Canning and Hartigan (No 3)

[2015] FamCA 1102

FAMILY COURT OF AUSTRALIA

CANNING & HARTIGAN (NO 3) [2015] FamCA 1102

FAMILY LAW – EVIDENCE – Admissibility of Evidence

Family Law Act 1975 (Cth) s 69ZT
Evidence Act s 1995 (Cth) s 55; s 135

APPLICANT: Mr Canning

RESPONDENT: Ms Hartigan

INDEPENDENT CHILDREN’S LAWYER: Stephen Tester & Associates

FILE NUMBER: LEC 447 of 2012

DATE DELIVERED: 19 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 19 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smith

SOLICITOR FOR THE APPLICANT: David Hunter

COUNSEL FOR THE RESPONDENT: Mr Mason

SOLICITOR FOR THE RESPONDENT: Bolt Findlay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Tester

Orders

IT IS ORDERED THAT

1. The following material relating to Dr C’s evidence in these proceedings is to be placed into a sealed envelope on the Court file with instructions “Not to be opened without leave of the Court”:

   a.Exhibit 1;

   b.Exhibit 2;

   c.Exhibit B;

   d.Affidavit of Dr C filed 28 May 2014; 

   e.Affidavit of Dr C filed 1 July 2014; and

   f.Affidavit of Mr J filed 13 March 2015.

2. Following the conclusion of the evidence, the “PDS Form” and the “PAS Response Form HS” and the “Datasheet SHQ-R” are to be placed into a sealed envelope on the Court file with instructions “Not to be opened without leave of the Court”.

3. At the conclusion of these proceedings, the parties’ legal representatives shall return any copies of the above material to the Independent Children’s Lawyer.

4. The Independent Children’s Lawyer shall arrange for that material to be destroyed.

IT IS NOTED

A.The Applicant’s Application in a Case filed 13 March 2015 for an adjournment of the proceedings is withdrawn.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Canning & Hartigan 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

EX TEMPORE

REASONS FOR JUDGMENT

1. Neither s 55 nor s 135 of the Evidence Act are excluded by s 69ZT of the Family Law Act 1975 (Cth). Thus, before an opinion can be admitted into evidence, a trial judge must be satisfied that it meets the criteria for admission. Material that is not relevant is not admissible. Admissibility of evidence is determined by reference to its relevance to the probability of the existence of a fact in issue in the proceedings. What is relevant is broadly defined. Section 55 of the Evidence Act says that relevant evidence is:

   Evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. 

2. It is clear that there must be a rational connection between the evidence sought to be adduced and the facts in issue to be determined in the trial.  Here, a fact in issue to which the evidence of Dr C relates is whether the father has sexually abused D.  This remains so even given the acceptance by Mr Mason, on behalf of the mother, that he would not ask for a finding on her behalf to this effect.

3. It remains so because it is clearly the intention in the mother’s case to rely upon Dr C’s opinion that it is more probable than not that sexual abuse has, in fact, occurred, to form the basis for an asserted conclusion of the existence of an unacceptable risk of harm to D if he were to spend unsupervised time with his father.

4. I am not persuaded that Dr C’s evidence, if accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue.  I arrive at this conclusion for the following reasons. 

5. It is clear from the evidence of Dr C, elicited during cross-examination, that, despite the clear direction contained at the commencement of Exhibit 1 (the Clarke Sex History Questionnaire for Males-Revised) to interpret the results of that test in conjunction with a sexual history interview, he did not undertake the same in any meaningful sense. 

6. His evidence was at its highest, that he undertook a very brief interview with the father - that he did: “As much as I usually do”.  It was clear, I consider, from the balance of his answers to questions asked about that topic, that he relied on the test.  He said there was nothing noteworthy in the very brief sexual history interview, because he was relying on the test.  I am persuaded that it is more likely than not that the interview was, indeed, very brief and, I suspect, perfunctory. 

7. Additionally, it appeared from the evidence elicited during cross-examination that, contrary to the caution contained at the commencement of Exhibit 1, Dr C did not review the responses with Mr Canning.  It may well be understandable this was strictly unnecessary, given, as he said, he was not undertaking a treating role.  However, when regard is had to the significant disparity in the actual answers provided by Mr Canning to the questions asked of him (which constitute the test administered) and the reported results from those answers, it seems to me that such a review would have been appropriate.

8. If Dr C had undertaken such a review, it may well have been that his report could have provided some explanation for the enormous disparity to which I have referred.  That, unfortunately, is not the case.

9. It is also clear from Dr C’s evidence elicited during cross-examination, that he did not – and certainly did not in his report – outline any consultation he had undertaken with the Item Response table at the end of the report. 

10. Because it is a matter also identified under the heading “Caution” by those who have created the test – because, on some scales, a high percentile can be generated by a person endorsing as little as one or two items of the tested administered - an assessor should consult the Item Response Table to identify all items that may have contributed to a higher percentile score.  It is clear (from the absence of any consideration in either of his reports) that Dr C did not undertake this exercise. 

11. There is no way, it seems to me, for any person or the Court reading the report to ascertain why it is that the results recorded from answers given by Mr Canning can coexist with his blanket denials of engaging in the very behaviour seemingly relied upon to create those results. 

12. It is clear Dr C simply entered the information provided by Mr Canning, received percentage numbers and, I consider, relied entirely upon them in arriving at his conclusion.  He did so in circumstances where he accepted that the results themselves are not probability figures, but, rather, comparisons.  That of itself gives rise for concern and is, of course, relevant to my determination that the contents of the report, even if accepted, could not rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding.

13. In addition, I am not persuaded, having regard to the contents of Dr C’s reports and his oral evidence, that he applied any particular specialised knowledge to his assessment.  It is clear, I consider, he obtained the test results and relied entirely upon them without applying any form of analytical approach.

