DANELL & SALLER - [2015] FamCA 859

FAMILY COURT OF AUSTRALIA

DANELL & SALLER

[2015] FamCA 859

FAMILY LAW – PRACTICE AND PROCEDURE – INTERIM PROCEEDINGS – Where the mother seeks that the single expert witness be discharged – Where the single expert witness was appointed by consent and has provided a report in the parenting proceedings – Whether the expert makes assumptions of fact where there is no evidence – Whether the expert’s reasoning is not transparent – Whether the expert’s report is prejudicial to the mother – Whether the expert is biased – Where the Court finds the mother has not utilised mechanisms available under the Family Law Rules to clarify the expert’s report – Where the expert is yet to be cross-examined in the proceedings – Where the Court finds the mother has failed to establish that the expert is biased – Application dismissed.

Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 15.44, 15.49, 15.59, 15.62, 15.63, 15.64, 15.64B, 15.65

Bass & Bass (2008) FLC 93-366
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Helow v Home Secretary [2008] 1 WLR 2416
Kernot & Matson (2008) 39 Fam LR 695
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Marsh & Marsh [2011] FamCA 193
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507
Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354

APPLICANT:

Ms Danell

RESPONDENT:

Mr Saller

INDEPENDENT CHILDREN’S LAWYER:

Ms Connor

FILE NUMBER:

SYC

575

2015

DATE DELIVERED:

15 October 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

28 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Gordon & Barry Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central

Orders

The Application in a Case filed 13 August 2015 by the mother is dismissed.
The issue of costs is reserved to the final hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dannell & Saller 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 SYDNEY

FILE NUMBER: SYC 575 of 2015

Ms Danell

Applicant

And

Mr Saller

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This matter concerns an application by the mother for orders to discharge the single expert witness, Dr R (“Dr R”), who has been appointed by the Court in respect to parenting proceedings. Since her appointment, Dr R has provided a report to the Court dated 30 April 2015 (“the report”). The mother’s application has been dismissed on the basis that the application is premature and the mother has not established that Dr R has failed to comply with her obligations under the Family Law Rules 2004 (Cth) (“the Rules”). The mother’s assertion that Dr R’s report is biased is also rejected.

Background

These proceedings concern competing applications for parenting and property orders by Mr Saller (“the father”) and Ms Danell (“the mother”). The parenting orders are sought in respect to the parties’ two daughters - B now aged 7 and C aged 5.
The relevant factual background is summarised in the judgment of Le Poer Trench J delivered on 18 May 2015.[1] At that time his Honour made orders for the children to live with the mother and spend time with the father. This included overnight time on condition that the father could obtain a supervisor acceptable to the mother and Independent Children’s Lawyer. In making those orders, Le Poer Trench J had the benefit of the report prepared by Dr R.
[1] Saller & Danell [2015] FamCA 391.
Dr R was appointed as the single expert witness by consent orders made on 30 March 2015. It was requested that she provide a report which considered the following matters:
·whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence:
·any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
·the relationship between the children and each other and with each of their parents and any other relevant person;
·the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
·the capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;
·the attitude to the children and the responsibilities of parenthood, demonstrated by each of the children's parents (or any other relevant person);
·the effect on the children of any family violence to which they may have been exposed:
·the effect on the children of spending equal time, or substantial and significant time, with each parent having regard to the parent's current and future capacity to:
· implement such an arrangement; and
· communicate with each other and resolve difficulties that might arise.
·the mental state of both parents in so far as it relates to parenting issues;
·the mental state/special needs of the children; and
·any other matter the court expert considers relevant.

