Cord and Cord
[2017] FamCA 235
•18 April 2017
FAMILY COURT OF AUSTRALIA
| CORD & CORD | [2017] FamCA 235 |
| FAMILY LAW – EVIDENCE: Section 69ZT(3) – Ruling – where order sought by wife involves international relocation – where there would be a significant alteration to the nature of the husband’s contact – where experts provide conclusions without factual foundations – evidence excluded – s 135 Evidence Act 1995 (Cth) – consideration of lay opinion evidence. |
| Family Law Act 1975 (Cth) |
| Dasreef Pty Ltd v Hawchar [2011] HCA 21 |
| APPLICANT: | Ms Cord |
| RESPONDENT: | Mr Cord |
| FILE NUMBER: | MLC | 4542 | of | 2012 |
| DATE DELIVERED: | 18 April 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 11. 12, 13 April 2017 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr North QC |
| SOLICITOR FOR THE RESPONDENT: | Lander & Rogers |
Orders
That the evidence of psychologist Ms B and psychiatrist Dr C are ruled inadmissible.
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 Cord & Cord 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 MELBOURNE |
FILE NUMBER: MLC 4542 of 2012
| Ms Cord |
Applicant
And
| Mr Cord |
Respondent
RULING
This is the second ruling about admissibility of evidence in proceedings between Mr Cord (“the husband”) and Ms Cord (“the wife”) in proceedings that began in Adelaide on 11 April 2017. I have made the ruling that the wife cannot rely upon the evidence of two witnesses but for expediency sake, did not deliver formal reasons at the time but now do so.
I have earlier ruled that a significant portion of the wife’s evidence in chief contained in two affidavits is inadmissible. That determination was required for what follows.
In her summary of argument prepared by her then counsel for a hearing in the Federal Circuit Court and filed around 24 March 2017, it was said that the wife relied upon:
Material prepared by [Ms B], psychologist, namely:
Report dated 3 February 2017 (annexed to affidavit of [Ms D] filed 8 February 2017);
Letter of [Ms B] dated 20 September 2016 (annexure “MC No 2” Mother’s affidavit filed 26 October 2016)
Letter of [Ms B] dated 13 March 2014 (annexure “MC No 3” Mother’s affidavit filed 26 October 2016)
Report of [Dr C], psychiatrist, dated 3 February 2017 (annexed to affidavit of [Ms D] filed 5 February 2017).
An immediate problem, but which was not insurmountable, is that there was no affidavit of evidence by Ms B nor was there an affidavit by Dr C. In both cases, their reports and letters were attached to the affidavit of a solicitor who is no longer acting for the wife. In respect of the various letters of Ms B, it was not clear how they were to be contemplated for admissibility purposes when they were not in the narrative of an affidavit and in any event, the deponent was not the writer of the letter. Speaking entirely for myself, it is not a practice that should be followed. To the extent that there is a view that a report can only be put in evidence by an affidavit, one can immediately see the dilemma when the deponent of the affidavit is neither available, nor indeed intending, to give evidence. The problem could be cured by those respective professionals attending the court to give evidence consistent with the annexures to the solicitor’s affidavit. To do that would require the professional witness to attend but problems arise where the evidence, which is the subject of objection, might all be ruled inadmissible. It is equally problematic to require the wife who is now unrepresented, to now prepare an affidavit by these two witnesses.
All of those problems could be overcome but the dilemma in this case arises from what is purporting to be the evidence. Unfortunately, this evidence was heavily relied upon by the wife to support her argument which was described in her counsel’s outline as follows:
The mother is originally from the United States. She wishes to return there. She is anxious and depressed living in Australia. She continues to suffer emotionally from isolation from her family, lack of support, and the ongoing conflict between the father and herself.
It ought be clear that the wife is seeking to relocate two children to the United States on the basis that she is anxious and depressed and continues to suffer as a result of being retained here for the reasons outlined. The need for professional evidence to support the first part of those assertions is self-evident.
Attention was drawn to the Full Court decisions in Lane and Nichols [2016] FamCAFC 234 where the following paragraph bears contemplation.
39.Whilst s 69ZT(1) of the Act excludes the applicability of certain provisions of the Evidence Act 1995 (Cth) (“the EA”) to child-related proceedings (unless under s 69ZT(3) the Court decides to apply them); and Part 3.3 of the EA dealing with opinion evidence is one of the parts so excluded; s 69ZT(2) draws emphasis to the weight to be applied to evidence admitted as a consequence of, inter alia, Part 3.3 of the EA not applying.
In the earlier determination made this day, I ruled that s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”) should apply.
The Full Court went on to say:
40.More fundamentally, s 69ZT(1) does not exclude s 55 of the EA containing the statutory definition of relevant evidence. Section 55(1) provides:
The evidence that is relevant in a proceeding 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 proceeding.
41.Each of Ms Fallon and the family consultant hold qualifications as social workers. It is not apparent that such qualification, taking into account also their respective work experience as outlined in their respective reports, identifies them as experts qualified to express admissible expert opinion on whether the subject allegations of sexual abuse are likely to be true; or opinions of an expert kind as to whether or not the child spending time at a contact centre with the father poses some risk of psychological harm to the child.
42.But even accepting, for present purposes, that the respective opinions of these witnesses were tendered as being based on specialised knowledge, that does not put an end to the question of admissibility of these opinions under s 55.
