C and N
[2007] FMCAfam 925
•14 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & N | [2007] FMCAfam 925 |
| FAMILY LAW – Procedural – admissibility of Expert’s Report – whether Evidence Act must be used to exclude Expert’s Report in Division 12A proceedings – whether principles in Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305 ought to be applied. |
| Family Law Act 1975, ss.69ZN, 69ZQ, 69ZT, 69ZX Evidence Act 1995 (Cth) |
| Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305 R v Turner [1975] QB 834 Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 South Western Sydney Area Health Service v Edmonds (2007) NSWCA 16 Suttie & Suttie [2007] FMCAfam 175 |
| Applicant: | C |
| Respondent: | N |
| File number: | SYC 1139 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 6 July 2007 |
| Date of last submission: | 6 July 2007 |
| Delivered at: | Sydney |
| Published on: | 14 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey |
| Solicitors for the Applicant: | McGillivray Solicitors |
| Counsel for the Respondent: | Mr Cook |
| Solicitors for the Respondent: | M G O’Callaghan & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
The Application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1139/2007
| C |
Applicant
And
| N |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons relate to a ruling I made on 6 July 2007 in relation to an application made by counsel for the applicant father. The application is commonly known as a Makita application, referring to the authority on which it is based – Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. The application was directed at a report prepared pursuant to the Federal Magistrates Court Rules dated 26 June 2007 by Dr Rikard-Bell, a Child, Adult and Family Psychiatrist. The substance of the application is that the report should be excluded from the evidence.
Background
The substantive proceedings relate to parenting orders for the children K (15), M (13) and A (8). The applicant father and respondent mother commenced cohabitation in 1989, married in 1990 and separated in 2002. There are orders relating to the children made by consent in the Family Court at Parramatta on 18 December 2002 that provide for the three children to live with their mother four days per week, and their father three days per week. Notwithstanding those orders, K has lived with his father since February 2005, M with her father since 2006, and A remains with her mother.
There is a high level of conflict between the parents. The father raises issues about the mother’s capacity to care for the children whilst they are in her care. The mother raises issues about whether the father is seeking to alienate the children from her.
The matter is part heard before me. On 6 July 2007 the evidence of the court appointed expert, Dr Rikard-Bell, was dealt with. It is possible that he will need to be recalled at a later time. The hearing continues before me on 5 and 6 November.
The Makita Application
The substance of the application made by Mr Batey, counsel for the father, was that I should exclude Dr Rikard-Bell’s report from the evidence. As the proceedings are governed by Division 12A of Part VII of the Family Law Act, s.69ZT of the Act states that the rules of evidence do not apply unless the Court decides:
(1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
To be more precise, s.69ZT excludes some provisions of the Evidence Act, as specified in sub-section (1). It is a serious misunderstanding of this section to state that the rules of evidence simply do not apply.
Mr Batey’s initial application was that I should apply the relevant provisions of the Evidence Act to the expert evidence of Dr Rikard-Bell. Accordingly, I should use my discretion under s.69ZT(3), particularly having regard to the importance of the evidence, and the seriousness of the allegations raised. Mr Batey considered the correct position to be that I had to decide whether s.69ZT(3) applied in order for him to then make the Makita application.
I ruled that this was not necessary. The rules of evidence, and particularly those which exclude opinion evidence, do not need to apply in order for there to be an application or submission that I should exclude the evidence, or give it no weight at all. I set out the reasons for this below.
Basis of the Makita Application
The basis of the application in relation to Dr Rikard-Bell’s report is that the opinions expressed are based on unstated, incorrect, or irrelevant facts. Moreover, the learned author of the report may well have failed to consider relevant facts. Mr Batey submitted that there were ten examples of this.
Mr Batey was able to provide me in submissions with many examples from the report of expressions of opinion by Dr Rikard-Bell that, he submitted, fell into the above categories. He gave examples of what he described as opinions expressed where there has been no identification of the basis for assumptions made, or even that asserted facts are accepted. He submitted that even the opinion evidence of an eminent expert needs to be based on facts observed by the expert, and if the expert relied on assumed or accepted facts, these facts must also be identified and proved in some other way. Accordingly, the evidence should be excluded, or at least accorded minimal weight.
Exclusion of the report from the evidence comes with it the very practical consequence that Dr Rikard-Bell and his report would play no role at all in these proceedings. If however, the issue was decided by reference not to exclusionary principles but rather to weight, the report and the oral evidence might have some role to play in the proceedings.
Mr Cook appeared as counsel for the mother. He submitted that the better course was for all of the matters asserted by Mr Batey to be put to Dr Rikard-Bell in cross-examination, and the weight to be given to the evidence should then be considered. In short, he submitted Mr Batey’s application was premature, and in any event it was a matter of weight.