Submissions of the Parties

Submissions of the mother

The mother relied upon the Court's general discretion under section 135 of the Evidence Act 1995 (Cth) to assert that the Court has power to discharge Dr R as the single expert witness. Section 135 relevantly provides:
The court may refuse to admit evidence if 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.
The mother’s counsel contended that Dr R should be discharged because:
·the expert makes assumptions of fact for which there is no real evidence;
·the expert’s path of reasoning is not transparent and cannot be followed; and
·the report is biased against and/or prejudicial to the mother.
It was further contended that: “On balance, Dr R's recommendations are unreliable.”
In terms of section 135, it was submitted that the probative value of the report of Dr R was substantially outweighed by the danger that it might be unfairly prejudicial to the mother. More generally, it was argued that the report created “a perception of bias” on the part of Dr R.
The mother’s concerns were expressed in a document titled “Mother’s Points of Contention” which was provided to the Court prior to the hearing. Those contentions are set out below:
A.     The expert makes assumptions of fact for which there is no real evidence.
o   Page 25, paragraph 167 – After categorising the Mother’s complaints, [Dr R] opined: “There were few types of abuse that the Mother had not accused him of”.
o   Page 25, paragraph 168 – The Mother being a university educated business woman who has shown determination and courage in setting up a business. She has dealt with staff issues and business partnership troubles. She witnessed, or was aware of her own Mother’s physical abuse by her alcoholic father and her older sister’s rejection of him. I believe that it is inconsistent with her character to put up with the alleged domestic violence or rape, nor the mal-treatment of her daughters. She was a strong, independent woman, unlikely to tolerate the alleged abuse”.
o   Page 26, paragraph 169 – “The lack of prioritisation in the raft of allegations is evidence that she is not entirely convinced of the allegations. If she cannot convince people that the Father is a potential murderer and that he is a rapist, then he might be inappropriate towards his daughters”.
o   Page 27, paragraph 179 – “During the assessment, the girls competed for the Mother’s attention and never worked together as a team. The Mother projected some of her own fears onto [B], saying that [B] was scared, ‘she’ll be controlled by him’ [the Father]”
o   Page 19 – [Dr R] observes that the Mother and children are working together as a team.
o   Page 24, paragraph 8 – [Dr R] states “The Father told her [the Mother] he had never left his children in danger and I understand that the Mother’s information was gathered from reports by the children. These are highly unreliable given their ages and the relationship to the interviewer [the Mother]. Young children tell parents what they want to hear in order to gain their approval.
o   [Dr R] pays no regard to the source of the Mother’s concern as particularised in her Affidavit sworn 24 February 2015, filed 25 February 2015 at paragraphs 52, 53, 55, 56, 57 and 58.
o   Page 25, paragraph 167 – [Dr R] states: “In this case, there is no objective evidence of physical abuse by the Father towards the Mother and the alleged incident of grabbing the Mother occurred many months before separation”.
o   This is despite the Father making admissions to [Ms N], psychologist, on 21 January 2015 (documents produced under subpoena by [Ms N]) to being violent to the Mother.
o   This is also despite [Dr R] noting at page 26, paragraph 170: “He admitted to kicking in the Mother’s car and denting the panel. He has admitted to using corporal punishment on his daughters at times. For the rest of the allegations, the Father did not agree with the Mother’s interpretation of reality.
o   Page 9, paragraph 57 – [Dr R] did not accept the Mother as truthful– “She tended to use exaggeration, such as “he would go surfing for hours”.
o   Page 9, paragraph 59 – [Dr R] states “she often punctuated her thoughts with ‘I am very worried’ or “I’m scared without appearing anxious or fearful”. At page 4 of her notes [Dr R’s] records twice when the mother is referring to the father’s conduct (tears).
o   Page 9, paragraph 60 – “While the Mother was with the children, the children were quite happy to play. While the children were with the Father, they were happy with him but when [C] toddled into the waiting room where the Mother was by herself there was high pitched screaming from [C] which became troublesome with the level of noise in the room, probably disturbing my colleague in the next office. When I went to find out what the disturbance was, I found [C] being breastfed and then she jumped up and started screaming at the Mother in an angry way. I was uncertain whether she was angry that she was not being breastfed or angry that she wanted to be breastfed. Either way, the Mother was unable to pacify the child. I got the impression the child was being breastfed for the Mother’s reasons, not for the child”.
o   The Mother disputes that she was breastfeeding the child or that the child was screaming as reported by [Dr R] (para 7 Mother Affidavit filed 14 May 2015).
o   Page 26, paragraph 171 – “subpoenaed documents verify the Father’s evidence that the Mother was keen to have a third child with him in late 2014. She was referred for an IVF opinion and had an endometrial biopsy and an array of investigations to find the cause of her miscarriages. She was clearly very determined to solve the problems and have another baby with the Father. This is inconsistent with her current allegations against him”.
B.    It was difficult to follow [Dr R’s] path of reasoning to the conclusions she reaches.
o   Page 23 – At paragraph 154, [Dr R] states: “[B] had been referred to the school psychologist, [Ms Y], for anxiety and anger issues with the Mother. [Ms Y] told me she had been helping the child with identifying and managing negative emotions. Without clear boundaries in the Mother’s home, the child had never learned to limit the angry behaviour towards her sister.
