Bowen & Williams
[2015] FamCA 545
•16 July 2015
FAMILY COURT OF AUSTRALIA
| BOWEN & WILLIAMS | [2015] FamCA 545 |
| FAMILY LAW – EVIDENCE – Admissibility – Where report of a psychiatrist was obtained in consequence of instructions given solely by the mother’s solicitor – Where Court noted waiver involves conduct inconsistent with the retention of a right – Where Court not of the view that the mother waived her right to seek to tender the psychologist report – Where Court considered the meaning of “special” in rule 15.49 of the Family Law Rules 2004 – Where there is no substantial difference between the psychiatrist instructed by the mother’s solicitors and the opinion of the appointed psychiatrist – Where Court noted that to the extent that there is divergence between the two opinions, it is not sufficient to establish ‘another special reason for adducing evidence – Where Court declined to give permission to tender into evidence the affidavit of the psychiatrist instructed by the mother’s solicitors. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 rr 15.42, 15.49, 15.55 |
| Osland v Secretary Department of Justice (2008) 234 CLR 275 |
| APPLICANT: | Mr Bowen |
| RESPONDENT: | Ms Williams |
| FILE NUMBER: | BRC | 7647 | of | 2013 |
| DATE DELIVERED: | 16 July 2015 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 5 May 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Brasch QC |
| SOLICITORS FOR THE APPLICANT: | Ryan Kruger Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITORS FOR THE RESPONDENT: | Barry Nilsson Lawyers |
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowen & Williams 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 BRISBANE |
FILE NUMBER: BRC7647/2013
| Mr Bowen |
Applicant
And
| Ms Williams |
Respondent
RULING
INTRODUCTION
On 20 November 2014 Ms Williams (“the mother”) filed an affidavit of a psychiatrist, Dr B, to which was annexed her report dated 30 July 2014. By List of Objections filed 30 April 2015, Mr Bowen (“the father”) objected to that affidavit being read as part of the mother’s case. On 5 May 2015, being the first day of the trial of these proceedings, I upheld that objection, and refused to admit the affidavit or report into evidence. These are my reasons for that ruling.
BACKGROUND FACTS
These proceedings substantially relate to parenting orders in relation to the parties’ only child, C (“the child”) born in 2011 and hence presently four years of age. A major issue in the litigation is whether or not the mother should be permitted to relocate from Brisbane to D Town in New Zealand. A large part of her argument in favour of relocation is that she is suffering psychologically from being required to live in Brisbane, and unable to relocate to D Town, the effects of which she says would diminish or wholly abate if she were permitted to move. She says that the level of distress which she is suffering is of a magnitude that she has on occasions contemplated, and even planned, her suicide, in the event that she is not able to relocate.
Dr B’s report was obtained in consequence of instructions given solely by the mother’s solicitor to her dated 15 July 2014. She has never had a therapeutic relationship with the mother. The father did not know of Dr B’s retention, nor was he given any opportunity for input into the initial instructions given to her.
After it had been obtained, Dr B’s report was provided to the father’s solicitors. I was told from the bar table without objection that the father had some issues with it which he communicated the mother’s solicitors, in consequence of which the mother’s solicitors further corresponded with Dr B by letter dated 19 August 2014 enclosing correspondence from the father’s solicitors of 18 August 2014. That led to an addendum to Dr B’s report dated 20 August 2014 being prepared and provided to the parties.
By consent on 18 September 2014, Registrar Coutts made an order in the following terms appointing Dr E as the single expert psychiatrist in these proceedings:
That [Dr E], Psychiatrist be appointed as the agreed single expert witness pursuant to Rule 15.44 Family Law Rules 2004 as amended with the costs of preparation of the report initially to be paid in the amount of $2,300 by the Applicant FATHER and the balance by the Respondent MOTHER. The MOTHER reserves her rights to seek at trial that the FATHER pay half of the total costs of the report, which additional payment is disputed by the FATHER.
