Bonner and Ruskin - [2017] FamCA 1011

FAMILY COURT OF AUSTRALIA

BONNER & RUSKIN

[2017] FamCA 1011

FAMILY LAW – EVIDENCE – Expert Evidence – Where there are issues of procedural fairness as to how the first psychiatrist came to be regarded as the sole Single Expert on the issue of the mother’s mental health – Where the mother seeks leave to rely on three affidavits of a psychiatrist she procured contrary to the rules of evidence – Ordered the second psychiatrist be characterised as an expert witness, in addition to the first psychiatrist – Where the wife conceded to bear the costs of the second psychiatrist to attend court for cross-examination purposes – Ordered the two expert witnesses attend an expert conference and prepare a joint statement to be provided to the Court and to the parties

Family Law Act 1975 (Cth) s 69ZT

Family Court Rules 2004 (Cth) rr 15.45, 15.49, 15.69

Carl Zeiss Stiftung v Rayner & Keeler Ltd
Wender & Wender [2017] FamCAFC 48

APPLICANT:

Ms Bonner

RESPONDENT:

Mr Ruskin

INDEPENDENT CHILDREN’S LAWYER:	Victoria Legal Aid
FILE NUMBER:	MLC	2646	of	2016

DATE DELIVERED:

2 November 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cleary J

HEARING DATE:

30 & 31 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Brown SC and Mr Matta

SOLICITOR FOR THE APPLICANT:

Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bartfield SC and Ms Vohra

SOLICITOR FOR THE RESPONDENT:	Gadens Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Eidelson
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Victoria Legal Aid

Orders

That leave is granted to the Applicant in a Case Ms Bonner (“the mother”) to rely on the following documents in the trial:
i)Affidavits of Dr J, psychiatrist, sworn/affirmed 1 March 2017; 29 July 2017; 25 October 2017.

That Dr J be characterised pursuant to r 15.49 Family Law Rules 2004 as another expert witness (in addition to Dr T).
That the mother be solely responsible for any witness costs and disbursements of Dr J attending Court if required by the father and/or the Independent Children’s Lawyer for cross-examination purposes.
Leave is refused to permit reliance on the affidavit of Dr B filed 12 October 2017.
Leave to file affidavits of the following deponents is refused:
i)Prof C; and
ii)Dr D.
That the Application in a Case of the mother filed 30 August 2017 is otherwise dismissed.
That the Response of Mr Ruskin (“the father”) to the Application in a Case filed 23 October 2017 is dismissed.
That the three affidavits of Dr J be provided by the legal representatives for the mother to:
i)The Family Consultant, Ms S;
ii)Dr T, psychiatrist.

That prior to 27 November 2017 the expert witnesses are to comply with r 15.69(3) Family Law Rules 2004:
(3)At the conference, the expert witnesses must:
(a)identify the issues that are agreed and not agreed;
(b)if practicable, reach agreement on any outstanding issue;
(c)identify the reason for disagreement on any issue;
(d)identify what action (if any) may be taken to resolve any outstanding issues; and
(e)prepare a joint statement specifying the matters mentioned in paragraphs (a) to (d) and deliver a copy of the statement to each party.
with a joint statement to be prepared and forwarded by email to my associate […] and the parties on or before 29 November 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC2646/2016

