DANELL & SALLER

Case [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 of 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

  1. The Application in a Case filed 13 August 2015 by the mother is dismissed.

  2. 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

  1. 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…

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AGLC
DANELL & SALLER [2015] FamCA 859
Case
[2015] FamCA 859
Decision Date

CaseChat Overview and Summary

In the matter of *Danell & Sallers*, the mother applied to the court seeking the discharge of a single expert witness, Dr R. The dispute concerned allegations of abuse and the mother's concerns regarding the expert's impartiality and the reasoning in her report. The application was heard by McClelland J.

The primary legal issue before the court was whether the mother had established that Dr R was biased or that her report contained reasoning so flawed as to warrant her discharge as a single expert witness. The mother contended that Dr R made assumptions of fact without evidence, that her reasoning was difficult to follow, and that her conclusions created a perception of bias.

McClelland J dismissed the mother's application, finding that she had failed to establish that Dr R was not open to persuasion. The court applied the principles from *Jia Legeng* and *Helow v Home Secretary*, which establish that a decision-maker's mind need not be blank but must be open to persuasion, and that natural justice does not require the absence of predispositions. The court noted that Dr R had modified her views in response to information from the Independent Children's Lawyer, which was considered a positive indication of an open and impartial approach. Consequently, the court found no basis to discharge Dr R as a single expert witness.

The mother's application was dismissed. The issue of costs was reserved to the final hearing, as the court required further information regarding the mother's financial circumstances to make the necessary assessment under section 117(2A)(a) of the relevant Act.

Orders

Orders of the court

1.

The Application in a Case filed 13 August 2015 by the mother is dismissed.

2.

The issue of costs is reserved to the final hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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. 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.

Ratio Decidendi

Legal Principle Established

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