Fabina & Manalo (No 3)
[2021] FCCA 1524
•5 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Fabina & Manalo (No 3) [2021] FCCA 1524
File number(s): SYC 3632 of 2019 Judgment of: JUDGE MORLEY Date of judgment: 5 July 2021 Catchwords: FAMILY LAW – Parenting – interlocutory application for appointment of single expert witness pursuant to Rule 15.45 of the Family Law Rules 2004 or family report pursuant to section 62G of the Family Law Act 197 (Cth) – respondent’s application in the alternative that the applicant pay the full costs of single expert witness’ report. Legislation: Family Law Act 1975 (Cth), s 62G.
Family Law Rules 2004 (Cth), 15.45
Cases: Sadasivam & Seshan [2019] FamCAFC 76 Number of paragraphs: 59 Date of last submission/s: 7 June 2021 Date of hearing: 7 June 2021 Place: Sydney Counsel for the Applicant: Ms Treherne The Respondent: The Respondent appeared in person. ORDERS
SYC 3632 of 2019 BETWEEN: MR FABINA
Applicant
AND: MS MANALO
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
5 JULY 2021
THE COURT ORDERS THAT:
1.That pursuant to rule 15.45 of the Family Law Rules 2004 (Cth), Dr D clinical psychologist of E Street, Suburb F (expert) be appointed as a single expert witness in the proceedings.
2.That the expert be provided with the Terms of Reference annexed to these orders and marked with the letter “A” upon her appointment.
3.That the Applicant Father will be responsible for the payment of the expert’s fees at first instance.
4.The Respondent Mother shall be responsible for payment of one half of the single expert witness’ fees to be paid as part of the final settlement or such earlier times as circumstances may determine, subject to any final determination of this issue by the Court.
5.That the Respondent Mother make herself and the child available for interview by the expert on 29 and 30 November 2021 and/or or such other dates as required by the expert.
6.That each party provide to the expert, and to the other party, a short minute of the final order sought with respect to the parenting matters on or before 1 November 2021.
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 under the pseudonym Fabina & Manalo (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Morley:
INTRODUCTION
These are Reasons for Judgment in relation to an interlocutory issue in the matter of Fabina & Manalo. The Applicant to these interlocutory proceedings is the Father Mr Fabina (‘the Applicant’) and the Respondent to these interlocutory proceedings is the Mother Ms Manalo (‘the Respondent’).
The interlocutory matter before the Court is whether the Court should have the benefit of social science evidence from a single expert witness or from a family consultant, and in the event that the evidence should come from a single expert witness, whether the Respondent should be required to contribute to the costs of such a single expert witness.
PROCEDURAL HISTORY
As these are Reasons for Judgment on a discrete interlocutory matter, I will not set out in entirety the procedural history of this matter in these Reasons. I am familiar with the matter and have had recourse to the procedural history of the matter in preparing these Reasons, and it is salient to note that the matter has had a significant volume of Court attention,[1] including:
(1)Two interim hearings as to parenting;
(2)One interim hearing as to spousal maintenance;
(3)A hearing on the basis of subpoenas issued by the Court at the request of the Wife including the participation of third parties subpoenaed; and
(4)A hearing of an Application – Contravention that resolved by way of consent orders as to findings and as to penalty.
[1] This is noted at paragraph 9 of the Applicant’s written submissions.
On 26 February 2021, the matter came before me for Call-Over. I made trial directions and listed the matter for a Compliance Check date on 3 December 2021. In the event that the parties have complied with the trial directions and the matter is generally ready to proceed to final hearing, the matter will be set down for defended hearing in the first part of the year 2022 as is available to the Judicial Calendar.
Much is made in the Respondent’s submissions as to the content of the Court’s discussion with the parties at the Call-Over. I have had recourse to the audio record of the Call-Over for abundant clarity, and other than that which I set out in these Reasons, I find nothing turns on the substance of that discussion.
