BURTON & SLATER

[2016] FamCA 1159

FAMILY COURT OF AUSTRALIA

BURTON & SLATER [2016] FamCA 1159

FAMILY LAW – EVIDENCE – Expert evidence – Where the mother seeks leave to file an affidavit by a psychiatrist adducing adversarial expert evidence – Where the mother has not yet consulted the psychiatrist – Where the mother’s counsel is still unsure whether the expert evidence will be necessary – Concluded the exercise of discretion under the Family Law Rules 2004 (Cth) will not be left to mother’s lawyers – Application of r 15.42 which provides for a single expert to be appointed conjointly by the parties and Independent Children’s Lawyer – Where no submission was made why the mother should be permitted to call evidence from an adversarial expert in preference to a single expert – Ordered the application is dismissed

FAMILY LAW – EVIDENCE – Family Report – Where the mother seeks rejection of the existing Family Report from the body of evidence before the Court – Where counsel for the mother submits that the Family Report is unfairly prejudicial pursuant to s 135(a) of the Evidence Act 1995 (Cth) – Where the opinions of the Family Consultant are contrary to the relief sought by the mother – Where such opinions were not patently reached or expressed in an unfair way – Concluded the mother can cross-examine the Family Consultant about the perceived shortcomings of her opinions – Ordered the application is dismissed

Evidence Act 1995 (Cth), s 135
Family Law Act 1975 (Cth), s 62G

Family Law Rules 2004 (Cth) rr, 15.41, 15.42

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

APPLICANT: Mr Burton

RESPONDENT: Ms Slater

INDEPENDENT CHILDREN’S LAWYER: Ms Marr, Legal Aid NSW Tamworth

FILE NUMBER: NCC 2912 of 2013

DATE DELIVERED: 5 December 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 5 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Campbell, Leydon Legal

COUNSEL FOR THE RESPONDENT: Mr Heazlewood

SOLICITOR FOR THE RESPONDENT: Stacks Law Firm Tamworth

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Marr, Legal Aid NSW Tamworth

Orders

1. Leave is granted to the respondent mother to issue a subpoena to produce documents to the psychiatrist she is yet to consult.

2. At the request of the Independent Children’s Lawyer or either party, the Family Consultant is directed to release copies of the notes made contemporaneously with the preparation of the family report dated 28 October 2016 to the Independent Children’s Lawyer or party requesting provision of such notes.

3. Any and all other outstanding oral applications for interim relief are dismissed.

NOTATION

A.The trial of these proceedings remains listed to commence on Monday, 30 January 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 Burton & Slater 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 NEWCASTLE

FILE NUMBER: NCC 2912  of  2013

Mr Burton

Applicant

And

Ms Slater

Respondent

And

Independent Children’s Lawyer

Ex Tempore

REASONS FOR JUDGMENT

1. Proceedings between the applicant father and respondent mother in respect of their only child are listed for final trial before this Court commencing on Monday, 30 January 2017. The proceedings were fixed for trial when last before me on 22 November 2016. Since then, the solicitors representing the respondent mother have requested that the matter be re-listed to agitate matters of evidence. 

2. The background to these proceedings is important to record. Prior litigation between the parties under Part VII of the Family Law Act 1975 (Cth) (“the Act”) were concluded before the Federal Circuit Court when that court made final orders on 30 July 2014, with the parties’ consent. In broad terms, those orders made provision for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial and significant time with the father. Unfortunately those orders did not successfully abate the parties’ dispute over the child.

3. The current proceedings were commenced by the father in April 2016. He sought the discharge of the former orders and a reversal of the child’s residence. He now seeks that the child live with him and that he have sole parental responsibility for her. The mother responded in May 2016 and she also now seeks the discharge of the former orders. She wants to retain the child’s residence, for her to have sole parental responsibility for the child, and for the child’s visits with the father to be curtailed to four visits per annum, all of which would be conducted under professional supervision at a contact centre.  As would be apparent from the recitation of that summary, the parties now appear to have remarkably divergent views about the orders that will meet the child’s best interests. 

4. During the course of these proceedings, an order was made for the preparation of a Family Report pursuant to s 62G of the Act. That report was prepared on 28 October 2016 and, following its preparation, the Registrar made an order in chambers for the report not to be released to the parties without further order of the Court.

5. The proceedings were last before me, as I have said, on 22 November 2016, at which time the parties appeared and were represented by lawyers. On that occasion, orders were made with the consent of the parties and the Independent Children's Lawyer for the Family Report to be furnished personally to the parties. Ancillary procedural orders were made setting the matter down for final trial expeditiously, given that interim parenting orders between the parties were not being implemented. Back in July 2016, interim orders were made for the child to spend supervised time with the father, but the Court was informed those orders were not the subject of compliance. It was contended the child, who is still only six years of age, informed the supervisor that she did not wish to spend any time with the father. The Family Report indicated in broad terms that, in the Family Consultant’s opinion, the child was resonating to the emotion of the mother and the destruction of her relationship with the father was due to the intentional or inadvertent conduct of the mother. 

6. The proceedings were re-listed before me today at the request of the mother’s solicitors. Five separate oral applications were made by the mother, they being:

   (a)A request for the contemporaneous notes of the Family Consultant to be released to the parties;

   (b)The rejection of the Family Report from the evidence before the Court, on the basis that it was allegedly non-compliant with the rules of evidence concerning expert evidence (for which purpose the mother cited and relied upon Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705);

   (c)A request for leave to issue a subpoena requiring the production of notes prepared by mother’s own psychiatrist, whom she is apparently to meet for the first time on 17 December 2016;

   (d)Permission to file in these proceedings an affidavit by that psychiatrist, adducing adversarial expert evidence; and

   (e)The appointment of a single expert under Chapter 15 of the Family Law Rules 2004 (Cth) (“the Rules”) to produce and provide another report to either replace or supplement the existing Family Report.