43.As the learned author Stephen Odgers SC of “Uniform Evidence Law” Twelfth Edition Lawbook Co. 2016 notes (at page 328):
If an opinion is purportedly based on specialised scientific knowledge, failure to demonstrate validity of the “scientific knowledge” involved may mean that the opinion does not meet the test of relevance. In Quick v Stoland Pty Ltd (1998) 87 FCR 371; [1998] FCA 1200 at 374 (FCR), Branson J observed that:
[t]he position may be that, in the circumstances of a particular case, a bare expression of opinion could, if accepted, rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. In the circumstances of most cases, however, a bare expression of opinion is likely to be incapable of affecting the assessment of the probability of the existence of any fact in issue in the proceeding.
Similarly, in Makita (Aust) Pty Ltd v Sprowles, Heydon JA stated at [85]:
`[T]he 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.
Although this was said in relation to s 79, the proposition that an opinion must not be a bare “ipse dixit” (Heydon JA at [87]) has application in this context. For example, where an “expert” purports to “match” two items, there must be evidence capable of rationally supporting the existence of the knowledge upon which the examiner relies to make the “match” and to assist the tribunal of fact to assess the applicable risk of error – otherwise the tribunal of fact cannot make rational use of the evidence of a “match”.
(footnotes and citations omitted)
44.In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Heydon JA at page 729 cited with apparent approval the following statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40:
Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court ... Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular 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.
(emphasis as in original)
45.Apart from what is quoted from Heydon JA at page 744 in the text referred to, Heydon JA also said at that paragraph:
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 The Queen (at 428 [41]), 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”.
The letter from Ms B does not indicate her expertise although that problem was later cured. The sloppiness of simply attaching the letter, if that was all it was, would have been fatal. The problem however is that there is no way that the court is able to discern how Ms B applied her expertise to enable her opinion to be expressed.
In Dasreef Pty Ltd v Hawchar [2011] HCA 21 the High Court contemplated opinion evidence. The following observations of their Honours are pertinent here:
30.Section 79(1) of the Evidence Act must be understood in its statutory context. Section 76(1) of the Evidence Act provides that "[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". That exclusionary rule is referred to in the Evidence Act as "the opinion rule". Subsequent provisions of the Evidence Act provide a number of exceptions to the opinion rule. Section 79(1) provides that:
If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
…
42.A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight. To observe, as the Court of Appeal did, that what Dr Basden said about the volume of respirable dust to which Mr Hawchar was exposed over time was "an estimate" that was "contestable and inexact" no doubt did direct attention to its worth and its weight. But more importantly, it directed attention to what exactly Dr Basden was saying in his evidence and to whether any numerical or quantitative assessment he proffered was admissible. And if, as the Court of Appeal observed, his opinion on that matter lacked reasoning, the absence of reasoning pointed (in this case, inexorably) to the lack of any sufficient connection between a numerical or quantitative assessment or estimate and relevant specialised knowledge.
There are distinct similarities between what the High Court was contemplating had occurred in the trial in that case because there is no basis upon which I can assess how the opinion came about. There are assumptions entirely based upon the correctness of the assertions historically based of the wife but then the psychologist expressed her opinion as a conclusion. It was submitted that the husband was left with ambiguity particularly in relation to the factual assumptions and that gives rise to the question of relevance as described in s 55 of the Evidence Act 1995 (Cth).
In a similar way, the report of Dr C was dated 3 February 2017 by way of a letter addressed to the solicitor. The solicitor then attached that as an annexure to an affidavit which she then swore. The letter of Dr C sets out his background and the various contacts that he had had but most of his description relates to the child of the proceeding. For example, he says:
With therapy [the child] was able to develop insight and become more responsible and mature in behaviour. He feels that his father is not that engaged in his well-being – there is no food in the house to eat and that he is frequently bored.
Dr C went on to say that he considered that the child would benefit psychologically if he were to be relocated with his mother because the child was closely bonded to his mother and has vented his anger on the person who should prevent and solve his frustration.
Reading this evidence undoubtedly highlights the problems that the child has but in so far as it is evidence to support a relocation of the mother based on the outline of case document identifying the issue as I have said, the best the evidence can show is:
For her part the mother will flourish by the relocation as she will be released from the feelings of helplessness she has experienced for many years. This will further enhance the positive relationship between [the child] and his mother and facilitate healthy adolescent development.
How the determination as to the mother flourishing is supported by any factual observation of research, remains unsaid. It is an opinion expressed as a conclusion.
Returning then to the problem. How does one do a ruling in advance when there is no evidence before the court where counsel for the objecting party anticipates that it will, or may be, there? As I have suggested above, the technical problems could be overcome by calling the witness in or making the wife obtain a proper affidavit. In Dasreef (supra) the High Court said that it was unsatisfactory for the respondent not to know what evidence it should call to meet any allegations. Their Honours said that as a general rule, trial judges confronted with an objection to admissibility of evidence should rule on that objection as soon as possible. They went on to say that if for some pressing reason, that could not occur, the ruling should ordinarily be given before the party who tenders the disputed evidence, closes their case. Otherwise, how will the responding party know what evidence to meet and equally importantly, if the evidence is ruled inadmissible at the commencement of the trial, problems can sometimes be rectified. I have no doubt in this case that the husband was facing a quandary.
Even if I permitted the wife an opportunity to endeavour to rectify the problem, I have no idea how that could occur bearing in mind she is unrepresented and even so, with lawyers acting for her, she had not been able to present evidence which in my view, would have been admissible. In the circumstances, the only ruling I can make here is that the evidence cannot be led in that form.
I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 April 2017.
Associate:
Date: 18 April 2017
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