Canning and Hartigan and Anor

[2016] FamCA 25

FAMILY COURT OF AUSTRALIA

CANNING & HARTIGAN AND ANOR [2016] FamCA 25

FAMILY LAW – COSTS – application for costs against an expert witness for asserted failure to provide documents relied on in the course of preparation of the report – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Canning

RESPONDENT: Ms Hartigan

THIRD PARTY: Dr C

FILE NUMBER: LEC 447 of 2012

DATE DELIVERED: 28 January 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: In Chambers – by way of written submissions

JUDGMENT OF: Hogan J

HEARING DATE: In Chambers - by way of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smith

SOLICITOR FOR THE APPLICANT: David Hunter Solicitor

THE RESPONDENT: There being no submissions by or on behalf of the Respondent

THE INDEPENDENT CHILDREN’S LAWYER: There being no submissions by or on behalf of the Independent Children’s Lawyer

SOLICITOR FOR THE THIRD PARTY: Thynne & Macartney

Orders

1. The application for an order that Dr C pay the father’s costs is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Canning & Hartigan and Anor 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: LEC 447 of 2012

Mr Canning

Applicant

And

Ms Hartigan

Respondent

And

Dr C
Third Party

REASONS FOR JUDGMENT

1. The Applicant father seeks an order that Dr C pay his costs in the amount of $18,126.95 – being costs said to have been incurred as a result of Dr C’s alleged ongoing failure to comply with a number of Court orders requiring him to produce documents.

Applicable Principles

1. Section 117(2) of the Family Law Act 1975 (Cth) provides that if, in proceedings under the Act, the Court is of the opinion that there are circumstances which justify it in doing so, the Court may, subject to subsections (2A), (4), (4A) and (5) of the Act and the applicable Rules of Court make such order as to costs as it considers just. This power extends to making an order for costs as against a non-party[1] such as Dr C, who provided a report for use in the substantive proceedings for parenting orders in relation to the parties’ child. 

   [1]McAlpin and McAlpin (1993)FLC 92-411; Re JTT; Ex parte Victoria Legal Aid (1998) FLC 92-812 per Kirby J at [64]; Hartnett & Sampson (Costs) [2007] FamCA 1456.Section 117(2) Family Law Act (1975) (Cth).

Brief summary of relevant chronology of events

1. Once Dr C’s first report was provided to the parties, the father’s solicitors sought clarification about a particular document said to have been relied upon by him in the formulation of his expressed conclusions and/or opinions.  

2. This clarification was provided. An addendum report was also provided to the parties on or about 5 June 2014. The addendum report included the assertion that Dr C’s conclusions and recommendations were based on “other data besides what [he then] understood to have been allegations by [the mother]”.  

3. That is, Dr C maintained his original opinion even after a significant change to the basis on which he had previously proceeded had been conveyed to him; he apparently did so because of his then asserted reliance on ‘other data’.

4. It is in respect of this ‘other data’ – namely, to identify it and obtain a copy of the source documents - that the Orders subsequently sought and obtained by the father’s legal representatives on his behalf were directed.

5. The following Orders were in fact made:

   a)on 26 June 2014: that, by 4.00pm on Monday, 7 July 2014 Dr C produce to the Independent Children’s Lawyer, for distribution to the other parties, a copy of the documents on which he has recorded the details of the results of the various psychometric and other testing undertaken of the parties by him; and

   b)on 19 November 2014: that by 4:00pm on Friday, 4 December, Dr C produce to the Independent Children’s Lawyer, for distribution to the other parties, a copy of all test results for any test administered to the father during the course of his involvement – a Notation was made to the effect that in the event that a further appearance is required, the parties’ ability to make application and submissions as to why Dr C should not personally bear the costs of such an appearance would be considered; and

   c)on 13 February 2015 (after the matter was relisted specifically to deal with the issue of Dr C’s asserted non-compliance with the Orders): that, by no later than 4.00pm on 16 February 2015, Dr C provide to the other parties a copy of his notes relating to all test results for any tests administered to the father during the course of his involvement - the costs of and incidental to this application for a further order against Dr C were reserved.

6. Dr C has indicated that he did not receive a copy of the Order made on 26 June 2014. There is no evidence that he was served with a copy of the same by the father’s legal representatives.

