Jansen & Kwan
[2022] FedCFamC1F 355
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jansen & Kwan [2022] FedCFamC1F 355
File number(s): SYC 1403 of 2020 Judgment of: BRASCH J Date of judgment: 17 May 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge single expert – Where an updated Family Report is required – Where nothing in the expert’s statement could reasonably give rise to apprehension of bias toward the applicant – Proposition best tested by cross-examination at trial – Application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (Cth) r 7.01. Cases cited: Bass & Bass (2008) FLC 93-366; [2008] FamCAFC 67
Ebner & the Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hall & Hall [1979] FLC 90-71; [1979] FamCA 73
Klein & Klein [2010] FamCAFC 150;
Nagelv Clay [2020] FamCA 3262;
U v U (2002) 211 CLR 238; [2002] HCA 36
Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 17 May 2022 Place: Sydney Counsel for the Applicant: Mr Wahhab Solicitor for the Applicant: York Law Family Law Specialists Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: Horton Rhodes Legal ORDERS
SYC 1403 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JANSEN
Applicant
AND: MR KWAN
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
17 MAY 2022
THE COURT ORDERS THAT:
1.The mother’s Application in a Proceeding, sealed on 2 May 2022, be dismissed.
2.The parties do all things to instruct the Single Expert, Dr H (“the Single Expert”), to update his report (and update the matters considered pursuant to Order 17 of the orders made on 23 April 2020), dated 20 July 2020 as follows:
(a)the updated report is to be available to the parties by no later than four weeks prior to the commencement of the final hearing;
(b)the parties have leave to provide the Single Expert, by way of instructions, the following documents one week before the interviews scheduled with the Single Expert, noting that interviews are to be held six weeks before the commencement of the final hearing:
(i)a copy of all orders made in these proceedings;
(ii)a copy of the reasons for judgment of Altobelli J dated 1 March 2021;
(iii)a copy of all documents produced under subpoena and, for the purposes of this order, the parties have leave to issue up to 10 subpoenas each;
(iv)a copy of one trial affidavit for each party and each of their witnesses, together with their annexures and/or exhibits;
(v)such further documents as agreed between the parties in writing; and
(vi)any further documents that the ICL wishes the Single Expert to see, included but not limited to, any updated subpoena material.
3.The father meet the Single Expert’s costs in the first instance with the mother to pay to the father one half of the Single Experts’ fees upon receipt by the mother of her entitlements in the property proceedings.
4.Both parties costs of and incidental to the Application in a Proceeding sealed 2 May 2022 are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Jansen & Kwan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Brasch J:
The parties in this matter are in dispute about both parenting and financial matters. As a consequence of an earlier hearing before me they agreed to bifurcate matters so the parenting aspect along with interim spousal maintenance could be heard this year. This is in circumstances where international travel orders are sought, at least at this point in time by the mother, and where the father is agitating a change of school for the oldest of the three boys, X, for term one next year. I was able to find time to accommodate this with the parenting trial, including the interim spouse maintenance hearing, commencing on 20 September 2022 for four days.
What is before me today is the mother’s Application in a Proceeding filed 2 May 2022 wherein she moves the court to discharge Order 16 of the orders made in these proceedings made 23 April 2020. She also proposes that pursuant to Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law)Rules 2021, either Dr CC or Dr EE be appointed as the single expert to prepare a report in relation to the care, welfare and development of the children.
The mother also seeks a range of procedural orders to facilitate material going before the single expert, or not in some circumstances of material, and the making of appointments and what the single expert is to consider.
The mother proposed that the father meet the single expert’s costs in the first instance with the mother to pay the father one half of the single expert fees upon receipt by the mother of her entitlements in the property proceedings.
The father proposes orders that would see the current single expert, Dr H (“Dr H”) update his report, and sets out a process for this to occur. He agrees to meet the costs at first instance, with the mother to pay her half upon receipt by the mother of her property proceedings entitlement. He otherwise seeks a dismissal of the mother’s Application in a Proceeding.
Both parties seek the other pay their costs of this Application in a Proceeding.
The children are X, born in 2010; Y, born in 2013; and Z, born in 2016.
Order 16 of the April 2020 order provides:
That a report be prepared in these proceedings for Parenting Orders relating to the care and welfare of the children pursuant to Part 15 (Rule 15.9 and 15.10) of the Federal Circuit Rules 2001 (Cth) (“the Family Report”) to be prepared by [Dr H] (and it is noted that interviews are scheduled for 18 June 2020).