o   There is no evidence as to the relationship between the child’s behaviour and boundaries, or lack thereof, in the Mother’s home.
o   Page 25, final paragraph – “The Mother, being a university educated business woman, has shown determination and courage in setting up her own business. She has dealt with staff issues and business partnership troubles. She witnessed, or was aware of, her own mother’s physical abuse by her alcoholic father and her older sister’s rejection of him. I believe that is inconsistent with her character to put up with the alleged domestic violence or rape, nor the mal-treatment of her daughters. She was a strong, independent woman unlikely to tolerate the alleged abuses”.
o   Page 26, paragraph 169 – “The lack of prioritisation in the raft of allegations is evidence that she is not entirely convinced of the allegations. If she cannot convince people that the Father is a potential murderer and that he is a rapist, then he might be inappropriate towards his daughter”.
o   Page 26, paragraph 171– “subpoenaed documents verify the Father’s evidence that the Mother was keen to have a third child with him in late 2014. She was referred for an IVF opinion and had an endometrial biopsy and an array of investigations to find the cause of her miscarriages.   She was clearly very determined to solve the problems and have another baby with the Father. This is consistent with her current allegations against him”.
o   Page 27, paragraph 182- [Dr R] states “being a nurse he (the father) was also more involved in their early care as infants than most fathers, sho are generally more interested in children when they can talk. He share the child care he said and later took over responsibility for them when the mother was the breadwinner.”
o   Page 28, paragraph 195 – [Dr R] states being a nurse the father was well aware of the girl’s emotional needs.
o   Page 29, paragraph 198 – “Co-sleeping is really a personal decision and in this family I think the Mother was using her prolonged breastfeeding and avoidance of the marital bed for her own emotional needs. This prolonged the children’s dependence on her for infant style comfort”.
o   Page 31, paragraph 220 - “I got the impression the Mother was dissatisfied with her life, disappointed that she had three miscarriages and was keen to have another child until only a few months prior to separation. When she felt the Father was not contributing sufficiently to the marriage she planned her departure but, despite all the allegations, still allowed the Father to come with her and the children to Melbourne for Christmas. Since instituting the AVO on the Father, the Mother has obviated the need to discuss the separation with the Father and has been gaining reassurance from the domestic violence counsellor and friends and associates with whom she has disclosed the alleged abuse”.
C.    Bias – the aforementioned conclusions and remarks made by [Dr R] in relation to the Mother create a perception the expert is not impartial.
o   Page 11, paragraph 74 – [Dr R] states: “I asked him [the Father] about the alleged abuse of pinning [B] down and hitting her. He told me that on one occasion when [B] was teasing [C] and she ignored his requests to stop, she was sitting at the kitchen bench and as she moved to jump off the stool he grabbed her arm and smacked her at the back of the leg at the same time….”
o   [Dr R’s] notes record at page 30:
? abuse of [A]. pin down hitting her. Father replies “I remem (remember) that”.
Response appears inconsistent with what [Dr R] recorded.
o   Page 25, paragraph 167 - After categorising the Mother’s complaints concerning the Father, [Dr R’s] concludes “there were few types of abuse that the Mother had not accused him of”.
o   Page 26, paragraph 169 – “The lack of prioritisation in the raft of allegations is evidence that she is not entirely convinced of the allegations. If she cannot convince people that the Father is a potential murderer and that he is a rapist, then he might be inappropriate towards his daughter”.
o   Page 31, paragraph 220 - “I got the impression the Mother was dissatisfied with her life, disappointed that she had three miscarriages and was keen to have another child until only a few months prior to separation. When she felt the Father was not contributing sufficiently to the marriage she planned her departure but, despite all the allegations, still allowed the Father to come with her and the children to Melbourne for Christmas. Since instituting the AVO on the Father, the Mother has obviated the need to discuss the separation with the Father and has been gaining reassurance from the domestic violence counsellor and friends and associates with whom she has disclosed the alleged abuse”.
In oral submissions, counsel for the mother expanded on those concerns which, by way of summary, were that Dr R;
·disbelieved the mother’s history of domestic violence based on erroneous recording of fact and lack of clear reasoning for her to reach that conclusion;
·concluded the mother had “unfulfilled needs” and demonstrated a lack of appreciation for appropriate “boundaries” on the basis of an incorrect observation of the mother breastfeeding in Dr R’s waiting rooms;
·showed bias against the mother; and,
·failed to set out the path of reasoning, based on her observations knowledge and/or experience, that she followed in forming her conclusions.
In terms of alleged failure to properly set out an appropriate path of reasoning, counsel for the mother relied on Makita (Australia) Pty Ltd v Sprowles.[2] Specifically, it was argued that Dr R had not stated the assumptions as to the facts on which her opinions were based and, insofar as Dr R made reference to erroneous facts and/or made false assumptions, her conclusions based on those assumptions were flawed.
[2] (2001) 52 NSWLR 705.
As a result, it was argued that the entire report was “problematic” and the relevant passages could not be excised or redacted. It was argued that the generalisations, misunderstandings and misreporting are of such a nature that they cannot be corrected through the process of cross-examination.

