Behrendt & Cadenet (No. 2)

Case [2021] FamCA 19

FAMILY COURT OF AUSTRALIA

Behrendt & Cadenet (No. 2) [2021] FamCA 19

File number(s): SYC 7807 of 2016
Judgment of: HARPER J
Date of judgment: 29 January 2021
Catchwords: FAMILY LAW – CHILDREN – EVIDENCE – Where Single Expert has previously prepared a Family Report – Where the Family Report raised the need to engage further experts in relation to allegations of father accessing pornographic material – Where orders made to engage such experts prior to preparation of updated Family Report by Single Expert – Where the father seeks the appointment of an fresh single expert to prepare the updated Family Report – Where the father claims to have lost confidence in the Single Expert – Where the mother and ICL oppose the father’s Application – Application dismissed
Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 15.44, 15.59
Cases cited:

Behrendt & Cadenet (No. 2) [2019] FamCA 748

Behrendt & Cadenet (No. 3) [2019] FamCA 827

Bass & Bass (2008) FLC 93-366

Bookhurst & Bookhurst [2011] FamCA 16

McGrath v McGrath [2012] NSWSC 578

Nagel & Clay (2020) 60 Fam LR 550

Nagel & Clay [2019] FamCA 406

Padley & Padley [2020] FamCA 717
Number of paragraphs: 37
Date of hearing: 27 January 2021
Place: Sydney
Counsel for the Applicant: Mr Sweeney
Counsel for the Respondent: Mr Wong
Counsel for the Independent Children's Lawyer: Ms Stolier

ORDERS

SYC 7807 of 2016
BETWEEN:

MR BEHRENDT

Applicant
AND:

MS CADENET

Respondent

MARK WHELAN LAWYERS

Independent Children’s Lawyer

ORDER MADE BY:

HARPER J

DATE OF ORDER:

29 JANUARY 2021

THE COURT ORDERS THAT:

1.The Application in a Case filed by the Applicant Father on 16 December 2020 be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

HARPER J:

INTRODUCTION

  1. These are parenting proceedings between Mr Behrendt (“the father”) and Ms Cadenet (“the mother”) concerning the child, X, born in 2011 ("the child"). 

  2. This judgement concerns yet another Application regarding expert evidence in these proceedings. I have delivered two earlier judgements in relation to expert evidence; in particular, expert evidence regarding allegations by the mother that pornographic material accessed by the father in the past demonstrates a compulsive and addictive feature of his psychology which directly reflects upon his parenting capacity: Behrendt & Cadenet (No. 2) [2019] FamCA 748 (“Behrendt & Cadenet (No. 2)”) and Behrendt & Cadenet (No. 3) [2019] FamCA 827 (“Behrendt & Cadenet (No. 3)”).…

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Details
AGLC
Behrendt & Cadenet (No. 2) [2021] FamCA 19
Case
[2021] FamCA 19
Decision Date

CaseChat Overview and Summary

In *Behrendt & Cadenet (No. 2)*, Harper J of the Family Court of Australia considered an application by the father for the appointment of a fresh single expert to prepare an updated Family Report. The existing single expert had previously prepared a Family Report which raised concerns regarding the father's alleged access to pornographic material, necessitating the engagement of further experts. Orders had been made for these experts to be engaged before the preparation of an updated Family Report by the original single expert. The father sought the appointment of a new expert, claiming a loss of confidence in the existing expert, while the mother and Independent Children's Lawyer opposed this application.

The central legal issue before the court was whether the father had established sufficient grounds to warrant the discharge of the existing single expert and the appointment of a new one. This involved determining if the father's asserted loss of confidence was based on apprehended bias or a genuine inability of the expert to perform their role impartially, particularly in light of the father's perception of flaws in the expert's reasoning regarding certain USB materials and their probative value. The court was also required to consider whether the father's arguments about the probative value of the evidence were relevant to the question of the expert's suitability.

Harper J rejected the father's application, finding that his asserted loss of confidence was primarily rooted in apprehended bias rather than any demonstrable inability of the expert to conduct their role impartially. The court noted that the father's arguments regarding the probative value of the USB materials were not a valid basis for discharging the expert, as such issues could arise with any expert and were not determinative of the expert's suitability. The judge referred to previous decisions and the principle that an expert's untested evidence appearing to be at odds with a party's version of logical reasoning does not constitute a ground for disqualification. The court found that the father's perception of flawed reasoning by the expert did not equate to bias or an inability to form an opinion based on evidence.

Consequently, the court ordered that the father's application be dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application in a Case filed by the Applicant Father on 16 December 2020 be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There was no dispute about the experience and expertise of Dr B. He is an expert witness well-known in this Court. CONCLUSION I reject the argument based on the assertion that the USB materials have negligible probative value. This similar to the argument the father made in relation to a greater volume of material which I considered and rejected in Behrendt & Cadenet (No. 3) at [48] to [58]. Although the argument may ultimately be shown to have force, for the reasons given in Behrendt & Cadenet (No. 3) it is not possible or appropriate to attempt to form any view about the probative value of the USB materials at this point. It may be that the value of Dr B report is somehow diminished by the way he ultimately takes account of the USB materials, but it is not possible to form any view about such a possibility now. In any event, it is not clear why the question of probative value bears on the identity of Single Expert. The same alleged problem could arise in relation to the report of another Single Expert. Since there is no way sensibly to predict what opinion either Dr B or another expert will reach, the argument has no force in relation to the father’s desire for the discharge of Dr B. The question here is one of perception by the father. Although the father disavowed any reliance upon apprehended bias, it seems to me that that is precisely what lies behind his assertions of loss of confidence in Dr B. His arguments make reference to contamination of Dr B’s mind, and to comments of Dr B from which inferences of pre-judgement are said to be available. For example, in his affidavit evidence the father makes assertions that a number of comments by Dr B in his letter of 5 February 2020 could not be reasonably based. As one example, the father pointed to Dr B's statement that "[e]ssentially the basis for this is that these materials appear to indicate that [the father] had a habit of viewing fairly extensive volumes of materials in the latter stages of the relationship..." (Dr B's Report dated 5 February 2020, pg. 1). The father appeared to take this sentence as showing Dr B had formed the view that the father had a habit of viewing extensive material. However, this is not the only, nor the most obvious way, to understand what Dr B is saying. In that sentence, Dr B was simply expressing the basis for his conclusion that two further experts were necessary. The very fact that he considered that further expert evidence was necessary demonstrates that he himself was not offering any opinion about the father's habit of viewing material and whether such material was actually extensive. The fact that the father perceives the reasoning of Dr B to be flawed is not to the point. As Fowler J said in Bookhurst & Bookhurst [2011] FamCA 16 at [52]; “[i]t is not a ground for disqualification of an expert that [their] untested evidence appears to one party to be at odds with his version of logical reasoning.” At paragraph 32 of his affidavit affirmed 16 December 2020 the father says:I have no confidence that Dr B will deliver a Family Report that contains an opinion formed exclusively on evidence. Further, I am concerned that Dr B continued involvement increases the risk of receiving a Family Report that has limited probative value and does not genuinely consider the best interests of X.

Ratio Decidendi

Legal Principle Established

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