Bookhurst & Bookhurst (No. 3)

[2008] FamCA 1095

FAMILY COURT OF AUSTRALIA

BOOKHURST & BOOKHURST (NO. 3) [2008] FamCA 1095

FAMILY LAW – EVIDENCE – Whether an expert’s report is inadmissible – consideration of principles in competing appellate judgments

Family Law Act 1975 (Cth)

Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305
 Australian Securities and Investments Commission v Rich & Ors [2005] NSWCA 152
 Sydney Wide Distributors v Red Bull Australia Pty. Limited [2002] FAFC 157
Harrington-Smith & Ors v State of Western Australia & Ors [2003] FCR 893

APPLICANT: Ms Bookhurst

RESPONDENT: Mr Bookhurst

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

FILE NUMBER: SYC 1832 of 2007

DATE DELIVERED: 17 November 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 17 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	D Hausman
SOLICITOR FOR THE APPLICANT:	Karras Partners

COUNSEL FOR THE RESPONDENT:	S Wheelhouse SC
SOLICITOR FOR THE RESPONDENT:	Slade Manwaring

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	E Boyle
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Aid Commission of New South Wales

IT IS NOTED that publication of this judgment under the pseudonym Bookhurst & Bookhurst is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC1832 of 2007

MS BOOKHURST

Applicant

And

MR BOOKHURST

Respondent

REASONS FOR JUDGMENT

1. Senior counsel for the father objected to the two reports of Associate Professor Q being admitted into evidence.  The two reports are those dated 12 December 2007 and 10 July 2008.

2. Whilst I will not exhaustively repeat the helpful submissions made by senior counsel, essentially they have two primary elements.

3. The first is that the father did not give an informed consent when he consented on 15 October 2007 to the order appointing Associate Professor Q as the single expert for the purpose of provision of an expert’s report, including his consent to the matters to which Associate Professor Q should direct her attention as set out in the document described as “Minute of Proposed Order” annexed to the Orders made on 15 October 2007.

4. Amongst the matters that the father consented to, for the purpose of Associate Professor Q’s consideration, in the course of preparation of her anticipated report, included sub-paragraph (i):

   “The mental and physical state of both parents insofar as it relates to parenting issues.”

5. The submission made on the father’s behalf is that he did not appreciate that the process which would follow may lead to a psychiatric diagnosis in relation to his personality and consequently, did not have procedural fairness.  That was demonstrated, it is said, by a report being issued which provided a diagnosis of the father without him having the opportunity to object to such a diagnosis being potentially arrived at, or to receive a report setting out a preliminary diagnosis which he could then consider and subject to legal advice, consent to a more expansive report being prepared by Associate Professor Q or, otherwise by a different expert.

6. In addition, the father contends that in the course of his interviews with Associate Professor Q he did not appreciate that she may arrive at a diagnosis, let alone the diagnosis that she did arrive at.

7. Senior counsel for the father accepts that at the time when the orders were made on 15 October 2007 and when the document to which I earlier referred, namely the “Minute of Proposed Order” was attached to the Orders of 15 October 2007 the father was represented by counsel.  I had referred to the possibility that the same solicitors were retained by the father as he currently has.  However, it seems to me on a review of the court file that he had other solicitors representing him.  It should also be borne in mind that the father not only had the benefit of independent legal advice by both solicitor and counsel, but the father himself is a practising member of the New South Wales Bar albeit that, from the affidavit material that I have read, his area of expertise is not in family law.

8. However, it is not contended by senior counsel for the father that expert witnesses are peculiar only to family law proceedings.  Expert witnesses have a long history of giving evidence in a variety of civil proceedings in different courts.

9. In terms of the father perhaps not appreciating that the appointment of a psychiatrist to prepare a report in relation to inter alia “the mental and physical state of both parents” insofar as it relates to parenting issues are concerned, is a submission which of itself is rather curious.  That is so due not only his legal representation and his own knowledge as a practising lawyer, but that there is an absence of any evidence before me to suggest that the father was given incompetent legal advice, or that his mental state was such that he could not provide appropriate instructions based upon an informed knowledge that he should have had prior to providing the consents to which I have referred.

