filed with the application must state:
(a)whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b)the name of the expert witness;
(c)the issue about which the expert witness’s evidence is to be given;
(d)the reason the expert evidence is necessary in relation to that issue;
(e)the field in which the expert witness is expert;
(f)the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and
(g)whether there is any previous connection between the expert witness and the party.
(3)When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:
(a)the purpose of this Part (see rule 15.42);
(b)the impact of the appointment of an expert witness on the costs of the case;
(c)the likelihood of the appointment expediting or delaying the case;
(d)the complexity of the issues in the case;
(e)whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and
(f)whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
(i)relevant to the issue on which evidence is to be given; and
(ii)appropriate to the value, complexity and importance of the case.
(4)If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.
Apart from the rules in Division 15.5.6 which provide a procedure for clarifying a report prepared by a single expert witness, the remaining rules in Part 15.5 have no apparent relevance to the issues before us.
The proceedings before Steele J on 6 June 2007
At the commencement of the hearing of the father’s application, filed 13 April 2007, by Steele J on 6 June 2007, it emerged in exchanges between his Honour and counsel for the father that, notwithstanding the terms of the father’s application (being for an order pursuant to Division 15.5.3 for permission to adduce evidence from an expert witness other than the single expert witness), that the father in fact sought that a new single expert be appointed to replace Professor Q. His Honour took the view that in order to seek an order discharging Professor Q, counsel would have to make an application to amend the application filed on 13 April 2007.
Accordingly, counsel sought leave to amend the father’s application to seek an order that the appointment of Professor Q be discharged and that a new single expert be appointed, or in the alternative, an order in terms of the order which was originally sought in the application filed on 13 April 2007, being permission to adduce evidence from an additional expert, or in the language of counsel, an “adversarial expert”.
Having heard submissions from counsel for the mother opposing the application made on behalf of the father to amend his application and then submissions in reply from counsel for the father, his Honour ruled that he would not permit the amendment of the father’s application saying (Transcript 6/6/07, p 12, lines 24-39):
In this matter the husband’s counsel seeks to amend the application [sic] to the case filed on 13 April 2007 to seek in contrast to the orders sought in that application in addition an order that, or in the alternative, that the appointment of Professor [Q], the independent expert, be discharged and that in the alternative the orders set out in that application filed on 13 April be pursued. It seems to me that it would only be in the most extraordinary circumstances that a Judge in interlocutory proceedings would take that course, but it seems to me it’s a matter which ultimately should be, if an application to that extent to excise parts of the report is to be made that should be made by the trial Judge.
The issue thrown up by the application in its written form is for the appointment of an adversarial expert to be called on behalf of the husband. It seems to me that’s the proper way to deal with the matter. Accordingly, I refuse leave to the husband’s counsel to amend the application in the way that I’ve described.
His Honour then invited submissions from counsel for the father as to why, what he also termed, “an adversarial expert” should be appointed.
Counsel for the father then sought, and was granted, leave to make a further amendment, which was not opposed by counsel for the mother, whereby the “adversarial expert” to be appointed would be Dr B rather than Dr W. The reason for that change need not be explained.
Counsel for the father then tendered without objection, the report which had been prepared by the single expert witness, Professor Q, and proceeded to “highlight” certain passages in that report (at pages 44 to 49) in order to support the submission that there was a perceived bias in the report against the father.
The passages in the single expert’s report alleged to establish a perception of bias
Again it will be useful at this point to set out the passages in Professor Q’s report on which counsel for the father relied before Steele J to establish a perceived bias in the report against the father, and on which some reliance was also placed before us.
The passages in question appear in the section of the report where Professor Q addresses the terms of reference for the report which were contained in the consent orders appointing her as the single court expert. In setting out the passages in question, we will also include the relevant terms of reference:
a) Whether the child is at risk of physical or psychological harm as a result of being subjected or exposed to physical or [sic] abuse, neglect or family violence in either household.
