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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jansen & Kwan

Details

AGLC: Jansen & Kwan [2022] FedCFamC1F 355
Case: [2022] FedCFamC1F 355
Decision Date

CaseChat Overview and Summary

In the case of Jansen & Kwan, the Federal Circuit and Family Court of Australia (Division 1) heard an application by the mother to discharge the single expert appointed to prepare a family report in relation to the care and welfare of the children. The dispute between the parties involved both parenting and financial matters, with the parenting aspect scheduled to be heard in September 2022. The mother sought to discharge the current single expert and replace him with either Dr CC or Dr EE, arguing that the original report was outdated and of marginal forensic value. She also contended that she would feel uncomfortable revisiting the issues with Dr H.

The court considered the principles relevant to the discharge of a single expert, as outlined in Bass & Bass and Nagel v Clay. The court noted that bias, if any, could best be established through cross-examination at the trial, and that it was not open to the court to bring in a second expert without a statutory or jurisprudential foundation. The court found that the mother had not established any proper basis to discharge the single expert and dismissed her application.

The court ordered that the current single expert, Dr H, update his report and that the parties provide him with certain documents before the interviews scheduled with him. The father was to meet the single expert's costs initially, with the mother to pay half upon receipt of her entitlements in the property proceedings. The parties' costs of the application were reserved.

This decision highlights the importance of adhering to established principles when considering the discharge of a single expert in family law proceedings. The court emphasised that the role of the expert is not to adjudicate but to provide an opinion, which can then be tested at trial through cross-examination and submissions. The court also stressed the importance of avoiding unnecessary disruption to the parties and children by minimising the involvement of new experts where possible.

Orders