Hillier and Wooton - [2016] FamCA 217

FAMILY COURT OF AUSTRALIA

HILLIER & WOOTON

[2016] FamCA 217

FAMILY LAW – FINANCIAL – Application for leave to adduce evidence from an adversarial expert – Leave granted – The experts are to confer, prepare a joint statement and give oral evidence concurrently.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Hillier

RESPONDENT:

Ms Wooton

FILE NUMBER:

CAC

2423

2007

DATE DELIVERED:

4 April 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton, SC

SOLICITOR FOR THE APPLICANT:

Somerville Legal

COUNSEL FOR THE RESPONDENT:

Mr Kearney, SC

SOLICITOR FOR THE RESPONDENT:

Pigdon Norgate Family Lawyers

Orders

I mark the letter from Pigdon Norgate to the court (together with its enclosures) dated 31 March 2016 as Exhibit 13.
Leave be granted to the respondent husband to adduce and rely upon the evidence contained in the affidavit of Dr B sworn 21 March 2016 at the final hearing of this matter.
Dr C and Dr B confer within a period of 21 days. The expert witnesses are to comply with rule 15.69(3) Family Law Rules 2004 (Cth) with a joint statement to be prepared and forwarded electronically to my associate and the parties on or before 1 May 2016.
I note that Dr C in his email of 25 March 2016 indicated that he would be greatly assisted by being provided clarity as to what questions or issues the experts were to confer and produce a joint statement about. In that regard the lawyers for the parties should draw the experts’ attention to comments made at [30] of these reasons.
Pending further order Dr C will continue to fulfil the role as a single expert witness.
In the event the wife wishes to further argue interim order 5 should be varied, she may seek to relist the matter in which circumstances arrangements should be made to have Dr C available electronically so that he can put his position in response to any argument the wife wishes to make.
The single expert and the adversarial expert are to give oral evidence concurrently.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillier & Wooton 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 SYDNEY

