Biggs and Biggs - [2014] FamCA 1033

FAMILY COURT OF AUSTRALIA

BIGGS & BIGGS

[2014] FamCA 1033

FAMILY LAW – EVIDENCE – Expert evidence – Whether parts of the evidence of the children’s treating psychologist and the father’s treating psychologist are admissible – Application of the single expert rule and the permission rule – Discussion of the scope of the operation of Rule 15.41 Family Law Rules 2004 which allows evidence from a person providing treatment without seeking permission – Objection to evidence given outside the scope of Rule 15.41 upheld.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)
Family Law Rules 2004 – rules 1.12; 15.41; 15.42; 15.45; 15.51(1)

Lister & Lister (2014) FamCA 606
Re W and W: Abuse allegations; expert evidence (2001) FLC 93-085

APPLICANT:

Mr Biggs

RESPONDENT:

Ms Biggs

INDEPENDENT CHILDREN’S LAWYER:

Ms Robertson

FILE NUMBER:

SYC

2399

2011

DATE DELIVERED:

13 November 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

13 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Ms Lawson

SOLICITOR FOR THE RESPONDENT:

Gonzalez & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ward

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders

Those parts of Exhibit 23 which are highlighted in pink and purple are admitted into evidence.
Otherwise, the objection to parts of the evidence of the children’s treating psychologist and the father’s treating psychologist is upheld.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Biggs & Biggs 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 SYDNEY