14. Whilst he certainly gives reference to other source documents as those to which he had regard (they being documents identified by him at paragraph 3.1 of his report) there is no means by which the Court can ascertain:

    a)which of the documents contained within those respective categories of documents are those to which he had regard;

    b)how those documents were applied in any analytical process and assessment;  and

    c)what, if any, was relied upon either to support, or to cause reflection about, the results obtained as a consequence of the administration of the questionnaire.

15. The report is simply deficient in that regard. 

16. I was left with little doubt that Dr C approached his assessment and expression of opinion, as outlined in his affidavit material and reports, on the basis that, once the test results were received, he accepted them as correct.  He did not check them - he used them and clearly relied upon them.  He undertook an analysis that really can be summarised as one which involved erring on the side of caution.  To “err on the side of caution” is not, in my view, to apply any type of specialist knowledge or to assist the Court by explaining the manner in which one applies any specialised knowledge to the issue about which expert opinion has been requested. 

17. I note in passing - whilst no submission was necessarily directed to this - that there did not appear in the contents of either of Dr C’s report any assessment or consideration of whether the explanation provided to him by Mr Canning for the behaviours reported by D was in any way relevant to any assessment as to the conclusions and/or opinion reached.  It is insufficient for a person whose evidence is to be accepted as an expert witness to simply assert, as a conclusion, that they relied upon their experience, irrespective of the length of time over which that experience is said to have been achieved. 

18. An expert report should provide the Court with the conclusions and opinions arrived at but also, of course (as authority makes abundantly clear) an outline of the processes by which that opinion is arrived at: it should identify with sufficient particularity the factual matters relied upon as forming the basis for the expression of that opinion.  It is only by such transparency that the Court is placed in a position as to be able to determine the weight, if any, to be placed upon an opinion and it is only by the expression of such analysis that the parties in whose case the evidence is sought to be led are able, for themselves, to understand the reasoning process and to understand the basis upon which a person (who is purporting to be an expert) has reached a conclusion which may or may not be adverse to them and to the case that they seek to present. 

19. It is clear, as I have said, from Dr C’s evidence, that the contents of the reports upon which he relied - particularly the “Clarke Sexual History Questionnaire for Males – Revised” - that the results of it do not suggest that the father is a risk for the kind of behaviour assessed within that test.  As he said in answer to questions asked of him by Mr Mason, they are not probability figures but rather comparisons.  He further said that one could not translate the percentage scores to probability risks.  Things reported in the report might contribute but only be one factor. 

20. Dr C’s evidence was to the effect that he had formed the view that the father was “a risk” but this did not say he had ‘done anything’.  Dr C’s opinion (as expressed in paragraph 8.1 of his first report) is, of course, contrary (in a sense) to that because, in fact, it purports to be a conclusion as to past behaviour.  As noted earlier, I am not persuaded that there is any specialist knowledge or specialised analysis in an approach taken by a person where that approach is simply to “err on the side of caution”. 

21. Additionally, I record that it is clear from a perusal of the information provided on the Questionnaire Comprehensive Report, (Exhibit 1) under the heading Introduction, that the test is described by those who created it as being “designed to aid in the treatment of sex offenders.”  There is contained within that descriptor no suggestion that it is designed to assist in an assessment of the probability or otherwise of the occurrence of actual behaviour. 

22. It is insufficient, in my view, for evidence given by a person purporting to be an expert to be admissible simply because that person is described as an experienced forensic psychologist.  In my view, it does not make evidence admissible because simply a person holds some experience.  What has been made clear by authority is, of course, the necessity, as I have already said, for the evidence of that person to outline with sufficient detail and particularity the method by which they arrived at the opinions, the analysis undertaken and the bases upon which any such opinion has been arrived at. 

23. Little more, perhaps, needs to be said in these short reasons than to repeat one of the aspects of Dr C’s evidence during cross-examination yesterday.  When asked what other items may have attributed to the significant score received under what I will call the broad heading of “sexual aggression”, he said that one would need to go through the test items. 

24. That is exactly the theme that the designers of the test caution as a necessity at the commencement of that document - it appears from his answer that it is exactly the thing that has not been done in this case.  Rather, the Court was left with his response to the effect that:

    It would be appropriate to ask the test designers what they weigh and how, in essence, we all are scratching our heads and wondering how this man (referring to Mr Canning) has scores that are so high given his blanket denials of behaviour.

25. That the person who relied upon the tests as forming the basis of the expression of the opinion contained within his reports poses this as a response to a question seeking explanation about the basis upon which he arrived at that opinion says it all. 

26. For these reasons, then, I am not persuaded that Dr C’s evidence, if accepted, could rationally affect directly or indirectly the assessment of the probability of the existence of the fact at issue in the proceedings.  It is, therefore, in my view, not relevant because it does not satisfy the test of relevance and is thus inadmissible. 

27. If I am wrong in arriving at this conclusion, then, I have regard to s 135 of the Evidence Act by which the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing or cause or result in undue waste of time.  The definition of “probative value” is contained within the dictionary to the Evidence Act as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.” 

28. For the reasons I have already expressed - for the conclusion I have arrived at that the evidence of Dr C, if accepted, could not rationally affect the assessment of the probability of the fact in issue because of its significant deficiencies and the absence of clear analysis - I am also persuaded to refuse to admit his evidence because its probative value is likely to be either misleading or confusing and/or to cause or result in undue waste of time;  I do so taking into account his own evidence that the contents of (particularly) the SHQR results do not suggest a risk of the kind referred to because they are not probability figures but comparisons. 

29. For those reasons, I decline to admit into evidence the reports of Dr C.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 March 2015.

Associate: 

Date:              19 March 2015