Submissions of the father

Senior counsel for the father noted that Dr R had been appointed as a single expert witness by consent. Further, it was noted the parties, in conjunction with the Independent Children’s Lawyer, had given instructions to Dr R.
Senior counsel argued that the application was misconceived, because it is for the Court, not the single expert witness, to make findings of fact after all relevant witnesses, including the expert themselves, have been cross-examined. Insofar as there is a dispute regarding the accuracy of Dr R’s observations, including her recording of the mother breastfeeding in her waiting room, those issues can be tested in cross-examination at the final hearing.
It was submitted that, even if such cross examination demonstrates error on the part of Dr R, in respect of those matters raised by the mother, it would not be a basis for the Court to “exercise discretion to reject the entire report”. In that respect, reference was made to the decision of Watts J in Kernot & Matson.[3]
[3] (2008) 39 Fam LR 695 at [40] – [48].
In response to the argument that Dr R has demonstrated bias, senior counsel for the father noted that it was commonplace for the parties to present a variety of different scenarios and possible hypotheses to expert witnesses who, in turn, could express their opinion in light of possible findings that may be made by the Court. Senior counsel noted that Dr R had modified her report in light of correspondence sent by the Independent Children’s Lawyer on 6 May 2015.[4] It should not therefore be assumed she would not do the same, if appropriate, during the trial process.
[4] Dr R provided an addendum to her report dated 14 May 2015.