At the Call-Over, Ms Treherne of Counsel appeared for the Applicant and the Wife appeared on her own behalf.
At the Call-Over, the issue of an order under section 62G of the Family Law Act 1975 (Cth) (‘the Act’) for a family report or under Rule 15.45 of the Family Law Rules 2004 (‘the Rules’) was discussed. I made a notation in my orders that:
The Applicant Father foreshadowed a formal application for the appointment of a Part 15 Expert pursuant to the Family Law Rules 2004 (Cth), in particular the appointment of Dr D, for the assistance of the Court. Any such Application in a Case and Response to Application in a Case will either be considered in Chambers or on a mention basis, without a formal interlocutory hearing.
The Applicant filed an Application in a Case on 21 April 2021 supported by an affidavit sworn by his solicitor.
The Respondent filed her Response to Application in a Case on 19 May 2021 supported by an affidavit and a Financial Statement.
I made orders in Chambers on 7 June 2021 setting down a timetable for written submissions on the matter.
The parties provided their submissions in chief on 15 June 2021. The Applicant filed his submissions in reply on 22 June 2021 and the Respondent filed her submissions in reply on 21 June 2021.
THE COMPETING APPLICATIONS
The Applicant Husband seeks:
(1)The appointment of Dr D as a single expert witness pursuant to Rule 15.45 of the Rules;
(2)That he pay the costs at first instance, with the Respondent Mother to be responsible for one half of the costs; and
(3)That the Respondent Mother pay her contribution as part of any property settlement.
The Respondent Wife seeks:
(1)The referral of the matter for a family report pursuant to section 62G of the Act;
(2)In the alternative, where the Court appoints Dr D as the single expert witness, that the Applicant be solely responsible for all the fees associated; and
(3)That the Applicant pay the costs of Ms Manalo’s attendance at the interviews; and
Accordingly, the issues for determination in these interlocutory Reasons for Judgment are:
(1)Whether the Court should make orders appointing a single expert witness or refer the matter pursuant to section 62G;
(2)In the event that the Court is minded to appoint a single expert witness, whether the Court should make orders apportioning the costs of the expert’s report to the Respondent.
I will not be dealing with any application for costs in relation to this Application for reasons I will explain at the end of these Reasons.
MATERIAL RELIED UPON
I have read all of the relevant documents for this matter, being:
(1)The Applicant’s Application in a Case filed on 21 April 2021;
(2)The affidavit of Jocelyn Kelly Wale-Corey, the husband’s solicitor filed on 21 April 2021;
(3)The Respondent’s Response to the Application in a Case filed on 19 May 2021;
(4)The Respondent’s affidavit filed on 19 May 2021;
(5)The Respondent’s Financial Statement filed on 19 May 2021;
(6)The Applicant’s written submissions filed on 15 June 2021;
(7)The Respondent’s written submissions filed on 15 June 2021;
(8)The Applicant’s written submissions in reply filed on 22 June 2021; and
(9)The Respondent’s written submissions in reply filed on 21 June 2021.
I have had recourse to the audio record of the Call-Over before me on 26 February 2021.
DOES THE COURT REQUIRE THE ASSISTANCE OF SOCIAL SCIENCE AT ALL?
As I stated at the Call-Over of the matter, I am of the view that this matter must come to a conclusion, by final hearing if necessary. The matter has been on foot now for two years, and the applications that have come before me for determination are often contested with a flavour of acrimony. I have already set the matter on its pathway to final hearing.
The orders sought by each party were flagged at the Call-Over as being divergent, and as far as the Court is advised by the parties, the parenting matter will proceed to final hearing.
In these circumstances, I find that the Court could be assisted by the provision of social science to assist in determining what orders are to be made with the best interests of Leonel as the paramount consideration. However, I do not find that the Court requires social science evidence in order to properly determine the final parenting matters before the Court.
WHICH IS APPROPRIATE – A SINGLE EXPERT WITNESS’ REPORT OR A FAMILY REPORT?