Ms Bonner

Applicant

And

Mr Ruskin

Respondent

EX-TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application listed before me on the first day of a block of trial dates from 30 October to 3 November 2017. By her Application in a Case filed on 30 August 2017, Ms Bonner “the mother” seeks orders as follows:
(i)That she be permitted to adduce and rely upon the opinion of [Dr J] contained in his reports dated 22 February 2017 and 28 July 2017.
By date of hearing there was a third report for consideration dated 25 October 2017 of the doctor.
Further, by date of hearing, the orders sought included;
(i)Leave of the Court to rely on affidavits by the following practitioners in medicine, psychology and law:
a)Prof C, a psychiatrist in Europe;
b)Dr D, a psychologist;
c)Dr B, a psychiatrist; and
d)Ms F, a lawyer in Europe.
(i)The wife conceded that she would bear the costs of Dr J attending court if leave was granted; and
(ii)That pursuant to section 69ZT(3) of the Family Law Act 1975 (Cth) that relevant parts of the Evidence Act 1995 (Cth) should apply to the issue of the wife’s mental health.
I was invited by all parties to read the material sought to be adduced and relied on if leave were granted, and I have done so.
By his Response filed 23 October 2017, Mr Ruskin “the father” opposed leave being given in respect of all affidavits other than that of Ms F. The latter would not be required for cross-examination and his evidence on the implications of giving evidence across two jurisdictions was probably precautionary only.
The father objected to the affidavit of Dr B, which had already been filed and asked that it be returned to the wife.
The husband opposed the s 69ZT(3) application generally, but with particular reference to the selective application of the rules of evidence to certain issues.
The Independent Children’s Lawyer supported the application of the wife in all respects.
In support of her application, the wife relied on her affidavit filed 30 August 2017. The husband relied on his affidavit filed 23 October 2017.
Through their respective counsel during submissions, both parties referred to a range of historical and trial documents and case law, some of which will be referred to during these reasons.
Oral submissions were made over the course of two half days on 30 October 2017 and 31 October 2017 expanding the detailed and helpful aide memoires handed up for each of the parents.
Following are the reasons which I will deliver for the orders I propose to make.