10. I was invited to read the transcript of 15 October 2007, which I have now done.

11. Evidence was given on that day, being day one of the Less Adversarial Trial by not only the parties but by a family consultant who himself is an expert in his area of occupation, namely to provide counselling assistance to the parties with a view to also assisting the Court in giving further evidence on issues which appear to have been raised.

12. It is clear from the transcript that the matter of issues of a psychiatric nature had been alleged and that evidence given by the family consultant was of course given in the presence of each of the parties.  The family consultant recommended the appointment of Associate Professor Q or another suitable psychiatrist.  That matter in turn was the subject of comments made by me to the parties in the latter part of the proceedings on that day.

13. Accordingly, it is clear to me that the submission that the father provided a consent that was not an informed consent has no merit.

14. It was then submitted that the father was placed in a position where he did not appreciate that during the course of his interviews with Associate Professor Q she may potentially provide a diagnosis in relation to his mental state.

15. Again, I do not have any evidence at all that supports that submission, save and except all of the evidence of him consenting to the appointment of Associate Professor Q and for her to direct her considerations to the matters set out in considerable detail in the annexure to the Orders of 15 October 2007 and signed by the father as well as the mother.

16. So far as the issue of receiving a report on a preliminary basis only, so that the father and presumably also the mother can consider whether they wish to support a fuller report by the psychiatrist concerned or alternatively to seek a report from a different psychiatrist, that submission is the first that has been made in that regard, notwithstanding that the matter was before me on 1 May 2008 when each of the parties was legally represented, including the father by counsel.

17. The submission, in my view, is misconceived.  It fails to appreciate that the appointment of Associate Professor Q was that of a single expert and in this instance appointed by consent and as it were on the motion of the father and the mother.  Rule 15.49 provides for leave to be sought to adduce other expert evidence provided that there is evidence before the trial Judge on one or more of the grounds set forth in that Rule.

18. The only application that was made for the appointment of a different psychiatrist following the release of Associate Professor Q’s first report, was that made on behalf of the father on 1 May 2008.  That application was based on one ground only and that is the grounds set out in Rule 15.49(2)(c), namely “another special reason”.  Relevantly, no application was made for the appointment of a different expert due to there being a substantial body of opinion on a particular subject referred to in the single expert's report that justified leave being granted.  This is in the context where it has always been contended on the father’s behalf that the diagnosis set out in Associate Professor Q’s first report was flawed.

19. I should also add that so far as I am aware, leave to appeal from the Orders made by me on 1 May 2008 was not sought by the father or by any of the parties.

20. It is further submitted on the father’s behalf that the two reports of Associate Professor Q are inadmissible because they do not conform with the principles outlined by the New South Wales Court of Appeal and in particular the judgment of Heyden JA in Makita (Australia) Pty Limited v Sprowles.[1]

    [1][1] Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305

21. Counsel, in the course of his submissions, made it clear that was the sole judgment that was being relied upon.  No reference was made to any other judgments of either the same Court of Appeal or a different Court of Appeal.  In that regard, I note that the New South Wales Court of Appeal in Australian Securities and Investments Commission v Rich & Ors[2] and in particular the judgment of the Chief Justice provided further illumination in relation to Heyden J’s judgment in Makita.  In particular, emphasis was provided in the judgment of the Chief Justice to facts that are “asserted”, as opposed to those that are assumed or, which have been proved.

    [2] Australian Securities and Investments Commission v Rich & Ors [2005] NSWCA 152

22. To that degree it may be that the New South Wales Court of Appeal has signalled a retreat from what Branson J in Sydney Wide Distributors v Red Bull Australia Pty. Limited[3] has described as “a counsel of perfection”.

    [3] Sydney Wide Distributors v Red Bull Australia Pty. Limited [2002] FAFC 157

23. Having re-read the judgments in Makita, ASIC v Rich and in particular Sydney Wide Distributors Proprietary Limited v Red Bull I have been persuaded that I should follow the principles or guidelines set out in that Full Court decision as opposed to the Makita judgment to which senior counsel for the father referred.