7. With the consent of the father and Independent Children's Lawyer, leave will be granted to the mother to obtain the contemporaneous notes of the Family Consultant and to issue a subpoena to the psychiatrist she will shortly consult.  Her other applications, however, will be dismissed and these reasons explain why. 

8. First, dealing with the mother’s intention to consult a psychiatrist, her counsel explained to the Court she has not yet conferred with that psychiatrist. Their first consultation is scheduled for 17 December 2016. It was asserted by the mother’s counsel the appointment was made for her by her general practitioner, which leaves open the inference the appointment is for therapeutic purposes. However, it was clear from the further submissions made to the Court by the mother’s counsel there is another significant aspect to the consultation, namely the desire to keep open the option of calling evidence from the psychiatrist (as an adversarial expert in the proceedings) expressing an expert opinion about the mother’s psychological or psychiatric stability. Significantly, the mother’s counsel does not even yet know whether the affidavit will be necessary, so I am not prepared to grant the application without knowing what is actually intended. I do not intend to leave the exercise of discretion under the Rules to the mother’s own lawyers.

9. Importantly, r 15.41 of the Rules permits a party to call adversarial expert evidence from a therapeutic expert in circumstances where the medical practitioner has provided or is providing treatment for the party but, as I have already indicated, this psychiatrist was recently referred by the mother’s doctor for her consultation. The psychiatrist has not provided any therapy to the mother in the past and is not doing so currently.

10. Inferentially, the submissions made by the mother’s counsel suggest the principal reason for the psychiatrist’s engagement is to enable him or her to express an expert opinion about the mother’s psychological or psychiatric condition in these proceedings. As the Rules clearly provide, when an expert opinion is sought, it is appropriate in the first instance for the opinion to be solicited from and provided by a single expert witness appointed conjointly by the parties and the Independent Children's Lawyer. That has not happened and no submission was made, consonant with the Rules, explaining why the mother should be permitted to call evidence from an adversarial expert in preference to a single expert. No submission was made by or on behalf of the mother, pursuant to r 15.42, as to why such an adversarial witness should be allowed. In such circumstances, the application by the mother to adduce, at her own discretion, expert evidence from her own psychiatrist is dismissed.

11. Lest it be thought that she would be unfairly disadvantaged by that decision, as I have already indicated, with the consent of the father and the Independent Children's Lawyer, she will be granted leave to issue a subpoena requiring the psychiatrist she consults to produce any notes the psychiatrist compiles.  Some or all of those notes may be relevant and might be tendered in evidence as exhibits. 

12. The remaining applications of the mother can be taken together, because to some extent they overlap.

13. The mother sought rejection of the existing Family Report as admissible evidence and/or the appointment of a single expert to prepare another family report. She contended that the ultimate opinion expressed by the Family Consultant, namely, the reversal of the child’s residence so that she lives with the father instead of the mother, was “grossly unfair” to her because the opinion apparently ignored the adverse consequences to the child of reversing her residence. When it was drawn to the mother’s counsel’s attention such consequences were addressed by the Family Consultant, even if only inferentially, the mother’s counsel conceded there were “lots of reasons” given in the Family Report for why the child’s residence should be reversed, but he asserted it was not fair to require the mother to cross-examine out of the Family Consultant the reasons why the child’s residence should not be reversed in an attempt to fortify her position in the proceedings. The mother’s counsel also purported to rely on s 135(a) of the Evidence Act 1995 (Cth) to reject the Family Report on the basis that it was “unfairly prejudicial” to the mother.

14. I am not satisfied any of the submissions made on the mother’s behalf are well made. Clearly, the Family Report contains expressions of the Family Consultant’s opinions – opinions which are contrary to the mother’s interest in the outcome of these proceedings – but that does not, of itself, render the Family Report inadmissible. Obviously, the evidence within the Family Report is prejudicial to the parenting orders proposed by the mother in the proceedings, but the evidence is not “unfairly” prejudicial to the mother in the sense contemplated by s 135(a) of the Evidence Act. Although the Family Consultant holds contrary views to the mother, such views were not patently reached or expressed in an unfair way.

15. There is no reason why the mother cannot cross-examine the Family Consultant about the perceived shortcomings of her opinions expressed in the report in an effort to persuade the Court to attribute little or diminished weight to her opinions. Indeed, that is what she should do. That is the very purpose of a party’s entitlement to cross-examine witnesses who express contrary facts and opinions. If it subsequently proves the Family Consultant’s opinions are so fragile or untenable as to warrant their rejection, an adjournment of the trial may be justified to procure alternate and more reliable expert evidence.

16. I am not satisfied it is appropriate to order the procurement of alternate expert evidence at this stage, in advance of the Family Consultant’s evidence being tested. In fact, in my view, it would be wholly precipitous to do so. Were it otherwise, in every case where one party was dissatisfied with the opinion expressed by an expert or a Family Consultant that party would be at liberty to seek leave to engage another single expert or their own adversarial expert. Single experts are called “single” experts in the Rules for a reason.

17. For those reasons, the mother’s remaining oral applications are dismissed and I make the following orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 5 December 2016.

Associate:

Date:  8 February 2017