Mr Ladopoulos appeared as counsel for the Independent Children’s Lawyer. He basically agreed with Mr Cook, but made the pragmatic observation that it would be impractical, if not impossible, for an expert like Dr Rikard-Bell, who had the benefit of access to all the affidavit evidence, the documents produced on subpoena, as well as interviews with the family, to then articulate all the facts on which he bases his opinion. He emphasised that in complex parenting matters before this court, the issues are rarely black and white and often are shades of grey. Thus, the question was one of weight not admissibility.
Mr Batey, in reply, referred me to passages in the Makita judgment (to which I will refer below) that emphasised that it was fundamentally unfair to a party to be left in a position where cross-examination had to be used to elicit unarticulated facts in opinion evidence.
Ruling
I declined the application to exclude Dr Rikard-Bell’s report and ruled that he should give oral evidence, and that the weight to be given to the totality of his evidence would be considered in light of all the other evidence.
Issues Arising
I consider that two important issues arise out of the matters referred to above. Those issues can be expressed as two questions:
a)Does the court need to rely on its powers under s.69ZT(3) to apply relevant provisions of the Evidence Act 1995 before it can exclude expert evidence, or place limited or no weight on such evidence?; and
b)When serious issues arise about expert evidence in child related proceedings under Division 12A of Part VII of the Act, should the court proceed by excluding the evidence, or by according it appropriate weight?
Evidence and s.69ZT(3)
I ruled that it was not necessary to rely on s.69ZT(3), and thus invoke the relevant provisions of the Evidence Act, in order for me to deal with whether evidence should be excluded or accorded appropriate weight.
I am satisfied that the statutory scheme established by Division 12A of Part VII contains the necessary safeguards to ensure that proceedings are fair to the parties. Whilst in very simple terms the rules of evidence enshrined in the Evidence Act are about procedural fairness anyway, that is not to say it is the only source for the need for proceedings to be conducted fairly.
The requirement for Division 12A proceedings to be procedurally fair is implicit in the principles to be used in interpreting the division. These principles are contained in s.69ZN:
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In my opinion, the requirement for Division 12A to be conducted fairly is implicit in all of these principles. How could the needs of children be adequately considered if the proceedings were not conducted fairly (the first principle)? How could a judicial officer appointed under Chapter III of the Australian Constitution possibly implement the second principle if proceedings, even less adversarial proceedings, were not conducted fairly? Even the fifth principle, with its admonition for fast, informal and simple proceedings, is explicitly subject to the words “as possible” thus recognising that the attainment of these worthy objects is not without fetters. The fetter of fairness permeates this principle, as it does all the others.
Section 69ZQ(1) establishes the court’s general duties in order to give effect to the principles set out in s.69ZN:
(1) In giving effect to the principles in section 69ZN, the court must:
(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b) decide the order in which the issues are to be decided; and
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d) in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and
(e) make appropriate use of technology; and
(f) if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and
(g) deal with as many aspects of the matter as it can on a single occasion; and
(h) deal with the matter, where appropriate, without requiring the parties' physical attendance at court.
(2) Subsection (1) does not limit subsection 69ZN(1).
(3) A failure to comply with subsection (1) does not invalidate an order.
There can be no doubt, in my mind, that the implied principle of fairness flows through to how the court must exercise its general duties. Of course it is not expressly articulated, but some things are so fundamental that they do not need to be stated.
The recognition in s.69ZT(2) and (4) that a court may give evidence such weight as it sees fit, whether or not the Evidence Act applies, is another expression within Division 12A that proceedings need to be conducted fairly.
Section 69ZX sets out the court’s powers when giving effect to the principles in s.69ZN, but specifically in the context of evidence.
(1) In giving effect to the principles in section 69ZN, the court may:
(a) give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b) give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c) give directions or make orders about how particular evidence is to be given; and
(d) if the court considers that expert evidence is required--give directions or make orders about:
(i) the matters in relation to which an expert is to provide evidence; and
(ii) the number of experts who may provide evidence in relation to a matter; and
(iii) how an expert is to provide the expert's evidence; and
(e) ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
(2) Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:
(a) about the use of written submissions; or
(b) about the length of written submissions; or
(c) limiting the time for oral argument; or
(d) limiting the time for the giving of evidence; or
(e) that particular evidence is to be given orally; or
(f) that particular evidence is to be given by affidavit; or
(g) that evidence in relation to a particular matter not be presented by a party; or
(h) that evidence of a particular kind not be presented by a party; or
(i) limiting, or not allowing, cross‑examination of a particular witness; or
(j) limiting the number of witnesses who are to give evidence in the proceedings.
