Gingham and Gingham (No 2)

[2010] FamCA 1283

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM (NO 2) [2010] FamCA 1283

FAMILY LAW – Leave to rely on expert evidence

Family Law Act 1975 (Cth)

APPLICANT: Mr Gingham

RESPONDENT: Ms Gingham

INDEPENDENT CHILDREN’S LAWYER: Christine Vachon

FILE NUMBER: BRC 2720 of 2010

DATE DELIVERED: 27 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamwood

SOLICITOR FOR THE APPLICANT: Crowley Greenhalgh Solicitors

THE RESPONDENT: Ms L.K. Gingham in person

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Brasch

SOLICITOR FOR THE
INDEPENDENT CHILDREN’S LAWYER: Christine Vachon Solicitor

Orders

1. The mother is granted leave to rely upon the evidence of Prof H and Prof I.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gingham & Gingham (No 2) 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 BRISBANE

FILE NUMBER: BRC 2720 of 2010

Mr Gingham

Applicant

And

Ms Gingham

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The mother makes application to adduce evidence from two witnesses in respect of whom she asserts expertise being Prof H and Prof I.  Reports from each of those men are annexed to affidavits which outline their qualifications, experience and asserted expertise. 

2. Mr Hamwood submits that leave should not be granted to the mother to adduce evidence from either of those two individuals by reason, firstly, of the filing of their evidence being out of time in accordance with directions made by me earlier in these proceedings, and secondly, on the basis that the Rules, by both their purposes and specific provision, evidence a clear intention that in proceedings before this court where expert evidence is necessary it should, in the usual course of events be through a single expert.

3. To that might be added the principles evident in section 69ZN of the Act which impose mandatory obligations upon this court in the conduct of parenting proceedings. 

4. Ms Brasch, counsel for the Independent Children’s Lawyer supports the submissions made by Mr Hamwood on behalf of the father in the respects to which I have just referred. 

5. Mr Hamwood makes specific reference to rule 15.49 which outlines the circumstances in which the court may allow a party to tender a report or evidence from another expert witness on the same issue as that addressed by a single expert.  Subrule (2) of that rule specifies a number of matters upon which the court might be satisfied in order to allow the mother to tender a report.  The points made by Mr Hamwood are supported by Ms Brasch.

6. However, in this case I have determined to allow the mother to rely upon each of those witnesses for the following reasons. 

7. Firstly, the mother is self-represented and places before the court a plethora of material that addresses issues that are now of some long standing.  In particular, the mother asserts in very broad terms that she has been treated unfairly by what might broadly be described as earlier court processes and in particular by experts who have been involved in those earlier court processes. 

8. She asserts in a separate application, which I will determine in a moment, bias on the part of Dr V, who is the single expert in this case. 

9. It seems to me that the interests of justice require the mother to have the opportunity to ventilate separate opinions which she asserts to be expert in the pursuit of the case which she seeks to make out.

10. The opinions of Dr V and other experts including, for example, the family consultant Ms Quigley and the psychologist, Mr Witzerman, have referred to what I will call broadly “personality issues” on the part of the mother. Dr V arrives at specific opinions with respect to those personality issues.  In my view the interests of justice ought permit of the mother adducing alleged expert evidence in respect of those matters. 

11. On balance, it seems to me the interests of justice require that the mother be given the opportunity to adduce evidence from each of those two witnesses.  I make it abundantly plain that whilst, for the purposes of this application, and this application alone, I have assumed expertise on the part of each of those individuals, that is not a matter upon which I have reached a final decision.

12. In particular I note Ms Brasch has indicated to the court that she intends to challenge the expertise of at least one of those witnesses.  It seems to me that Ms Brasch is entitled to do so, but in the context of that witness, and indeed the other witness, having first provided evidence to this court. 

13. Finally, I am not convinced that the granting of permission to the mother to rely upon each of those two witnesses causes any prejudice to the husband that cannot be adequately dealt with during the course of the hearing or otherwise compensated in costs should such a case be made out.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 27 October 2010.

Associate:  L. McMurray

Date:  21 August 2012