7. Dr C has indicated that he received a copy of the November 2014 Order on 1 December 2014. It appears he corresponded with the Independent Children’s Lawyer in early December 2014[2], seeking clarification about the meaning of the phrase “test results”. He says – without contradiction from the Independent Children’s Lawyer - that he did not receive a reply to these requests. In a similar way, the father’s solicitor did not receive a response to the correspondence, requesting the matter be relisted given Dr C’s continued non-compliance with the orders, he directed to the Independent Children’s Lawyer on about 22 December 2014.

   [2]dated 8 and 9 December 2014.

8. On 5 February 2015, the Independent Children’s Lawyer filed an affidavit to which he exhibited a statement by Dr C. This statement contains Dr C’s assertion that he was not trying to refuse any reasonable request or order from the Court and outlines his objections to producing further materials. Such objections as are relevant to a consideration of the application for costs, together with my assessment of them, are as follows:

   a)he was “mystified” as to what additional documents existed that he could copy without breaching copyright laws and the codes of ethics of the Psychology Board of Australia and the Australian Psychological Society and that would help the father’s treating psychologist: the assertions in respect of breaching copyright laws and the code of ethics in circumstances where he had been engaged by the Independent Children’s Lawyer to provide a forensic report for use in litigation is, in my view, completely without foundation and his assessment of whether the documents required by the order would be helpful to the father’s treating psychologist is irrelevant to his obligation to comply with a Court order; and

   b)as the father’s treating psychologist did not hold the appropriate endorsements for specialist practice, Dr C considered he would not be able to form reliable impressions by perusing the test materials: his assessment that, in essence, there was no utility in providing the test results as ordered, is irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and

   c)the Australian Psychological Society strongly cautioned against a psychologist who was not present during an assessment attempting to reinterpret test results only from the data collected: a matter irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and

   d)considerable additional information could be obtained by the psychologist implementing the test from observations as to the subject’s response to the test: a matter irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and

   e)if he (Dr C) had held concerns about the father’s understanding of the test when he administered it, he would have recorded any such doubts in his report but, as he held no such doubts, he made no such record: a matter irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and

   f)he assumed that the request was made on the advice of the father’s treating psychologist who “apparently believes there are test data documents from which he will gain more usable guidance in conducting his treatment of [the father]” – a matter irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and

   g)before copies of the data sheets used in the tests completed by the father were provided to his treating psychologist, it would be ‘reasonable’ for that person to have to justify the request by detailing the specific training he has undertaken: a matter irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents and a condition that it was not open to him to seek to impose; and

   h)Dr C believed that paragraphs 5.1-5.19 and 8.8-8.11 of his Report met the spirit of the order made on 19 November 2014: an asserted belief that is irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and

   i)he considered that the provision of the results of psychometric testing to Courts involved a complete description and explanation of the results – something which he had attempted to produce in his report: an asserted opinion irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and

   j)no increase in an understanding of the father’s results would be obtained by providing copies of the “copyright test data sheets themselves” nor would any further guidance as to treatment be obtained from the provision of those documents: an asserted opinion and matters irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and

   k)if he was still required to produce the copies, he sought an acknowledgement that he would be breaching Australian copyright law and the codes of ethics of the Psychological Society of Australia and the Psychology Board of Australia and, once this was received, he would “reluctantly but promptly comply”: matters irrelevant to a consideration of his obligation to comply with the existing Order requiring the production of the documents.

9. The Independent Children’s Lawyer advised the parties on 13 February 2015 that Dr C had been notified of his obligations under the Order made that day.

10. On 16 February 2015, documents produced by Dr C pursuant to this Order were released by the Independent Children’s Lawyer to the parties’ solicitors. Having perused them on 23 February 2015, the Applicant’s solicitor formed the view that production remained incomplete.  He wrote that day to the Independent Children’s Lawyer in respect of the alleged non-compliance by Dr C and, on 26 February 2015, sought to be advised whether Dr C had produced further documents.

11. On 27 February 2015, the father’s solicitors asked that the Independent Children’s Lawyer relist the matter urgently to deal with the issue of Dr C’s asserted ongoing non-compliance with the February 2015 Order.

12. On 6 March 2015, Dr C produced further documents. Again, from the perspective of the Applicant’s solicitor, these documents did not complete those requested or required by Order.

13. On 12 March 2015, Dr C offered an explanation as to why he had not produced specific documents - particularly the SHQ-R comprehensive report or test. He indicated that he had not produced this document because it was “lengthy and complicated and hence difficult for non-psychologists to understand.” He suggested that the meaning of the term “results” in the Order  was unclear and noted that, from his perspective, the terms did not encompass the test materials (including the test items or any other part of the psychological test kit) that he had administered to the father.

