Behrendt & Cadenet (No. 2)
[2021] FamCA 19
•29 January 2021
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
These are parenting proceedings between Mr Behrendt (“the father”) and Ms Cadenet (“the mother”) concerning the child, X, born in 2011 ("the child").
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)”). This judgement should be read with those earlier judgements. For this reason it is only necessary to refer to limited background matters for the purpose of these reasons.
BACKGROUND
The proceedings were originally commenced in the Federal Circuit Court of Australia. They have since been transferred to this Court. On 15 November 2017, by consent, his Honour Judge Monahan appointed Dr B as a Single Expert to prepare a report in the nature of a Family Report. Dr B prepared a report on 11 May 2018, which was thereafter issued to the parties. In that report, Dr B refers to various allegations made by the mother about the father which led Dr B to express the view that, if those allegations were confirmed, it may lead to a significant issue regarding the father, rising to the level of paraphilia. The detailed relevant extract from Dr B report is set out in Behrendt & Cadenet (No. 3) at [9].
The orders made in Behrendt & Cadenet (No. 3) on 27 November 2019 provided for further material to be provided to Dr B for the purpose of him furnishing an interim report concerning the possible need, in his expert view, of obtaining additional evidence from a paraphilia expert. The orders provided for this to be done in cooperation with the Independent Children's Lawyer and the parties, and with a view to Dr B preparing an updated Family Report, with the cost to be shared equally by the parties.
Dr B issued an interim report on 5 February 2020 after viewing a USB stick containing one table and three files (“USB materials”). The bulk of the material on the USB stick was comprised of about 500 professionally shot stack static images of young, attractive women in various stages of undress including nudity, as well as pornographic digital movies with themes ranging from conventional heterosexual activity to more fetishistic activity. This material was derived from a process of culling a vast body of images and movies earlier relied upon by the mother, as explained in Behrendt & Cadenet (No. 2) and Behrendt & Cadenet (No. 3). In his interim report, Dr B specifically adverted to the possibility that the timing and quantum of viewing times of the USB material may be in conflict with the father's parenting responsibilities as well as raising concerns about the child inadvertently seeing some of the digital movies.
In his interim report Dr B expressed the view that, for the purpose of preparing an updated Family Report, the opinions of two other experts should be obtained, the first being an IT expert to assess the viewing patterns associated with USB materials on the basis they were derived presumably from computer hard disks, and the second being an assessment to be conducted by an expert in "the paraphilias". Dr B expressed the view that the expert report assessing viewing patterns would be helpful to any expert engaged to assess the issue of paraphilia.
By order made on 1 April 2020, Dr J was appointed as Single Expert to inquire into and report upon the possibility of identifying viewing patterns, and of the identity of any person viewing the USB materials provided to Dr B for the purpose of his interim report. There was no dispute that Dr J has expressed the view that he is unable to provide an opinion concerning the identity of the person accessing the USB materials nor their viewing patterns, particularly because the mother and father shared passwords and each regularly accessed the computer profile of the other using each other's passwords.
On 16 December 2020, the father filed an Application in a Case seeking an order that Dr B be discharged as Single Expert with consequential orders that a new single expert be identified by the father submitting three names to the mother, and by the mother selecting one from that list.
The matter came before me on 18 December 2020. On that date, the parties identified Dr K as an appropriate expert to carry out an assessment of the issue of paraphilia. Orders were made for the Independent Children's Lawyer to submit to the parties a proposed letter of instruction to Dr K, with each parent to respond by no later than 15 January 2021. The father's Application in a Case seeking discharge of Dr B was listed for hearing on 27 January 2021.
THE INTERIM HEARING
On 27 January 2021, two issues were the subject of debate. The first was the question of appointing a fresh single expert in place of Dr B. The second was the terms of the letter of instruction to be provided to Dr K.
Letter of Instruction to Dr K
As to the second issue, the father proposed a form of joint letter of instruction to Dr K which was attached to his case outline filed 22 January 2021 as an annexure C. This was marked Exhibit "A" on the Application. In the course of submissions, it was agreed that this was the form of letter of instruction which should be sent to Dr K. Orders were made to effect this agreement.
Appointing a Single Expert
The argument about Dr B continuing a single expert was more problematic. Both the mother and the Independent Children’s Lawyer support Dr B continuing as Single Expert. As can be seen from the preceding paragraphs of this judgement, Dr B has had involvement as single expert since 15 November 2017. There have been several hearings concerning pornographic material conducted on the basis of concerns expressed by Dr B in his report dated 11 May 2018. The orders made on 27 November 2019 not only provided for Dr B to prepare and interim report, which, as explained already, he did, but anticipated Dr B would prepare an updated Family Report.
