Dansey & Dansey (No 2)
[2023] FedCFamC1F 487
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dansey & Dansey (No 2) [2023] FedCFamC1F 487
File number(s): SYC 3614 of 2021 Judgment of: ALTOBELLI J Date of judgment: 16 June 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Objections to evidence – Where the Respondent objected to parts of two expert reports on the second day of final hearing – Where the Respondent submitted that the experts provided opinions beyond the remit of their instructions – Where it is found that the instructions to the experts and the surrounding context was sufficiently broad and permitted the opinions which were given – Objections dismissed. Legislation: Evidence Act 1995 (Cth) s 135 Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 14 June 2023 Place: Sydney Counsel for the Applicant: Mr Sansom SC Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Burgess Family Law Counsel for the Independent Children's Lawyer: Mr Kelly Solicitor for the Independent Children's Lawyer: G & D Lawyers ORDERS
SYC 3614 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DANSEY
Applicant
AND: MS DANSEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
16 JUNE 2023
THE COURT ORDERS THAT:
1.The objection taken by the Respondent to the Psychiatric Court Report of Dr V dated 12 February 2023 is dismissed.
2.The objection taken by the Respondent to the Addendum of the Single Joint Expert Report of Dr U dated 10 June 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dansey & Dansey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
The substantive matter before me is a complex parenting matter where each parent makes very serious allegations against the other, each of which is denied. Objections were taken to parts of the expert evidence, in particular to parts of the Psychiatric Court Report of Dr V dated 12 February 2023 and the Addendum to the Single Expert Report (“the addendum report”) prepared by Dr U, clinical psychologist, dated 10 June 2023. Her first report is dated 16 August 2022. Dr U’s reports are the single joint expert psychological evidence in this matter. Dr V was asked to provide a psychiatric assessment of the parties. The specific instructions given to each of the experts will be discussed below.
The father is the applicant in this matter (“the father”) and the mother is the respondent (“the mother”). It is unnecessary in the present context to provide further background information.
DISCUSSION
The report of Dr V
The objections to the report of Dr V are found at pages 6 and 7 of a document dated 9 June 2023 entitled “Respondent’s Objections”. This document is reproduced in the first schedule to these reasons for judgment. The common substratum to each of the objections is that the evidence complained of is beyond the remit of the expert report. In addition, s 135 of the Evidence Act 1995 (Cth) (“the Evidence Act”) is called in aid of the objections. In short, but without doing justice to the submissions made by Ms Lawson of counsel on behalf of the mother in support of the objections, it is contended that the role of Dr V was to provide a psychiatric assessment of the parties, and not to trespass into the territory of a single joint expert engaged to provide an evaluation of the family for the purposes of the litigation. In response, senior counsel for the father, Mr Sansom submitted that the observations of Dr V objected to do, in fact, fall within his instructions and is in any event an opinion that he is entitled to express having regard not just to the direct observations of the parents, but also to the substantive material with which he was briefed.
The Court observes that as a general proposition an expert should not provide an opinion beyond that in respect of which their opinion was sought. Arguably, any evidence that offends this proposition is irrelevant. However, all evidence must be considered in the context of the matter before the Court.
In this case, Dr V’s report dated 12 February 2023 annexes the letter of instruction dated 17 November 2022. Under the heading “Purpose of your report” Dr V is advised that he has been appointed as the single joint expert to undertake a psychiatric assessment of both the mother and the father. It states that the parties request that the report:
(1)Identify your diagnoses of the parties (if any);
(2)Set out the basis for any identified diagnoses;
(3)Include an assessment of the gravity of any identified diagnoses, including particulars of the symptoms and impact of the condition(s) diagnosed; and
(4)Include any other matter you consider relevant to your psychiatric assessment of the parties.
Central to the determination of the present issue is the construction of the instructions given to Dr V. The “remit” of the expert report cannot be determined without reference to this and, once again, context is important.
An index of relevant documents is included. It is extensive and is reproduced at pages 3 and 4 of Dr V’s report. Even a brief perusal of this list creates the impression that the relevant documents provided to Dr V go well beyond a mere psychiatric assessment of the parents. For example, it is very hard to perceive how judgments of this Court and of the Full Court, and orders made by this Court, are pertinent to the issue of psychiatric assessment. The material provided to Dr V was, arguably, the entirety of the material that was before the Court. The breadth of the documents provided to Dr V is the first indicia that what the parties in fact intended was something broader than a narrow psychiatric evaluation.
The second indicia, and the determinative one in this case, is that the parties chose to instruct Dr V at item four of the instructions to include any other matter he considered relevant to the psychiatric assessment of the parties. It was, in effect, an open invitation for this expert not just to conduct a psychiatric evaluation, but to consider the implications of this evaluation in the context of this case, based on the material with which he was briefed. This view is strengthened by reference to item three of the instructions where Dr V is instructed to go beyond mere diagnosis to a qualitative assessment of the gravity, symptoms and impacts which might flow from the diagnosis.
It is relevant to consider the psychiatric assessment of the parties. In relation to the father there was no evident psychiatric diagnosis from forensic psychiatric clinical interview, mental state examination and extensive document review. In relation to the mother there were significant psychiatric concerns regarding the mother’s persistently held belief that the father had sexually abused their daughter, X and posed an ongoing sexual risk to the children. The expert diagnosis of the mother is delusional disorder.