Brief Summary of the Parties’ Marriage

The husband was born in Australia and is 42. He is a health professional.
The wife was born in Europe and is 38 years old. She has been at home with the parties’ children since the elder child was born in 2011. The wife has a degree and other qualifications.
The parties met in London in mid-2008 when both were working in that city. They married in Europe in 2009, soon after, moving to Australia to live. Their two children were born over the following five years and are now aged six and not quite three.
The parties separated on Sunday 26 March 2016 when the husband left the home and moved to live with his parents in a nearby suburb.
On Monday 28 March 2016, an application and summons for an intervention order was issued on behalf of the mother nominating 5 May 2016 at Melbourne Magistrates Court as the first return date. The application was made on behalf of the wife, who reported that the Respondent had become increasingly more aggressive towards her, although no violence or threats of violence had occurred. She also referred to control of accounts and access to money and a fear that the Respondent may kidnap her children. This document is annexed to the husband’s Amended Initiating Application.
On the next day Tuesday 29 March 2016, the husband signed an Initiating Application for proceedings in the Federal Circuit Court.
On Wednesday 30 March 2016 that application, together with an affidavit of the father, of the paternal grandfather, a s 60I certificate and a Notice of Risk [raising no issues of risk] were all filed and given a listing for hearing at midday on that same day. No doubt, the response was to the urgency of possible flight risk from Australia back to Europe.
The proposed parenting orders were for:
a)Time with the children every alternate week and weekend; and
b)Restraints on the children being removed from Australia and for their inclusion on the watchlist operated by the Australian Federal Police.
Restraining orders sought were made ex parte and the parenting aspect adjourned for interim hearing two weeks later on 14 April 2016. The husband was directed to serve his documents as soon as possible. There was no direction for the mother to file documents by a particular day, or at all. There was no direction as to whether or not the father could file any further material. It seems to me that each party turned to a legal remedy in different courts well before a week had passed since separation. These uncommunicated actions resonate in the level of conflict before me now.
The paternal grandfather, a solicitor now retired, represented his son in Court on the first occasion. Whether or not it was intended that way, the wife was on notice that the husband had the support of his family, and she did not.
On 13 April 2016 the wife filed her Response introducing property issues, as well as responding to parenting issues, together with a Financial Statement and an affidavit by herself. She also filed a Notice of Risk, similar to the husband, raising no matters for concern.
On 14 April 2016 the matter came back before the Federal Circuit Court. On that day in Court, the husband filed an Amended Initiating Application putting forward sets of orders on a final and interim basis, plus a Financial Statement. He had also filed a further affidavit the day before.
Included in the interim orders sought was Order 12 that:
Each party attend for the purposes of a psychiatric assessment upon Dr T or such other psychiatrist agreed in writing between the parties, with provision for how costs would be paid.
Interim parenting orders and other orders were made on that day. The wife was legally represented. So where orders were made by consent, I can assume it was informed consent.
Orders 14 and 15 were not identified as consent orders, although it is more likely the case that the orders were unopposed. I am unable to come to a conclusion about that. Order 14 was made as follows:
Each party attend upon [Dr T] on 22 June 2016 for the purposes of the preparation of a psychiatric assessment and report and the report to be exhibited to an affidavit, which the applicant is to file and serve by 29 June 2016.
Order 15 was for each party to attend upon a named Family Consultant on 29 June 2016 for the purposes of the preparation of a Family Report, which was to be exhibited to an affidavit by 29 July 2016. As I said, the father had filed an affidavit on 13 April 2016. I am unaware of its contents, although some material from it was read out to me in Court.
An order was made on 14 April 2016 for that affidavit to be removed from the Court file. There is no explanation, on the face of the orders, for this direction. The affidavit has been removed from the file, but not voided in the Court system. That decision could relate to the inherent unfairness of late service or something entirely different.
I am unaware as to whether the affidavit was read by the presiding judge.
Given those events and the timing, the wife was presented with a wealth of new material on the day of an interim hearing, her first attendance at Court. Despite whatever best efforts were made on that day, there could not have been time to contemplate:
a)The availability of another expert; or
b)Whether a psychiatric assessment of either party was required, and if so, why.
Is it unclear to me whether the issue for expert evidence was enunciated, for instance, whether the mental health and/or personality function of either or both of the parties was an issue. I am told that each party raised issues of concern in their affidavits, but this is problematic given what I have just said about the father’s affidavit. His original affidavit related only to flight risk.
The matter was transferred on that day, 14 April 2016, to this Court. I am unclear as to why psychiatric assessments were ordered and why that happened at the date of transfer. Further, why the report on both parties had to be completed within seven days of their interview. They were to be seen on 22 June and the report was to be annexed to an affidavit and filed by 29 June.
Another course would have been to order a Family Report only, then if the Family Consultant, who is a psychologist in practice, considered that mental health or personality dysfunction may be present, which is a relevant consideration as to whether parenting capacity is impaired, a recommendation could then have been made for psychiatric assessment based on an identified issue. A Single Expert could then have been appointed in an orderly way pursuant to the Family Court Rules with full input from each party and certainty about the material to be provided to the expert.
