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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bass & Bass [2008] FamCAFC 67
Case
[2008] FamCAFC 67
Decision Date
CaseChat Overview and Summary
The parties in this case were a father and a mother engaged in parenting proceedings. The father sought leave to appeal from a decision of the Family Court, where the primary Judge had denied his applications to discharge a single expert witness and to adduce further evidence from another expert witness. The father's central contention was that the single expert had displayed bias against him in their report, which was used in the parenting proceedings.
The legal issues before the court included whether the father's applications should be granted and, if not, whether the court should grant leave to appeal. The primary concern was whether the procedure outlined in Division 15.5.6 for addressing issues with a report prepared by a single expert witness had been correctly followed. Additionally, the court had to determine whether the assertion of bias against the single expert could be adequately addressed through cross-examination of that witness.
The court found that the father had not followed the appropriate procedure for raising concerns about the single expert's report, as mandated by Division 15.5.6. It was held that the father's assertion of bias would be more suitably addressed during the cross-examination of the single expert witness. Consequently, the court refused the father's application for leave to appeal and ordered him to pay the costs of the mother and the Independent Children's Lawyer.
Orders
Orders of the court
1.
That the application for leave to appeal be dismissed.
2.
That the applicant father pay the costs of the respondent mother and of the Independent Children’s Lawyer as assessed in default of agreement.