GUNBY & CARRINGTON
[2009] FamCA 965
•25 September 2009
FAMILY COURT OF AUSTRALIA
| GUNBY & CARRINGTON | [2009] FamCA 965 |
| FAMILY LAW – PRACTICE AND PROCEDURE – expert evidence – child proceedings – whether permission should be granted to the mother to rely on the evidence of an expert with respect to issues of family violence – where the expert evidence is not based on written instructions – where the expert did not interview the father – where the prejudicial nature of the evidence outweighs its probative value – exercise of the Court’s discretion under s 135 of the Evidence Act 1995 (Cth) – refusal by the Court to grant the mother permission to rely on the expert evidence FAMILY LAW – COSTS – question of costs adjourned to the conclusion of the trial |
| Family Law Act 1975 (Cth) ss 69ZT &121 Evidence Act 1995 (Cth) s 135 Family Law Rules 2004 (Cth) Part 15.5, rr 15.42, 15.52 & 15.54 |
| Knight & Knight [2007] FamCA 263 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Paino & Paino (2008) 40 Fam LR 96 HG v R (1999) 197 CLR 414 |
| APPLICANT: | Ms Gunby |
| RESPONDENT: | Mr Carrington |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commissions of SA |
| FILE NUMBER: | ADC | 4119 | of | 2008 |
| DATE DELIVERED: | 25 September 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 25 September 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Swan |
| SOLICITOR FOR THE APPLICANT: | Swan Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mrs Lindsay |
| SOLICITOR FOR THE RESPONDENT: | Barr Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Cocks |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Services Commission of SA |
Orders
The Court refuses to grant the mother permission to rely upon the affidavit of Dr S at the conclusion of these proceedings.
The Applications in a Case filed by the mother on the 25 August 2009 and 22 September 2009 are dismissed.
Leave is given to the father to file and serve his affidavits of his witnesses within 7 days from today.
Leave is given to the mother to file and serve her affidavits of her witnesses within 14 days from today.
This matter is adjourned to 12 October 2009 at 9.15 am before the Honourable Justice Dawe for a compliance check to get it ready to proceed to trial by way of conclusion before me on 21 October 2009.
The question of the costs of this application is adjourned to the conclusion of the trial when other matters concerning the discretion to be exercised when determining the question of costs can be appropriately considered.
IT IS NOTED that publication of this judgment under the pseudonym Gunby & Carrington is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4119 of 2008
| MS GUNBY |
Applicant
And
| MR CARRINGTON |
Respondent
EX –TEMPORE REASONS FOR JUDGMENT
This is the application by the mother seeking permission to rely upon the evidence of Dr S; in particular the affidavit of Dr S filed on 9 June 2009 as an expert to give evidence in the final proceedings concerning the orders to be made in relation to the various parenting applications by the mother and father concerning the child of the parties.
The proceedings concerning the child commenced in October 2008 in the Federal Magistrates Court and were transferred to the Family Court of Australia on 18 June 2009 by which time Dr S’s affidavit had been filed by the mother in the Federal Magistrates Court.
Difficulty is created because of the different rules which apply concerning experts in the Federal Magistrates Court and the Family Court of Australia.
The Family Court of Australia Rules specifically set out in Part 15.5 detailed provisions in relation to the method by which expert reports can be relied upon and the preference for a single expert witness to provide evidence to the Court rather than adversarial experts. Those provisions in the Rules are consistent with the main purpose of the rules, which is:
…to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
In particular, Part 15.5 has as the purpose of that Part:
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.
It can therefore be seen that the Rules which apply in the Family Court emphasise not only the need for expert evidence to be limited to a significant issue in dispute and that the question of costs is relevant, but also emphasise that if it is in the interests of justice a party can rely upon a report which is not obtained from a single expert instructed by all of the parties concerned.
The evidence of Dr S is contained in the affidavit filed on 9 June 2009 which provides information concerning her background as a social scientist who specialises in child and family assessments, therapy and dispute resolution in cases of violence and abuse, and in cases involving infants and young children (paragraph 1 of Dr S’s affidavit). Initially, Mr Swan as counsel for the mother, appearing today, said that he was seeking to rely upon the affidavit of the expert about the effects of family violence generally.
However, he expanded that, on prompting from me, to clarify it as relying on not only the issue of family violence but the effects of domestic violence upon the mother's ability to properly parent the child and how the issue of domestic violence should be addressed "… in regard to the best interests of [J]" (paragraph 2 of Dr S’s affidavit).
The submissions of Mr Swan were that it is not contested that Dr S is an expert and that although there is no single expert to report on these topics there was an attempt, after the matter came before the Family Court of Australia, to agree upon a joint expert, but that was not successful. He submits that the testimony of Dr S goes to an issue which is significant in the proceedings, namely the impact of violence upon the mother and the child.