FILE NUMBER: CAC 2423 of 2007

Mr Hillier

Applicant

And

Ms Wooton

Respondent

REASONS FOR JUDGMENT

The husband filed an Amended Application in a Case on 21 March 2016 seeking the following orders:
1.Leave be granted to the respondent to adduce and rely upon the evidence contained in the affidavit of Dr B sworn 21 March 2016 at the final hearing of this matter.
2.Dr B and Dr C participate in a conference by 15 April 2016 and provide a joint statement by 29 April 2016.
At the final hearing, the wife seeks an order that a binding financial agreement that was entered into between the parties on 31 May 2007 be set aside on the basis that:
2.1.It was voidable because of actual undue influence or presumed undue influence; or
2.2.On the basis that the husband had engaged in conduct that was in all the circumstances, unconscionable in respect of the making of the financial agreement.
The impairment of the wife’s capacity is a central issue in the final hearing.
There has been some considerable delay in getting this matter ready for a re-hearing (the reasons for which are not relevant for present purposes).
On 25 March 2013 the husband gave the wife notice that he required the wife to attend upon a forensic psychiatrist for the purpose of the provision of an opinion relating to the impairment of her capacity as at May 2007.
When the matter was before me on 9 August 2013, an order was made to create a mechanism for the appointment of a single expert and for the settling of the terms of a draft letter to that expert. On 5 December 2013, although Dr C had been selected by the parties, no letter of instruction had been settled and a further direction was made in relation to that issue. A further order was made in the following terms:
7. The wife give authority to Dr C to speak to any of her treating practitioners and Dr C see the wife in an interview only if Dr C forms the opinion after having read the material, that he would be assisted in providing the opinion that is sought by interviewing the wife.
There was contention before me as to whether or not that order was made at the husband’s urging or in fact after opposition from the husband (but nothing turns on that uncertainty given that on that day I left to Dr C the decision as to whether or not interviewing the wife would assist him providing the opinion that was sought).
Dr C (again for reasons that are not for present purposes relevant), did not produce a report until 4 August 2015. In that report, Dr C addressed the questions he had been asked which were as follows:
1.Did the wife possess capacity to enter into the binding financial agreement dated 31 May 2007;
2.Is the conduct as alleged by the wife, yet denied by the husband, of such a nature that it is likely to have impaired the wife’s capacity to enter into a legally binding agreement as at May 2007?;
3.Did the conduct of the husband as alleged by the wife, yet denied by the husband, have the effect of compelling and/or persuading the wife to enter into an agreement in circumstances where the wife did not have the capacity to enter such agreement?
4.Did the circumstances that existed at separation and thereafter, including the alleged conduct of the husband (which is denied), impair the free exercise of the wife’s independent will at the time that she entered into the financial agreement on 31 May 2007?
At some time between the release of Dr C’s report in August 2015 and 21 December 2015, the husband’s lawyers indicated they wished to challenge Dr C’s report in some way. In a letter written by the husband’s lawyers dated 21 December 2015, they foreshadow the current application asserting that:
The process [Dr C] used in preparing his report was flawed in that there was an absence of critical evaluation and an absence of balance in the report. We will also contend that there is little or no value to be placed on a psychiatric evaluation done some eight years retrospectively.
In support of the current application for leave to adduce adversarial evidence, the husband relies upon an affidavit of Dr B sworn 21 March 2016 which encloses two reports, one dated 25 February 2016 (although the header on the subsequent pages of the report is dated 26 February 2016) and the other report dated 18 March 2016.
My understanding was that the first occasion when the wife had seen these documents were when they were served with the doctor’s affidavit of 21 March 2016.
Notwithstanding that short notice, senior counsel for the wife indicated that the wife was in a position to deal with the application for leave to adduce adversarial evidence.
Senior counsel for the husband relies on rule 15.49(2) Family Law Rules 2004 (Cth) as a basis for arguing that the court should allow the husband to tender the reports and adduce evidence from Dr B. He further relies on rule 1.04 (the main purpose of these Rules 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). Further, rule 15.49 says that a purpose of the expert evidence rules is 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.
Rule 15.49(2) is in the following terms:
15.49 Appointing another expert witness
....
(2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
(b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing evidence from another expert witness.
The single expert opines that as at 31 May 2007, the wife’s symptoms, if judged on the current DSM 5 criteria, would lead to a diagnosis of adjustment disorder with anxiety.
It is unclear from Dr C’s report as to whether or not he agreed that as at March 2007 the wife had “acute stress disorder”. That was a diagnosis made by the wife’s psychologist, Ms E, as at March 2007. The ambiguity as to whether or not Dr C agreed with that diagnosis as at that date, arises from [81] – [87] of his report.
The adversarial expert is of the opinion that the activities and behaviour of the wife as at May 2007, as disclosed in contemporaneous documentation were insufficient to satisfy the diagnostic criteria for adjustment disorder as they did not show evidence of either marked distress that was in excess of what would be expected given what the wife had been through nor did the wife demonstrate significant impairment in social or occupational (academic) functioning as required by criterium B in the DSM-IV-TR (the applicable criteria at the time).
If Dr C was of the view that the wife’s psychologist was correct in diagnosing acute stress disorder as at March 2007, however the adversarial expert was of the view that the wife’s cluster of symptoms was not consistent with the diagnosis of acute stress disorder.
The adversarial expert opines that it is extremely difficult from a psychiatric point of view to undertake an assessment which is reliable on the basis of a retrospective assessment, eight years after the event and based upon what occurred eight years ago. Further, the adversarial expert was of the opinion that there is recognised methodology for undertaking an assessment of a person’s capacity at a previous point in time and that the appropriate means of so doing is to assess that the person’s contemporaneous function in the context of activities undertaken by that person at that time. In terms of retrospective assessment of mental health, the adversarial expert sets out at page 2 of his second report what he asserts is the common procedure and at page 3, provides three articles relating to methodology for conducting retrospective reviews of mental health.