Senior counsel for the father relied on an assumption by Watts J in Kernot & Matson[5] that the relevant test of determining bias in this case is equivalent to that applied by a judge in considering whether to disqualify him or herself. That is, where “a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question a judge is to decide.”[6]
[5] (2008) 39 Fam LR 695 at 699[16] – [19].
[6] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 350[6].
In that context, it was argued, experts are necessarily required to express their opinion. This was specifically contemplated by the parties who requested Dr R to express her opinion on the matters set out in the consent orders made on 30 March 2015. In so far as an expert’s opinion is based on observations, the opinion may well be subjective[7] but, it was argued, the expression of a subjective opinion by a witness is not an indication of bias.
[7] Kernot & Matson (2008) 39 Fam LR 695 at 701[32].
Further, senior counsel for the father argued that the report of Dr R needs to be viewed in its entirety and, until such time as Dr R is tested in cross examination, it cannot be asserted that she deliberately ignored documents that were before her, made false or illogical assumptions or reached conclusions that were not soundly based.[8]
[8] Reference was made to Nixon & Nixon [2014] FamCA 648 at [7] in that respect.
Relying on Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd,[9] senior counsel argued that it is unnecessary for the expert to precisely join all the dots in arriving at their conclusions. It is sufficient for admissibility:
… that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge.
[9] (2002) 55 IPR 354 at 360[16].
It was argued that the application under Section 135 of the Evidence Act was misconceived because that provision is more relevant to a jury trial and, further, is more readily applicable to a particular piece of evidence as opposed to an entire report.

Submissions by the Independent Children’s Lawyer

The Independent Children’s Lawyer did not wish to be heard either in support of or against the mother’s application. She did, however, note that the Court needed to balance two considerations. Those considerations were:
·on the one hand, the risk of the Court finding, after cross examination, that very little weight can be placed upon the report of Dr R and being left with no alternative if another expert is not engaged; and
·on the other hand, considering issues of cost, possible delay and “systems abuse” where the children are required to attend an additional interview with another expert.

Submissions of the applicant in reply

Counsel for the mother in reply focused primarily on the first issue raised by the Independent Children’s Lawyer. That is, it was argued that it is desirable for the Court to obtain the best available evidence prior to hearing and avoid a situation where, following cross examination of Dr R, the Court may be left with little, if any, expert assistance in respect to the parenting issues.

