Corey & Jebbett (No. 4)
[2018] FamCA 1039
•6 December 2018
FAMILY COURT OF AUSTRALIA
| COREY & JEBBETT (NO. 4) | [2018] FamCA 1039 |
| FAMILY LAW – CHILDREN – Objection to subpoena – Public interest immunity – where the single expert psychologist objected to the production of test results sought by way of subpoena – where the mother sought to test the accuracy of the content of the expert report – consideration of public interest immunity – where a litigant seeking to test the conclusions or opinions of an expert must have a reasonable opportunity to test the validity or correctness of the underlying facts or data upon which the relevant opinion is based – where a court will not compel the production of documents the publication of which would be injurious to the public interest – where provided suitable restrictions are placed upon the release of the material, a proper balance can be achieved between the public interest and the mother’s right to test the opinions – orders made for inspection in Court. |
Family Law Rules 2004 (Cth) r 15.31
Bell v FS & U Industrial Benefit Society Ltd (Unreported, Supreme Court of New South Wales, McLelland J, 9 September 1987)
Goldy & Goldy (No 2) [2011] FamCA 418
Griffin v South Australia (1925) 36 CLR 378; [1925] HCA 39
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Smith v Duke (2015) 54 Fam LR 221; [2015] FamCA 990
Zawada &Welchman-Rubie [2012] FamCA 1059
| APPLICANT: | Mr Corey |
| RESPONDENT: | Ms Jebbett |
| INDEPENDENT CHILDREN’S LAWYER: | Anthony Kingston, Norman & Kingston Solicitors |
| FILE NUMBER: | BRC | 9223 | of | 2017 |
| DATE DELIVERED: | 6 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 5 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dart |
| SOLICITOR FOR THE APPLICANT: | Landmark Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Pendergast |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston, Norman & Kingston Solicitors |
Orders
The documents produced under subpoena by Ms J, Clinical Psychologist, to which Ms J objects to being produced, are to be admitted as a separate exhibit in a sealed envelope marked “not to be opened without an order of a Judge”.
No party is permitted to copy these documents.
The Mother may have access in terms of inspection of the documents whilst she is in Court today for the purpose of undertaking any questioning she has of Ms J.
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 Corey & Jebbett (No. 4) 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: BRC 9223 of 2017
| Mr Corey |
Applicant
And
| Ms Jebbett |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Fundamental to proof of an expert opinion in civil proceedings is proof of the facts or criteria underlying the opinion, or upon which the opinion is founded. In furnishing expert opinions to a court in civil proceedings, the expert has a duty to furnish sufficient criteria to enable evaluation of the validity of the expert’s conclusion.[1]
[1] See, for example, Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”).
At [72] of his judgment in Makita, Heydon JA referred with approval to the statement of McLelland J in the unreported decision of Bell v FS & U Industrial Benefit Society Ltd[2] observing:
…McLelland J said that the importance of proving the facts underlying an opinion was that the absence of such evidence deprives “the court of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence”.
[2] (Unreported, Supreme Court of New South Wales, McLelland J, 9 September 1987).
As Heydon JA stated at [85] in Makita “…so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert…”.
Concomitantly with these principles, a litigant seeking to test the conclusions or opinions of an expert must have a reasonable opportunity to test the validity or correctness of the underlying facts or data upon which the relevant opinion is based.
As against these principles there is an entrenched principle of law that a court will not compel the production in evidence of documents, the publication of which would be injurious to the public interest.[3] Public interest immunity from production of documents has been considered in a number of family law cases, although I am not aware of any authority in this particular context.[4]
[3] See, for example, Griffin v South Australia (1925) 36 CLR 378.
[4] See, for example, Zawada &Welchman-Rubie [2012] FamCA 1059; Goldy & Goldy (No 2) [2011] FamCA 418 and Smith v Duke (2015) 54 Fam LR 221.
The tension between the need for adequate exposure of the relevant factual foundation for an opinion, on the one hand, and public interest immunity on the other, comes into play with respect to the evidence of Ms J, Clinical Psychologist in this case.
Ms J is a clinical psychologist who as a single expert has undertaken a psychological assessment of the child the subject of these proceedings and also of each of his parents. The methods of assessment are set out in the detailed report of Ms J filed in the proceedings and available to the parties. In summary, at paragraph 4.13 of her report Ms J sets out the assessment measures that were administered by her to the father; at paragraph 4.14 the assessment measures administered to the mother and at paragraph 4.15 and following likewise with respect to the child. Ms J records in her detailed report the results from these assessments and Ms J’s opinions with respect to those results.
For reasons not presently relevant, Ms J’s final report was not received until shortly before the commencement of this trial. Likewise, in circumstances where the mother wished to subpoena all records of Ms J, the subpoena issued for that purpose was only served or attempted to be served proximate to the commencement of this trial on Monday this week, 3 December 2018. The mother has agitated in earlier oral submissions during the trial that she questions the accuracy of some of the content of Ms J’s report. She wishes to have the opportunity to test the accuracy of what Ms J expresses in her report about test results.
In response to the subpoena Ms J has produced a bundle of documents about which no objection was taken and those documents have been admitted into evidence.