Once again, there is no doubt in my mind that the implied principle of fairness in s.69ZN flows through to how the court deals with evidence in Division 12A proceedings.
In any event I am satisfied that the common law requires that in proceedings that are conducted in the absence of the rules of evidence, fairness guides the weight to be given to evidence. I am considerably assisted in this conclusion by reference to a decision of Housego FM in Suttie & Suttie [2007] FMCAfam 175, and the authorities she refers to at paragraphs 7-11 of her reasons.
In South Western Sydney Area Health Service v Edmonds (2007) NSWCA 16 (16 February 2007), the NSW Court of Appeal was dealing with an appeal from a decision of a Deputy President of the Workers Compensation Commission of NSW. The rules of evidence do not apply in the Commission. The issue was the weight to be accorded to expert evidence and the extent to which the Commission was bound by obligations of procedural fairness. The relevant legislation required proceedings to be conducted with as little formality and technicality as the proper consideration of the matter permitted. The rules of evidence did not apply, but the arbitrator might inform herself on any matter in such manner as thought appropriate and as the proper consideration of the matter permitted. Proceedings were to be conducted according to equity, good conscience, and on the substantial merits of the case without regard to technicalities and legal form.
McColl J delivered the judgement adopted by the Court. Her Honour noted at paragraphs 88 and 90 of the judgment that statutory provisions such as those described above do not release the Commission from the obligations to apply rules of law, and are consistent with and indeed require the application of the rules of procedural fairness.
Her Honour also makes some very important comments, specifically in the context of expert evidence, at paragraphs 127-131
127 While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the Workers Compensation Commission Rules 2003 provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence “based on speculation or unsubstantiated assumption is unacceptable” and that “unqualified opinions are unacceptable”.
128 Rule 70 broadly reflects fundamental principles of the common law concerning admissibility of evidence. Indeed, in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 (at [24]) Deputy President Fleming said:“Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.”
129 Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 at [32] per Mason P (Handley JA and Campbell J agreeing)
130 In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that “[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it”. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
“... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”
131 This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that “[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary” (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be “logical and probative” and “unqualified opinions are unacceptable”.
Her Honour suggests that even in proceedings where the rules of evidence do not apply, it is desirable that expert reports conform as far as possible to common law standards of admissibility designed to ensure they have probative value. I believe there is no doubt that the basis of this is the common law requirement for procedural fairness even in proceedings to which the rules of evidence do not apply.
Thus, both the statutory scheme established by Division 12A, and the common law, require that Division 12A proceedings are conducted in accordance with procedural fairness. There is no need in Division 12A proceedings to rely on s.69ZT(3) in order to rule on excluding evidence or limiting the weight to be accorded to such evidence.
Division 12A and Evidence: Exclusion or Weight?
Notwithstanding Mr Batey’s forceful submissions about the need to exclude Dr Rikard-Bell’s evidence in its entirety, I ruled that his evidence should be received, and that the weight to be give to it be determined after his oral evidence. To have his evidence excluded in its entirety would have deprived the court of a number of important things. First, his observations. Dr Rikard-Bell’s report indicates that he interviewed both the children and the parents. It is apparent that a substantial part of his report records and/or is based on these observations. There is inherent and self-evident value to the Court of having an independent expert record his observations, and then give an expert opinion that is based, in whole or in part, on that evaluation.
Second, to have excluded his report would have deprived the court of the opportunity to observe the cross-examination of Dr Rikard-Bell. The cross-examination ensures further procedural fairness for the parties, even the father who was seeking to have the report excluded. Cross-examination affords the parties the opportunity to test, for example, the accuracy of observations, or understanding of facts, or whether his observations were correctly recorded. It is cross-examination that would reveal the inadequacies in the report about which Mr Batey so strongly submitted. It is apparent that cross-examination is at the very heart of procedural fairness in this context.
Mr Batey relied on a passage from Makita at paragraph 69, where Heydon JA referred to the following quote:
69 In R v Turner [1975] QB 834 at 840 Lawton LJ said:
"Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination."[1]
[1] Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305 at 69
He submitted that it was inherently unfair to his client to be left in a position where unstated facts are elicited in cross-examination. While he did not articulate what, precisely, the unfairness would be, one can readily imagine that his client is left with dealing with evidence as it is unfolding, ‘on the run’ so to speak. This unfairness is what Heydon JA in Makita described at paragraph 62 of the judgment as cross examining:
In the dark, with the perils which usually face journeys into darkness, to establish the factual assumptions underlying the valuation.[2]
But this unfairness is neither greater nor lesser than would occur to any litigant who is cross-examining a witness who has given evidence in chief by way of report. Any unfairness to the father in this case needs to be balanced against the unfairness to the mother, and the interests of the children, if the report were completely excluded. In a sense it is actually unfair to the father himself because he is also deprived of the opportunity to correct whatever wrong assumptions made and inferences drawn he perceives there to be.