…
The father admits that he was verbally abusive but claims that this was only part of what he calls ‘the meltdown during the divorce process’. However, the accounts provided by the children of their father’s behaviour were extremely consistent and presented a picture of total control as well as deprivation and considerable verbal abuse. It suggested an environment akin to a cult and associated with brainwashing and total subjection to a cult leader.
On the basis of the accounts given by the children, if they can be relied upon, [the father] is not suitably equipped to be a primary carer.
…
e) The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
… The mother is reluctant to promote contact between [P] and his father and if her history can be relied upon, then her experiences with [the father] would provide a strong basis for her having reached that position.
…
g) Capacity of each parent to provide for the child’s needs including emotional and intellectual.
…
It appears that the mother has been more aware of and taken more appropriate steps to provide [P] with the educational assistance that he needs.
Given the father’s idiosyncratic attitudes towards eduction (as reported by the mother and the other children), it seems unlikely that he can meet the child’s special needs.
h) Each parent’s attitudes to the child and to the responsibilities of parenthood demonstrated.
On the basis of the accounts given by the mother and the children, if they can be relied upon, [the father] has not behaved appropriately as a parent and has not been responsible in his approach to parenting. The description suggests that they were subjected to a harsh environment and were deprived of basic needs such as education. It is difficult to assess the mother’s role in the continuation of that regime over many years. It may be that she, like the children, was a victim of a process akin to brainwashing; but she may have been more of a co-conspirator than she now admits to being. However, it does seem that she was always more attuned to the needs of the children and more concerned to provide them with a more normal life style.
i) Any family violence involving a child or a member of the family.
On the basis of the accounts given by the mother and the children, if they can be relied upon, they have been subjected to serious psychological abuse in that they were raised in a grossly deprived environment and subjected to a process akin to brainwashing. On these accounts, this was largely a regime enforced by [the father] and the mother is regarded by herself and her children as largely having been another victim in this. There was minor physical violence but very major verbal abuse and intimidation and gross psychological abuse.
j) Whether it would be preferable to make an order that would be less likely to lead to the institution of further proceedings.
In my view, if the accounts provided by the mother and the older children can be relied upon, then [the father] could not be considered suitable to function as a primary carer and there would be little point in reviewing this.
…
l) Any other factors.
This opinion is strongly predicated on the accounts provided by the mother and the older children. …
For the sake of completeness, we also set out the concluding paragraph of Professor Q’s report which is directed to the final term of reference:
m) Should both parents have substantial and significant time with the child.
Again, if the accounts provided by the mother and the older children can be relied upon, then it would not be in the child’s best interests to have more than occasional contact with his father. [P] is intellectually challenged and if the accounts that amount to [the father’s] brainwashing and intimidation can be relied upon, then [P] would be almost helpless to resist and would be at risk of serious psychological harm.
Steele J’s reasons for refusing the appointment of another expert witness
Following the submissions of counsel for the father, his Honour heard submissions from counsel for the mother in opposition to the application for the appointment of an adversarial expert. His Honour then delivered an ex-tempore judgment refusing the application.
His Honour commenced his reasons for judgment by providing some brief factual background to the case. He also referred to the appointment of Professor Q as the single expert and to the fact that her report had cost $8,000, with each parent contributing half of that cost.
After referring to his earlier refusal to permit the father to amend his application to seek the discharge of Professor Q, his Honour said that he was now being asked to make “an order for the appointment, pursuant to Rule 15.49, of a second expert”, being Dr B. His Honour’s reasons for ultimately refusing to make such an order are to be found in the following paragraphs in his reasons:
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 [Q] 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 [Q] 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. Profesor [Q'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 [Q'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 [Q] 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 [Q'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 [Q'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 [B] as a second adversarial expert.
The precise terms of his Honour’s orders, which are the subject of this application for leave to appeal/ appeal, were then as follows:
(1)That the husband’s oral application to amend his Application in a Case filed 13 April 2007 to discharge Professor [Q] as the Court Expert is refused.