Subsequently by joint letter dated 28 October 2014, the solicitors for the father and mother jointly instructed Dr E to undertake a psychiatric assessment in relation to both of the parties. His report dated 9 March 2015 was made available to the parties, and by letter dated 11 March 2015, the mother’s solicitors sought some clarification of various matters, which was responded to by addendum by Dr E on 31 March 2015. Dr E’s report is to be part of the material in the evidence before me.
RELEVANT RULES
Chapter 15 of the Family Law Rules 2004 contains the relevant provisions dealing with evidence in both property and children’s proceedings. Division 15.5.2 contains those rules dealing with single expert witnesses, and division 15.5.4 deals with the instructions and disclosure of expert reports.
Rule 15.49, which is part of division 15.5.2, relevantly provides as follows:
15.49 Appointing another expert witness
(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue
(b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing evidence from another expert witness.
Rule 15.55 (which is in division 15.5.4) provides as follows:
15.55 Mandatory disclosure of expert’s report
(1) A party who has obtained an expert’s report for a parenting case, whether before or after the start of the case, must give each other party a copy of the report:
(a) if the report is obtained before the case starts—at least 2 days before the first court event; or
(b) if the report is obtained after the case starts—within 7 days after the party receives the report.
(2) The party who discloses an expert’s report must disclose any supplementary report and any notice amending the report under subrule 15.59(5).
(3) If an expert’s report has been disclosed under this rule, any party may seek to tender the report as evidence.
(4) Legal professional privilege does not apply in relation to an expert’s report that must be disclosed under this rule.
Both parties advised me that no relevant authorities exist in relation to how rules 15.49 and 15.55 interact, and my own researches suggest that indeed that is correct.
THE ARGUMENT
Mr Jordan, who appears as counsel for the mother, relies upon rule 15.55 as the primary basis for the tender of Dr B’s report. He says that, having obtained the relevant expert report and having, in compliance with rule 15.55(1), given a copy of that report to the father, under 15.55(3) the mother, being “any party”, “may seek to tender the report as evidence.” In the alternative, he says that the report may be tendered under rule 15.49(2)(c), in that there is “another special reason” for Dr B’s report being tendered. The special reason relied upon was that the psychiatric condition of the mother is a critical issue in this case.
On the other hand Dr Brasch QC, who appears as counsel for the father, argued that where a single expert has been appointed under rule 15.49, rule 15.55 is not engaged. In the alternative, she argued that, having consented to the appointment of a single expert psychiatrist after the report of Dr B had been obtained and exchanged, the mother had waived her right to seek to tender the report under rule 15.55(3).
Finally Dr Brasch QC argued that even if neither of the foregoing applied, rule 15.55(3) only enabled a party to “seek” to tender the report, and in order to do so in this case, given that Dr E had been appointed a single expert, the mother would need to satisfy one of the three matters specified in rule 15.49(2)(a),(b) and (c), and in that regard she denied that any of those matters were established.
INTER-RELATIONSHIP OF RULES 15.49 AND 15.55
Although in different Divisions, both rules 15.49 and 15.55 are within Part 15.5 of the Family Law Rules. The purpose of Part 15.5 is set out in rule 15.42 in the following terms:
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.
From that it appears as though the Part is intended to operate as a whole, rather than as individual compartmentalised Divisions. Particularly, Division 15.5.2, which deals with single expert witnesses, is not on the face of the drafting of the Rules, intended to be given some paramountcy over, for instance, Division 15.5.4. Moreover, Division 15.5.3, which deals with the way in which permission to use the report of an expert who is not a single expert witness can be obtained, is plainly intended to facilitate, for instance, a party seeking to tender a report under Division 15.5.4.
In my view there is no necessary inconsistency between Division 15.5.2 and Division 15.5.4; rather the Rules operate such that a single expert’s report may be tendered without the court’s permission (rule 15.44(2)) but the report of any other expert – whether the subject of compulsory disclosure under rule 15.55(1) or otherwise, must be the subject of an application for permission under division 15.5.3. (No application in conformity with Division 15.5.3 was made in this case, however no objection based upon that failure was raised in argument before me).
