Donaghey and Donaghey (No 2)

[2010] FamCA 1055

FAMILY COURT OF AUSTRALIA

DONAGHEY & DONAGHEY (NO. 2) [2010] FamCA 1055

FAMILY LAW – PROCEDURE – Application that four family report writers appear by telephone at the trial – Discussion of considerations – The interests of justice weighed against convenience for the expert witnesses – Oral application that a report writer should produce an addendum report

Family Law Act 1975 (Cth) Div 12A
Family Law Rules 2004

APPLICANT: Legal Aid Queensland

FIRST RESPONDENT: Mr Donaghey

SECOND RESPONDENT: Ms Donaghey

FILE NUMBER: LEC 85 of 2007

DATE DELIVERED: 22 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 22 November 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham

SOLICITOR FOR THE 1^ST RESPONDENT (FATHER): Ms Hausman (by telephone)

SOLICITOR FOR THE 2^ND RESPONDENT (MOTHER): Ms Turner

Orders

IT IS ORDERED THAT

1. The Independent Children's Lawyer’s application for leave for experts to give evidence by way of telephone link is approved for the following:

   a.Mr P, psychologist;

   b.Ms C, Family Report writer;

   c.Mr A, psychologist;

   d.Professor Q, psychiatrist

2. The Independent Children's Lawyer shall request Professor Q to provide an addendum report to her report dated 15 November 2010, containing all such matters which are, in her professional opinion relevant to the issues to be determined in this case, and which in particular provide a foundation for the ultimate opinions to be expressed by her.

   AND IT IS RESPECTFULLY REQUESTED THAT Professor Q expedite the provision of the addendum report.

IT IS DIRECTED THAT

1. A copy of the ex tempore Reasons for Judgment of today be provided expeditiously to all parties and to Professor Q.

IT IS NOTED that publication of this judgment under the pseudonym Donaghey & Donaghey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 85 of 2007

Legal Aid Queensland

Applicant

and

MR DONAGHEY

First Respondent

and

MS DONAGHEY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me today on the application of the independent children’s lawyer that four named experts give their evidence at the forthcoming trial of this matter by telephone. 

2. The trial will be heard in Brisbane.  Both parties live in the northern New South Wales area. Mr P, a psychologist, practises in Brisbane; Ms C, the author of an earlier family report, practises on the Gold Coast;  Mr A, who has been seeing the child the subject of these proceedings in a therapeutic capacity, practises in northern New South Wales;  and Dr Q, a single expert psychiatrist, who has prepared a report pursuant to an order made on 12 July 2010, practises in Sydney.

3. It has been said by me many times in parenting cases that, where expert evidence is involved, I for my own part consider that the Court should attempt to meet the convenience of expert witnesses if that is at all possible. 

4. Plainly enough, a number of considerations must be taken into account and in circumstances where good reason is shown in the interests of justice for professional witnesses to be present in Court so that they might be cross‑examined, then, obviously, the interests of justice ought prevail over circumstances of inconvenience applicable to those experts.

5. But the requirements of an expert can be other than mere convenience. Particular considerations apply in parenting cases to professional witnesses who have, as it were, as their usual “client base,” people who are, by definition, in need of considerable assistance from those professionals.  It is not difficult to imagine that the patients of child therapists, the social workers, and, in particular, the patients of a consultant psychiatrist would be, to one degree or another, dependant upon those professionals keeping scheduled appointments. Indeed the maintenance of their patients’ continuing mental health might depend upon it. 

6. That issue adds, as it seems to me, a particularly important overlay to the attempts by this Court to meet the proper convenience of professional witnesses who give evidence before it.

7. In addressing the instant application I sought submissions from the solicitor for the mother with respect to the prejudice that would be caused to her client or otherwise with respect to the interests of justice if any or all of those four named professional witnesses were to give their evidence by telephone at the trial of this matter.

8. Ms Turner indicated that this was “an important case”.  With respect, I consider that the same epithet applies to all parenting cases in this Court.  And, although the issues in this case, from what I know of it, are difficult and will prove difficult for the Court to decide, that does not make it any more or less important than any other parenting case to be determined at a trial by this Court. 