(2)That the husband’s Application in a Case filed 13 April 2007 is dismissed.
It will thus be seen that notwithstanding that the father’s application, filed 13 April 2007, for permission to adduce evidence from an “adversarial expert” was stated to be made pursuant to Division 15.5.3 of the Rules (being R 15.51 and R 15.52), his Honour stated that the application was made under R 15.49(2), and can then be seen as applying that sub-rule. No issue was raised before us concerning his Honour’s application of R 15.49(2), nor concerning the relationship between that rule and the rules contained in Division 15.5.3.
Presumably having regard to the provisions of R 15.49(2), his Honour concluded that there was no technical defect in Professor Q’s report (except for the father’s assertion that she had not put things to him which have been included in the report), nor was there any suggestion that she had wrongly applied the relevant science, or that there was a contrary school of psychiatric medicine.
Importantly, it will also be seen that his Honour had specific regard to the fact that Professor Q’s conclusions were subject to the qualification of the version of events given by the mother and children being accepted, that Professor Q would be cross-examined, and that parts of her report may not be accepted if ultimately not supported by the evidence.
While acknowledging that Professor Q’s report was ultimately adverse to the father, his Honour concluded that on the face of the report it could not be concluded that Professor Q was biased, and that the real remedy for the father’s problems with the report would lie in cross-examination of the Professor.
It can also be seen that in refusing the appointment of a second expert, his Honour took into account that such an expert would need to interview both the subject child and his siblings, thereby causing stress to such children, some of whom already had problems.
The application for leave to appeal
(i) The need for leave to appeal
It is important to emphasise that there was no issue before us other than that leave was required to appeal his Honour’s orders declining to permit amendment of the application to seek removal of the single expert and refusing to grant leave to appoint an adversarial expert, on the basis that these were interlocutory orders. (See the Supplementary Outline of Submissions of senior counsel for the father). We thus proceed on the basis that whatever the true construction of Reg 15A(2) of the Family Law Regulations 1984, the orders in question, although made in relation to a parenting case, were interlocutory orders for which leave to appeal was required.
(ii) The submissions in support of the application for leave to appeal
In seeking leave to appeal his Honour’s orders, senior counsel for the father submitted that the appeal would raise points of some significance in relation to the approach to be adopted when following the appointment of a single expert and the preparation of a report by that expert, one of the parties to the proceedings is unhappy with the report, and in particular, whether where an apprehension of bias can be established in relation to such a report, the appointment of an adversarial expert and/or the rejection of the single expert’s report, would be justified. A further point of importance in the appeal would be the validity of the Rules to the extent that they preclude, except with the leave of the court, the determination by the court of controversial facts.
In developing these submissions, senior counsel for the father emphasised the importance in a case where there is to be a single expert of the appearance of impartiality on the part of that expert. He submitted that impartiality would require that any allegation made against a party be put to that party.
In this context senior counsel drew attention to the observations by Steele J in paragraph 8 of his reasons that Professor Q is a “regular” and “respected” witness in the Family Court and that her views would “carry some weight with the judiciary”, and then also to the following observations of Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 (emphasis added):
8.The principal rationale of the test of reasonable apprehension of bias is to ensure that decision makers are perceived to be truly independent in their decisions. A biased witness does not impugn the independence of the decision maker, especially where the proceedings are adversarial and the evidence can be tested. The possibility that a witness of fact or expert opinion may be biased does not infect the impartiality of the Court. The situation might be otherwise where the expert is appointed by the Court or where the role or function of the expert is more than that of a giver of evidence (whether that evidence be in the form of an opinion, as librarian of a body of knowledge, or otherwise). In such a case the role or function of the expert may perhaps come to be incorporated into that of the decision maker, and, where the expert's role or function is such that there is actual decision making by the expert, then I can see some scope for the application of the test of reasonable apprehension of bias to exclude the evidence. I can see no scope for that test, however, to exclude expert evidence that may assist the Court where the expert is called in adversarial proceedings by one party and where an opposing party is at liberty to test whether any bias corrupts the evidence.