The Law

Single expert witnesses were an innovation introduced following the far reaching report of Lord Woolf into the British justice system. A central theme to Lord Wolf’s recommendations was proportionality “between the importance and complexity of a dispute, the procedural means employed, and costs incurred, in its resolution.”[10]
[10] NSW Law Reform Commission, Expert witnesses, Report No 109 (2005) 4.
This background was referred to in the Explanatory Statement to Statutory Rules 2003 No 375[11] which introduced provisions for the appointment of single experts in the area of family law. There it was noted:
[11] Family Law Rules 2004, Explanatory Statement Statutory Rules 2003 No. 375.
One of the strategies employed in these new rules to overcome the identified problems of partisanship, lack of clarity of evidence and excessive cost is to encourage parties to consider at an early stage whether expert evidence is necessary and if so whether that evidence can be given by a single expert witness.
…
Experience in the UK is that since the introduction of similar rules in the Uniform Civil Procedure Rules 1999, parties, in most cases, instruct a single expert witness and that:
* single experts are more impartial;
* single experts see their duty as being to the Court;
* the process saves time and money;
* single experts assist in levelling the playing field between parties with unequal resources;
* single experts increase the prospect of settlement.
Rule 15.44 provides for the single expert witness to be appointed by agreement between the parties. Rule 15.59 sets out the expert’s duties to the Court which relevantly include, under sub-rule (3), the duty to:
(a)give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness's knowledge and capability;
….
(d)consider all material facts, including those that may detract from the expert witness's opinion;
(e)tell the court:
(i)if a particular question or issue falls outside the expert witness's expertise; and
(ii)if the expert witness believes that the report prepared by the expert witness:
A.is based on incomplete research or inaccurate or incomplete information; or
B.is incomplete or may be inaccurate, for any reason; and
….
(f)produce a written report that complies with rules 15.62 and15.63.
Sub-rule 15.62(2) relevantly requires the expert to certify by an affidavit that:
I have made all the inquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report.
I believe that the facts within my knowledge that have been stated in this report are true.
The opinions I have expressed in this report are independent and impartial.
I have read and understand Divisions 15.5.4, 15.5.5 and 15.5.6 of the Family Law Rules 2004 and have used my best endeavours to comply with them.
I have complied with the requirements of the following professional codes of conduct or protocol, being [ state the name of the code or protocol ].
I understand my duty to the court and I have complied with it and will continue to do so.
Rule 15.63 sets out important obligations of the expert in preparing their report. These obligations are expressed in mandatory terms as follows.
An expert’s report must:
(a)state the reasons for the expert witness's conclusions;
(b)include a statement about the methodology used in the production of the report; and
(c)include the following in support of the expert witness's conclusions:
(i)the expert witness's qualifications;
(ii)the literature or other material used in making the report;
(iii)the relevant facts, matters and assumptions on which the opinions in the report are based;
(iv)a statement about the facts in the report that are within the expert witness's knowledge;
(v)details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person's qualifications and experience;
(vi)if there is a range of opinion on the matters dealt with in the report--a summary of the range of opinion and the basis for the expert witness's opinion;
(vii)a summary of the conclusions reached;
(viii)if necessary, a disclosure that:
A.a particular question or issue falls outside the expert witness's expertise;
B.the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
C.the expert witness's opinion is not a concluded opinion because further research or data is required or because of any other reason.
The Rules provide a number of options to a party should they take issue with a single expert witness’ report. These include:
·    Rule 15.49 which enables a party to apply for the appointment of another expert witness.
·    Rule 15.64B which enables the parties to agree to convene a conference with the expert for the purpose of clarifying aspects of the expert’s report and, in the absence of agreement, pursuant to sub rule 15.64(7), to apply to the Court for an order to that effect.
·    Rule 15.65 enables the parties to seek clarification of an expert witness’ report by asking questions of the expert.
As the Explanatory Statement introducing the Rules indicates, these procedures were specifically contemplated to address concerns that a party may have about the contents of an expert’s report and, if necessary, contemplate applying for the appointment of another expert. The relevant extract is as follows:
Rules 15.65 to 15.67
Prior to the hearing or trial, a party may put written questions to a single expert for the purposes of clarification of the expert's report. This division sets out the process and the requirements in relation to the questions and answers and the costs. The answers will be treated as a part of the expert's evidence. The benefits foreshadowed as a result of this process are:
* the narrowing of the issues about which the expert might be required to give evidence at trial therefore saving time and costs at trial;
* assisting a party to determine whether an application should be made to adduce evidence from an adversarial expert witness.
Finally, rule 15.64 sets out the consequences of an expert witness failing to comply with the Rules in respect to the preparation of their report. Rule 15.64 relevantly provides:
If an expert witness does not comply with these Rules, the court may:
(a)order the expert witness to attend court;
(b)refuse to allow the expert's report or any answers to questions to be relied on;
(c)allow the report to be relied on but take the non-compliance into account when considering the weight to be given to the expert witness's evidence; and
(d)take the non-compliance into account when making orders for:
(i)an extension or abridgment of a time limit;
(ii)a stay of the case;
(iii)interest payable on a sum ordered to be paid; or
(iv)costs.
As noted by Le Poer Trench J in Marsh & Marsh, “the rules do not provide a guideline for the court in considering an application to discharge a single expert."[12] It is nonetheless a power that is assumed to exist.[13]
[12] [2011] FamCA 193 at [49].
[13] Bass & Bass (2008) FLC 93-366; Payne & Payne [2009] FamCAFC 13; King & King [2014] FCCA 163.
However, the authorities make it clear that the Court is reluctant to discharge a single expert witness and, in the absence of exceptional circumstances, will not do so until other mechanisms available under the Rules for testing and clarifying an expert’s opinion are exercised. In Bass & Bass (2008) FLC 93-366 at 82,487, the Full Court said:
First, Division 15.5.6 of Part 15.5 provides a procedure for clarifying matters contained in a report prepared by a single expert witness. It was confirmed before us that that procedure had not so far been employed in this case. While we acknowledge that procedure may only be of limited assistance to the father given the nature of his complaints, we are nevertheless, of the opinion that that procedure ought to have been attempted before the application was made to Steele J, or to this Court.
In terms of possible bias on the part of an expert witness, the Full Court noted, at 82,487, the decision of Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 where his Honour said:
The possibility that a witness of fact or expert opinion may be biased does not infect the impartiality of the Court. The situation might be otherwise where the expert is appointed by the Court …In such a case the role or function of the expert may perhaps come to be incorporated into that of the decision maker, …[in those circumstances] I can see some scope for the application of the test of reasonable apprehension of bias to exclude the evidence. (Emphasis added)
However, in applying the test of reasonable apprehension of bias to decision-makers other than judges, the Court must “necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making”.[14]
[14] Isbester v Knox City Council (2015) 320 ALR 432 at [22].
While the Full Court appeared to accept that the report of a single expert witness could be impugned on the basis of reasonable apprehension of bias, the Full Court also noted the difficulty in reaching such a conclusion in interim proceedings. In that context, the Full Court said:
Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings… Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial Judge.[15]