Importantly, it identified in the orders that the report was to be prepared by Dr H. It appears on the face of that Order 16 (along with other orders) were made by consent.
Dr H, a psychiatrist, produced a report dated 16 July 2020 and then a response to questions dated 12 August 2020. The recommendations in Dr H’s primary report do not support the applicant’s position. I also note that initial report was produced almost two years ago, but the applicant is only bringing the application to discharge now.
The application to discharge Dr H is opposed by the respondent father. As a consequence of earlier orders I made, the appointment of ICL has been ordered, but not yet appointed.
Material relied upon
The applicant mother relied upon the following
·Application in a Proceeding filed 27 April 2022
·Affidavit of Ms Jansen filed 27 April 2022
·Affidavit of Ms DD, the mother’s psychologist, filed 27 April 2022
·Plus, an Outline of Case Document Interim Hearing filed 17 May 2022
The respondent father relied upon the following
·Response to Application in a Proceeding filed 13 May 2022
·Affidavit of Mr FF filed 15 May 2022
·The two reports of Dr H as identified
·Reason of Altobelli J of 1 March 2021
·Also, an Outline of Case Document Interim Hearing filed just before 1pm today
Submissions
At the start of this hearing an oral application was brought by the father that I not take into account those parts of the mother’s treating psychologists affidavit, Ms DD (“Ms DD”), when that affidavit extended beyond what is permitted under r 7.01 of the Federal Circuit and Family Court of Australia (Family Law)Rules 2021. For the reasons I have already given I acceded to that application. So, in terms of relying on the mother’s affidavit of Ms DD, my reliance is limited to that which is provided by the rule.
In support of the mother’s application, her legal representative submitted, in summary as follows.
That the report was outdated and of marginal forensic value - that it is outdated is agreed and I agree with the parties. Each propose that some other form of updating family report, or in the mother’s case, an entirely new report be obtained.
A new writer was sought as well in the “interests of justice” and I take note of and have had careful regard for what is said in the mother’s material and outline particularly at paragraph 12 and 13 and the particulars there.
It was also said on behalf of the mother that she will feel uncomfortable if having to sit in room with Dr H, when her perception is that Dr H did not hear nor accept what she said two years earlier.
It was said also that one of the tasks for me was to balance the best interests of the children, and whether that is served by them having to see a new person, and to balance that against the effect on the mother if she has to see Dr H again.
Senior counsel for the father submitted in response to submissions about bias: it was initially said by the mother’s legal representative I do not need to find the bias, rather essentially bring a new report writer in for the old. It was said there is no jurisdictional basis or statutory framework to simply replace the old with the new.
It was also submitted that Dr H did exactly what he was asked to do. He was asked to provide an expert opinion, and that was what he did, but it is not determinative of the fact. The mother must obviously be unhappy with some of those opinions, but, [it was submitted] that does not find its way into the test that is before me.
It was also said that there was no evidence or nothing to support the contention that Dr H approached the matter with a closed mind.
The submission was also made that the interests of justice argument was really no more than the mother feeling uncomfortable about going back before Dr H, but in circumstances where there is no evidence her mental health would deteriorate if required to do so.
I have also carefully read what was said in the outline of case prepared for the father.
Finally, two submissions were made (not particularly in this order) first, essentially the floodgates argument. If ‘I’m distressed or I’m uncomfortable’ was the test to discharge a single expert, then it would be conceivable that every single matter would have such an application.
Then, it was said that there was every possibility that a “freer” mother, (and I think that was a word used by the mother’s legal representative) noting the stressors she was under in the nesting arrangement, a freer mother, would be observed by Dr H.
Principles
The principles relevant to the discharge of a single expert are perhaps best summarised in the decision of Bass & Bass (2008) FLC 93-366 (“Bass”) which the decision of Nagelv Clay [2020] FamCA 3262 (“Nagel”) relied upon here, which has regard to.
In Bass the Full Court dealt with an application to discharge a single expert, stating:
Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings, as indeed was recognised by Steele J. Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial Judge. It is not particularly unusual, in our combined experience, for trial Judges not to accept, or to only give limited weight to, the opinion of a single expert in a children’s case [50].
In paragraph 51 the Full Court deals with, as I discussed with counsel, earlier this afternoon, what may happen if ultimately I form the view to reject what Dr H has to say after being cross-examined.