[2] Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305 at 62
Mr Batey also relied on paragraph 85 of the Makita decision:
85 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).
This is a succinct and no doubt correct statement of the law, and it is uncontroversial except to the extent that it is asserted that evidence not meeting this standard is wholly inadmissible, as opposed to admissible subject to weight. I am not convinced that Heydon JA was intending to be dogmatic about this point. For example a close reading of paragraph 62 of His Honour’s judgment points to the possibility that an expert’s report can be admitted but then not have much weight attached to it. If that is the case (and with respect, it clearly is) there is no need to have determination of the threshold issue of admissibility because even if admissible, little or no weight might be attached to it.
There is, in any event, contrary authority. In Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 the Full Court of the Federal Court clearly preferred the view that issues concerning admissibility of expert evidence should be properly considered at the end of the trial in the context of the weight to be attributed to that evidence. Two passages from the judgment illustrate this. Paragraphs 16 and 17 of the judgment of Branson J state:
16 Further, the requirement that an expert opinion be wholly or substantially based on the witness's specialised knowledge is not, in my view, intended to require a trial judge to give meticulous consideration, before ruling on the admissibility of the evidence of the opinion, to whether the facts on which the opinion is based form a proper (in the sense of logically or scientifically or intellectually proper) base for the opinion. Were the position otherwise the smooth running of trials involving expert evidence could be expected to be interrupted by the need to explore in detail, in the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence. It is sufficient for admissibility, in my view, that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge. In many cases the relevant evidence and other material that will be before the judge at the time that the judge is required to rule on admissibility will extend little, if at all, beyond the purported expert's affidavit or report or, where only oral evidence is intended to be adduced, the earlier oral evidence of the witness and the form of the question to which objection has been taken. In the Federal Court, the usual practice of requiring expert evidence to be reduced to writing, together with the Guidelines for Expert Witnesses referred to in [13] above, will generally ensure that there is sufficient material before the judge to enable the judge to form a view, on the balance of probabilities, (albeit, in the context of the trial as a whole, a provisional view) as to whether an opinion is wholly or substantially based on the witness's specialised knowledge. In most other jurisdictions there are now comparable equivalent rules or guidelines.
17 Evidence later adduced, most likely in cross-examination, might reveal that an opinion proffered in an affidavit or report is not wholly or substantially based on the witness's specialised knowledge, or that the expert made an error (whether of logic, science or otherwise) in the process of reaching his or her opinion. While that evidence might be relevant to admissibility in a hypothetical sense, it would not, of itself, demonstrate error in the earlier ruling that the affidavit or report be received in evidence. The correctness of that ruling is to be judged by reference to the relevant evidence and other material before the judge at the time of the ruling. The evidence might, however, be of crucial importance with respect to the weight to be accorded the opinion at the end of the day.
At paragraph 87 of the judgment of Weinberg and Dowsett JJ, in referring to the passage at paragraph 85 of Makita, Their Honours say:
87 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 Heydon 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 at 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 Heydon JA are then assessed in the course of determining the weight to be given to the evidence. There will be cases in which it would 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.
These passages demonstrate the utility and benefit of dealing with these issues as issues of weight, rather than admissibility.
The other significant point of difference between all these authorities and proceedings governed by Division 12A is, of course, context. Both Makita[3] and Sydneywide[4] were civil cases. R v Turner[5] is a criminal case. The principles set out in s.69ZN make it obvious that the context is different. Inadmissibility of expert evidence in parenting proceedings may have potentially significant impacts on the children concerned. For example in the present case it is very hard to imagine how I could decide this case without some kind of expert report. A ruling of inadmissibility would have inevitably resulted in an adjournment whilst another report was obtained. The principles set out in s.69ZN require me to consider the impact of the proceedings on the children. Thus the context of Division 12A proceedings also justifies favouring weight over exclusion when it comes to expert evidence.
[3] Australia Pty Ltd v Sprowles [2001] NSWCA 305 at 69
[4] Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
[5] R v Turner [1975] QB 834
In most Division 12A cases, therefore, where serious issues arise about expert evidence, it is preferable to deal with these issues as issues of weight at the end of the hearing, rather than as preliminary or threshold issues at the commencement of a hearing.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date:
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