14. On about 16 March 2015, the father’s solicitors provided Dr C with a copy of court materials. They outlined that that they considered the test items – the questions asked and computer scoring diagnostic – fell within the term “test results” and they requested a copy of any printed SHQ-R comprehensive report.

15. The trial commenced on 18 March 2015. At that time, Dr C’s solicitor indicated that there was no printed copy of the computer based SHQ-R scoring system. A further Order was made in relation to the production by Dr C of further documents and, after this, Dr C produced these documents.

Overview of submissions made on behalf of the father

1. The father’s Counsel submitted that Dr C’s conduct during the course of the proceedings – which it is said resulted in the father incurring the costs associated with a number of appearances designed to obtain the source documents relied upon by him (Dr C) as the basis for the formulation of his report – was such that the Court would be persuaded that the circumstances justify the making of a costs order against him. It was submitted, in essence, that Dr C failed to produce source documents despite being ordered to do so on a number of occasions and that this failure resulted in the father incurring those costs associated with bringing further applications seeking further orders for the production of the source documents.

2. In fact, production of the entirety of the source documents relied upon by Dr C occurred only once the trial had commenced and with the assistance of legal representatives by then engaged by or on behalf of Dr C.

3. In seeking to persuade the Court to conclude that the circumstances of the proceeding are such as to justify the making of the order sought by the father, his Counsel submitted that, while a narrow construction of the terms of the various Orders directed toward securing the entirety of the source documents from Dr C (namely, those which referred to the production of “test results”) may have been possible, such a narrow construction would not reasonably be considered to give effect to the clear intent of the order – which was to ensure that the father and his legal representatives were provided with all of the source documents relied upon by Dr C in arriving at those conclusions and opinions adverse to him (the father) and his interaction with his child.

4. Counsel also submitted that, as Dr C produced, after the order of 19 November 2014, some documents[3] which could arguably fall within a narrow construction of the terms of the Orders directed to him, there was no justification for his conduct in failing to produce all of the relevant documents, including, for example, the entire four page SHQ-R Data entry sheet which was ultimately finally produced on 11 March 2015.

   [3]Specifically the PDS Scoring page and profile, the Personality Assessment Screener, Screener score report, inventory and inventory clinical interpretive report and two pages only of the SHQ-R data entry sheet.

5. Additionally, Counsel for the father submitted that the documents produced on 18 March 2015, after further order, “fell squarely” within the meaning of “test results” as was provided for in the order made on 19 November 2014. She submitted that, after hearing Dr C’s cross-examination (which was followed by a successful application for the exclusion of his report), the Court would conclude that his failure to comply with the Orders intended to secure the release of documents upon which he relied in forming those opinions adverse to the father was to conceal from the Court:

   a)the inappropriateness of the particular test he relied upon (the SHQ-R Test) to the circumstances of the case; and

   b)his failure to apply any expertise to the preparation of his report and those opinions adverse to the father which he expressed therein; and

   c)his failure, in using those tests he determined to use in his assessment of the father and the asserted risk he posed to his child, properly to administer and analyse the same in the manner required by the designers of the same.

6. Counsel for the father further submitted that, as Dr C maintained opinions adverse to the father even after being told that certain comments reported as having been made by the child (which clearly provided part of the initial basis for his opinions) were not in fact made by him to a therapist but, rather, recounted by his mother to that person, access to the father’s actual test results – which were then the only remaining basis for the doctor’s expressed conclusions and/or opinions – was made even more imperative: that is, when it was apparent that the father’s actual test results were the only matters upon which Dr C could have relied in forming his opinions (adverse to the father), access to the actual source documents and actual results of the father’s participation in the various tests administered by Dr C became even more critical because, without these, there was no way in which the conclusions he expressed could be effectively challenged and/or explored and tested.

7. In assessing these submissions, the context within which Dr C’s opinions were expressed should not be forgotten: that is, during the parenting proceedings, it was alleged that the father had engaged in and/or was a risk of engaging in allegedly sexually inappropriate conduct vis a vis his son and, consequent upon this, he was seen and assessed by Dr C, a clinical and forensic psychologist, who, after administering tests which he considered appropriate to assess whether the father posed a future risk to his child and, if so, the extent of the same, expressed opinions adverse to him: such opinions, if accepted, may well have resulted in a significant curtailment of the father’s opportunity to spend time and interact with his child and – given the legislative directive to consider the need to protect children from harm from being subjected to abuse in making orders in children’s best interests – may have resulted in a significant curtailment of the child’s right to have and develop a meaningful relationship with his father.