It should also be observed that the progression of expert evidence in this matter has been somewhat unusual. Not only did Dr B identify the need for reports from witnesses with expertise beyond his own, but, although the father made continuous objection, the parties engaged with that need and procedural orders have been made to enable the evidence of further experts to be obtained, whatever their opinion may be, with the explicit purpose of providing a fuller basis for Dr B to provide an updated Family Report.
The father relied upon extensive written submissions and oral submissions as reasons for appointing a fresh Single Expert to provide a Family Report.
The father pointed out that in Behrendt & Cadenet (No. 3), I had held that the mother's allegations, originally made to Dr B and recorded in the Family Report, involved considerable exaggeration and some indifference to the accuracy of what she alleged. I also concluded that images of the father's then fiancé, now wife, should never have been put forward by the mother in support of her Application, because she herself conceded they were irrelevant. The father also pointed to comments in Dr B’s interim report suggesting he was expressing speculative opinions. Perhaps more importantly, the father contends that neither of the further expert assessments recommended by Dr B can be meaningfully completed, because the inability of Dr J to express a view meant Dr K would also be unable to do so. The consequence of this, according to the father, is that the absence of those assessments is no barrier to completion of a new Family Report by new expert.
The father also argued that the USB materials have negligible probative value. He developed this argument by submitting “There is difficulty in identifying the assumptions made in Dr B’s reports in relation to the Remaining Material and the extent of any contamination of his opinion as a result of the Mother’s unfounded allegations. If care is not taken in identifying and proving the foundational assumptions, then his reports may be significantly reduced in weight as they may be little more than an assertion. This lack of clarity may lead to reduced weight being placed on his reports at a final hearing”. (Case Outline, para [23])
Although in oral submissions Counsel for the father disavowed any reliance upon apprehended bias, he did press both in his written submissions and orally that the father had lost confidence in Dr B. When asked to explain the basis for this loss of confidence, the father contended that the material Dr B had already seen may have contaminated his opinion, and that he may even subconsciously have prejudged factual issues such as the ownership of the pornographic material and the nature of the father's viewing patterns despite the absence of any evidence to support such views.
There was also some debate as to whether the appropriate order to be sought by the father was for the discharge of Dr B. It seems to me upon considering the orders made on 27 November 2019, that since that date it has been ordered that Dr B would prepare an updated Family Report, that the parties cooperate in making themselves available for interviews and that Dr B’s fees for the updated Family Report be paid by them equally. I am satisfied that Dr B was appointed to prepare an updated Single Expert Report on 27 November 2019. Therefore the appropriate order would be for his discharge, if the father’s application is acceded to.
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.
This evidence shows the father’s concern, in part at least, is that Dr B will take account of factors outside the evidence. I infer this is really a reference to a concern that Dr B will treat unsubstantiated allegations of the mother as facts, or give them improper weight. I do not accept this contention. Dr B is subject to the duty prescribed in sub-rule 15.59(3)(a) of the Rules. I am not satisfied the father has demonstrated Dr B has faltered in any way in discharging this duty thus far, nor that Dr B is somehow likely to do so in the future.
In Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326; (“Nagel & Clay (2020)”) I pointed out that there is authority that the principles of apprehended bias do not apply to witnesses at all (see also McGrath at [39]), but I accepted that in this Court it is generally desirable for a Single Expert, appointed under Rule 15.44 of the Family Law Rules 2004 (Cth) by the Court to prepare a Family Report, "to conduct, and be seen to conduct, his or her process of forming an opinion, generally in compliance with sub-rule 15.59(3), and in an even handed manner, ideally by hearing from all relevant parties, if they co-operate, and receiving their material consensually" (at [156]). In my view, nothing pointed to by the father suggests that Dr B has acted in other than an even-handed manner.
I accept the submission of Counsel for the mother that if loss of confidence alone was a broadly applicable criterion for discharge of a single expert, such discharges would be happening on a regular basis. The obvious detrimental impact this would have upon the efficient passage of parenting proceedings to final hearing and the disruption it would cause in the management of other cases in the Court is also obvious.