Family report
In order to dispense with the matters in a logical fashion, I will turn to the Respondent’s primary application that the Court appoint a family consultant pursuant to section 62G.
Section 62G of the Act sets out that a family consultant a family consultant may be directed by a Court to prepare a report on “such matters relevant to the proceedings as the court thinks desirable”.[2]
[2] Family Law Act 1975 (Cth) s 62G(1).
I take judicial notice of the fact that if I were to make an order pursuant to section 62G, a report would not become available for use prior to July 2022, with interviews likely taking place in June 2022. That would exact an inexcusable delay, in circumstances where the matter is likely to receive final hearing dates (subject to the Judicial Calendar for 2022 which has not yet been finalised) in the first part of 2022.
Moreover, had I made an order pursuant to section 62G at the Call-Over, I would not have been able to set the matter on its pathway for final hearing, in circumstances where the parties would be awaiting the receipt of the family report before finalising their respective trial positions. I note this here with specific reference to a matter raised in the Respondent’s submission in reply, which suggested that the Court could have made an order pursuant to section 62G in February 2021, and that the parties would be in a similar position to that where a single expert witness is ordered.
Were I to have made orders for a family report at the Call-Over or make orders for one today, it would cause an inappropriate and, crucially, unnecessary delay on the final resolution of this matter.
In his written submissions, the Applicant made submissions in relation to the compelling interest of not using Court resources on parties who can afford their own, expressed a:
… parties (and their children) who are not in a position to fund their own expert report, and who desperately need the assistance of a Court-prepared report, should not be dispossessed of their priority because the mother anticipates that she will be unable to afford half of those fees at the conclusion of the proceedings, even though she has savings of over $20,000 at her disposal.”[3]
[3] Applicant’s written submissions [14], emphasis added for the first reference; original emphasis for the second reference.
I find there is force in this submission in the present case, especially where I have found that the Court does not need social science evidence.
I consider that the delay caused by referring the matter for a family report is less desirable than the desirability of any social science evidence that a family report may provide the Court.
Accordingly, I dismiss the Respondent’s application for orders 2, 3, and 4 in her Response to Application in a Case.
Single expert witness’ report
I now turn to the Applicant’s primary application and the Respondent’s position in relation to same.
Rule 15.45 of the Rules provides that the Court must consider the matters under subsection (2) when considering whether to make an order that expert evidence be given by a single expert witness. Those matters are:
(1)The main purpose of the Rules (set out in rule 1.04) and the purpose of this Part (set out in rule 15.42);
(2)Whether expert evidence on a particular issue is necessary;
(3)The nature of the issue in dispute;
(4)Whether the issue falls within a substantially established area of knowledge; and
(5)Whether it is necessary for the court to have a range of opinion.
I have had recourse to the purpose of the rules and the purpose of Part 15.5.
I note that the single expert witness’ report contemplated by the Applicant would not cause the same prejudice as to time that a family report would. In the affidavit of the Applicant’s solicitor, she details that dates for interviews in late November have been reserved. It is unlikely that the time the single expert witness would take between the interviews and the preparation of the report would take anywhere near July 2022 (as would be the case with a family report).
There is a chance on the state of the evidence that the report would not be ready in time for the parties to prepare their trial material in contemplation of the Compliance Check on 3 December 2021. However, in circumstances where the report would be shortly available to the parties following such a Compliance Check, I do not find that that is a prejudice tending against the appointment of the single expert witness. This factual matrix as to dates does not pose a prejudice to the parties’ standing to receive dates for a final hearing.
As was noted by the Court at the Call-Over, there is no issue in this matter requiring diagnostic or medical expertise. Accordingly, there is no issue with Dr D being an unsuitable expert by reason of not having suitable qualifications.