However, r 15.31 of the Family Law Rules 2004 (Cth) provides for a person to object to production of documents and Ms J objects on public interest grounds to the production of certain documents in her possession. In summary, Ms J objects to production of documents relating to the psychological tests administered by her and her objection is recorded in a letter originally dated 2 December 2019 (now corrected to “2018”), in the following relevant terms:
…
Compliance to provide a copy of the file is fulfilled apart from the following documents related to six psychological tests enclosed herewith for which a protection order is being sought:
·Personality Assessment Inventory (PAI) software produced record forms, score and clinical reports;
·Paulhus Deception Scales (PDS) response form, score sheet;
·The Child Abuse Potential Inventory (CAPI) software produced record forms, score and clinical reports;
·Childhood Autism Rating Scale Second Edition Questionnaire for Parent and Child Observations response forms and score sheets;
·Social Responsiveness Scale Second edition (SRS-2) response form, score sheet;
·Adaptive Behaviour Assessment System Third Edition (ABAS-3) response form, score sheet.
The reasons for objecting to the production of these documents and seeking an exemption from release of these documents are that:
1.The release of psychological test material or raw test data is not in the public interest as distribution of such material may affect the utility of the test. The psychometric integrity of these psychological tests is dependent on the test taker not having prior access to test materials. Public exposure to the test materials may significantly compromise the validity of test instruments and the fair and accurate assessment of other members of the public.
2.I am aware of the following precedents for protecting psychological test material:
a.‘H’ and Graylands Hospital (1996; File Ref: 96105, Decision Ref: D05096) and Graylands Selby-Lemnos and Special Care Health Service (2003; File Ref: F2003133, Decision Ref: D0332003) and Commissioner, Department of Corrective Services (2003; NSWADT 176) and Police Force of Western Australia (2006; WAICmr 13) tests should only be administered and interpreted by those who are competent to do so. Providing access to psychological test materials to other could lead to misuse of the test and/or misunderstanding of test results, leading to harm to the public.
4.The psychologists’ Code of Ethics requires psychologists to protect the integrity and security of the test material and test data and to avoid any misuse of these by other persons.
5.These test record forms are protected under copyright law by the relevant test publishers and no part of the publications should be reproduced or transmitted. Psychologists have an obligation to comply with copyright laws and the protection of trade secrets.
6.A summary of the test results is provided in the detailed assessment report submitted under affidavit.
(As per original)
Ms J seeks that the subpoena be set aside at least with respect to production of these particular documents identified in the above dot points. Alternatively, Ms J requests that if the subpoena is not set aside that there be restricted access to the subject material by:
·access by a court appointed psychologist only,
·copies of the material are prohibited,
·the material not be made public as part of the record of the case, and
·the material being returned to the originating psychologist at the conclusion of the proceedings.
With respect to point 1 of Ms J’s objection I accept that there exists public interest in the form of psychological testing adopted in the subject tests not being circulated in the public domain for the reasons identified by Ms J in her letter, which has been admitted and marked as Exhibit 19. Plainly, point 1 is mainly directed to the release of test material in the public domain although Ms J also refers to the undesirability of the test results being released to the mother in terms of repeat testing of the mother that may take place. However as it seems to me, provided suitable restrictions are placed upon the release of the material to ensure that it does not enter the public domain, this point can be fairly addressed to achieve a balance of the competing considerations.
With respect to point 2 of Ms J’s objection the references to decided cases referred to in Ms J’s letter as Exhibit 19 are references to Freedom of Information Applications. By nature, those cases are different from the present case. It is the case that documents provided in response to a Freedom of Information Application essentially enter the public domain upon their provision. In contrast, here, production of documents in answer to a subpoena from the Court is production to the Court. The Court has possession of the documents and the Court regulates the access to documents produced under subpoena. Even when the Court permits the parties to inspect and copy documents the parties are under an obligation to restrict their use of the document for the purpose of the proceedings.
With respect to point 3 of Ms J’s objection, there is no suggestion here of these psychological tests being interpreted other than by a psychologist. That is the mother wants access to the raw test data to be able to ask questions of Ms J in relation to her opinion. Ms J will have the opportunity to address any issues raised by the mother in evidence.
Likewise, with respect to point 4 of Ms J’s objection, there is no suggestion that the integrity and security of test material, so far as if it were to be released in the public domain, will be affected provided there are no copies taken of the material and it is not released into the public domain.
With respect to point 5 of Ms J’s objection, it is not the Court’s intention to permit any copying of the subject test records.
With respect to point 6 and Ms J’s proposition that a summary of the test results is provided in the detailed assessment report, this is the very reason the mother seeks the raw data. That is, the mother wishes to test the proposition as to the accuracy of the reporting.
As to Ms J’s proposed mechanisms if the Court is minded to receive the documents, as it seems to me there would be no utility in terms of satisfying the mother in the documents being released to a court appointed psychologist even if that were possible for a host of practical reasons. The point is allowing the mother herself the opportunity, by reference to the data, to test the accuracy of the conclusions about that data, expressed by Ms J in her report.
As it seems to me, if there is no provision for any party to make any copies of the relevant documents and they are retained at all times in Court, under the supervision of the Court or Court officers then a proper balance can be achieved between the public interest referred to and the mother’s right to test the opinions. If all that occurs is that the mother has access to the documents in Court in order to cross-examine Ms J, then there will be no relevant release of the documents into the public domain. The mother accepts that her purpose will be achieved by this process.
For these reasons the subject documents will be admitted as a separate exhibit in a sealed envelope. No copying of the documents will be permitted. The mother may have access in terms of inspection of the documents whilst she is in Court for the purpose of undertaking any questioning she has of Ms J. Otherwise the documents shall be retained in a sealed envelope marked “not to be opened without an order of a Judge”. As an exhibit the documents can be returned to the original source, namely Ms J, upon conclusion of the proceedings including any appeal.
I therefore make orders accordingly.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 6 December 2018.
Associate:
Date: 7 December 2018
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