Bednar & Bednar
[2022] FedCFamC1F 257
•21 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bednar & Bednar [2022] FedCFamC1F 257
File number(s): SYC 1308 of 2020 Judgment of: REES J Date of judgment: 21 April 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge the single expert – Where the single expert provided a statement to police in criminal proceedings – Where nothing in the expert’s statement could reasonably give rise to an apprehension of bias toward the applicant – Proposition best tested by cross-examination at trial – Application dismissed. Cases cited: Bass & Bass (2008) FLC 93-366 Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 20 April 2022 Place: Sydney Counsel for the Applicant: Mr Lawrence Solicitor for the Applicant: Crawford Ryan Lawyers Pty Ltd Counsel for the Respondent: Mr Guterres Solicitor for the Respondent: Linden Legal Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 1308 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BEDNAR
Applicant
AND: MS B BEDNAR
Respondent
PHILLIP A WILKINIS & ASSOCIATES
Independent Children’s Lawyer
ORDER MADE BY:
REES J
DATE OF ORDER:
21 APRIL 2022
THE COURT ORDERS:
1.That the Application in a Proceeding filed 5 April 2022 to discharge the single expert is dismissed.
2.That not later than 42 days before the commencement of the substantive hearing, Ms Bednar file and serve an affidavit of her treating psychologist, Dr C.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bednar & Bednar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Proceedings relating to parenting and financial matters between Ms Bednar (“the applicant”) and Ms B Bednar (“the respondent”) are listed for call-over on 29 April 2022 for the purpose of setting dates for the substantive hearing.
The applications, relevantly, concern the parenting arrangements for two children, X aged six years and Y aged four years. The applicant is the gestational mother of the children and the respondent is their biological mother. The applicant has an older child of an earlier relationship, Z who is aged 13 years.
Dr D, who is a child and family psychiatrist, was appointed as the single expert in these proceedings and she produced a report dated 10 February 2021. The recommendations in Dr D’s report do not support the applicant’s position.
The application for determination is to discharge Dr D as single expert. The application is opposed by the respondent and not supported by the Independent Children’s Lawyer (“ICL”).
On 9 February 2021, the applicant filed a Response to an Application in a Case seeking, amongst other things, the discharge of Dr D as single expert. That application was heard and dismissed on 11 March 2021 and there was no application to review that decision.
Counsel for the applicant made it clear that no reliance is placed on the matters that gave rise to the earlier, unsuccessful application. Rather, the applicant relies on matters which arose after that time.
On 2 July 2021, Dr D provided a statement to the police in relation to criminal charges against the respondent alleging that she, the respondent, assaulted Z. Those charges have not yet been heard and the respondent suggests that they may be withdrawn. However, they remain on foot.
The applicant did not become aware of Dr D’s statement until February 2022 although the respondent deposed that it was the applicant who told the police about the interviews with Dr D and about the statements made by Z to Dr D which were recorded in the report.
The applicant relies on two passages in Dr D’s statement which, it is contended, would give rise to an apprehension of bias against the applicant.
At paragraph 8 of the statement, Dr D says, in relation to her interview with Z and his allegation that the respondent had assaulted him:
…He mentioned specific incidents which were not documented at the time and which I can no longer recall.
It is submitted, on behalf of the applicant, that the addition of the words “which were not documented at the time and which I can no longer recall” is significant because those words do not appear in the report dated 10 February 2021.
In that report, Dr D wrote:
He mentioned specific incidents and stated “I can hear the sound of the wind” (her hand moving) before she smacked him on the leg (he pointed to his thigh).
I do not accept that the difference in the words used in the statement and in the report is significant or that the words could give rise to any inference of bias against the applicant on the part of Dr D.
At paragraph 14 of the statement, Dr D said:
In my professional opinion, Z had formed an alliance with his mother ([the applicant]) who had inappropriately shared information with him about the couple’s relationship. I gained the impression during the interview that he was trying to please his mother, [the applicant].
It is submitted, on behalf of the applicant, that the words “In my professional opinion, Z had formed an alliance with his mother” are not included in the report and thus give rise to an apprehension of bias.
Dr D’s account of her interview with Z is found at page 7 of her report. Z described the respondent as a “stalker”; as putting “her massive arms like tentacles all over me”. He refers to the respondent and a third person as “being absolute monsters” and perpetrating “absolute lies and cruelty to me and my mum”.
Dr D reported:
Given the choice of sending a message to the Judge, Z happily dictated – “Dear Judge, I do understand the process in my Mum’s relationship with [the respondent] and I want you to make sure that these two women are separated before someone decides to ruin each other’s lives and make it absolutely mayhem for me and my brothers.
Z agreed that there had already been “mayhem” and opined the best thing was for his brothers to stay with him and Mum. He alleged “[the respondent] was lying a lot”.
While I accept that Dr D did not specifically say in the report that Z had “formed an alliance with his mother”, there is a clear inference of an alliance to be drawn from the report. Counsel for the applicant did not submit otherwise.
In Bass & Bass (2008) FLC 93-366 (“Bass”) the Full Court dealt with an application to discharge a single expert, stating:
48.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.
49.First, Division 15.5.6 of Part 15.5 [of the Family Law Rules 2004 (Cth)] 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.
50.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.
51.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).
Whilst counsel for the applicant sought to distinguish the decision in Bass on the basis that there was no reference in Bass to the single expert having provided a statement in criminal proceedings, I do not consider that factual difference should procure a different approach from that in Bass.
There is nothing in Dr D’s statement that is not consistent with her report.
There is nothing in Dr D’s statement that could reasonably give rise to an apprehension that she is biased against the applicant but that proposition is best tested in cross-examination in the substantive proceedings.
On behalf of the applicant, it was submitted that Dr D may be cross-examined in the criminal proceedings and that some aspect of her evidence may give rise to an apprehension of bias. At this time, it is not known whether the criminal proceedings will be heard before these proceedings are completed. The charges may be withdrawn. It is not known whether Dr D will give evidence. It is not known whether there will be a successful objection to such of her statement as is hearsay evidence. It is not known whether she will be cross examined.
In the event that Dr D were discharged, then the applicant proposes that a new single expert be appointed and that a new report be prepared. Counsel did not demur from my proposition that this would postpone the trial by as much as a year.
I am not persuaded that the applicant has established any basis to discharge the single expert and her application will be dismissed.
The applicant also seeks leave to file and serve an affidavit by her treating psychologist. That application is not opposed and will be granted.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 21 April 2022
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