Collins and Denny

[2008] FamCA 576

FAMILY COURT OF AUSTRALIA

COLLINS & DENNY [2008] FamCA 576

FAMILY LAW – PROPERTY - Value of property - Expert evidence – Objections to affidavit evidence – material to be provided to the single expert appointed in the matter

Family Law Act 1975 (Cth)

APPLICANT: Mr Collins

RESPONDENT: Ms Denny

FILE NUMBER: SYF 531 of 2005

DATE DELIVERED: 23 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

DEALT WITH IN CHAMBERS BY WRITTEN SUBMISSIONS

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Morozov

SOLICITOR FOR THE RESPONDENT: Ms Rossi

Orders

1. Save as set out below the application of the husband in these proceedings is dismissed.

2. To the extent the affidavits filed in court and described in the annexure to the application of the husband are to be provided to the independent expert,

   
   

   Dr W, that they be so edited that the parts thereof which are by consent of the parties as set out in Exhibit “Y” conceded as being inadmissible, be rendered unreadable by the expert.

3. The costs of the application are reserved to the trial of the matter.

IT IS NOTED that publication of this judgment under the pseudonym Collins and Denny is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 531  of 2005

MR COLLINS

Applicant

And

MS DENNY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are proceedings by the wife seeking orders pursuant to section 79 of the Family Law Act 1975 to set aside or vary orders of the Local Court of New South Wales at Wollongong made on 4 May 2001 and pursuant to section 90K to set aside or vary a financial agreement entered into between the applicant and the respondent on 2 November 2001.

2. There are various grounds relied upon by the applicant in support of her application but by application filed 13 March 2008 the applicant sought an order for the appointment of a single expert to provide expert evidence as to the “psychological state of [the wife] as at the date of the execution by the said [wife] of Consent Orders on or about 1 May, 2001 and Binding Financial Agreement on about 2 November, 2001.”

3. On 7 May 2008 the respondent consented to the appointment of a Dr W, Psychologist to report on the wife’s capacity to understand the nature and effects of her acts in signing each of the consent orders and financial agreement.

4. The respondent has now sought that the Court determine objections to material sought to be adduced in the proceedings prior to the forwarding of any such material to Dr W.

5. The Court made directions for the filing of written submissions in relation to that issue on the basis that the matter would be determined in chambers.

6. Written submissions have been filed by the applicant and an answer has been filed by the respondent to which answer the applicant has replied.

7. The respondent’s solicitor has sought confirmation from the applicant’s solicitors as to the identity of the material sought to be supplied to

   
   

   Dr W from the pleadings before the Court.

8. To that request for confirmation the respondent says that he has received no reply from the applicant.

9. The husband asks that objections be ruled on in relation to a number of affidavits set out in a schedule provided which I have marked Exhibit X.  The Schedule gives details of the paragraphs objected to and the reasons for the objection.  The wife’s position in relation to each such objection is set forth on a further document supplied by those representing her which I have marked Exhibit Y.

10. The husband asserts that it is in the interests of the effective disposition of this matter that the objections be ruled upon in order that the expert’s opinion should not be based on material subsequently disallowed, which in turn could make the expert’s opinion of little or no value.

11. The husband says that for the purposes of Dr W’s investigation it is not appropriate that corroborative evidence of the wife’s assertions be placed before him, since all they do is to assist in the determination of the truth or otherwise of the assertions of the wife, which is the role of the Court not the expert.  That, in this case, includes evidence of the children and other relatives.  The corroborative evidence which particularly comes from the children of the relationship and the effect of the relationship on them, and then on the wife, may well be relevant to her state of mind at the time.

12. It is not for the Court to direct how the expert reaches his opinion.  That is a matter for his expertise.  It is for the expert to justify his opinion in due course and its value may well depend on the accuracy or otherwise of the sources of information which he or she receives, and upon which that opinion is based.  Those matters can be canvassed in a hearing.

13. Even if I made rulings on the admissibility of the evidence as it now stands (and it seems to me that will not necessarily lead to all the evidence unfolding, since leave would be granted in certain cases to adduce oral evidence in respect of evidence disallowed as to form) that process will not inhibit Dr W from informing himself in any way he considers appropriate to the formulation of his opinion.

14. Thus, in my view, the finding of admissibility with respect to the affidavit evidence does not necessarily achieve the purpose which the applicant seeks to achieve, namely limiting the available evidence to that which might be admitted on a hearing.

15. Although my decision is based on other matters, I do not agree with the wife’s submission that it is unfair to seek to deal with the question of objections in the absence of the husband pleading.  As is pointed out by those representing him, and I think correctly, it is the wife who has the onus of proof to discharge and the husband has no requirement to file any affidavit material if he does not wish to.

16. I, in any event, do not intend to embark upon a process which is unlikely to achieve any worthwhile purpose.  Courts deal in facts.  Whilst Dr W will also seek out facts in the form of history on which to base his opinion, his search is not limited to what is true in an objective sense and he may well take into account perceptions which are held wrongly, and which are divorced from reality, in forming a view that a person’s processes of thinking are affected.  Ultimately, Dr W may form a valid and tenable view on material which is shown to be wrong as a matter of fact or inadmissible in Court, providing it is relevant to the perception of the wife and her state of mind.

17. The application for this determination was accompanied by a schedule of objections to which the wife conceded in part that the objections were sustainable.  Where the parties have agreed that that is so, that material should be excluded from the material which is supplied to Dr W but otherwise the application is dismissed. I make the orders set out above.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  23 July 2008