He concedes that the evidence of Dr S can be challenged if the factual basis upon which Dr S has formed her opinion is successfully challenged.
Mrs Lindsay as counsel for the father opposes the Court granting permission for the mother to rely upon Dr S’s affidavit and provides several bases of that opposition. Firstly, it is conceded that the evidence is not that of a single expert witness and that the rules concerning permission need to be followed, and in particular the provisions of rule 15.52. Mrs Lindsay also refers the Court to various authorities and suggests that the evidence of Dr S has been contaminated by the process of the method undertaken to obtain her expert opinion, and that the documents she has relied upon have been improperly released, based upon section 121 of the Family Law Act 1975 (Cth).
The Independent Children’s Lawyer counsel also opposes the granting of permission and emphasises that the evidence of Dr S leaves the Court uncertain about the information which has been received and upon which she based her opinion. The Independent Children’s Lawyer counsel submits that the prejudicial impact of the evidence of Dr S outweighs its probity and draws attention to the affidavit of Dr S in which she appears to go beyond her role as an expert in relation to the impact of family violence upon the mother and her capacity to parent.
The counsel for the father and the Independent Children’s Lawyer also raised the issue of the mother's solicitor having to give evidence at the trial, as it appears from Dr S’s affidavit that he provided information and had an interview with the expert prior to the preparation of her affidavit.
The Court is required, when considering these matters, to take into account the fact that these proceedings are proceedings which require the Court to determine what is in the best interests of the child. That is the paramount consideration.
These proceedings were started after the amendments to the Family Law Act in which Division 12A came into being. The provisions of section 69ZT of the Family Law Act, have the effect of removing the application of certain parts of the Evidence Act 1995 (Cth), and in particular, removing the sections of the Evidence Act which restrict and control the receipt of evidence which is hearsay, opinion and of other types. Significantly, however, section 135 of the Evidence Act still applies in this Court, which allows the Court to exercise a discretion
“…to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
a)be unfairly prejudicial to a party; or
b)be misleading or confusing; or
c)cause or result in undue waste of time.”
The provisions of section 135 of the Evidence Act are to a certain extent taken up in rule 15.52 subparagraph 3 which directs the Court to matters it may take into account when considering whether to permit a party to tender a report or adduce evidence from an expert witness. The sub-rule (a) requires the Court to take into account the purpose of this part which is described in rule 15.42, to which I have already referred.
The Court is then given the encouragement to consider the question of the costs; the likelihood of expediting or delaying the case; the complexity of the issues; whether the single expert witness rather than an expert witness is appointed by one party and whether the expert witness has specialised knowledge, training, study or experience relevant to the issue in which the evidence is to be given and appropriate to the value, complexity and importance of the case.
The sub-rule, however, is not exclusive and there are other matters which ought to be considered. In particular, it is appropriate in this case to consider the nature of the evidence.
The question of the costs or possible delay which would be incurred if Dr S’s evidence were received are not significant factors to be taken into account when assessing whether the evidence should be received.
Mr Swan draws the Court's attention to the decision of Knight & Knight [2007] FamCA 263 in which Bryant CJ considered the provisions of rule 15.52 in relation to a financial matter. Those criteria set out in paragraph 33 of the Chief Justice's judgment are helpful in directing the Court. She highlights in paragraph 33 the purpose of the rules and says at paragraph a):
“a) … I have set them out but having regard to my discretion in the end to ensure that the interests of justice are met; ”
She talks about paragraph (b) "the impact … on the costs of the case".
Paragraph (c) refers to “the likelihood of the appointment expediting or delaying the case”.
Then subparagraph (d) refers to “the complexity”.
In that matter the Chief Justice weighed up the factors and granted permission for the expert evidence to be given. That case is clearly helpful. It is not decisive in determining the matters before me today. Significant other factors in this matter, of course, are that the Court is exercising its discretion, bearing in mind that this is a matter concerning the determination of what are the best interests of the child.
The counsel for the father has referred me to authorities set out in the summary of argument provided, and in particular refers to the case of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 and the case in which that case was cited with approval in Paino & Paino (2008) 40 Fam LR 96; [2008] NSWCA 276.
I do not base my decision on any argument in relation to the production of material in relation to documents provided to Dr S and the impact of section 121. I am not making any finding in relation to that. If an expert were to give evidence then it is likely that the expert would be provided with affidavit material already filed, although it is not clear from the list of documents referred to in Dr S’s affidavit whether all of them would be admissible or relevant to the final determination concerning the best interests of the child.
The significant factors, however, are the parts of the affidavit which indicate the basis upon which Dr S has provided her evidence.
Paragraph 2 makes it clear that she was requested to provide:
“…expert advice upon the effects of domestic violence upon the mother's ability to properly parent [J].”
