Clayton and Bant

[2017] FamCA 349

FAMILY COURT OF AUSTRALIA

CLAYTON & BANT [2017] FamCA 349

FAMILY LAW – PRACTICE & PROCEDURE – Objections to evidence – Where the father objects to part of the evidence upon which the mother sought to rely – Whether the material attracts provisions of s 135 of the Evidence Act 1995 (Cth) – Whether expert evidence filed by a barrister and solicitor and clinical psychologist should be adduced –Where such evidence is not admissible and is not to be provided to the report writer in preparation of his report – Where the notes of a social worker counselling the child and mother are admissible – Where such evidence is to be provided to the report writer.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Clayton

RESPONDENT: Mr Bant

FILE NUMBER: LEC 310 of 2013

DATE DELIVERED: 26 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: In Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: Parker & Kissane

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

1. That part of Ms PE’s report that is annexed to her affidavit filed in these proceedings on 12 May 2017 “JE-3” contained under points 7 and 8 on pages 17 and 18 of 32 is struck out and will not be admitted into evidence in the child-related proceedings that are to be listed for trial before Justice Forrest.

2. Notwithstanding any previous Orders dealing with what is to be provided to the single expert, Mr BC, for him to read in the preparation of his report in these proceedings, the affidavit of Ms PE is not to be provided to Mr BC before the parties have received his written report, but may be subsequently provided to him by either party should they wish to cross-examine him in respect of it.

3. The affidavit of Ms LS filed in these proceedings on 18 May 2017 is struck out and will not be admitted into evidence in the child-related proceedings that are to be listed for trial before Justice Forrest and is not to be provided to the single expert, Mr BC.

4. The objection to the admissibility of the affidavit of Ms MJ filed 5 May 2017, is overruled and it may be provided to the single expert, Mr BC, for him to read in the preparation of his written report.

5. The affidavit of Mr IE filed in these proceedings on 23 May 2017 is struck out and will not be admitted into evidence in the child-related proceedings that are to be listed for trial before Justice Forrest and is not to be provided to the single expert, Mr BC, save that the instructions to Mr BC for the preparation of his written report shall include reference to paragraph 75 of Kent J’s reasons for judgment of 19 November 2013 and Mr BC shall be informed that the father is not seeking to lead any evidence contrary to his Honour’s findings recorded therein.

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 Clayton & Bant 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 BRISBANE

FILE NUMBER: LEC 310 of 2013

Ms Clayton

Applicant

And

Mr Bant

Respondent

REASONS FOR JUDGMENT

1. On 24 February, this year, I pronounced Orders and delivered written reasons for making those Orders in this matter as part of the managing of the matter to trial before me later this year. As I said in those reasons, this parenting orders dispute is in my docket following Orders of the Full Court made in the determination of an appeal against the Orders of the first instance parenting Orders determination. Those Orders of the Full Court remitted the matter for rehearing limited to consideration of the time the subject child is to spend with the father, and the conditions of the same, including whether that time is to be supervised or not.

2. I listed the matter for a further trial management hearing on Tuesday, 16 May. On that day, I was informed that objection was taken by the father to the admissibility of some affidavits filed on behalf of the mother that are clearly intended to be relied upon by her at the upcoming trial. Furthermore, I was told that the objections would need to be determined before evidentiary material was sent to the single expert psychologist who had been selected by the parties to prepare a family report for the Court’s assistance, so that any affidavits determined not to be able to be relied upon by the mother at the trial would not be provided to the single expert report writer for him to read prior to seeing the parties and preparing his report.

3. Accordingly, I set a timetable for the provision of written submissions by the parties.

4. I have received and considered those written submissions delivered to my Associate by the legal representatives for each of the parties.

5. These are solely parenting orders proceedings that are wholly under Part VII of the Family Law Act 1975 (“the Act”). As such, pursuant to s 69ZM of the Act, Division 12A of the Act applies to the proceedings, to be called “child-related proceedings” (s 69ZM(4)).

6. Child-related proceedings are to be conducted pursuant to the principles that are expressly set out in s 69ZN of the Act. Though I will not list them here, I have had regard to them. I am conscious of the statutory directive to “actively direct, control and manage the conduct of the proceedings … without undue delay and with as little formality, and legal technicality and form, as possible.”