FILE NUMBER: SYC 2399 of 2011

Mr Biggs

Applicant

And

Ms Biggs

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Objection has been taken by counsel for the mother to extensive passages in the evidence filed on behalf of the father, from the children’s treating therapist and in the report from the father’s treating clinical psychologist, on the basis that those passages trespass outside the remit of a treating expert and fall foul of the provisions of the single expert rule, that is rule 15.45, and the permission rule, that is rule 15.51(1) of the Family Law Rules 2004 (“FLR”).
The father presses for the introduction of all material in both reports into evidence. The Independent Children's Lawyer presses for the introduction of some limited passages in the evidence from the child’s therapist to which objection is taken.
The Court ordered, and has received, a report from the single expert child, adolescent and family psychiatrist, who has reviewed extensive material, interviewed and observed the parties and the children and has made extensive recommendations. In the course of the preparation of his report, the single expert has spoken to both the children’s treating therapist and the father’s treating clinical psychologist.
Senior counsel for father has not, and does not propose, to make an application for permission to adduce the disputed evidence pursuant to the adversarial expert evidence rules (15.49, 15.51(1) and 15.52 FLR).
Instead, senior counsel for the father relies upon rule 15.41 FLR which creates an exception to the permission rule in relation to evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or a child.
Counsel for the Independent Children's Lawyer accepts the objection made by counsel for the mother to certain parts of the evidence of the children’s therapist and the father’s clinical psychologist. There is, however, one part of the evidence to which objection is taken by the mother that counsel for the Independent Children's Lawyer wishes to have introduced into evidence. I have given counsel for the Independent Children's Lawyer an opportunity to rely upon rule 15.51(2) FLR which allows the Independent Children's Lawyer to tender expert evidence without permission. That opportunity was declined on the basis that if that evidence was tendered by the Independent Children's Lawyer, there would be a foreshadowed objection against the Independent Children's Lawyer then asking questions of the children’s therapist about this evidence in cross examination.
Both senior counsel for the father and counsel for the Independent Children's Lawyer make an application under rule 1.12 FLR, for the rules to be dispensed with so that the regime under Chapter 15 not be a bar to the introduction of the evidence from the children’s therapist and father’s clinical psychologist upon which each respectively seek to rely.
They both pointed to the objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”), the relaxation of rules of evidence in Division 12A of Part VII of the Act, and what is said to be the inquisitorial nature of children’s proceedings, and argued that the expert evidence rules should be dispensed with in children’s cases.
It is clear from a reading of the expert evidence rules that they are not intended only to cover financial matters. The expert evidence rules clearly are intended to cover proceedings in relation to parenting matters also. Those rules were made in 2004, have not been amended since the 2006 amendments to Part VII of the Act, and were rules introduced by an overwhelming majority of judges pursuant to s 123 of the Act.
On 5 September 2014, I made a direction that within four weeks (by 3 October 2014) the father file and serve affidavit evidence from, amongst others, the two experts to which I have referred.
The extensive affidavit from the children’s therapist was not filed until 23 October 2014. The evidence from the father’s clinical psychologist was not filed until 6 November 2014. I accept there was no realistic opportunity for the mother to raise her objection to parts of that material until the commencement of the first day of the final stage of hearing which was on Tuesday of this week.
By way of explanation as to how the present difficulty has arisen, it is sufficient to recite some of the questions which the lawyer for the father asked the children’s therapist to answer. They include:
·Whether or not you recommend lifting supervision on [the children’s given names’] time with their mother.
·If the answer to the above question is yes, then what timeframe would you provide for the lifting of supervision.
·Do you propose any alteration to the current arrangements in terms of the children’s time with their mother in so far as the length and frequency of the visits is concerned.
·If the answer to the above question is yes, then what sort of changes do you believe would be in the children’s best interests.
·Assuming the children of the marriage continue to live with the father on a full time basis, your opinion, if possible, on the impact upon the children of an order requiring the parties to consult with each other in relation to major decisions concerning the children’s long term care, welfare and development. (Pausing there, I note that when answering that question, for some unexplained reason the children’s therapist reframed the question in her report by omitting the words “upon the children”)
·Your recommendations as to the appropriate arrangements to be put into place in order to protect the father in his role as the children’s primary carer for [the children’s given names].
·Whether or not you believe that the mother’s proposal as set out in the extract from her affidavit is in the children’s best interests.
It is to be observed that in contradistinction to the single expert in this case, the children’s therapist has never seen the mother for the purpose of any clinical interview or observations with the children, has only had discussions approximately once each term with the father about his perceptions as to the progress of the children, and has only observed the children with their father informally and on a limited basis when the father was delivering the children or picking the children up from therapy.
Rule 15.41 FLR is in the following terms:
15.41 Application of Part 15.5
(1) 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 results 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;
(b) evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:
(i) about that expert’s involvement with a party, child or subject matter of a case; and
(ii) describing the reasons for the expert’s involvement and the results of that involvement;
(c) evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;
(d) evidence from family consultant employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).
As indicated, senior counsel for the father wishes to rely upon this rule to exclude the operation of Part 15.5 FLR in this case.
Senior counsel for the father argued that the words “a description of any treatment carried out or recommended” is wide enough to allow the children’s therapist and the father’s clinical psychologist, to provide opinion and recommendations about what orders should be made by the court and opinions about other issues in the case, including views about what might be in the best interests of the children.
Senior counsel for the father invited me to look up the Oxford English Dictionary for the definition of the word “treatment”. I did that. There are, of course, a number of different meanings of the word “treatment” (for example, the manner in which someone deals with another; the use of a chemical to preserve something). The context in which the word “treatment” is used in the rules means “medical care given to a patient for an illness” or “apply medical care or attention to”.
Interpreted in that way, the words “treatment recommended” in rule 15.41(a)(ii) FLR cannot be given the broad meaning proposed by senior counsel for the father. To do so would mean that in circumstances where expert evidence had been given on an issue by a single expert witness, any treating professional could be asked to express an opinion as to any issue in the case and what orders the Court should make in the case, and there would be no need to seek permission to admit the evidence pursuant to the rules. The dangers in doing that have long been recognised (see Re W and W: Abuse allegations; expert evidence (2001) FLC 93-085 at [147] to [165]).
That cannot be the result intended by Part 15.7 FLR. It would not be consistent with the purposes of Part 15.5 as set out in rule 15.42 as follows:
15.42 Purpose of Part 15.5
The purpose of this Part is:
(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b) to restrict expert evidence to that which is necessary to resolve or determine a case;
(c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d) to avoid unnecessary costs arising from the appointment of more than one expert witness; and
(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.
Properly interpreted, the word “recommended” where it appears in rule 15.41(1)(a)(ii), must mean recommended treatment, not recommendations as to what a particular therapist might more generally think about an issue in the case or what order should be made.
Senior counsel for the father argued that Division 12A of the Act, and by implication s 69ZT of the Act, overcomes the permission rule in parenting cases. In my view, the relaxation of the rules of evidence and in particular the opinion evidence rule, has no bearing on the matter in contention. Whilst it is true that s 69ZT(1) of the Act eliminates any hurdle created by s 76 of the Evidence Act 1995 (Cth) (“the Evidence Act”), both the deponents have specialist knowledge, training and expertise (and arguably the exception in s 79 of the Evidence Act is attracted).
The underpinning of the single expert evidence rule and the permission rule is s 56 and s 135 of the Evidence Act, and striking an appropriate balance between those sections (see Lister & Lister (2014) FamCA 606). In this case counsel for the mother highlighted the fact that the trial would be considerably lengthened if there now had to be the normal processes between two competing experts (and particularly, the appointed single expert and the children’s therapist) in relation to recommendations where they disagree.
The late filing of the affidavit means that there was not only no opportunity for an application for permission to be properly made pursuant to the rules (see rules 15.52(1) and (2) FLR) but also no opportunity, if that application was successful, for the subsequent normal operation of the other provisions in the rules, in relation to the conference of experts, a joint statement and concurrent evidence.
As a result I have looked at the material that has been objected to. I have allowed portions of that material which either fall within the provisions of rule 15.41(1) or might marginally be argued to fall within that rule (and to that extent I would otherwise apply rule 1.12 to that material).
I do not, however, allow material, which in my view, is not:
·The results of an examination, investigation or observation;
·A description of any treatment carried out or recommended;
·Reasons for carrying out or recommending treatment and the consequences of that treatment, including prognosis.
Nothing that I have said prevents either party, or the Independent Children's Lawyer, putting to the single expert, in cross-examination, propositions based on the inadmissible views of the other experts, as long as those questions are not predicated upon an assertion that either of the relevant experts have expressed that opinion.
I provide a copy of the material to which objection is taken with passages marked as to where the material is admissible. The objection to three other passages was withdrawn and those passages will also be admitted. That is marked Exhibit 23.
Otherwise the objections are upheld.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 13 November 2014.

Associate:

Date: 21.11.14