BURTON & SLATER

In the Family Court of Australia, Austin J considered applications by the mother in proceedings between Burton and Slater. The mother sought leave to file an affidavit from a psychiatrist, adducing adversarial expert evidence, despite not yet having consulted the psychiatrist and her counsel being uncertain of its necessity. She also sought to reject an existing Family Report from the evidence, arguing it was unfairly prejudicial under s 135(a) of the Evidence Act 1995 (Cth) as the Family Consultant's opinions were contrary to her sought relief.

The court was required to determine whether to grant leave for the mother to adduce adversarial expert evidence, considering the Family Law Rules 2004 (Cth), particularly r 15.42 which provides for the appointment of a single expert conjointly by the parties and the Independent Children’s Lawyer. It also had to decide whether the Family Report was unfairly prejudicial and should be excluded from evidence.

Regarding the adversarial expert evidence, the court concluded that the exercise of discretion under the Family Law Rules would not be left to the mother's lawyers and that no submissions had been made justifying the mother's preference for an adversarial expert over a single, jointly appointed expert. Consequently, this application was dismissed. On the Family Report, the court found that the Family Consultant's opinions, though contrary to the mother's case, were not patently reached or expressed unfairly, and that the mother could cross-examine the consultant regarding any perceived shortcomings. This application was also dismissed.

The court ordered that leave be granted to the mother to issue a subpoena for documents to the psychiatrist she was yet to consult. It further directed the Family Consultant to release copies of her contemporaneous notes for the Family Report to the Independent Children’s Lawyer or any party upon request. All other outstanding oral applications for interim relief were dismissed.