Joplin and Parkins

[2020] FamCA 403

FAMILY COURT OF AUSTRALIA

JOPLIN & PARKINS [2020] FamCA 403

FAMILY LAW – PRACTICE AND PROCEDURE – Application for a single expert appointed by the Federal Circuit Court to be released from his obligation, now to this Court, as a Chapter 15 Expert in order to give evidence in the applicant’s  criminal trial – Where an order for the provision of the single expert’s report to the father’s criminal law barristers and solicitors, the Director of Public Prosecutions, NSW Police and the District Court of NSW was made by consent in 2018 – Where the single expert received a subpoena, issued on behalf of the applicant, to give evidence about matters informing his report in the District Court of NSW – Where the single expert raised concerns as to whether he would be violating his obligations to this Court if he gave evidence in the District Court – Where the single expert has a duty to this Court to be an impartial witness – Where the single expert’s impartiality is not affected by his giving evidence in response to a subpoena to give evidence in the District Court –  Application dismissed.

Family Law Act 1975 (Cth) s 121
Family Law Rules 2004 (Cth) rr 15.59, 24.13

Sahadi & Savva and Anor [2016] FLC 93-704; [2016] Fam CAFC 65
Hearne and Anor v Street and Ors (2008) 235 CLR 125
Commissioner of Taxation & Darling and Anor (2014) FLC 93-583; [2014] FamCAFC 59
Hundertmark & Trengove [2012] FMCAfam 485
Johnson v Johnson (2000) 201 CLR 488
Tyler v Sullivan [2014] FamCA 178

APPLICANT: Mr Joplin

RESPONDENT: Ms Parkins

INTERVENER: Dr Z

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 605 of 2014

DATE DELIVERED: 26 June 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 22 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Gus Farland Pty Ltd

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Steven Young Lawyers

COUNSEL FOR THE INTERVENER: Not applicable

SOLICITOR FOR THE INTERVENOR: SBA Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The Application in a Case filed 12 May 2020 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Joplin & Parkins 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 NEWCASTLE

FILE NUMBER: NCC 605 of 2014

Mr Joplin

Applicant

And

Ms Parkins

Respondent

And

Dr Z
Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an Application in a Case brought by Mr Joplins (“the Applicant”). The Applicant is a party to parenting proceedings long pending before this Court.

2. The Applicant seeks certain orders in relation to a psychiatrist, Dr Z who was appointed by the Federal Circuit Court (“FCC”) in 2014 to prepare a Single Expert Report for the benefit of the parenting proceedings.

3. The orders sought are as follows:

   1.That Dr Z be joined as a party to these proceedings; and

   2.That Dr Z be released, in respect of his appointment as a Chapter 15 Expert by order of Judge Terry dated 24 October 2014 from his obligation to the Federal Circuit Court not to use or disclose:

   a)The contents of the report of Dr Z dated 23 January 2015;and

   b)The factual underpinnings of the conclusions reached; and

   c)Information obtained in preparing the report,

   with such release being limited to the provision of oral evidence in the proceedings …94;…97 - R v … in the District Court of NSW

   3.That in the event that this Honourable Court decides that it is unnecessary to make Order 2 herein, the Court make a notation to the effect that the Court considers it is unnecessary to make any further release than that made by this Honourable Court on 2 February 2018 and that Dr Z will not be in contempt of the Federal Court of Australia or the Family Court of Australia if he provides oral evidence in the  proceedings …94; …97 - R v … in the District Court of NSW upon the content of his report dated 23 January 2015, the factual underpinnings of the conclusions he reached and the information he obtained in preparing the Report.

The Single Expert – Dr Z (named as Second Respondent)

1. Dr Z has been served with a subpoena to give evidence in a criminal trial in which the Applicant is the accused and the victim is the parties’ eldest child.

2. The application in this Court arises in the context of uncertainty by Dr Z about giving evidence in the criminal trial relating to matters informing his report.

3. Dr Z, in his Response to an Application in a Case filed 15 May 2020:

   a.   Consents to being joined as a party to these proceedings (Order 1);

   b.   Neither consents to nor opposes the release of his appointment as a Single Expert (Order 2);

   c.     Opposes the making of a Notation (Order 3).

4. The interests of Dr Z were represented by a solicitor who relied on an affidavit providing the history of this issue in the District Court of New South Wales (“District Court of NSW”).

The mother - First Respondent

1. The mother was present and represented. The application in its entirety is neither supported nor opposed by the mother. Her focus, unsurprisingly, was finality in the District Court of NSW and in this Court.