It would, of course, remain open to the ultimate trial Judge to adjourn the trial for the purpose of obtaining another expert report, if he or she considered that the matter could not be satisfactorily determined without such assistance. We appreciate that such a course, if it had ultimately to be adopted, would have disadvantages to all involved in the case. But in our view, those disadvantages would be outweighed by the disadvantages of permitting a second expert to be engaged whenever a party to parenting proceedings is the subject of an adverse single expert report [as the father has been in that case]. In this regard it must be remembered that for an expert to be able to give satisfactory evidence in relation to arrangements for child, it is generally necessary for the expert to have conducted an interview with the child – a procedure which should be sparingly employed [as was, in effect, submitted by the Independent Children’s Lawyer] [51].
The legal representative for the applicant sought to distinguish the decision in Bass on the basis that the mother’s application was an attack on an existing report (as he and I discussed) prior to trial. I do not accept that because what is actually being proposed is to start afresh with an entirely new report.
Bias is further elaborated upon in well know authorities such as Ebner & the Official Trustee in Bankruptcy (2000) 205 CLR 337 and its two-step process. By I am minded by what is said in Nagel that there is no Full Court authority that these principles apply to experts or a single expert. I do accept the submissions of Ms Gillies though that it is a useful definition for me to keep in mind when assessing whether Dr H as exhibited some bias in the sense of a closing of his mind.
It has long been held there is no magic in a family report, eg Hall & Hall [1979] FLC 90-713 (“Hall”). It is certain that a family report is an important piece in the jigsaw puzzle that is a trial, but at the end of the day, it is one piece of that puzzle. As Hall also reminds us, I will have the forensic advantage over the family report writer, because I will assess the entire body of evidence, can attribute weight, see the cross-examination of all witnesses, including the family report writer.
Equally, I am not bound to accept or reject the whole or any part of the family report writers’s evidence (U v U (2002) 211 CLR 238 at 83). It has also long been held that the function of the family consultant is not that of an adjudicator, that is my job (see Klein&Klein [2010] FamCAFC 150 at 241).
Reasons
If a parties’ loss of confidence was the test to discharge a single expert, it is hard to see how many reports would survive to final hearing. It is usual that one party feels aggrieved at the untested recommendations – but that is one of the points of the trial process where evidence and opinions of experts can be tested along with the validity of any assessments and their deliberative process.
I have no doubt the mother is uncomfortable sitting before Dr H but that is not the test to discharge a single expert.
As for the interests of justice, again, I accept the mother will be uncomfortable, but there is no evidence that she will deteriorate and I have read those parts of Ms DD’s affidavit which refers to the mothers treatment and symptomology.
I accept the submissions made about the interests of justice by Ms Gillies that it was really about the mother feeling uncomfortable.
That brings me to the balance. It was rightly identified by the legal representative for the mother, on one hand, I balance the children seeing a new report writer, and, balance that against the effect on the mother of seeing the old one.
I am not going to expose the children to a new report writer. There is ample authority to highlight that we ought to avoid that process if possible. But more importantly, this is an update. What is proposed by the mother is a completely new start where all parties would have to relive their past again. Dr H, the parties and the children have the advantage that that history has already been identified by him.
I turn to the effect on the mother and have already noted that there is no evidence that she will deteriorate should she have to see Dr H. Indeed, I have confidence in reading the affidavit of her treating psychologist of her ability to continue to engage.
As for the submission that the mother will be confident in the [new] process, and that means that will be in the best interest of the children, there are no guarantees that the new person will gain the confidence of the mother.
I also accept the submission of Ms Gillies that Dr H has done what was asked of him: to provide an opinion. It will then be a matter for cross examination and ultimately a matter of submissions as to whether he has, looking at some of the other arguments of the mother in her outline, exhibited bias, whether he has or has not had regard to the mother’s allegations of coercive and controlling behaviour by the father. Methodical issues, assumed facts and the connection between conclusions and remarks will all be matters that can be subject to cross-examination as occurs in trials in this court, both Division 1 and 2, every day. New information will be able to be put to Dr H. He will be able to be asked whether he had regard to or overlooked relevant or irrelevant factors.
Whether the first Family Report, if I can call it that, has marginal forensic value, as has been submitted in the outline of the mother, will reveal itself, or not, at the trial.
Finally, it is not open to me to bring on a second expert without a statutory or jurisprudential foundation, which was not made out here.
Accordingly, I am not persuaded that the applicant has established any proper basis to discharge the single expert and her application will be dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 17 May 2022
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