8. In such circumstances, the father’s legal representatives were clearly well justified in continuing to press for Dr C to provide them with all of the documents he relied upon in arriving at his conclusions and opinions.

Overview of submissions made on behalf of Dr C

1. In opposing the Application for an order for costs, Dr C’s legal representative submitted that:

   a)the separate booklet relating to the SHQ-R test did not in fact record any scores or results but was part of the test material and manuals produced to assist with facilitating the test: as such, it was not ‘captured’ by the Order which required the production of ‘test results’; and

   b)until such time as Dr C’s solicitor was called to assist the court on 18 March 2015, it was not clear that this was the document which was sought and said to be outstanding; and

   c)the only other documents provided at this time (i.e. documents which had not previously been provided) were a page of questions relating to the PDS answer sheet and a PAS Response form; and

   d)before 18 March 2015, Dr C had not had any direct involvement with the court as all prior communication had occurred  through the Independent Children’s Lawyer; and

   e)despite the Independent Children’s Lawyer advising the solicitors assisting Dr C on 11 February 2015 that Dr C had leave to appear at the hearing on 13 February 2015 by telephone, Dr C was not afforded an opportunity to address the court that day in relation to his alleged non‑compliance with Orders; and

   f)after the 13 February 2015 order was provided to Dr C by the Independent Children’s Lawyer, he almost immediately faxed a 32 page bundle of documents - which comprised the entirety of Exhibit B - to the Independent Children’s Lawyer and, on 4 March 2015, provided a further copy of the last four pages of the same to the Independent Children’s Lawyer; and

   g)an order requiring the production of ‘test results’ could not reasonably be thought to include an order requiring the production of test materials and/or instruction manuals directed to the person administering the tests; and

   h)given that the requests made of him and the Orders made specific reference to “test results”,  it was reasonable for Dr C to assume the request was being made so that these documents could be  provided to an appropriately qualified psychologist to enable that person to reinterpret Dr C’s findings or conclusions and also reasonable for him to assume that such person would have had available to them the test materials which he ultimately produced on 18 March; and

   i)Dr C had incurred costs in the amount of $11,949.30 as well as other costs associated in responding to the application for costs.

Discussion

1. Having regard to the submissions made on behalf of both the father and Dr C and taking into account the matters set out above, I am not persuaded that the circumstances justify the making of an order that Dr C pay the father’s costs of and incidental to those occasions or appearances on which Orders were made requiring Dr C to produce documents.

2. In arriving at my decision to dismiss the father’s application, I note that at no time throughout the proceedings did a subpoena issue to Dr C in respect of any of the documents sought by the Applicant; further, it appears that most if not all communications with him proceeded via the Independent Children’s Lawyer rather than directly –something which I consider may well have done little to assist the process of illuminating the father’s request for further documentation and impressing upon Dr C the vital importance to the father’s case of the requests. Additionally, I take into account that the terminology of the Orders was arguably capable of the interpretations outlined above, a matter to which I accord particular significance given the legislative starting point prescribed by s 117(1) of the Act.

3. I wish to record, however, that I have arrived at the conclusion to dismiss the father’s application somewhat reluctantly given the absolute necessity in this jurisdiction, in which single expert witnesses are engaged to provide expert evidence to assist the Court in its determination of those parenting orders which are in a child’s best interests, that parents who challenge the accuracy or basis of an opinion adverse to them and their case are provided with access to all of the documents (howsoever described) relied upon by an expert in the formulation of their opinion.

4. As the Reasons for Judgment I delivered in support of my decision to exclude Dr C’s evidence make clear, any expert opinion is only as good as the premises upon which it rests and the analysis by which it is arrived at: any person professing expertise should obviously be capable of explaining both the premises relied upon and the analysis undertaken in the formulation of any opinion that person expresses.

5. My dismissal of the father’s application should not, therefore, be read as suggesting that those engaged as single expert witnesses or who provide expert opinion intended to assist the Court in its deliberations are empowered to exercise a discretion in determining whether documents sought by parties in respect of whom their opinion is proffered are relevant or useful or not. Such persons must always remember that their evidence – while often important and occasionally decisive – is but one piece of the evidence before the Court whose role it is to determine parenting orders, the nature of which can have extremely significant and long-lasting consequences for both parents and children.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 28 January 2016.

Associate:  M Murphy.

Date:  28 January 2016