24. The emphasis in both the joint judgment of Weinberg and Dowsett JJ as well as the single judgment of Branson J is that whilst there must be asserted facts to support the ultimate opinion given, critical to admissibility is the matter of relevance.  It was not submitted to me that the reports were irrelevant.  However, in the event that this matter may be reviewed in another place, I particularly refer to and reply upon the judgment of Branson J at paragraphs 7, 11 and 14 and I respectfully follow the reasons for judgment provided in the joint judgment of Weinberg and Dowsett JJ, in particular where their Honours, having referred to the formulation of general principals by Heyden J in Makita, said as follows:

    “The use of the phrase 'strictly speaking' in the last sentence should not be overlooked.  It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heyden JA.  However, many of those qualities involve questions of degree requiring the exercise of judgment.  For this reason it would be very rare indeed for a Court of first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings.  More commonly once the witness’s claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received.  The various qualities described by Heyden JA are then assessed in the course of determining the weight to be given to the evidence.  There will be cases in which it will be technically correct to rule at the end of the trial that the evidence in question was not admissible because it lacked one or other of those qualities, but there would be little utility in so doing.  It would probably lead to further difficulties in the appellate process.”

25. With respect, a helpful first instance judgment is provided by Lindgren J in the Federal Court in Harrington-Smith & Ors v State of Western Australia & Ors[4].  In that judgment, Lindgren J having noted that the objections were not based on a failure to satisfy the requirement of relevance, then proceeded to state:

    “All reports or parts of reports admitted will be admitted subject to relevance in the sense that in the absence of an objection on the relevance ground I will give evidence which I do not find to be relevant no weight.”

    [4] Harrington-Smith & Ors v State of Western Australia & Ors [2003] FCR 893

26. In relation to the admissibility of evidence of expert opinion, his Honour stated in paragraph 20:

    “It must be shown that the opinion is relevant, including the field of knowledge being one upon which the expert opinion can be properly called, that the person put forward is an expert possessing specialised knowledge in that field, that the specialised knowledge is based on the person's training, study or experience, that the particular opinion tendered is based on the specialised knowledge.”

27. I should state at this point that none of the submissions made on behalf of the father suggests that both or either of the two reports of Associate Professor Q are inadmissible as failing to meet any of the factors to which I have just referred.

28. His Honour referred then to difficulties at times in clearly exposing the reasoning that led to conclusions.  In that Judgment as well as others, emphasis of course was laid on the need for there to be asserted facts, which are linked to the opinions expressed and if ultimately those asserted facts are demonstrated on the balance of probabilities not to be ones that should be accepted, then this may have consequences in terms of the opinions expressed in that no weight may be given to them.

29. Having read the two reports, it is clear to me that Associate Professor Q set out in a precise manner the information upon which she was relying, being copies of affidavits, other documents and the information obtained and her observation of the parties and the children in these proceedings.

30. It was also submitted that Associate Professor Q, especially in her supplementary report, relied upon what was referred to as third-party material which will not necessarily be read in these proceedings and which implicitly provided an improper process undertaken by Associate Professor Q amounting to prejudice to the father.

31. Senior counsel for the father referred me to particular documents which are otherwise identified in Associate Professor Q’s second report.  I should emphasise at this point that correspondence to which I will refer which is part of Exhibit 2 represents correspondence between the independent children's lawyer and the former solicitor for the father.  Having said that, it is crystal clear that the independent children’s lawyer wrote to the former solicitor for the father enclosing a proposed letter to be sent by her to Associate Professor Q.  That proposed letter listed the documents about which complaint is now made as being referred to in the second report.

32. That correspondence gave the father's legal representatives an opportunity to object to all or any of those documents being placed before Associate Professor Q for the purpose of her considerations in the course of preparation of the second report.  There is an absence of any letter or other evidence before me which suggests that there was any reply to the independent children's lawyer's letter of 2 July 2008.

33. In those circumstances, it is extraordinary for there now to be a complaint that Associate Professor Q referred to documents which should not have been before her and which implicitly has tainted her second report due to the prejudice that the process has created so far as the father is concerned.  I have concluded that that submission is without merit.

34. It follows that I will admit the two reports of Associate Professor Q. They are the reports dated 14 December 2007 and 10 July 2008 which will be Exhibits 3 and 4 respectively.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  17 December 2008