Eastley & Eastley (No. 4)

[2021] FamCA 171

FAMILY COURT OF AUSTRALIA

Eastley & Eastley (No. 4) [2021] FamCA 171

File number(s):

CAC1729 of 2020

Judgment of:

GILL J

Date of judgment:

30 March 2021

Catchwords:

FAMILY LAW – EVIDENCE – expert opinion – inapplicability of the opinion rule contained in the Evidence Act 1995 (Cth) – admission governed by relevance – relevance contingent upon opinion being the application of expertise in a manner similar to that required by the opinion rule.

Legislation:

Evidence Act 1995 (Cth) ss 55, 76, 79

Family Law Act 1975 (Cth) div 12A

Family Law Rules 2004 (Cth) r 15.55, r 15.63, r 15.64

Cases cited:

Dasreef & Hawchar [2011] HCA 21

HG v the Queen (1999) 197 CLR 414

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Number of paragraphs:

19

Date of hearing:

30 March 2021

Place:

Canberra

Counsel for the Applicant:

Ms Smallwood SC

Counsel for the Applicant:

Ms Davis

Solicitor for the Applicant:

Alliance Legal Services

Counsel for the Respondent:

Ms Christie SC

Solicitor for the Respondent:

Dobinson Davey Clifford Simpson

Solicitor for the Independent Children's Lawyer:

Legal Aid, ACT

ORDERS

CAC1729 of 2020

BETWEEN:

MR EASTLEY

Applicant

AND:

MS EASTLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:	GILL J
D.O.O.:	30 MARCH 2021

THE COURT ORDERS THAT:

1.The report of Dr K dated 24 March 2021 is admissible.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eastley & Eastley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX-TEMPORE REASONS FOR JUDGMENT

GILL J

1. I have been asked to rule on the admissibility of a report by Dr K, being a report commissioned by the father as an adversarial expert with the Court's permission following an application for a report directed to issues in respect of the father as a risk of harm and whether, or how, any such harm might be ameliorated. 

2. Having received the report shortly before the trial, the father determined that he would not rely upon it. Appropriately, in accordance with his disclosure obligations, he disclosed that report to the other parties. The Independent Children’s Lawyer (the “ICL”) now seeks to tender the report pursuant to r 15.55(3) of the Family Law Rules 2004 (Cth) (“the FLR”).

3. The father opposes the tender of the report for a number of reasons. The first being the purported non-compliance with r 15.63 which governs the content of the reports, but primarily, the second reason is that he asserts that the report is irrelevant, the irrelevance following from a purported failure to apply expertise by Dr K in a discernible manner.

4. I will deal firstly with the significance of the application of expertise in the absence of the opinion rule, secondly, with particular complaints raised in respect of the report including non-compliance with the FLR and thirdly, whether the opinion that has been produced here articulates the application of expertise.

5. Firstly, the complaint as to the application of expertise aligns with what would commonly be a challenge under what is the currently inapplicable opinion rule. The opinion rule at s 76 of the Evidence Act 1995 (Cth) excludes opinion adduced to prove the existence of a fact about the existence of which the opinion was expressed. If that Rule was applicable here, the relevant exception would be the application of s 79 of the Evidence Act 1995 (Cth) which permits an opinion to be adduced where the opinion is based wholly or substantially on specialised knowledge.

6. Here, the fact in issue is in general terms is as to risk that may be posed by the father of sexual harm to either of the children and to issues flowing from that, such as amelioration of that risk.  The basal requirement is that the opinion as to risk and those other related matters is based on specialised knowledge, such matter having been emphasised in Dasreef & Hawchar [2011] HCA 21 and touched on in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 which identified the need for identification of the manner of application of the specialised knowledge or experience. It is lack in that respect that it is the asserted deficit identified here to found the exclusion. But here, given the inapplicability of the opinion rule pursuant to div.12A of Pt. VII of the Family Law Act 1975 (Cth), the exclusion is reliant on a relevance objection pursuant to s 55 of the Evidence Act 1995 (Cth).