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer (“ICL”) attended to make submissions.

2. The ICL opposed Dr Z being made a party to the Application.

3. The ICL supported the opposition of the solicitor for Dr Z to a notation being made on the topic by this Court.

4. The ICL too submitted that it is in the best interests of the subject children to have the criminal proceedings determined.

5. Whilst that must be true it is not determinative.

The Issues

1. Should the Single Expert, Dr Z, be joined as a party to this Application?

1. Dr Z is identified as the respondent to an Application in a Case.

2. There is no issue to determine within the jurisdiction of this Court as between the Applicant and Dr Z.

3. Accordingly Dr Z is not and will not become a party to the proceedings.

2. Should the Single Expert be released by an order of this Court from his obligation to the FCC and to this Court?

1. This Court does not have the power to compel Dr Z to give evidence in the criminal trial of the Applicant, nor to restrain him from doing so.

3. If the Court does not make an order releasing the Single Expert from his obligations, then should the Court make a notation to the effect that the Single Expert would not be in contempt of the FCC or the Family Court of Australia if he provides oral evidence in the proceedings in the District Court?

1. No. Dr Z has been served by solicitors for the Applicant with a subpoena to give evidence in the criminal proceedings. He is not giving evidence for the Applicant by choice.

2. His impartiality as an expert witness in this Court remains unaffected.

History of relevant events

1. On 14 March 2014 parenting proceeding were commenced in the FCC.

2. On 24 October 2014 the report of a Single Expert was ordered pursuant to Division 15.2 of the Federal Circuit Court Rules 2001 (Cth).

3. On 18 February 2015 the Single Expert Report, dated 23 January 2015, was released to the parties.

4. On 11 March 2016 the parenting proceedings in respect of the six subject  children were transferred from the FCC to this Court.

5. On 20 May 2016 a registrar of this Court noted a series of matters including:

   a)That JIRT was investigating an allegation of abuse of a subject child;

   b)That the father has been charged with criminal offences;

   c)That the matter had been referred to the Magellan Registrar in the Family Court; and

   d)The parties have been informed that pending assessment and intake into the Magellan Protocol, no party should seek to issue a subpoena to NSW Police for any JIRT or other records relating to the recent investigations or to the then Department of Family and Community Services (now the Department of Communities and Justice).

6. On 23 June 2016 the Applicant was arrested and charged with respect to sexual assault of one child, then aged 15 years.

7. The trial dates in July 2016 for the parenting proceedings were vacated.

8. The child complainant apparently gave her evidence to the police by pre-recording.

9. This Court was advised that, on 6 November 2017 the trial for the Applicant was vacated. New trial dates in August 2018 were appointed.

Application for release of Single Expert Report

1. On 18 January 2018 the father filed an Application in a Case in this Court seeking orders that:

   a)The Single Expert Report of Dr Z dated 23 January 2015 be made available to the solicitors acting on his behalf in criminal proceedings;

   b)The Single Expert Report be updated in accordance with the internal recommendation to that effect.[1]

   [1] Family Report dated 23/01/2015, page 36.

Release of the Single Expert Report

1. The operation of s 121(9) of the Family Law Act 1975 (Cth) (“the Act”) is that the preceding provisions of the section [Restriction on publication of Court proceedings] do not apply to or in relation to:

   (a)The communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings;

2. Nevertheless the consent of all parties was obtained to the report being made available.

3. On 2 February 2018 the report was provided to the following persons in these terms:

   [1]By consent the Applicant father be permitted to provide a copy of the single expert report of Dr Z dated 23 January 2015 to the Director of Public Prosecutions, his criminal law barristers and solicitors, NSW Police and the District Court of NSW, with such release being limited to the criminal law proceedings pending against the Applicant in the District Court at ….

4. The application (Order b) for the preparation of an updating report was dismissed.

Subpoena to give evidence

1. This Court is now aware, but was unaware at the relevant time, that on 4 July 2018 Dr Z was served with a subpoena to give evidence in the trial of the Applicant then due to commence on 19 August 2018.

2. The August 2018 trial was not reached and new dates were appointed in January 2019.

3. Dr Z apparently expressed his concern about compromising his ability to perform as a Single Expert if he gave evidence in the criminal trial.

4. On 29 January 2019 the trial of the Applicant was not reached. New dates were appointed in April 2019.

5. Apparently solicitors engaged by Dr Z wrote to solicitors acting for the father in the criminal matter stating that s 121 of the Act may prevent Dr Z from answering questions regarding the report. His concern was that he may be in breach of the law.

