BAYLE & BAYLE

[2011] FamCA 753

FAMILY COURT OF AUSTRALIA

BAYLE & BAYLE [2011] FamCA 753

FAMILY LAW – EVIDENCE - Expert evidence - Whether report of treating clinical psychologist could be 'removed' from Court file

FAMILY LAW – COSTS – Discretion – certification for Counsel

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

APPLICANT: Mr Bayle

RESPONDENT: Ms Bayle

FILE NUMBER: BRC 4476 of 2011

DATE DELIVERED: 19 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 19 September 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Stephen Rees of Rees Law

COUNSEL FOR THE RESPONDENT: Ms J Hogan

SOLICITOR FOR THE RESPONDENT: Ms Reagan Wilson of Best Wilson Family Law

Orders

1. This application in a case of the Applicant, filed 2 September 2011, for removal of the affidavit of Dr B, filed 29 July 2011, from the Court file is dismissed.

1. The Applicant pay the Respondent’s costs of and incidental to this application.

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth), it is certified that it was reasonable for the Applicant to engage Counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Bayle & Bayle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4476 of 2011

Mr Bayle

Applicant

And

Ms Bayle

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application in a case filed 2 September 2011, the Husband sought Orders in respect of a certain report of one Dr B, which was a report filed in this Court with an affidavit of Dr B on 29 July 2011. In essence, the Husband sought an Order that that affidavit and report be, “removed from the Court file and placed in a sealed envelope, not to be opened except by Order of a Judge.” The Husband also sought an Order by way of injunction, and I quote, “That the Applicant Wife be restrained from delivering to, or disclosing, the contents of the said affidavit and the annexed report to any expert appointed by this Court in these proceedings except by Order of a Judge.” The further Order sought by the Husband was that the Applicant Wife pay his costs of and incidental to the application on an indemnity basis.

2. The history of the matter is that it involves parenting and financial issues and was in the Federal Magistrates Court as at 28 July 2011 when Orders were made for the appointment of a single expert psychiatrist. Those Orders were made by consent. I note that Dr B is in fact a clinical psychologist and it is not in issue in the proceedings before me that Dr B has been a treating clinical psychologist of the Wife. The Husband has concerns about the opinions expressed by Dr B. Without listing all of them, in summary he has concerns that Dr B has formed opinions based upon obtaining a history only from the Wife; and Dr B has never met or interviewed the Husband; and allied with that concern, the Husband says that Dr B has expressed views reflective of bias on her part or findings in terms of the opinions she expresses which are outside the limits of her expertise.

3. It seems to me that the fundamental and profound difficulty with the Husband’s application before me is that it misconceives the operation of Part 15.5 of the Family Law Rules 2004 (Cth). In the first place, the subject report had been admitted in proceedings in the Federal Magistrates Court on 28 July 2011. It was, by reason of its admission and marking as an Exhibit, in evidence in those proceedings now transferred here. Without having to decide the matter, it seems to me it would be difficult for a Family Court trial Judge, on an interim application, to entertain the kind of application that is sought to be made in any event. That would be the province of an appeal, it seems to me, to the Full Court. However, as I say, it is unnecessary for me to decide that aspect because, in my view, Part 15.5 does not have the effect that the Husband contends for.

4. Rule 15.41(1) plainly expresses that:

   This Part (other than rule 15.55) does not apply to any of the following:

   (a)evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:

   (i)the result of an examination, investigation or observation made;

   (ii)a description of any treatment carried out or recommended;

   (iii)expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis.

5. It seems to me that the report obtained from Dr B in response to a request for it from the Wife is evidence within the meaning of rule 15.41(1), such that at no time was the Wife obliged to obtain the leave of the Court to rely upon expert evidence caught by Part 15.5 of the Rules. In any event, even if Part 15.5 applied, the purpose of the Part is expressed is rule 15.42, which includes under subparagraph (e), “To enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that part, if necessary in the interests of justice.” It seems to me, against a background where a party has been having treatment from a clinical psychologist, it would ultimately be difficult for a Court to resist the proposition that permission ought be granted even if that person is cast as an expert within the meaning of that rule. However, as I have already observed, it is my view that Dr B’s evidence plainly falls within the exception in rule 15.41.

6. For those reasons and those discussed during argument, I dismiss the Husband’s application. I should repeat that the injunction whereby the Husband sought to have the Wife restrained, by injunction, from delivering to or disclosing the contents of Dr B’s affidavit or report to any single expert appointed by the Court in these proceedings is likewise, in my view, utterly misconceived. By consent, an Order was made on 28 July 2011 for a single expert psychiatrist to undertake preparation of an expert report to be provided to the Court. It seems to me axiomatic that any single expert psychiatrist undertaking to provide such a report would make investigations of the Wife designed to elicit whether she had undertaken any treatment or seen any psychologist or psychiatrist for that purpose. It seems to me that it would fail at the first hurdle if the Wife was somehow restrained by injunction from responding to the legitimate forensic enquiries made of her by a single expert whose role it is to assist the Court in the final determination of the proceedings before it. For those reasons, I dismiss the Husband’s Application in a Case filed 2 September 2011.

7. The Wife seeks an Order for her costs of and incidental to that application to be paid by the Husband. She also asks that I certify for Counsel and that Counsel’s fees relevant to that application be the subject of such a costs order. Section 117 of the Family Law Act 1975 (Cth) provides in subsection (1) that each party to proceedings under this Act shall bear his or her own costs. However, that provision is subject to subsection (2). Subsection (2) provides that if in proceedings under the Act, the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to other subsections and the applicable Rules of Court, make orders for costs.

8. Given my reasons for dismissing the Husband’s application, and findings to the effect that the application was flawed and misconceived, I find that there are, within the meaning of subsection (2), circumstances that justify a Court in making an Order for costs subject to the considerations set out in the other subsections. If for no other reason than that it became readily apparent in the course of oral argument and as recorded in the written submissions that it seems on the Husband’s side there was a misconception as to the application of Rule 15.41(1) in that it was contended that under subrule (a) of that rule, the subparagraphs were to be read conjunctively rather than disjunctively.

9. The considerations I have regard to under subsection (2A) of s 117 are, firstly, the financial circumstances of each of the parties to the proceedings. It is readily apparent that on current income levels, there is a significant disparity in favour of the Husband in that his earnings are in the order of $3,000.00 per week versus the Wife’s earnings, which are in the order of $530.00 per week. With regard to subsection (c), I have regard to the fact that the Husband has been wholly unsuccessful in his application and in circumstances where, on my findings, it was not an application reasonably made.

10. I also have regard to the feature that relevant matters were aired in correspondence which has been read before me, whereby the Wife’s solicitors sought to agitate a reconsideration by the Husband of his position in bringing the application that I have dismissed. For all those reasons, it seems to me that it is appropriate to make, particularly in a financial case as this is, an Order for costs in the terms sought and I so order.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 September 2011.

Associate: 

Date:  22 September 2011