In the event the course taken was as described, the presiding judge in the Federal Circuit Court certainly had the power to make the order on an application or of the Court’s own notion, but the order was not expressed as a Single Expert Report pursuant to r 15.45 of the Family Court Rules 2004. It was simply an order for psychiatric assessments to take place.
There are issues of procedural fairness here, in my view: the mother could not have foreseen that Dr T would come to be regarded as the sole Single Expert on the issue of her mental health; would diagnose her and that his diagnosis would affect the considerations of the Family Consultant and, ultimately, arguably, a trial judge.
The affidavits of the father and paternal grandfather originally filed related, as I said, to the need for restraint on international travel. It is likely that the affidavits filed by the parties, both of them, were taken into account, but that issue is hard to determine.
I was taken to the decision of Strickland J sitting as a single judge of the Full Court of the Family Court in Wender & Wender [2017] FamCAFC 48 in March of this year. In that situation, his Honour, the trial judge, had declined to allow the appointment of an Adversarial Expert or another expert witness. The application came at the end of the trial and it came in the context of disputed valuations.
This is a very dissimilar case. The outcome of refusal of this application cannot be solved by costs. The matter is about to be heard and the issue of the children’s parenting arrangements for the next up to 15 years is in consideration.
I note that both parties were, on 14 April 2016, proposing equal shared parental responsibility and the father proposing week about with each parent. The concerns of the father, whatever they were at that time, did not lead to a lack of confidence in the mother’s ability to care for the children at that time.
Procedural fairness is a consideration. It appears to me that just as the mother has been affected by her view of the psychiatric assessment, the father may well have been alarmed by the psychiatric assessment and has reacted accordingly.
Over the course of what has now been five separate Initiating Applications filed by the father, the orders he proposes have been increasingly to reduce the time that the children spend with their mother, concluding with his current application, which is sole parental responsibility for himself and four days a fortnight with the mother.
It is a big change over 15 months, and although I cannot be sure about it, it does seem likely that the psychiatric assessment has increasingly affected his view.
On 22 June 2016, the father was seen by Dr T. On 23 June 2016, the wife was seen. Four days later, Dr T, in accordance with the order, produced his report. The report is a detailed one and it contains issues that will, no doubt, be the subject of cross-examination for the Court to determine, and there will be issues that will be confirmatory or otherwise of matters that each party alleges are relevant to parenting capacity.
For instance, in December 2015 there was a Christmas trip for the parties just prior to their separation in March 2016. The father came back earlier. The mother much later. It is a controversial issue. The father alleged that the mother delayed her return. The mother alleged that the father had agreed for her and the children to remain longer, had cancelled her ticket, but not bought another one, and that only her contact in the embassy had given rise to his later willingness to buy the return ticket. She goes on to say that he has misrepresented her intention ever since.
Another example is the material about the attendance of the mother and the father on psychologists at the institution of the mother over a period of years. Both parties told Dr T that there had been three psychologists consulted with a number of joint sessions for both of them, but their explanations as to why, what was said and the implications are all contentious. A theme throughout that first report and his subsequent report was the mother’s strong views about what she described as the coldness and incommunicative nature of the paternal family.
The father described the mother as bewildering in her mood shifts and emotional conduct. Dr T has recorded helpfully the detail of what each party alleges about those matters.
What does happen in the first report is that Dr T makes an unequivocal diagnosis: Ms Bonner has a borderline personality disorder with paranoid features. He then goes on, in the opinion section immediately following, to raise certain equivocal issues. For instance, he says that the husband’s description of the mother’s conduct, if accurate, would lead to a certain conclusion.
This appears to be potentially a discounting of the unequivocal nature of his diagnosis, but it is not what he says in his report. There is also, in the opinion section, a critical analysis of the mother’s dependence on her mother. The mother’s allegation is that the father is dependent on his parents, as previously raised. That will be an issue for trial.
Two days later, on 29 June 2017, the parties were interviewed and the children observed by the Family Consultant. The Family Consultant noted the receipt of Dr T’s report of 27 June 2016, however, it is clear that she had not received the report when the parties were first interviewed.
The Family Consultant states that on 26 July 2016 she emailed the parties’ lawyers to say she had received Dr T’s report. In that email, she said that in the light of Dr T’s report:
I needed to make a further assessment of the parties to address the issues raised in that report.
There is no basis, which I can find, for knowing when the report was received by Ms S, inferentially, not before the interviews had taken place. She proposed an interim report with later reinterview.
Her first report was therefore dated 1 August 2016. The father asserted to the Family Consultant that the psychologist the parties had attended during the marriage diagnosed the wife with a personality disorder. The wife vehemently denies that she had been. It is a very contentious issue. In paragraph 23, the Family Consultant notes the diagnosis and in paragraph 47 gives some theoretical discussion of the implications of parenting by somebody with a borderline personality disorder. The Family Consultant also went on to register complaints made by the children about their paternal grandparents.
Primarily, she made some very positive observations about the close and warm relationship the children have with each parent[1] and the extremely positive report she was given by the elder child’s school director. She noted that the connection and bond to the mother of the children was stronger, unsurprisingly given that she had been their primary carer.[2]
[1] Family Report dated 1/08/2016, par 29
[2] Family Report dated 1/08/2016, par 37