The paragraph continues to say that Dr S received a letter from the mother's solicitors, then met with the mother's solicitor:
“Who expanded upon the terms of engagement provided and requested that in addition to the advice sought in the letter of engagement, I also advise in regards to the issue of family violence and how this should be addressed in regard to the best interests of [J].”
The affidavit then sets out the list of documents which the expert was provided, including paragraph 3:
“I have further been provided, by the mother's solicitors, a draft copy of the mother's trial affidavit. ”
The issue is taken that the evidence of the expert has not been based upon written instructions as required by the provision of Division 15.5.4 of the Rules. Rule 15.54 requires that:
(1) A party who instructs an expert witness to give an opinion for a case or an anticipated case must:
(a)ensure the expert witness has a copy of the most recent version of, and has read, Divisions 15.54, 15.5.5 and 15.5.6 of these Rules; and
(b)obtain a written report from the expert witness.
15.54(2) requires:
“All instructions to an expert must be in writing and must include …”
and then it sets out the items which must be included.
It is clear from the affidavit of Dr S that all of the instructions were not received by her in writing. In paragraph 13, 14 and 15, Dr S refers to the issues of family violence and in paragraph 14 says:
“The clear details provided at interview by [the mother] on her experience of [the father’s] violence revealed the pattern and potency of the violence and who perpetrated the violence.”
This, on the face of it, appears to be drawing a conclusion as to the violence, without providing the "clear details". It establishes a concern on the face of the document that the expert has formed an opinion about the factual basis provided to her without providing the background basis upon which she formed that conclusion. Paragraph 15, also, is in a similar vein when it says:
“In my opinion, [the mother’s] described responses to the range of violence and her observed responses during interview reveal symptoms consistent with trauma.”
She proceeds to describe the symptoms.
Dr S has only interviewed the mother and spoken with the mother’s solicitors; and the only information concerning the father’s case was that provided by the mother’s solicitors.
In paragraphs 24, 28 and 32 that she comes to conclusions about the issues concerning the father, without having interviewed the father, and forms opinions in relation to the final parenting arrangements for J. This suggests that Dr S has gone beyond the role which was sought and into a much wider area. This suggests that she is not independent but is partial or biased in favour of the mother. If so, her evidence could be considered as likely to carry little weight.
I conclude that there is substance to the submissions of the counsel for the father and the Independent Children’s Lawyer that the uncertainty concerning the information upon which Dr S has based her opinion; the method upon which she has reached her opinion; the failure to set out the clear basis upon which she has formed her opinion; the failure to identify the assumed and accepted facts clearly and her formed conclusions which go beyond the requested task.
Makita (Australia) Pty Ltd v Sprowles (supra) Heydon J describes the test in relation to opinion evidence including the necessity to clearly identify the facts, being the accepted facts or the assumed facts, upon which the opinion is based and the proper foundation for it.
Part of that paragraph of Heydon J’s judgment refers to Gleeson CJ, as he then was, characterising evidence in the case of HG v R (1999) 197 CLR 414; [1999] HCA 2 as:
“…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...”
This is not a case in which there is a process which has gone well beyond their field of expertise but it could be described as inference being drawn from evidence which is not clearly identified.
The other significant factor is that the evidence of Dr S in its present form does not allow the Court to consider that it is an unbiased, expert opinion. Because of the nature of the process, and the affidavit itself it can be categorised as partial or being of a nature that is supportive of the mother's cause rather than independent.
Therefore, the prejudicial nature of the affidavit of Dr S outweighs its probative value and clearly falls within the provisions of section 135 of the Evidence Act. The Court should exercise its discretion, notwithstanding the serious issue to be determined is whether the domestic violence alleged by the mother has occurred and clearly, notwithstanding that, it is very important in the Family Court of Australia when dealing with children's matters to ensure that appropriate emphasis and recognition is given to the likely consequences of domestic violence between parents, not only on the parents' parenting capacity but on the best interests of the child.
My decision in no way is intended to minimise or reduce the significant impact of family violence in determining what is in the best interests of the child, however in this case the evidence of Dr S could not be considered to assist in determining whether the family violence as alleged by the mother has occurred. The way the evidence has been presented does not assist the Court appropriately in determining the effect of any family violence upon the mother or the child.
I therefore refuse to grant the mother permission to rely upon the affidavit of Dr S at the conclusion of these proceedings.
In relation to the question of costs, whilst the mother has been wholly unsuccessful in the application for permission to rely upon the affidavit, there are other factors that need to be taken into account. I am the trial Judge and I propose, therefore, to adjourn the question of the costs of this application and hearing to the conclusion of the trial when other matters concerning the discretion to be exercised when determining the question of costs can be appropriately considered.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 9 October 2009
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