7. Relevantly, given I am now dealing with objections to certain affidavits being admitted into evidence, s 69ZT provides that certain provisions of the Evidence Act 1995 do not apply. Divisions 3, 4 and 5 of Part 2.1, and Parts 2.2, 2.3, 3.2 and 3.8 of that Act are expressly listed as not applying in child-related proceedings. Further sub-sections of s 69ZT empower the Court to determine the weight to be given to evidence admitted as a consequence of those provisions of the Evidence Act not applying; confer a discretion to decide to apply one or more of those excluded provisions to an issue in the proceedings in certain circumstances; and further empower the Court to determine the weight to be given to evidence admitted as consequence of a provision of the Evidence Act being applied.

8. Section 69ZX of the Act gives the Court even more express power in determining the way in which child-related proceedings are to be conducted, in particular, what evidence is and is not to be presented and how evidence is to be presented. Relevantly, subsections (1) and (2) of that section of the Act provide:

   69ZX  Court’s general duties and powers relating to 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.

9. In addition to that power conferred on this Court, the Court continues to have the discretion conferred by s 135 of the Evidence Act to refuse to admit evidence if satisfied that its probative value is substantially outweighed by the danger that the evidence might:

   (a)be unfairly prejudicial to a party; or

   (b) be misleading or confusing; or

   (c) cause or result in undue waste of time.

10. Plainly, the Court’s power to control the conduct of child-related proceedings, particularly in respect to the evidence it allows parties to adduce, is broad.

The Affidavits filed on behalf of the Mother that have drawn objection from the Father

1. The following affidavits filed on behalf of the mother have drawn objection from the father:

   (i)the affidavit of Ms PE, clinical psychologist, filed 12 May  2017;

   (ii) the affidavit of Ms LS, solicitor, filed 18 May 2017;

   (iii)the affidavit of Ms MJ, social worker, filed 5 May 2017; and

   (iv) the affidavit of Mr IE, barrister, filed 23 May 2017.                    

The Affidavit of Ms PE

1. Ms PE describes herself as the mother’s clinical psychologist. She tells us her qualifications. Her affidavit says little more than telling us she was asked by the mother’s solicitors to provide a psychological report in respect of the mother. Attached to the affidavit is a copy of her CV, a copy of the letter from the mother’s solicitors dated 4 May 2017, requesting the report, a copy of the report provided by her in response and copies of previous reports provided by her to Victims of Crime Counselling NSW in April 2015 and April 2017.

2. The father objects to the affidavit being admitted and provided to the single expert psychologist and submits that it “trespasses outside the express limited mandatory permission that is given of a treating expert and falls foul of the provisions of the single expert rule [Rule 15.45 of the Family Law Rules 2004 (“the Rules”)] and the permission rule [Rule 15.51(1) of the Rules]”.

3. In an apparent acknowledgment that the provisions of Division 12A that I have set out above, particularly those relating to the use of expert evidence in child-related proceedings, confer power that can override strict adherence to the expert evidence Rules, the father’s objection to the affidavit is said to rely on a combination of the submission that the expert evidence Rules have been breached and the submission that due to these breaches admission of the affidavit into evidence would be unfairly prejudicial to the father, thus invoking the discretion to exclude the affidavit in s 135 of the Evidence Act.

4. I am inclined to the view that there is merit in that submission, at least with respect to some parts of the evidence sought to be adduced by reliance on the entire affidavit.

5. A single expert was agreed by the parties to be retained to prepare a report to assist the Court. The single expert was to be selected by the father from a panel of three nominated by the mother. The clear intention of the parties and the Orders I made was for the single expert to be a psychologist. The matters the single expert psychologist was to consider and report upon were set out in my Orders. They included issues the parties themselves had identified, such as whether the fears expressed by the mother, including to the effect that the father would act to remove the child from the mother’s care, and/or return her to the United Arab Emirates, are bona fide; the likely impact on the child if the mother’s care giving ability is impacted upon adversely by anxiety; and issues relating to the mother’s psychological functioning and its impact on her parenting capacity.

6. After those Orders were made, the mother’s solicitors have unilaterally written to the mother’s treating psychologist and requested the report that is now sought to be relied upon and provided to the single expert. Included in the matters they asked the treating psychologist to address in the report are matters within the remit of the agreed single expert, most particularly the provision of opinion about the future impact upon the mother of Court ordered unsupervised time for the child with her father.

