DE SILVA & ROGERS - [2014] FamCA 770

FAMILY COURT OF AUSTRALIA

DE SILVA & ROGERS

[2014] FamCA 770

FAMILY LAW – EVIDENCE – Application to adduce adversarial expert evidence – consideration of principles – where the proposed further expert evidence limited to issues that may be put to the single expert – where it is proper for such issues to be put in cross-examination of the single expert – application dismissed.

Family Law Rules 2004 (Cth) rr 15.42, 15.49, 18.10

Bass & Bass [2008] FamCAFC 67

APPLICANT:

Mr De Silva

RESPONDENT:

Ms Rogers

INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

FILE NUMBER:

PAC

5187

2008

DATE DELIVERED:

ORDERS DELIVERED:

11 September 2014

4 September 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

4 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Friedlander

COUNSEL FOR THE RESPONDENT:

Ms Goodchild

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

Orders

The Husband’s Application in a Case filed on 28 May 2014 be dismissed.
The costs of the Independent Children’s Lawyer and the Mother in respect of the application be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym De Silva & Rogers 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 PARRAMATTA

FILE NUMBER: PAC 5187 of 2008

Mr De Silva

Applicant

And

Ms Rogers

Respondent

REASONS FOR JUDGMENT

The application for determination is an application in a case filed by the mother in these proceedings seeking to review the orders made by a Registrar exercising delegated power under Part 15.5 of the Family Law Rules 2004 on 21 July 2014 allowing the father to rely on a report from an adversarial expert in circumstances where an appointed single expert has provided a report in the context of parenting proceedings.
An application for review of a Registrar’s determination is a hearing de novo (Rule 18.10) and in substance the matter for determination is the application in a case filed by the father on 28 May 2014.
The application in a case by the father sought orders in the following terms:
a)That the father have leave to tender a shadow report from Dr [BB] on the same subject matter as that covered by the Part 15 expert’s report by Dr [MM]; and
b)That the father has leave to rely on the evidence of the (sic) Dr [BB].
The single expert report by Dr MM (child, family and adult psychiatrist) is dated 16 September 2013. Subsequent to the release of that report the father administered questions to the single expert and those questions were answered by Dr MM in a supplementary report dated 16 December 2013.
In his affidavit in support of his application in a case the father takes issue with Dr MM’s primary report. However all of the father’s contentions, as conceded by counsel for the father, are matters that are more properly put to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: DE SILVA & ROGERS [2014] FamCA 770
Case: [2014] FamCA 770
Decision Date: 11 September 2014 4 September 2014

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, constituted by Foster J, considered an application by the Husband in proceedings between the Husband and the Wife. The precise nature of the dispute is not detailed, but it concerned matters arising within the context of family law proceedings.

The primary legal issue before the Court was whether the Husband's application, filed on 28 May 2014, should be dismissed. This required the Court to assess the merits and validity of the Husband's application in light of the relevant family law principles and evidence.

Foster J dismissed the Husband's application. The Court reserved the costs of the Independent Children’s Lawyer and the Mother in respect of the application, indicating that a further determination would be made regarding these costs.

Orders

Orders of the court

The Husband’s Application in a Case filed on 28 May 2014 be dismissed.

The costs of the Independent Children’s Lawyer and the Mother in respect of the application be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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