I therefore reject the argument that, in the event that a single expert witness report has been ordered under Division 15.5.2, that of itself and without more obviates any opportunity for attempted tender of a mandatorily disclosed expert’s report under rule 15.55(3).
WAIVER
Waiver involves conduct inconsistent with the retention of a right: see Osland v Secretary Department of Justice (2008) 234 CLR 275. Given my view that Division 15.5.4 is not rendered inoperative by the appointment of a single expert witness under Division 15.5.2, there is nothing necessarily inconsistent with consenting to the appointment of a single expert, whilst retaining the right to seek to tender the previously obtained report of Dr B under rule 15.55(3). I am therefore not persuaded that the mother has waived her right to seek to tender Dr B’s report under that provision.
“ANOTHER SPECIAL REASON” UNDER RULE 15.49(2)(c)
Mr Jordan expressly disavowed reliance upon either of the matters specified in rule 15.49(2)(a) or (b). He only argued that there was satisfaction of sub-rule (c). The special reason he advanced was that the psychiatric issue pertaining to the mother was critical in this case.
There is no definition of “special reason” in the Rules. However some guidance can be obtained by the use of the word “another” in sub-rule (c), which necessarily casts attention upon (a) and (b), which as a matter of construction, therefore must be taken to be illustrations of special reasons. Sub-rule (a) is that there is a substantial body of contrary opinion, sub-rule (b) is that the other expert knows of matters not known to the single expert that may be necessary for determining the issue. Both of these point to something more being needed than merely the existence of a different or contrary opinion advanced by the other expert.
The word “special” is relevantly defined in the Oxford English Dictionary as “unusual, out of the ordinary…”
In the Macquarie Dictionary the relevant definition is “extraordinary, exceptional…”
Dr E’s opinion is that the mother “has had a significant major depressive episode” which has improved with treatment, and that she appears to be steadily improving in function. He accepts that she has experienced suicidal ideation, and indeed upon first seeing her, immediately referred her for therapeutic intervention by a colleague.
Dr B’s opinion – as at 30 July 2014 – is that the mother “is suffering from a major depressive episode, moderate intensity.”
There is therefore no substantial difference in this regard between Dr E’s opinion on the one hand, and Dr B’s opinion on the other.
Ultimately Dr E expressed some additional opinions in relation to the impact of relocation or otherwise on the mother’s mental health. He opined that “there would likely be some further improvement in the mental state of the mother if she were permitted to relocate back to New Zealand.” On the other hand his opinion is that with appropriate psychological and psychiatric supports, if she were required to remain in Australia, she would “in the longer term .. be able to adjust to the situation and still have a good prognosis.”
Dr B opined – again as at 30 July 2014 – that it was in the mother’s “best interests for her to be allowed to relocate to New Zealand with her child.” She said that if the mother was not able to relocate permanently, “she is at risk of developing a chronic Major Depressive Disorder.”
Plainly there is some difference between Dr E and Dr B in this respect.
Finally Dr E opined that the mother, in the event that she was delayed for a further six to twelve months from returning to New Zealand, but thereafter could permanently relocate, “would not suffer the deterioration associated with an order preventing her permanent relocation.” He did however concede that in that event there may be “a gradual decline in her clinical condition” but if she continued to receive treatment “her parenting capacity would [probably] continue to improve.” Dr B on the other hand did not expect “full resolution of [the mother’s] mood disturbance until she has relocated to New Zealand.”
Again it will be appreciated that in this regard there is some divergence of opinion between the two psychiatrists.
In my view, to the extent that there is divergence between the two opinions, that is not sufficient to establish “another special reason for adducing evidence from” Dr B. It is no more than a difference of opinion and prognosis. There is nothing unusual, extraordinary, or exceptional about such differences. The interests of justice will not be compromised by not permitting the affidavit of Dr B to be tendered.
CONCLUSION
For these reasons I declined to give permission to tender into evidence the affidavit of Dr B filed 20 November 2014, or her report and addendum annexed to that affidavit.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 16 July 2015.
Associate:
Date: 16 July 2015
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