Items one and two of the instructions given to Dr V appear, prima facie, satisfied. But items three and four invite a broader consideration of the psychiatric diagnosis. In the case of the father, the diagnosis of no evident psychiatric diagnosis led to the expression of an opinion as to his parenting capacity. The same applies in relation to the mother.
The parties set the boundaries of the remit of Dr V and they cannot now resile from that because of some perceived dissatisfaction with the report they themselves commissioned.
There is no scope for the application of s 135 of the Evidence Act in circumstances where Dr V simply did what he was asked to do.
The objection that, for example, Dr V did not meet or assess the children, or observe interactions between the parents and children, does not go to admissibility, it goes to weight. It is not as if Dr V had no material before him upon which to form an impression about the children and their relationship with the parents. The fact is that Dr V was briefed with a copy of the Single Joint Expert Report of Dr U dated 16 August 2022. That report is one basis upon which to express his opinion but, of course, Dr V also had a formidable array of the parties’ own affidavits.
The objection to parts of the report of Dr V is dismissed. The weight to be given to this report will be determined by reference to all of the evidence before the Court.
The report of Dr U
The focus turns to the objections to parts of the addendum report of Dr U dated 10 June 2023. Objection was taken to paragraphs 13, 19, 22, 24, 25, 26–29, 32–33, and 49–50.
The basis of the objections are similar to those articulated above. In short, it was contended that Dr U provided expert evidence beyond her remit.
The instructions given to Dr U to provide the addendum to her report are provided in a letter dated 25 May 2023. This letter is extensive and it is reproduced at pages 19–20 of the addendum report. At page 2 of the letter Dr U is asked to consider and address the following matters:
(1)Your observations and opinion in relation to X’s resistance to spending time with the Father; and
(2)Your recommendations as to how to address X’s resistance to spending time with the Father.
These instructions need to be construed in the context of the letter in its entirety. Thus, for example, on page 1 Dr U is asked to undertake the addendum on a certain basis which includes: an interview with X in person; a telephone discussion with Ms DD (X’s treating psychologist); and a request to read a series of documents including the interim orders, the report of the mother’s treating psychiatrist Dr T, the report of the mother’s treating psychologist Ms S, and both parents’ respective summary of contentions.
It is palpably clear to the Court, therefore, that the breadth of the brief to Dr U cannot be limited just to the specific issue of X’s resistance to spending time with the father and how this might be addressed. This may well be the final destination, so to speak, but Dr U was invited by the parties, including the mother, to metaphorically stop at a number of other places before that final destination. The mother cannot now object to the professional opinion expressed in the course of a journey that both parents and the Independent Children’s Lawyer invited Dr U to undertake.
Once again, there is no scope for the application of s 135 of the EvidenceAct in these circumstances. The parties received what they bargained for. Indeed, it makes sense that the parties would not want the addendum report to ignore all of the observations made by Dr U in her substantive report dated 16 August 2022. It was an addendum report for a reason; that is, a request for additional material to supplement and clarify the earlier report but also to take into account later events including, for example, the fact that X is resistant to spending time with the father, and the later expert evidence of Dr T and Ms S.
The objection to the evidence found in the paragraphs referred to above in the addendum report is dismissed.
The Court notes that the mother will still be able to cross-examine both of these witnesses.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 16 June 2023
SCHEDULE ONE
IN THE FEDERAL CIRCUIT COURT AND FAMILY COURT OF AUSTRALIA AT SYDNEY
SYC3614/2021
MR DANSEY
(Applicant)
-and-
MS DANSEY
(Respondent) RESPONDENT’S OBJECTIONS
…
Report of Dr V dated 12 February 2023
Page Part objected to Basis of objection FATHER’S responses to objections 48. 54 Lines 1743 (start of sentence “The father presented…”) to 1754 inclusive Beyond the remit of Expert Report This material comes from the Experts’ direct observations of the father and the extensive documents reviewed. Far from being beyond the remit of the Expert all the Expert is commenting upon are characteristics. 49. 54 Lines 1761 (start of sentence “There were indicators….”) to end of page Beyond the remit of Expert Report This is pressed and in relation to the first of the two paragraphs the Expert outlines how some of those concerns he indicates were referred to in the Report at various places. The balance is well within his expertise. 50. 55 Lines 1783 to 1786 Beyond the remit of Expert Report This is pressed. The Expert attaches his letter of instruction as he is required to do (see page 61) and he knows from that that it is a parenting proceeding. To buttress that view, he is provided with the Single Expert Family Report of Dr U after the interviews which clearly was subsequently received. The submission is a curious one given the above and his qualifications. 51. 55 - 56 Line 1796 - 1834 Beyond the remit of Expert Report As in the previous objection the submissions made are curious given Dr V’s qualifications including being a consultant forensic child, adolescent and generalist psychiatrist. 52. 57 As in the previous objection the submissions made are curious given Dr V’s qualifications including being a consultant forensic child, adolescent and generalist psychiatrist. Beyond the remit of Expert Report This again is a curious submission. One would have thought that the treatment of the diagnosed issues is a matter particularly within the bailiwick of this Expert.
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