The Family Consultant said that in her view it was reassuring that neither child displayed behaviour indicative of anything other than attuned and attentive care.[3]
[3] Family Report dated 1/08/2016, par 49
In paragraph 51, the Family Consultant said assuming the diagnosis of borderline personality disorder the mother is, “strongly advised to engage in treatment or therapy.” It does seem to me that Ms S was reflecting on the difference between the very positive emotional and physical development of the children and their bonds with each of their parents against what might have been expected to be seen if one of them [the mother] had a personality disorder and other difficulties, such as paranoia. However, I cannot be conclusive about that, and I consider that the Family Consultant, herself, was not attempting to be conclusive.
In February 2017, on two occasions for five hours the mother attended Dr J, psychiatrist, for the preparation of a psychiatric assessment and report. Such a report came into existence. There had been no application. The mother asserts that she had gone to find out whether she needed treatment as recommended both by Dr T and Ms S, and found that she did not. There is some support for this proposition in that the mother had consulted Professor C just prior to the separation in February 2016 and returned to see him in January 2017 on three occasions in an attempt to obtain information about whether or not she needed treatment, but probably primarily to get a contrary view.
The mother attempted and failed to rely on that report of Dr J in an interim application heard by a senior registrar of this Court. Ultimately, an order was made for an updating report by Dr T. That report in June 2017 referred to heightened concerns regarding the mother’s mental health.
The mother continued to see Dr J and there were two more reports by him. The impression of the evidence, especially as the mother expanded into seeing another psychiatrist, Dr B and Dr D, that she was becoming increasingly anxious, or even frantic, about the way things were developing.
The mother may be in poor mental health and may have a disordered personality. She may be suffering heightened anxiety about Dr T’s diagnosis and subsequent confirmation of deteriorating mental health. It could be either, neither or both of those things.
The Court would, in my view, be assisted by the two experts in this matter, given the history which I have just set out. It appears to me that the mother should have that opportunity to address a diagnosis which has been made in the context of hostile litigation. The issues for determination then have unfolded this way.
The application to rely on the first affidavit of Dr J was refused on 9 March 2017. The possibility was raised on behalf of the father that there would be an issue estoppel about it being used in these proceedings. The senior registrar, with respect, correctly identified that the wife had gone about obtaining another expert report in the wrong way. Primarily, leave of the Court had not been granted, nor had consent been obtained from the father, nor had leave been given for provision of documents to the expert, although they were. The senior registrar rejected the admission into evidence of Dr J’s report on that basis and also because notes provided by the wife had not been provided to the parties.
The senior registrar recognised that the wife disputed the diagnosis of Dr T.[4] Quite properly, the senior registrar determined which reports and updating reports would be appropriate if the matter did proceed to trial would need to be determined by the court.[5]
[4] Reasons for Judgment by Senior Registrar Fitzgibbon dated 9 March 2017, par 18
[5] Reasons for Judgment by Senior Registrar Fitzgibbon dated 9 March 2017, par 21
I reject the proposition that an issue estoppel arises from the decision of the senior registrar excluding the report of Dr J, such that the application to adduce and rely on that report is unable to be determined in the context of final trial.
I was taken to authorities, including those that refer to the decision in Carl Zeiss Stiftung v Rayner and Keeler [1966] 2 All ER 536. The fourth element of setting up an issue estoppel, the process identified in that decision, is absent here. That is, the judicial officer must have made a decision on the identified issue, which was a final decision. That is clearly not the case here. It was in the context of an interim decision about variation of parenting arrangements. In any event, the rules can be suspended in the interests of justice where that is necessary.
For his second report, Dr T was provided with summaries of material produced on subpoena.
The summaries were prepared by the husband. The extent of the wife’s knowledge and consent to the preparation and provision of summaries is contentious. Senior Counsel for the father properly raises the fact that the solicitor who was said to have represented the mother at the time when the summaries were being prepared and agreement was being sought has not given evidence.
The mother asserts inaccuracies in the summaries. Ultimately, that could be cured by cross-examination in respect of the subpoenaed material during trial. Section 69ZT of the Family Law Act 1975 (Cth) is a section which permits the application of rules of evidence which are otherwise suspended, to enable part XIIA to operate in a more formal way. It is usually applied in proceedings in this Court, a civil jurisdiction, which relate to criminal conduct often after there has been a criminal trial, but there is still an issue to be determined.
Such an application should be made as a preliminary application, so that affidavits are prepared in accordance with the relevant rules of evidence. In this case, to attempt to apply the rules of evidence to issues of the mother’s mental health must be seen as impractical when the existence of mental health and personality disorder is in dispute and many factual issues apparently inform the diagnostic process of determining whether there is personality disorder.
I do not consider it appropriate and decline to make that order.
It was also put on behalf of the father that additional expert witnesses would delay and prolong the trial. Undoubtedly, that will be the case. The mother has been trying to challenge Dr T at least since January 2017. She has gone about things in the reverse order. Time from this trial has been taken. This would have been the fourth day of such a trial, although the parties agreed between themselves that it could not be contained in that time. However, this application was filed on 30 August 2017 and listed on the first day of trial.
The solicitors for the mother did press for the matter to be dealt with earlier and this proposal was expressly refused on behalf of the husband, and so it was not attempted.
In any event, delay must be weighed against procedural fairness potentially being denied.
In respect to the other witnesses, Professor C, consulted by the mother in February 2016 and in January 2017, would, in my view, be another expert witness rather than a treating witness. This is not a question of strength in numbers. The mother’s position is that reassured by Professor C: that he could not identify personality disorder or mental illness and it would not be a waste of her time to challenge the diagnosis.
The wife then turned to Dr J on her return to Australia for expert assessment. There is nothing to be criticised in the reports of Dr C, but there is no justification for his inclusion, particularly as he could not be subject to the rules applying to single experts.
Dr D is a psychologist who the mother has been seeing since 21 August 2017, although, she first made contact with her at the beginning of either late 2016 or early 2017. The report by Dr D has, in passages, advocacy for the mother in these proceedings. It is not contentious that the mother has seen Dr D.
It may be that it could be interpreted as supportive therapy, rather than treatment, which is consistent with the wife’s stance that she does not need treatment for her mental health, but is assisted by strategies for reducing anxiety. There is, in my view, no reason for her to be called as a witness.
Dr B falls into the same category. The mother turned to Dr B in the second half of this year, again with a view to challenging the diagnosis made by Dr T. There is nothing to be criticised in anything that Dr B has said, but, in my view, a third expert witness is not required and there is no basis for his inclusion.