7. Section 55, which does have application, requires that for evidence to be admitted it must be evidence that, if it were accepted, could rationally affect directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. The proposition raised for the father, and not resisted by the mother, is that to be relevant, that is to rationally affect the probability of the existence of the fact in issue, being risk and related matters, the opinion advanced by Dr K must be based on specialised knowledge. Such must be the case. Evidence based on an opinion that is not the product of specialised knowledge regarding this subject matter, as opposed to subject matter which allows a lay opinion as provided for in s 78 of the Evidence Act 1995 (Cth) cannot rationally affect the assessment of the probability of risk. Hence, although the opinion rule does not apply, and mere relevance does, in issues such as those being dealt with here, the relevance rule functions in the same way as the opinion rule and intrinsically applies similar criteria as the opinion rule. Accordingly, in an issue such as here where the evidence is led because of expertise, although the opinion rule is disapplied by division 12A, it is requirements analogous to those contained in the opinion rule that would render the evidence relevant and admissible. I return then to this point after I deal with the other criticisms that have been raised (at [16] below).

8. It has been asserted that Dr K’s report is non-compliant with r 15.63, which deals with the contents of an expert's report. It might be observed that the matters contained in r 15.63 are such as to point towards compliance with the opinion rule in the production of an expert's report. A number of matters as set out in r 15.63 including a requirement that the reasons for the conclusions must be stated, along with a statement about the methodology used in the production of the report, and a number of other matters that go towards those. Here, Dr K has set out her qualifications which reasonably have been accepted as being sufficient. She has set out the literature and the material and tests that she has relied upon. In setting out the test that she has applied, how they have been applied, their limitations and the particular use to which they might be put, she has set out the relevant facts and assumptions and whether those were within her personal knowledge or not. She set out in particular, but not exclusively, those factual matters that she relied upon but was unable to resolve by the application of expertise, for example, the underlying question as to whether or not the father has committed an act against X. She also set out factual matters leading to or underlying the matters that she concluded. For example, her conclusions as to whether or not material being a video recording of the father bathing X constituted child abuse material. She identified where she had assumed facts and indicated the differential impact depending upon whether that assumption was made good or not made good. On the issue of a range of opinions, it is unclear that she has expressed this. She has set out the conclusions that she has reached and has set out the reasons and the methodology, matters which I will return to in a moment.

9. It may be observed that to the extent that Dr K has not identified a range of the opinion on the matters dealt with in the report, her report remains otherwise substantially compliant with what is required under r 15.63. The minor degree of non-compliance with that Rule is not sufficient to exclude the report from evidence. Rule 15.64 deals with the consequences of non-compliance and it is appropriate, given the minor level of potential non-compliance with r 15.63, to allow the report to be relied upon but take the non-compliance into account when considering the weight to be given to the expert witness’ evidence.

10. There are other particular criticisms made of Dr K’s report.  One is that she has strayed beyond the terms of reference, in particular due to her recommendations of time and the nature of time that might be spent with X and Y.  It is reasonably pointed out that she has not assessed or seen either X or Y.  However, her comments were directed towards the amelioration of risk including a trauma risk being presented to X.  She was, in the terms of reference, asked to deal with the amelioration of risk should the father come into contact with the children.  Hence, insofar as she dealt with those matters, she was prompted to do so by the terms of reference. 

11. Dr K was also criticised for failing to identify the particular score on the Deception Scale, having relied upon the Deception Scale.  She did, however, identify where in the range of scores it fell and the significance to be attached to a score falling within that portion of the range.  That forms a sufficient identification to explain her conclusions. 

12. There was also complaint that she applied psychometric tests which she explained and drew inferences from, but I take it from the criticism that the complaint is that she has failed to produce the raw test results which would enable potentially a more fulsome testing of the conclusions that she has reached.  Her failure to include the raw test results is not a significant deficiency in the report. It is not necessary that she produces them in the report. They can no doubt be pursued if necessary. 

