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 of 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

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

2. 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

1. 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.

2. 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.

3. 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].

4. 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.

5. 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 the single expert in cross-examination during the trial. The father also takes issue with Dr MM’s answers to questions administered by the father. Again his complaints reveal that they are more properly the subject of cross-examination of the single expert.

6. No issue is taken with the father as to Dr MM being an appropriately qualified single expert.

Dr BB

1. The father in support of his application in a case relies on the affidavit of Dr BB, forensic child psychiatrist. In the father’s letter of instructions to Dr BB dated 2 April 2014 the following is to be found:

   I request you to provide a shadow report to Dr [MM’s] report and to determine the following issues:

   -    whether you agree with Dr [MM’s] recommendations,

   -    if you do not agree with Dr [MM’s] recommendations, what recommendations you would make,

   -    the reasons for your recommendations and,

   -    any other matters that you consider relevant.

2. Dr BB was provided by the father with various documents relating to the proceedings. Dr BB’s report, inter-alia, makes the following observations:

   My reading of Dr [MM’s] response to questions is that he acknowledged that he was aware of many of the problematic areas in this matter and it also appeared to me that particularly give greater substance was added to particular matters, this could have a significant effect on his opinion, possibly causing him to change it….

   Overall it appeared to me that Dr [MM] had conducted almost all of the assessments necessary, although as he notes himself, he had not caused (the father) to expand on the orders that he was seeking, nor indeed did he cause (the father) to expand on general matters to do with his parenting experience, capacity and aspirations. This is something which (the father) could usefully expand on in his documents prior to the final hearing, which in turn may enable Dr [MM] to update his appraisal of (the father’s) attitude towards parenting and parenting capacity…

   The other matter which I thought Dr [MM] could have considered, bearing in mind the materials available to him is the issue of whether there is a contact regime which may prove viable in this case…

3. Dr BB then proceeds to opine as to an appropriate reintroduction programme for the subject child to the father and an expansion of the child’s time with the father so as to include ultimately unsupervised overnight time.

4. Dr BB continues:

   While on one hand, Dr [MM] may feel at the hearing that he has sufficient information to be able to recommend to the Court that a program such as this could be beneficial as it provides the prospect of (the child) restoring her relationship with her father, he may also take the view that an additional benefit is that it may provide the opportunity for both parents to show themselves in a somewhat better light than he has held in respect of both of them as a result of his initial assessment…

   and

   Particularly if the material available to Dr [MM] at the time of the hearing …

5. Dr BB then proceeds to contemplate various scenarios that may be available to Dr MM at hearing subject to the evidence adduced.

6. It is clear that the “report” of Dr BB provides as it were a constructive critique of the single expert’s report in circumstances where Dr BB contemplates that the single expert may, subject to the course of evidence and in his cross-examination at trial may come to different or modified conclusions.

7. It is significant to note that Dr BB provided his report on the basis of documents provided to him without interview of the father, the mother or the subject child.

8. It was conceded by counsel for the father that most if not all of the issues taken by the father with the single expert’s report were properly the subject of cross-examination of the single expert at trial.

Rule 15.49

1. The present application is to be determined having regard to the provisions of Rule 15.49 of the Family Law Rules 2004. In summary the rule precludes a party from tendering a report or adducing evidence from another expert without the court’s permission in circumstances where a single expert witness has been appointed.

2. The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if the court is satisfied:

   a)There is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;

   b)Another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or

   c)There is another special reason for adducing evidence from another expert witness.

3. The operation of the rule was considered by the Full Court in Bass & Bass [2008] FamCAFC 67 where the Full Court found no error of principle in the application of the rule by the trial judge (Steele J) in the court below.

4. It is of note that the present application does not involve a consideration of an adversarial expert’s report in the full sense. Such a report would involve further interviews with the family and other relevant adults and in particular the subject child. This course, quite understandably, is opposed by the Independent Children’s Lawyer in the context of the present application where there is an issue for determination as to the question of “unacceptable risk” should the child spend time with the father.

5. It was made clear during the course of submissions by counsel for the father that the only report sought to be tendered on behalf of the father was the short report of Dr BB dated 5 May 2014 referred to above.

6. Considering the application of the rule as approved in Bass & Bass (supra) it is to be noted that in regard to the present single expert’s report:

   a)It is not contended on behalf of the father that there is any question of technical defect in the report itself;

   b)There is no challenge to the qualifications and expertise of the appointed single expert;

   c)It is not contended on behalf of the father that the report writer has wrongly applied the science associated with his considerations in the report, nor is it suggested there is some other school of psychiatric medicine which is at odds with the views of the single expert;

   d)It is clear from the report that the opinions expressed are appropriately subject to factual findings by the court, which may be different factual findings from the underlying presumptions relied upon by the single expert; and

   e)During the course of the trial the single expert would be cross-examined, presumably having regard to the subject of the present application extensively, and if it is established either because the evidence does not support factual matters on which the single expert has relied upon or for reasons of omission there are parts of the report which may be excluded and a judicial officer may well have no regard or limited regard to other parts which are perhaps wrongly based on material which ultimately is not proved.

7. As the Full Court emphasised in Bass & Bass (supra)( at [12]), Part 15.5 of the Rules is concerned with “Expert evidence” and the purpose of Part 15.5 is stated in Rule 15.42 as follows:

   a)To ensure that parties obtain expert evidence only in relation to a significant issue in dispute;

   b)To restrict expert evidence to that which is necessary to resolve or determine a case;

   c)To ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;

   d)To avoid unnecessary costs arising from the appointment of more than one expert witness; and

   e)To enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party if necessary in the interests of justice.

8. The report of Dr BB does not purport to be an “adversarial” expert report seeking to form conclusions and make recommendations on the basis of proper enquiry and information and relying upon the expertise of the report writer on the same issues as to which the single expert formed conclusions and made recommendations.

9. At best the report of Dr BB can be seen as perhaps a guide to cross-examination of the single expert at trial.

10. As has been said above Dr BB has not had the opportunity of interviewing the parties or the subject child and the opinions expressed by him are simply those expressed as a consequence of being provided with numerous documents relating to these proceedings.

11. On this basis alone the report of Dr BB could be afforded very little weight, if any at all.

12. It is incumbent upon the father in the context of his present application to adduce evidence that meets the requirements of Rule 15.49. It was made clear in submissions that the only element of that rule relied upon by the applicant father was Rule 15.49(2)(a) that provides that the court may allow a party to tender another expert report or adduce evidence from another expert on the same issue where:

    … there is a substantial body of opinion contrary to any opinion given by the single expert witness and that contrary opinion is or may be necessary for determining the issue.

13. No such evidence has been adduced and when pressed Counsel for the father sought to rely upon an earlier report from Dr RR, consultant forensic psychiatrist that had been prepared earlier in the proceedings in July 2012. This report was prepared at a time when criminal charges facing the father in relation to serious allegations of sexual abuse of the subject child had not yet been determined and the subject child was 6 years of age.

14. The report provides no assistance whatsoever to the applicant father in meeting the requirements of Rule 15.49(2)(a), particularly where the application relates to the evidence of yet another expert.

15. The present application by the father is misguided.

16. There is no evidence that would enliven the operation of Rule 15.49 so as to permit the father to rely upon the report from Dr BB or adduce evidence from him.

17. The application will be dismissed and costs of the Independent Children’s Lawyer and the respondent mother reserved.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 September 2014.

Associate: 

Date:  11 September 2014