Moreover, Dr D’s curriculum vitae is annexed to the Applicant’s solicitor’s affidavit as annexure C. I have read and considered that curriculum vitae and I find that Dr D is qualified to be engaged as a single expert witness pursuant to the Rules.
The only apparent blocker to the Court appointing Dr D as the single expert witness in this matter is, as is often the case, in relation to the matter of who should pay for the report and in what portions.
The Applicant’s application is conditional on the Respondent paying for half of the report on final property orders being made. He does not assert that he will pay for the full costs of the report, with the contribution by the Respondent Mother to be assessed if at all – he specifically states that he will pay for the full costs of the report, “but the Respondent Mother shall be responsible for one half of the said fees to be paid as part of the final settlement or such earlier times as circumstances may determine”. Of course, that does not prevent the Court from making orders providing for the Applicant to bear solely the costs of the report.
The Respondent’s application is that if the Court makes an order appointing a single expert witness, the Applicant should be responsible for the full cost of the report.
At paragraph 16, the Applicant’s solicitor deposes that the report is estimated to cost $16,000.00.
Can the Respondent afford to contribute to the cost of a single expert witness’ report?
It is the Applicant’s position that the Respondent should pay for half of the costs of the report and that such payment should come out of any final property orders. In support of the Applicant’s position as to payment of the report,[4] the Applicant raises several discrete arguments in favour of his application in his written submissions.
[4] I have read and considered the balance of the Applicant’s submissions, including those as to the merits of a single expert’s report.
The Applicant asserts that his application affords the Respondent time to make arrangements to afford her contribution (for example, saving or borrowing funds). I find that there is force in this submission, especially in circumstances where the order is contested by the Respondent.
The Applicant asserts that, his application being for an interim order, the Court can make a determination of an adjustment at the final hearing upon receipt of the parties’ trial material, full and frank financial disclosure, and evidence under cross-examination. Again, I find that there is force in this order. It is well known that interim orders cannot survive final orders,[5] and if I acceded to the Applicant’s application, this matter would still become, inevitably, a matter for consideration on the making of final property orders.
[5] Sadasivam & Seshan [2019] FamCAFC 76.
The Applicant notes that the property proceedings were commenced by the Mother and therefore it is presumed she asserts there are funds in the matrimonial asset pool payable to her. This submission has some weight. I have considered the Respondent’s submission regarding the size of the asset pool, but I find that that is not of itself sufficient for my consideration here.
The Applicant asserts that neither party is impecunious, and further on in his submissions, the Applicant asserts that the Respondent has not raised any “persuasive evidence” supporting her assertion of financial hardship. The Respondent disputes this matter. I find that I am able to accept from the Applicant that neither party is so “impecunious” such that an order as contemplated by the Applicant’s application would be inappropriate. I am also aware that the Respondent receives spousal maintenance from the Applicant as ordered by the Court’s orders of 25 November 2020. I
The Applicant asserts that neither party is legally aided.
The Applicant asserts that the Respondent has failed to comply with her ongoing financial disclosure obligations. In his affidavit evidence, the Applicant does not provide any evidence of this asserted failure, and so I cannot give this submission any weight. I do note that such a matter, if made out on the evidence, would be something about which the Court would take a strong view, given the authorities well known to this Court.
The Respondent’s application is that the Applicant should pay for the whole report. In support of her position, the Respondent sets out various submissions opposing paying for any of the report. The submissions that are relevant to my consideration are generally best characterised with that which the Respondent stated at the Call-Over – “I don’t know what will be charged and I’m unable to pay”. Many of the submissions raised by the Respondent are not relevant to my consideration of the matter.
The Respondent raises the uncertainty of the final property matter as between the parties. In support of this submission, she annexes a copy of a Balance Sheet sent to my Associate prior to the Call-Over. That Balance Sheet indicates multiple areas of disagreement between the parties as well as multiple assets, liabilities, and superannuation interests that suggest there is a basic matrimonial asset pool for consideration on final defended hearing. Moreover, I find that the submission made by the Applicant regarding the consideration of the matter in relation to a defended hearing would mitigate against any prejudice (were there to be one) on the Respondent.
