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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bonner and Ruskin

Details

AGLC: Bonner and Ruskin [2017] FamCA 1011
Case: [2017] FamCA 1011
Decision Date: 2 November 2017

CaseChat Overview and Summary

In the Family Court of Australia, Cleary J considered an application by Ms Bonner (the mother) concerning the reliance on expert evidence in proceedings against Mr Ruskin (the father). The dispute involved the admissibility and use of various affidavits from medical professionals.

The court was required to determine whether to grant the mother leave to rely on specific affidavits from a psychiatrist, Dr J, and to characterise Dr J as an additional expert witness. Further issues included the mother's sole responsibility for Dr J's attendance costs for cross-examination, and whether to permit reliance on an affidavit from Dr B, or to allow the filing of affidavits from Professor C and Dr D.

Cleary J granted leave for the mother to rely on three affidavits sworn by Dr J, and characterised Dr J as an expert witness under rule 15.49 of the Family Law Rules 2004. The mother was ordered to bear the costs of Dr J's attendance for cross-examination if required by the father or the Independent Children’s Lawyer. Leave was refused for the affidavit of Dr B and for the filing of affidavits by Professor C and Dr D. The mother's Application in a Case and the father's Response were otherwise dismissed. The court also directed that Dr J's affidavits be provided to the Family Consultant and Dr T, and that the expert witnesses comply with rule 15.69(3) by preparing and filing a joint statement of agreed and disagreed issues by 29 November 2017.

Orders

Orders of the court

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;

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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