9. Secondly, Ms Turner points to the fact that the reports, and in particular, the comprehensive report, extending over some 49 pages, by Professor Q, has only recently been released and received by her. There has been no opportunity for the legal representatives of the mother, and in particular, counsel, who will be conducting the trial on her behalf, to properly consider that report. 

10. Be that as it may, it seems to me that this does not represent a sufficient basis upon which to overcome the potential for inconvenience and the impact upon the patients of any of those four experts to whom I have referred.

11. In short, the solicitor for the mother points to no matter which, in my view, militates against the giving of evidence by each of those four named experts by telephone, and I order in accordance with the application in the case filed by the independent children’s lawyer on 2 November 2010. 

12. During the course of submissions with respect to that application, Ms Houseman, counsel for the father, sought to make an oral application with respect to the report of Professor Q.  The making of an oral application was not opposed by either Ms Turner or the independent children’s lawyer, Ms Fotheringham.

13. The essence of the oral application is that Dr Q should provide an addendum report in at least two respects.  The first relates to what Dr Q says at page 14 of her report as follows:

    After the interviews I suggested I would speak with the school but was instructed by the ICL that this would not be appropriate as the report was to be a psychiatric report on the parties.  This is not my understanding of the single expert rules.

14. Secondly, Dr Q’s report also says, at page 42:

    I note that the terms [of the report] are limited to issues of psychiatric disorder in the parents and the ICL confirmed that the single expert was not to canvass other issues.

15. This is a matter that has had a significant history in the Federal Magistrates Court and involves assertions by the mother that the child the subject of the proceedings, has been sexually abused.  For his part, the father denies the alleged, or any, impropriety. 

16. It can be seen by way of broad overview that a number of other issues are directly relevant to the best interests of the child beyond the issue of any unacceptable risk emanating from that central allegation.  That much is evident from the fact that, despite the allegations just referred to, the father applies for an order that the child reside with him.

17. I said during the course of discussions about the oral application just referred to that I am troubled by the notion that suggests that an expert, who can properly accept that label by reason of their training experience and expertise, ought be confined to providing opinions within artificially delineated parameters. 

18. It seems to me that the job of any expert, properly so-called, in a parenting case where the issues and the inquiry is broad, is to provide to the Court all such data available to the expert relevant to the issues to be determined by the Court (including, ultimately, the best interests of the child or children) that are within the bounds of their expertise. Plainly, information collated to that obtained at interview by the expert may be very relevant to the opinions expressed.

19. For my own part, I would be very reluctant to attempt to create boundaries for the expression by properly qualified and experienced experts. As a general rule, when the Court is favoured with opinions from highly qualified and very experienced experts, it is the professional expertise of those experts, together with their experience and training, that ought properly delineate the boundaries of the data that they seek to put before the Court and, ultimately, their opinions.

20. Whether or not the opinions expressed, or indeed, whether other matters contained within their reports, are admissible in a legal sense is of course ultimately a matter for the trial judge. Separate rules govern that issue, noting, of course, what Division 12A has to say about that.

21. It seems to me entirely appropriate that a psychiatrist whose report reveals that she is highly trained and has extensive experience – including, in particular, extensive experience in providing reports to this Court – should be able, in the first instance, to obtain all such information as she, in her professional experience and expertise, regards as important to collating a picture necessary for the expression of ultimate opinions by her.

22. Accordingly, it seems to me appropriate in this case that Professor Q provide an addendum report to her report dated 15 November 2010 containing all such matters as Professor Q considers, in her professional opinion, necessary and relevant to the issues to be determined in this case, and which, in particular, provide a foundation for the ultimate opinions to be expressed by her.

23. Given that the trial commences on December 13 2010, it is respectfully requested that Professor Q expedite the provision of the addendum report.

24. I direct that a copy of my ex tempore reasons be prepared expeditiously and, once settled, provided to the parties thereafter.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 22 November 2010.

Associate: 

Date:  24 November 2010