The adversarial expert criticises the fact that Dr C chose to interview the wife for two hours and to use the information received in that interview to fortify his opinions. The adversarial expert refers to “understandable distortions of memory” and opines that if Dr C reached the decision to interview the wife, he should have also interviewed the husband to hear both sides of the history.
The issue for determination under rule 15.49(2)(a) is whether or not the opinions expressed by Dr B fall within the definition of there being a “substantial body of opinion contrary to any opinion given by the single expert witness”. There is no doubt that Dr C’s opinion about the wife’s mental status in May 2007 is, if accepted, a highly relevant and potentially determinative piece of evidence (although it is not necessarily the case that a rejection of Dr C’s diagnosis would mean that the wife’s case fails).
The point should be made however that the doctors do not necessarily seem to be disagreeing on what diagnostic criteria should be applied but rather whether or not the wife’s symptoms and behaviours in May 2007 meet the diagnostic criteria. There is not consequently a “substantial body of opinion contrary to the opinion given by the single expert” but rather an opposite opinion proffered by the adversarial expert based on the documents provided to Dr C.
It is difficult to say in those circumstances that the test set out in rule 15.49(2)(a) has been met.
In relation to rule 15.49(2)(b), senior counsel for the husband says that Dr B knew of matters possibly not known to the single expert witness that may be necessary for determining the issue. That was a reference to the three articles that Dr B relied upon in his reports. The difficulty with the argument by senior counsel for the husband is that because of the lateness of the provision of the report, the normal processes provided by the rules (written questions and a conference with a single expert) have not happened. Although Dr C does not refer to any research articles in his report, I am unable to say whether or not he was aware of them and took them into account. In those circumstances, the ground in rule 15.49(2)(b) is not made out.
In relation to rule 15.49(2)(c), senior counsel for the husband argues that there is a special reason for adducing the evidence from Dr B, namely, that Dr B’s expert opinion evidence goes to a matter of great significance when cast against the issues in dispute between the parties. He argues that in the circumstances of this case, it is in the interests of justice to allow the husband to put Dr B’s opinions into evidence.
Senior counsel for the wife highlights the fact that the single expert report was obtained after the agitation by the husband to obtain a retrospective psychiatric assessment of the wife’s mental status as at the date of entering into the binding financial agreement. Senior counsel for the wife submits that the husband was unhappy with the result of the single expert opinion and went expert shopping. The lawyers for the wife had inquired of the lawyers for the husband about the extent to which the husband’s firm used Dr B in other matters where opinions were obtained. They received no response. Nor had there been any response to a question as to whether or not there had been any non-written communication between Dr B and the lawyers for the husband.
Senior counsel for the wife also submits that the adversarial expert’s reports are largely a critique of Dr C’s report. There is some substance in that submission.
What flows from that however is a practical consideration. If leave is not granted to allow the husband to adduce Dr B’s report (with the consequence that the experts would confer and prepare a joint statement), then criticisms raised by Dr B in his reports will be used in cross examination of Dr C. Granting leave to Dr B and requiring the experts to confer and produce a joint statement presents the possibility of shortening the proceedings.
The decision as to whether or not to grant leave is a finely balanced one. I am however mindful of the central issue in this hearing and the relevance of Dr B’ opinion to that issue. Ultimately I am persuaded that there is a special reason in the circumstances of this case to allow Dr B to give evidence.
I note that Dr C has observed that his report and Dr B’s reports respond to different questions and that the process and outcome of the meeting between the experts would be greatly assisted by clarity as to what questions or issues the experts are to confer and to produce a joint statement about. Rule 15.69(3) requires the experts to identify the issues that are agreed or not agreed. At this stage I am not making any judgment as to whether or not any particular issue raised by Dr B will have any or any significant weight, however, the experts are being asked to take the reports and distil from them, following their conference, what issues are agreed and what issues are the subject of disagreement. Once issues of disagreement are identified, the reason for that disagreement should be stated by each expert in the joint report.
I also record that on 23 March 2016, I made the following notation and order:
3. I indicate that in the event that I give leave to [Dr B] to give evidence on behalf of the husband, then I note that it is the position of the wife that [Dr C] will become the wife’s expert in the hearing and the wife will have the ability to communicate on a privileged basis with [Dr C]
4. The wife will also have leave to issue a subpoena for the production of [Dr B’s] file as long as that subpoena is returnable and documents inspected prior to the first morning of the hearing.
In his email of 25 March 2016, Dr C says:
I will defer to the decision of the court about my role, but state my preference to remain as the court’s witness, rather than to be assigned the role of a witness engaging in privileged communication with one party or another.
The Family Law Rules do not contain any rule relating to the role of single expert in circumstances where evidence from a different expert witness about the same or a similar question is permitted. Specifically the purpose of the expert evidence rules (rule 15.42) does not assist.
In this case the wife seeks to rely upon the evidence and the opinions expressed by the single expert. Given that there is now to be the ventilation of competing expert views, it is not an unreasonable application that the wife makes for the single expert to become her witness and for her to be allowed privileged communications with the single expert on that basis.
The difficulty in this case however is the view expressed by the single expert who accepted the appointment in that role on the basis that it would be one that would be independent of each of the parties. Given Dr C’s expressed preference to remain as the court’s witness rather than being assigned the role as a witness engaged by one of the parties, I will not at this stage, make an order forcing him to adopt a different role to the one to which he initially agreed.
I note on 23 March 2016 I granted leave to the wife to issue a subpoena for the production of Dr B’ file as long as that subpoena is returnable and documents inspected prior to the first morning of the hearing.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 4 April 2016.

Associate:

Date: 4.4.2016