CONCLUSION

Finally, I would say this. I have, in coming to the conclusion that the reports of Dr J should be admitted into evidence, and the mother should be allowed to rely on him as a witness. I have taken into account the interests of the children raised indirectly, but directly by the Independent Children’s Lawyer. There is a deteriorating position for these children as their parents go on in this bitter struggle over whether or not they will spend four nights a fortnight with their mother, seven nights a fortnight with their mother or nine depending on how you look at the applications.
They are, on the face of it, beautiful children who love their parents, who have not yet been severely affected although the elder child is already conscious that she should be guarded and careful about what she says, so she is already being adversely affected. The little one is sheltered by her age and by her older sister taking things on. If the parents were to reflect on what is said in the Family Reports about the strengths in their children and the strengths in their parenting they would perhaps be able to see a way forward, but the matter is due for hearing and it can be heard, but what I am saying is that there is a lot at stake for these children.
A change of residence is proposed, that they would live primarily with their father, that he would have sole parental responsibility, and they would spend limited time with their mother.
To make orders like that I would have to be very confident that it was essential to change the current arrangements to protect them, to protect their safety and to ensure a healthy growing up into adolescence. To do that, the benefit of having two experienced psychiatrists who have come from different directions, but have similar qualifications, is a matter that the impact on the children has helped to persuade me is the proper course.
Orders are made accordingly.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 2 November 2017.

Associate:

Date: 2 November 2017