In addition to the issue of bias, further significant matters emphasised in the submissions in support of the application for leave to appeal, were the likely and understandable sense of grievance on the part of the father if he was not to be permitted to call a competing expert and ultimately loses the case (with reliance being placed in this regard on certain observations by Lord Woolf MR in Daniels and Walker [2000] 1 WLR 1382 and by Neuberger J in Cosgrove v Pattison [2001] CP Rep. 68), and also the interests of the subject child in having the best expert evidence available prior to the trial.
It would also be on the basis of the paramountcy of the child’s interests in proceedings for parenting orders (together with the provisions of the Evidence Act 1995) that the validity of the Rules restricting the use of an adversarial witness would be challenged, should leave to appeal be granted.
Reliance was also placed in support of the father’s case on the fact that because an updating report would be required issues regarding delay and stress to children arising from further interviews, being matters which Steele J had taken into account, were not relevant.
(iii) Conclusion in relation to leave to appeal
Notwithstanding the important issues raised in the submissions of senior counsel for the father, we are not persuaded that we should grant leave to appeal in this case. As we indicated during the hearing before us, we consider that both the application made to Steele J, and thus the application for leave to appeal, have what can best be described as a premature quality. We take this view for two main reasons.
First, Division 15.5.6 of Part 15.5 provides a procedure for clarifying matters contained in a report prepared by a single expert witness. It was confirmed before us that that procedure had not so far been employed in this case. While we acknowledge that procedure may only be of limited assistance to the father given the nature of his complaints, we are nevertheless, of the opinion that that procedure ought to have been attempted before the application was made to Steele J, or to this Court.
Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings, as indeed was recognised by Steele J. Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial Judge. It is not particularly unusual, in our combined experience, for trial Judges not to accept, or to only give limited weight to, the opinion of a single expert in a children’s case.
It would, of course, remain open to the ultimate trial Judge to adjourn the trial for the purpose of obtaining another expert report, if he or she considered that the matter could not be satisfactorily determined without such assistance. We appreciate that such a course, if it had ultimately to be adopted, would have disadvantages to all involved in the case. But in our view, those disadvantages would be outweighed by the disadvantages of permitting a second expert to be engaged whenever a party to parenting proceedings is the subject of an adverse single expert report (as the father has been in this case). In this regard it must be remembered that for an expert to be able to give satisfactory evidence in relation to arrangements for child, it is generally necessary for the expert to have conducted an interview with the child – a procedure which should be sparingly employed (as was, in effect, submitted by the Independent Children’s Lawyer).
Certainly no error of principle on the part of Steele J in his application of R 15.49 has been established. It must be remembered in this regard that his Honour was not determining the applications before him as the trial Judge of the parenting proceedings, but rather on an interlocutory basis only.
Nor are we satisfied that any substantial injustice has been occasioned to the father. As we have indicated, he still has avenues available to him to challenge Professor Q’s opinions, both prior to and during the course of the trial of the parenting proceedings.
To the extent that the basis for a grant of leave to appeal in this case was submitted to be the existence of issues of general importance (including the validity of the relevant Rules), these matters would, in our view, be far more satisfactorily determined in the context of an appeal proper against parenting orders made after the conclusion of a trial, and in which the appellant considered that he or she had not been permitted to adduce all evidence relevant to the best interests of the subject child, or that a single expert’s evidence should not have been accepted on the basis of bias, actual or apprehended.
Costs of the application for leave to appeal
Having regard to the submissions made to us at the conclusion of the hearing before us, we consider that the circumstances justify the making of an order that the applicant father pay the costs of the respondent mother and the Independent Children’s Lawyer.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate: H. Bryson
Date: 23 May 2008
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