6. This Court is now aware that on 7 March 2019 a further subpoena to give evidence in the April 2019 trial was served on Dr Z.

7. Apparently on 20 March 2019 solicitors for Dr Z wrote to the lawyers acting for the father in the criminal proceedings forewarning them of the course their client proposed to take; that in the witness box he would do no more than identify the report as his document and if pressed to give oral evidence, would refuse to answer any further questions until the extent of the release was clarified by the FCC.

8. On 29 April 2019 the trial dates in the District Court were vacated.

9. The trial was adjourned to 5 June 2019.

10. On 4 June 2019 parenting proceedings in this Court were adjourned.

11. On 5 June 2019 the criminal trial was listed for 19 August 2019.

12. On 12 August 2019 the criminal trial was vacated.

13. On 21 August 2019 the criminal trial was listed for 23 March 2020.

14. On 30 September 2019 the issue of evidence being given by Dr Z in the District Court was mentioned before me. This Court advised that it was not a matter for this Court to determine whether a Single Expert could be cross-examined in the criminal proceedings. This Court adheres to that position. This Court cannot dictate matters of practice and procedure in another Court.

15. It is a matter for regret that this Court was unaware of subpoenae having been served on Dr Z and of his professional concern about breaching his duties as a Single Expert. Dr Z could have been appropriately re-assured at that time.

16. On 12 December 2019 the criminal trial was brought forward to 16 March 2020.

17. On 17 January 2020, Dr Z again was served with a subpoena to give evidence in the criminal trial.

18. On 6 May 2020 this Court learned that the criminal trial had in fact commenced on 16 March 2020. Five days of legal argument had ensued on the point in question; would Dr Z be violating his obligations by giving evidence?

19. The criminal trial was adjourned.

20. This Court expresses its gratitude to his Honour Judge Jeffreys of the District Court of NSW for identifying and addressing the impasse which has ensued.

21. On 12 May 2020 the application now before the Court was filed.

22. All material relied on was available with the exception of the ex-tempore reasons of Judge Jeffreys in the District Court of NSW which soon after became available.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant – Mr Joplin

   (a)Application in a Case by Mr Joplin lodged 8/05/2015 and filed 12/05/2020;

   (b)Affidavit of Douglas Farland (solicitor) lodged 8/05/2020 and filed 12/05/2020;

   The Single Expert – Dr Z

   (c)Response to an Application in a Case by Dr Z filed 15/05/2020;

   (d)Affidavit of Alison Pooley (solicitor) filed 15/05/2020;

   Other

   (e)Family Report dated 23/01/2015;

   (f)Reasons of Judge Jeffreys of the District Court of NSW dated 23 March 2020.

The Law

1. A Single Expert has obligations to the Court which appoints him/her.

2. By accepting the appointment of the FCC Dr Z accepted that his duty to the Court was guided by the Federal Court Practice Direction Guidelines including that he be an impartial witness.

3. Within the context of the parenting proceedings in this Court (and the FCC) an expert witness is not and cannot be an advocate for a party.

4. The position of Dr Z in the District Court is that of a witness called by the Defence. His evidence may or may not assist the Defence.

5. An expert witness appointed by this Court has a duty to help the Court with matters that are within the expert’s knowledge and capability.

6. In a State Court, in a criminal trial, the role of Dr Z appointed here, would not be that of a Single Expert for that Court but as a witness called to give evidence on matters considered relevant by the party calling such evidence.

7. Solicitor for the Applicant properly conceded the likelihood of an application to issue a subpoena, presumably issued in the District Court, for the notes of Dr Z.

8. The Court was further advised that the Crown had communicated a position to the legal advisers for the Applicant as follows:

   That the Single Expert Report would not be admitted into evidence unless the Single Expert was available to be cross-examined.

9. The proposal on behalf of the Applicant is that Dr Z:

   (1)Be called as a witness for the Defence;

   (2)Give evidence in chief (the nature of that evidence yet to be determined);

   (3)Be free to use or disclose:

   i)The factual underpinnings of the conclusions reached in the report; and

   ii)Information obtained in preparing the report.

Conclusion

1. Dr Z has remained an impartial witness by requiring his service with a subpoena to compel his evidence.

2. He is not constrained by his professional obligations arising from his work in the FCC and this Court from answering questions put to him as a witness in the criminal trial.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 26 June 2020.

Associate: 

Date:  26 June 2020