13. A further criticism went to her identification of material as child abuse material.  Dr K indicated that she had applied five factors in coming to a conclusion that the video of the father bathing X was child abuse material.  It was complained that her conclusion in relation to this roamed beyond her expertise.  In particular, there are two references complained of, where in identifying that the material was offensive for the purpose of determining whether or not it was child abuse material, she referred to her own visceral reaction and also referred to a clinical perspective.  It should be observed that the place of the assessment of whether or not this is child abuse material was as to whether or not this constituted a previous example of offending against X by the father.  That is, dealing with the question as to whether or not the father had previously engaged in sexualised activity with X.  As part of this, Dr K assessed whether or not the material was offensive.  The two aspects complained of are identified above. 

14. The first, which is her clinical perspective, was the identification by her of the appropriateness of the application of the Risk for Sexual Violence Protocol definition which she identified for the purpose of the appropriate screen to be applied to the father and the applicability of such was within the expertise of Dr K.  The second aspect, being the visceral reaction, involved a complaint that Dr K had substituted a personal view rather than one of expertise to determine offensiveness.  Offensiveness is a basal fact for the opinion that is being expressed by Dr K, but offensiveness is ultimately a matter for the evaluation of the Court and not necessarily a matter of expertise.  Typically, at law, the question of offensiveness would be an issue for the jury or the factfinder.  Dr K’s reaction or visceral reaction is not determinative of that basal fact.  However, even if her view was to be excluded, and it may be observed that her view maybe proffered as a non-expert opinion and an aspect of common experience, her ultimate opinion or end opinions remain subject to the relevant proof of the necessary factual underpinnings, being the question of whether or not the material does constitute child abuse material, or does constitute an example of a sexual dealing with X.

15. Dr K’s expressed views do not meet the criticism that was proffered by Gleeson CJ in HG v the Queen (1999) 197 CLR 414, [428] as “based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist.” Rather, what was done by Dr K was identifying, as it was required by Gleeson CJ, the required identification of the facts in this case she was assuming to be true, so that they could be measured against the evidence and it would have required or could have invited demonstration or examination of the scientific basis of the conclusion. Although Dr K has formed a view as to offensiveness as being a component of the consideration of whether it was child abuse material ultimately, the conclusion of the Court as to whether or not that factual underpinning is made out will be determinative of whether the ultimate opinion of Dr K stands.

16. Turning then to the application of expertise, a more global criticism was made that Dr K failed to apply expertise in forming the opinions that she expressed.  This was a central complaint made against her. It is not the case.  Dr K’s qualification was identified, from that qualification, she identified particular tests that were to be applied, she explained the applicability of those tests and how they connected to, and how in combination with clinical evaluation, they led to her forming her opinion.  She explained the derivation of those opinions.  She identified the relevant facts and assumptions that she relied upon and how they were connected to the opinion that she reached.  In doing so, she demonstrated the application of expertise to those assumptions and basal facts.  Her approach would be sufficient to meet the requirement of the opinion rule.  Even if her consideration of child abuse material fell into the criticised approach identified in Dasreef & Hawchar, the subsequent opinion otherwise remains sustained or not dependent on other proof of that matter. 

17. The report is admissible and will be exhibited as ICL1. 

18. I note that the ICL has identified that Dr K will be made available for cross-examination.

19. I pause to observe that this conclusion does not equate to the acceptance of Dr K’s evidence - merely assessing that it is admissible material in the case.  There are deeper questions to be answered regarding Dr K’s views, including the effect of the identification of the father's qualities also being held by a cohort who are identified as carrying risk and whether or not that is sufficient to point to the father constituting a risk.  It may also be asked as to the extent to which Dr K’s views carry the matter further forward as in large degree, her assessment of risk is reliant upon the Court reaching conclusions as to whether or not the father has previously dealt sexually with X, a matter which it might be thought would be likely to lead to a conclusion as to risk in any event.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       7 April 2021