In Padley & Padley [2020] FamCA 717 (“Padley”) at [44] & [45] I accepted that the following comment of Pembroke J in McGrath v McGrath [2012] NSWSC 578 at [21] stands as an apt caution in relation to any expert witness, including family report writers:
Too high an insistence on independent experts being required to avoid even an impression of partiality would not be in the interests of justice. It might...encourage unwarranted challenges and unnecessary litigation by those too readily prone to suspicion and paranoia
Dr B has not prepared an updated Family Report. If he does, the father will be able to avail himself of procedures under the Rules to clarify matters arising from the report. He will also be able to cross-examine Dr B. The Full Court said in Bass & Bass (2008) FLC 93-366; [2008] FamCAFC 67 at [50] “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” In Nagel & Clay (2020) at [150] I commented, “[t]his statement seems to entertain the possible application of rules of apprehended bias to the evidence of experts. It also presupposes that there will be expert evidence in the form of a report which can be tested in cross-examination. It also implicitly shows that a single expert is to be treated and tested like other witnesses.” As I later said in Padley at [53], "[i]t is not enough to justify appointing an additional or fresh expert that one party takes issue with an existing expert, particularly where there is not yet any expert report to take issue with."
Counsel for the father relied upon Nagel & Clay [2019] FamCA 406 (“Nagel & Clay (2019)”). In that case, a mother contended she had lost confidence in the Single Expert who had prepared a report on 1 June 2016. When the matter came be for me three years later on 20 June 2019, she sought orders for the appointment of a fresh expert. I made orders appointing fresh expert because in the face of the mother’s loss of confidence nothing would be lost by appointing a fresh expert.
The father argued, in reliance on Nagel, that nothing would be lost by the appointment of a fresh single expert in these proceedings. I do not agree. It is true that in this matter no final hearing date is close, as it was in Nagel & Clay (2019); indeed there is no final hearing date allocated for this matter. However, the proceedings are listed for a callover on 12 March 2021 and may be allocated a hearing date, especially if expert evidence has been finalised or is close to finalisation. Counsel for the ICL informed me that Dr B has availability for interviews in February and March 2021. Any new single expert will be required to assimilate all the material which has already been considered and assimilated by Dr B. This can only lead to further delay in my view. The appointment of a fresh expert will reduce the likelihood of the matter being ready for a final hearing date at callover.
In his affidavit evidence, the father contended that "due to the material changes in my living arrangements and the age of the previous Family report, some 3 years on, appointing a new single expert will have no impact on the requirement for X to be interviewed again". It is not entirely clear what the father means by this statement, but it is beyond argument on the basis of his own evidence that his domestic circumstances have changed significantly since Dr B undertook the first Family Report.
It seems possible, as the father argued, that the inability of Dr J to express a view means Dr K may also be unable to do so. But even if this is correct it does not assist the father’s argument for a fresh Single Expert. It simply means that in preparing an updated report there will be none of the additional expert evidence suggested in Dr B report of May 2018. This may expose the whole exercise as rather futile but this is not certain and does not militate in favour of a fresh expert.
These considerations, taken with the matters referred to in [13] above, make clear that the circumstances of the present matter are readily distinguishable from the circumstances in Nagel & Clay (2019). In Nagel & Clay (2019), very little had happened in the proceedings for a period of three years. There was no suggestion of the existence of idiosyncratic features such as are present in these proceedings, such as a need for additional experts, and orders which contemplated the existing expert would complete an undated Family Report.
Here, Dr B has had involvement since the orders of 2017. It was his expert view which is led to a process for obtaining additional expert evidence. A process has been ordered by the Court to obtain additional expert evidence with a view to Dr B, not some other expert, completing the production of an updated Family Report. This process had its genesis in the expert opinion of Dr B, and it is clearly preferable that he should complete the process by producing an updated Family Report.
From the point of view of X, there is nothing put to me by the father which suggests the appointment of a fresh Single Expert would serve his best interests any more than retaining Dr B.
The proceedings have now been on foot since 2016. All parties emphasise the need for the proceedings to be brought to finality as soon as possible in the interests of the child. It is necessary to observe, nonetheless, that the wife’s allegations and the ensuing arguments about pornographic material, which have ultimately led to this Application by the father to discharge Dr B as a single expert, have delayed the proceedings for at least 12 months. Whilst I do not propose for the purposes of this judgement to apportion responsibility for this between the parents, it is also appropriate to observe that the broad issue of the father accessing the pornographic material in a manner which may adversely affect his parenting capacity was initially raised by the mother making extravagant and partly unfounded allegations. The father has then fought vigorously against the smooth production of expert evidence to address the issue in a timely fashion. Viewed against this background, the protestations of both parents about delay appear hollow.
I will dismiss the father's application.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 29 January 2021
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