HASILA & FATISI - [2019] FamCA 590

FAMILY COURT OF AUSTRALIA

HASILA & FATISI

[2019] FamCA 590

FAMILY LAW – EVIDENCE – Whether three affidavits written by health professionals should be excluded – where the affidavits have been objected to primarily on the basis of non-compliance with Part 15.5 of the Family Law Rules 2004 (Cth) – whether the opinions given in said affidavits fall within the exceptions at Rule 15.41 – where it is found that the affidavits fall within Rule 15.41 with particular paragraphs excluded.

Family Law Rules 2004 (Cth) – Part 15.5
Evidence Act 1995 (Cth) – ss 135 and 136

Biggs & Biggs [2014] FamCA 1033

APPLICANT:

Mr Hasila

RESPONDENT:

Ms Fatisi

INDEPENDENT CHILDREN’S LAWYER:

Mrs J Lloyd

FILE NUMBER:

CAC

1741

2018

DATE DELIVERED:

16 July 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

16 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Morrisroe

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Haddock

SOLICITOR FOR THE RESPONDENT:

Legal Aid, ACT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jeanine Lloyd & Associates

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1741 of 2018

Mr Hasila

Applicant

And

Ms Fatisi

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

In this matter the Mother seeks to admit affidavits and reports prepared by a paediatrician, Dr B, a social worker, Dr C, and a psychiatrist, Dr D. These have been objected to primarily on the basis of non-compliance with Part 15.5 of the Family Law Rules 2004 being the Rules about expert evidence. There is also some objection on the basis of the qualifications and explanations given for the opinions which, in the context of these child related proceedings, I infer is really an objection on the basis of relevance.
There is also some exclusion of evidence sought under s 135 of the Evidence Act 1995 (Cth) (“the Evidence Act”) and limitation of the use of evidence sought under s 136 of the Evidence Act.
Much turns on whether the opinions offered by the three witnesses fall within Rule 15.41 which sets out the scope to which Part 15.5 does not otherwise apply. In particular Rule 15.41(1)(a) was the focus of the debate. In general terms, the provision allows for evidence from persons who have a therapeutic involvement rather than forensic involvement as an exception to the single expert regime.
The scope of the exception was considered by Justice Watts in Biggs & Biggs.[1] I was appropriately drawn to that authority by Mr Haddock who complied with his ethical duty to advise me of relevant cases, even where they might not be helpful to his case. There Justice Watts considered the scope of the term treatment. In the context of his case he determined that it meant medical care which did not extend to a treating psychologist offering opinions or recommendations regarding orders to be made by the Court or what is in a child's best interests.
[1]Biggs & Biggs [2014] FamCA 1033
I note that Rule 15.41 provides express limitations to giving non-single expert evidence. It states that the evidence is to relate only to any of or all of the following:
(i)the results of an examination, investigation or observation made;
(ii)a description of any treatment carried out or recommended;
(iii)expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis
Of course in considering Justice Watts’ judgment I acknowledge that the provision is not restricted to medical practitioners, as is made clear by the reference to medical practitioner or other person who has provided or is providing treatment. I infer from this, that treatment is not restricted to medical treatment but can encompass treatment for example, as provided by a social worker in making recommendations for case management.
The narrow construction of Rule 15.41 is supported by the purpose set out in Rule 15.42 which includes ensuring that evidence is given by a single expert witness subject to particular limitations. That is, the evidence is to be taken from a person where there is a well-controlled and known process that is fair and governs the manner of communication with an expert, the provision of material to the expert and the general principles to be followed by the expert.
The primary complaint here is that such processes have not been followed. I note that the three reports were filed outside the trial directions which were amended to allow filing outside of those directions with the question of leave to be determined today.
However, the main complaints did not relate to the lateness of filing. Dealing firstly with Dr D, a psychiatrist who was engaged to give his opinion by the general practitioner that is, to make a psychiatric assessment. He provided a diagnosis and a plan for treatment and although he deals with the issues involved with contact with the Father, it is within the confines of treatment following his diagnosis. Although it was suggested that it was prepared for Court because of its proximity to the trial, on its terms and in what it addresses it falls within Rule 15.41 and is also admissible as being relevant.
Complaint was made as to its lateness and the Father seeks that the psychiatrist’s file be produced and directions will be made for the short service of a subpoena. It will be necessary for the solicitor for the Father to contact the psychiatrist’s practice to identify how short notice might compromise the production of the file. Perhaps that can be done this afternoon before the Court rises.
The second witness is Dr B, who is a paediatrician. She prepared a report on 16 January 2017 following a referral from a paediatric registrar. She has taken a history including from the Mother. She has examined X and assessed that he suffers from an illness. She has formulated a treatment plan which falls within the scope of treatment in Rule 15.41 as a plan to manage X’s treatment. It is relevant and it does not fall outside Rule 15.41.
Similar observations can be made about the report of 22 August 2017 and 9 October 2018 which assessed the efficacy of the treatment plan for X. However, the report of 16 November 2018 does not conform to the description of treatment, but rather is a commentary and set of recommendations to the Court. It is related to forensic issues rather than treatment and it falls outside Rule 15.41.
The third witness is Dr C, who is a social worker. Complaints were also made about his expertise. The test for admission of his evidence is one of relevance. The opinion rule does not apply. However, if an opinion is offered it must still meet the relevant threshold. His letter of 14 December 2018 is addressed to the Court and in part recommends Court outcomes and argues reasons for Court outcomes and to that extent does not fall within Rule 15.41. However, that does not infect all of what is recorded in the letter. In particular, the first page is predominantly directed to treatment and observations, treatment here being understood as case management of a child in the context of apparent trauma. Some aspects of the first page would also be admissible as not being a question of opinion but rather a recording of what has been said by a child.
Turning to the second page of the letter, which is marked as page 170, the second paragraph offers an opinion by Dr C without identifying an expertise to make it relevant. It is true that he may have dealt with such issues with other clients but his expertise to offer the explanations in paragraph two has not been identified and that paragraph will not be admitted.
The following paragraph is not about treatment but is a recommendation about Court outcomes and that also will not be admitted as it does not relate to treatment. The same appears to be the case with the fourth paragraph that it is also not about treatment and so it will not be admitted. The final paragraph on that page is again about treatment in the sense of case management and will be admitted. The two paragraphs on page 171 are submissions to the Court and will be excluded.
The Father sought some exclusions pursuant to s 136 in the sense that he sought a restriction in the use of hearsay material. The reports should not be so restricted. I understand that caution should be exercised in relation to the use of hearsay material, particularly where the source is not identified. That understanding guides the weight to be applied and guards against prejudice. It is not clear that such use of the material will result in a significant prolonging of the trial. If it is necessary to dwell upon those matters it is likely that they are matters of importance and the time spent on them would be unlikely to be unduly wasteful.
Similar considerations apply to the exclusion of material under s 135 in that an understanding of the hearsay nature of the material guards against unfair prejudice with the exclusions that have been made. I do not accept that cross-examination will be crippled and each of the reports are admitted subject to the exclusions I have identified.
While it was suggested that the material ought to be admitted even if it did not fit within Rule 15.41 due to the principles in child related proceedings the exclusions I have identified are not inconsistent with these principles. The expert rules and the manner of their application in this case is to facilitate a good hearing and judgment which will be in the children's best interests and so leave is not granted other than as is identified above.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 July 2019.

Associate:

Date: 23 July 2019