Josse & Vipen (No 3)
[2024] FedCFamC1F 622
•16 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Josse & Vipen (No 3) [2024] FedCFamC1F 622
File number(s): CAC 80 of 2023 Judgment of: CURRAN J Date of judgment: 16 September 2024 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE –Application by intervenor department at commencement of final hearing to rely on additional expert evidence where a single expert witness had been appointed – Whether any matters identified in r 7.08(2) of the Rules apply – Where the adversarial expert was aware of evidence not available to the single expert – Where the self-represented father objected to the evidence being received – After consideration of all relevant matters the application is granted – Application to adjourn proceedings granted Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.02 and r 7.08
Central Practice Direction: Family Law Case Management
Cases cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 16 September 2024 Place: Canberra Solicitor for the First Applicant: Litigant in Person - Attended for Part of the Proceedings Counsel for the Second Applicant: Mr Mando Solicitor for the Second Applicant: MIC Lawyers Counsel for the First Respondent: Ms Baker-Goldsmith Solicitor for the First Respondent: JS Family Lawyers Counsel for the Intervener: Ms Davis Solicitor for the Intervener: ACT Government Solicitor Counsel for the Independent Children's Lawyer: Mr Stagg Solicitor for the Independent Children's Lawyer: Jeanine Lloyd & Associates ORDERS
CAC 80 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JOSSE
First Applicant
MS JOSSE
Second Applicant
AND: MS VIPEN
Respondent
CHILD YOUTH PROTECTION SERVICES
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
16 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The two expert reports prepared by Dr D be admitted as evidence in these proceedings.
IT IS FURTHER ORDERED THAT:
2.The hearing listed to commence on 16 September 2024 is vacated.
3.The contempt application sought to be filed by the mother is withdrawn and accordingly dismissed.
4.The matter is listed for final hearing to commencing at 10 am on 16 June 2025 for a period of five days in the City J Registry of the Federal Circuit and Family Court of Australia – Division 1.
THE COURT NOTES:
A.It is requested that the Legal Aid Office, City J, assist the father to enable him to obtain legal representation under the s 102NA scheme.
IT IS FURTHER ORDERED THAT:
5.The mother’s interim application filed this day is listed for interim hearing to commence at 10.30 am on Wednesday 18 September 2024 in the City J Registry of the Federal Circuit and Family Court of Australia – Division 1.
6.The parties are to file and serve case outline documents on or before 12 noon on 17 September 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
By Application in a Proceeding the intervenor seeks leave to adduce adversarial evidence from Dr D a forensic psychologist who is a proposed expert pursuant to r 7.08(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The respondent father who is unrepresented and initially appealed via AVL from the F Correctional Centre indicated he opposed the Application. I stood the matter down at about 10:20 am to enable the father to speak with a lawyer and come back by 11:30 am, he has not come back on the line. It is now 12:15 pm and he still has not come back on the line. The father explained that he had only received by mail documents to apply for 102NA representation on Friday 13 September 2024. This is despite Justice Gill having ordered legal aid provision of 102NA representation in late August approximately two weeks ago.
The applicant mother represented by Ms Baker-Goldsmith and the respondent paternal grandmother represented by Mr Mando consented to the Application. The Independent Children’s Lawyer represented by Mr Stagg of counsel supported the Application.
A family report had previously been prepared, the family report writer is also a psychologist.
The Application in a Proceeding and Response came before me today as the first matter to be determined ahead of a trial that is scheduled to proceed this week listed for five days. However, at the commencement of the listing an Application for an adjournment has been made. I have not yet determined that Application.
Pursuant to r 7.02 of the Rules that the purpose of dealing with experts is as follows:
(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b)to restrict expert evidence to that which is necessary to resolve or determine a proceeding;
(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d)to avoid unnecessary costs arising from the appointment of more than one expert witness;
(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if that is necessary in the interests of justice.
The Court’s Central Practice Direction: Family Law Case Management also deals with expert witnesses. I do not propose to go through each of the authorities that deal with the purpose of the single expert rule. Suffice to say that the purpose of the rule is to avoid “the battle of the experts” and the cost and delay that sometimes follows.
Rule 7.08(2) of the Rules however relevantly provides that a 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 the contrary opinion is or may be necessary for determining the issue; or
(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 intervenor contends that r 7.08(2)(b) is engaged as the proposed expert Dr D assessed the paternal grandparents who had not previously been assessed and also undertook a more detailed assessment in relation to the mother. The father as I am now told did not participate in that assessment and I note in particular exhibits one and two that have been tendered today are a series of email correspondence between an officer of the Department and Dr D which indicate that Dr D had been advised that the father was not intending to participate in the assessment process on 10 April 2024 and that Dr D reported to the Department that the father has made it clear he does not plan on participating. Those two emails indicate that the father has declined to be involved in the assessment.
The earlier single expert report had assessed the parents at a time before the remand in custody of the father. He is currently on remand in the F Correctional Centre on respect of charges alleging child sex offences. I understand he denies the offences. I have not been told of the likely trial dates for these matters. After the father was charged and remanded in custody the child, Z, was living with the paternal grandmother pursuant to orders of Judge Hughes.
Dr D assessed the mother, the paternal grandmother, and the paternal grandfather. She made observations of the mother that caused her to recommend assessment by a psychiatrist. Dr H was then by consent appointed as single expert for that purpose.
There can be no doubt that Dr D is aware of matters not known to the single expert that are necessary for the determination of the issues in this matter.
Indeed, the combination of identified factors in this matter cumulatively constitute likely a special reason for adducing evidence such that r 7.08(2)(c) is also engaged. Those factors being the fact of the recordings of the father and Z speaking from the F Correctional Centre are on the face at least contrary to the orders of Judge Hughes, the probative value of the recordings where it is alleged that the father has said certain things to Z which if true may be psychologically damaging to her, the opinion of the expert as to whether the paternal grandmother’s support of the father spending time with Z even in breach of orders may create a risk to Z’s safety. These are all maters that are probative of determination of orders that are ultimately in Z’s best interests.
Accordingly, I am satisfied that it is in the interests of justice and necessary to permit the adversarial expert’s reports to be relied upon and I make that order in accordance with the Application filed on behalf of the interventor.
It is also noted that in the present case, the father had indicated his objection to this report being received into evidence but I note that at the time he was not legally represented and he was not in a position to make any submissions in that regard. I take into account the areas where the experts differ or where they have relied upon different evidence can be subject to cross‑examination of the experts by counsel for father at the trial and it can be informed by the earlier expert’s report. The father will have an opportunity to cross-examine, to test the evidence and to obtain potentially a shift in the expert’s opinion through that process. For those reasons and that fact that the father will have the opportunity to test that evidence I am going to permit both reports of Dr D which are annexed to her affidavit filed on 13 September 2024 to be relied upon in the proceedings.
APPLICATION FOR ADJOURNMENT
I am going to adjourn the trial. The matter cannot proceed in circumstances where there is so much complexity, there is significant quite late evidence having been filed, there is a need for some of the material of Dr D to go to Dr H, the father is currently incarcerated and having only received the s 102NA documents on Friday and he needs to be properly represented, the mother found herself without counsel very close to the trial date and collectively, for all of those reasons, in particular the parties’ capacity to represent themselves in this complex matter is compromised and noting the objection of the paternal grandmother to the hearing date being vacated and noting all the principles of Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 and the need to be mindful of other court users that is something that has to be balanced with the need for parties to be able to fairly and fulsomely participate in the trial and the matter is adjourned. I vacate the final hearing of this matter.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 19 September 2024
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