Consideration

[15] Bass & Bass (2008) FLC 93-366 at 82,487.

Premature nature of the mother’s application

Insofar as the mother relied upon section 135 of the Evidence Act as the basis of her application to discharge Dr R, the mother’s application based on those objections is premature. This is because the mother did not pursue other avenues which are available under the Rules to put her concerns to Dr R and seek further explanation, including by:
i)seeking a conference with Dr R to discuss her report; and/or
ii)submitting questions to Dr R seeking further clarification in respect to her report.
Further, the application has been made prior to Dr R being cross-examined on her report.
Even if the entirety of the mother’s objections were accepted as raising valid concerns, they would not in these interim proceedings form the basis for the Court to exercise its discretion to determine that the entirety of Dr R’s report is, pursuant to section 135 of the Evidence Act, inadmissible at the final hearing.
Further, even if such an application was to be made in the context of the final hearing, the concerns raised by the mother are not “so intertwined that they cannot readily be separated” from the rest of the report.[16] Accordingly, the Court does not exercise its discretion to rule the entirety of Dr R’s report to be inadmissible pursuant to section 135 of the Evidence Act.
[16] Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 376 referred to by Watts J in Kernot & Matson (2008) 39 Fam LR 695 at 703[43].

The “Makita issues”

As noted, counsel for the mother also relied on the decision of the New South Wales Court of Appeal in Makita (Australia) Pty Ltd v Sprowles[17] to support her claim that Dr R “makes assumptions of fact for which there is no real evidence” and that Dr R’s “path of reasoning is not transparent and cannot be followed”. For convenience, these will be referred to as the “Makita issues”.
[17] (2001) 52 NSWLR 705 (‘Makita’).
In Makita (supra), Heydon JA said:
The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material.... One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.[18] (References omitted)
[18] Ibid at [64].
The principle, as expressed by Heydon JA in Makita, is reflected in the mandatory obligations that rule 15.63 impose on expert witnesses.
As noted by the Full Court in Bass (supra), it is extremely difficult for the Court to make findings in respect to the admissibility of an expert’s report prior to the expert being questioned either through the process as contemplated by the Rules or, at final hearing, through cross-examination of the expert.
The reasoning of the Full Court in Bass is, with respect, entirely consistent with the purpose and intent of the Rules empowering the Court to appoint a single expert witness. That purpose includes maintaining a sense of proportionality, minimising cost to litigants and unnecessary usage of the Court’s resources. It would be entirely contrary to those objects for there to be frequent challenges to expert reports by way of interim proceedings. This is particularly the case in circumstances where the applicant has not sought to exercise the procedures that are available under the Rules to address the very matters that the mother has raised in these proceedings.
Further, it is very significant for the Court to be asked to effectively make a finding that an expert has failed to fulfil their obligations under the Rules despite, as in this case, the expert providing an affidavit, pursuant to rule 15.62, that they have done so. In those circumstances, a party wishing to obtain relief in the nature of that sought by the mother, may be better placed to consider seeking relief pursuant to rule 15.64. Even then, however, it could be contemplated that, in the absence of exceptional circumstances, the Court would expect the applicant to first utilise the provisions of Division 15.5.6 of the Rules before making an application to the Court pursuant to rule 15.64. Following that process would also ensure that the expert was afforded a degree of procedural fairness before findings were made that had the potential to detrimentally affect the expert’s reputation and practice.