7. The expert evidence Part of the Rules, relevantly include the following Rules:

   15.41  Application of Part 15.5

   (1)This Part (other than rule 15.55) does not apply to any of the following:

   (a)evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:

   (i)the results of an examination, investigation or observation made;

   (ii)a description of any treatment carried out or recommended;

   (iii)expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;

   (b)evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:

   (i)about that expert’s involvement with a party, child or subject matter of a case; and

   (ii)describing the reasons for the expert’s involvement and the results of that involvement;

   (c)evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;

   (d)evidence from family consultant employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).

   Example:    An example of evidence excluded from the requirements of this Part (other than rule 15.55) is evidence from a treating doctor or a teacher in relation to the doctor’s or teacher’s involvement with a party or child.

   (2)Nothing in this Part prevents an independent children’s lawyer communicating with a single expert witness.

   15.45  Order for single expert witness

   (1)The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.

   (2)When considering whether to make an order under subrule (1), the court may take into account factors relevant to making the order, including:

   (a)the main purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 15.42);

   (b)      whether expert evidence on a particular issue is necessary;

   (c)      the nature of the issue in dispute;

   (d)whether the issue falls within a substantially established area of knowledge; and

   (e)whether it is necessary for the court to have a range of opinion.

   (3)The court may appoint a person as a single expert witness only if the person consents to the appointment.

   (4)A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).

   15.51  Permission for expert’s reports and evidence

   (1)A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.

   (2)  An independent children’s lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission.

8. The report provided by Ms PE in response to the solicitor’s request says the mother was initially referred to her by the RW Centre, BI Town, who had recommended that the mother apply for NSW Victims of Crime Counselling. Ms PE notes the mother consulted her for assessment and treatment on 1 April 2015; 9 April 2015; 23 April 2015; 30 April 2015; 9 March 2017; 7 April 2017; 11 April 2017; 28 April 2017. Ms PE tells us the purpose of the two reports previously provided to Victims of Crime Counselling NSW, being that they were required as part of the process of approved counselling. Those were not prepared for use in evidence in these proceedings. As such, I do not consider that they fall foul of the expert evidence Rules, nor do I consider that they are unfairly prejudicial to the father.

9. However, I do consider the matters Ms PE was asked to address in points 7 and 8 of the solicitor’s letter of 4 May 2017, duplicate matters the single expert is tasked with addressing and do stray into territory beyond which treating experts may go in their reports without the permission of the Court, at least in respect of their evidence being permitted to be adduced and relied upon in proceedings. The material contained in the report addressing point 7 is nothing more than reporting things the mother has told the psychologist and repeating previously observed results of a test described as DASS 21. The material contained in paragraph 8 is almost all opinion as to matters such as the mother’s bona fides and credibility, her mothering capacities, and the likely impact of unsupervised time being ordered. Those opinions are not limited to the reasons for carrying out or recommending the treatment that has been given or the consequences of the treatment. They go to the consequences of the mother not getting the Orders she wants from the Court. That, in my view, is a matter for the single expert. I consider that allowing those parts of the report in and to go to the single expert would, indeed, be unfairly prejudicial to the father in the circumstances.

10. I will not admit into evidence all of that material contained in Ms PE’s report under points 7 and 8 on pages 17 and 18 of 32 in the affidavit. However, I will admit into evidence the balance of the affidavit and annexures.

11. That is not the end of the issue, though. The father objects to the report being provided to the single expert psychologist if I do admit it. I can only presume that objection stands even where I have determined not to admit certain parts of it but to admit other parts.  For the father, it is submitted that there “would be a real risk of the single expert’s opinion being tainted” and “genuine questions” left as to the evidentiary weight to be afforded any conclusions or recommendations drawn by the single expert if the report of the treating psychologist goes to him before he makes his own independent assessment and reports upon it.

12. Again, I consider there is merit in the submission made for the father. I would be most interested in gaining the assistance of Mr BC, an expert witness known to the Court who has given evidence in other child-related proceedings before me, in circumstances where he makes his assessment of the mother’s psychological functioning and addresses the issues that he is tasked with addressing, without having read Ms PE’s reports beforehand. That way his opinions will be his own, uninfluenced by the opinions of the mother’s treating psychologist.

13. I will order that the affidavit of Ms PE not be provided to Mr BC before he provides his written report. If either party wishes to provide him with a copy of it prior to cross-examining him at the trial, I will permit that.    