The Respondent further asserts that the matrimonial asset pool is so limited that any adjustment of the costs of a single expert’s report could be consequential on any share the Court deems just and equitable to apportion to her. I have already accepted the submission raised by the Applicant (regarding the Respondent having commenced property proceedings), and I accept the submissions made in reply by the Applicant as set out in paragraph 5(a) to (d) of his written submissions in reply. Paragraph 5(e) cannot assist me, it being evidence by way of submission.
The Respondent sets out bank statements in her written submissions that she suggests tend to support her assertion that her day to day expenses exceed her income, supporting her application that she not be responsible for any of the costs of the single expert witness’ report. As these are submissions and not sworn evidence, I cannot take any regard to these statements. But I note that in my consideration of this matter, the Respondent’s current day to day income versus expenses cannot be persuasive in my determination of whether the Respondent should be required to pay a contribution to the costs of a single expert’s report on the making of final orders, that financial circumstance being of a completely different character than a party’s quotidian financial affairs. I have already accepted that the parties are not ‘impecunious’, though that is a matter of greater significance than a part merely being unable to pay for a single expert witness’ report.
The Respondent casts doubt on the Applicant’s actual ability to pay for the report at first instance. This submission does not assist me – by his filing of an Application in a Case, the Applicant has asserted to the Court that he is willing to enter into orders that would require him to pay the full costs of the single expert witness’ report at first instance and irrespective of their sum. It is a matter for the Applicant to conduct his financial affairs in order to comply with this order, and the Court does not have any evidence before it that would support a finding on an interlocutory basis that the Applicant cannot do so.
The Respondent is critical of the attempts made the Applicant to ‘settle’ this matter or come to a compromise. I do not find that this submission assists me, nor do I find that the Applicant has failed in any particular duty to compromise with the Respondent or include the Respondent in the Applicant’s application. The Applicant’s application has been properly brought by means of an Application in a Case, and on the Respondent’s own evidence, raised with the Court prior to the filing of the application. Moreover, the Court specifically did not deal with the application in a substantive fashion at the Call-Over on the basis that the Applicant had not yet formally filed his Application in a Case.
The Respondent is critical of the Applicant’s failure to provide an accurate position as to costs of a report. This is raised at multiple points in her submissions.[6] I do not find that this is the case. I accept the evidence of the Applicant annexed to his solicitor’s affidavit, wherein he sets out correspondence sent to the Respondent including Dr D’s curriculum vitae and the G Counselling’s terms of engagement which includes fees. While the fees are unknown in the sense that they have not yet been invoiced, the terms of engagement clearly set out the costs that could be incurred in the process. Furthermore, if the Respondent had preferred an alternative single expert witness (that is, she objected to the identification of Dr D), it was open to her to make that application in the filing of her Response to Application in a Case.
[6] See especially paragraphs 6, 10.
I do not find that the Respondent has persuasively set out circumstances that would justify the Court making orders for the Applicant to bear the sole costs of a single expert’s report. Moreover, I find that there are sufficient circumstances set out that justify the Court making an interim order providing for the Respondent to pay for half of the costs of the report upon final property orders.
Accordingly, I find it is proper to make orders as set out in the Applicant’s Application in a Case, but modified to make it plain that the Court has the power to vary such interim orders as to the Respondent’s contribution to the single expert witness’ costs as such order is interim in nature.
COSTS OF THIS APPLICATION
The Respondent seeks an order that the Applicant pay her costs of these proceedings on an indemnity basis. The Applicant does not seek any order as to costs in his application.
I am not minded to consider any application as currently put before the Court in relation to costs in the absence of sworn evidence and submissions in support of such an application.
Accordingly, I decline to make any orders as to costs, without prejudice to any future application as to costs that either party may see fit to make.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 5 July 2021
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