Allegations of bias

In addition to the Makita issues and the mother’s claim that the report of Dr R is unfairly prejudicial to her, the mother claims that Dr R’s report is biased. The applicant has not established her claim in that respect.
In Ebner,[19] the High Court stated that:
The bare assertion that a [decision-maker] has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.
[19] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345[8] (‘Ebner’).
Further, in Minister for Immigration and Multicultural Affairs v Jia Legeng,[20] Hayne J set out a three-step process that is required to establish bias as follows:
Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.
[20] (2001) 208 CLR 507 at 564 [185] (‘Jia Legeng’).
In this case, the mother’s Points of Contention assert that “the report [of Dr R] is biased”. That, with respect, is not the question that the Court is required to determine in considering whether to discharge Dr R as the single expert witness. The question is whether the single expert witness, as a “decision maker”, is biased.

The mother has not asserted that Dr R will not give her opinions “fresh consideration” in light of additional material that may be presented to her. One of the reasons the mother is unable to establish that proposition is because the mother has not utilised the provisions of the Rules to confer with and/or ask questions of Dr R before making this application.
Moreover, the mother has failed to establish that Dr R is not open to persuasion. As noted by Gleeson CJ and Gummow J in Jia Legeng (supra):[21]
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. … Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. (Emphasis added)
[21] Ibid at 531 [71].
Finally, a fair-minded lay observer would be aware that a single expert witness would prepare a report in the context of not only their qualifications and experience, but also their own values. In the context of an allegation of bias against a judicial officer, the House of Lords in Helow v Home Secretary,[22] cited with approval the Canadian decision of R v S (RD)[23] where L’Heureux-Dubé and McLachlin JJ said:
It has been observed that the duty to be impartial “does not mean that a [decision maker] does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those whom we share the planet…. True impartiality does not require that the [decision maker] have no sympathies or opinions; it requires that the [decision maker] nevertheless be free to entertain and act upon different points of view with an open mind.
[22] [2008] 1 WLR 2416 at 2435 [57].
[23] [1997] 3 SCR 484 at 533-4 [119].
The evidence suggests that Dr R has in fact been open to persuasion insofar as she has modified her views in light of additional information provided to her by the Independent Children’s Lawyer by letter dated 6 May 2015. A preparedness of Dr R to modify her views is “a positive indication” that she is prepared to bring an “open and impartial approach”[24] to the task of giving evidence when she is ultimately required to do that in Court.
[24] Bandoni & Milic [2015] FamCA 693 at [65].
For these reasons, the mother has also failed to establish that Dr R should be discharged as a single expert witness on the basis of bias.

Costs

In arguing that mother’s application is without merit, senior counsel for the father sought costs pursuant to section 117 of the Act.
The Court notes that the mother has been wholly unsuccessful in this application as contemplated by section 117(2A)(e) of the Act.
In circumstances where the mother had other alternatives available under the Rules, with the exception of one factor, the Court would have ordered costs against the mother.
The reservation that the Court has in ordering costs against the mother is that there is presently insufficient information as to the mother’s financial circumstances. As a result the Court is unable to make the assessment required by section 117(2A)(a) of the Act.
Accordingly, costs in respect of this application will be reserved until final hearing.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 15 October 2015.

Associate:

Date: 15.10.2015