The affidavit of Ms LS

1. Ms LS deposes to being a solicitor with substantial experience working within the Australian Central Authority set up in accordance with Australia’s obligations pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. She has also worked in the NSW Central Authority and the Central Authority for England and Wales in respect of the same 1980 Convention.

2. She deposes, in a few short paragraphs, to matters she has learned from her experience in international child abduction matters, including from conversations she says she has had with the Australian Federal Police about the efficacy of their Airport Watch List. She deposes to being aware that the Airport Watch List has from time to time been circumvented and how that has happened and to being aware of one case where children were wrongfully removed from Australia by boat departing from an unmonitored part of Australia’s coast.

3. I have to say that those matters are hardly controversial. Almost every Australian of relevant age would have heard of the Gillespie case. I remarked of same in Court on 16 May 2017 at the mention of this matter. The porous nature of Australia’s extremely lengthy border and the ease with which persons of sufficient means and determination can get in and out undetected are matters I consider I can take judicial notice of without the requirement for there to be expert evidence on the issue.

4. Given that it is indeed expert evidence that is sought to be adduced and it has also been done unilaterally by the mother’s solicitors without apparent regard for the expert evidence Rules, given my views just expressed about the notoriety of the subject matter deposed to in any event and my determination to keep the duration of the trial of this matter within reasonable bounds, I am not going to permit this affidavit to be admitted into evidence. It is, accordingly, not to be provided to the single expert.

Affidavit of Ms MJ

1. Ms MJ deposes to being a social worker at the B Hospital and a qualified child and family counsellor.  She says she has attended upon the mother and the subject child and she annexes her file notes.

2. The annexed filed notes record Ms MJ’s note taking on the consultations with the mother and the child from 20 December 2016 through to 8 March 2017. Also annexed is a referral letter from a Ms YD, described as a casual family referral worker and other notes, said on their face to be authored by a third person, an occupational therapist.

3. The father objects to the affidavit in its entirety. I consider the notes of the social worker, who is the witness and who was clearly counselling (treating) the mother and the child, admissible.  Of course, those notes are not admitted as evidence of the truth of the factual matters asserted by the mother as recorded by Ms MJ. They are admitted as evidence that those things were recorded by Ms MJ as having been reported to her by the mother, providing a factual basis upon which any opinion expressed by Ms MJ is assessed. The truth of the matters said to have been asserted by the mother is for the Court to determine in the proceedings.  Ms MJ will be expected to be available for cross-examination if required.

4. I will also admit the referral letter and the notes of the occupational therapist as relevant to the work the social worker was undertaking and as business records. Again, they are not admitted as evidence of the truth of the matters of fact said to have been asserted by the mother or the child. The weight to be attributed to matters arising directly from them in the absence of the authors being available for cross-examination will be a matter for submission at the trial.

5. I will permit this affidavit to be provided to the single expert. They are notes of professionals providing treatment for the mother and the child in the past. Those professionals are not psychologists providing opinions about matters the single expert is tasked with providing opinions on. I do not consider it inappropriate for him to see this material in the preparation of his report.

The Affidavit of Mr IE

1. Mr IE deposes to being a barrister from the UK. It simply refers back to two reports he prepared on the relevant law of the United Arab Emirates that were in evidence before Kent J, the original first instance Judge. He says that there have been no substantive changes in the law since then.

2. For the father, it is submitted that the matters of evidence sought to be adduced through the affidavit and the previous reports of Mr IE are addressed by Kent J at paragraph 75 of his reasons for judgment of 19 November 2013. It is further submitted that the father has not sought and will not seek to lead any evidence contrary to those findings made by his Honour in paragraph 75 relevant to the law in the UAE.

3. I have read paragraph 75 of his Honour’s judgment. Having regard to the assertion made for the father that no evidence contrary to his Honour’s findings will be sought to be led by the father in the forthcoming re-trial, I do not consider it necessary to permit Mr IE’s affidavit filed 23 May 2017 or any of his previous affidavits relied upon at the trial before Kent J, to be admitted into evidence now. I accept the submission that to do so “invites further, and unnecessary consumption of the resources” of this Court.  However, that said, in the instructions provided to Mr BC, he is to be referred specifically to paragraph 75 of Kent J’s judgment and informed that the father is not seeking to lead any evidence contrary to his Honour’s findings recorded therein.

4. I intend to make the Orders that are set out at the commencement of these reasons.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 May 2017.

Associate: 

Date:  26 May 2017