Kernot & Matson - [2008] FamCA 756

FAMILY COURT OF AUSTRALIA

KERNOT & MATSON

[2008] FamCA 756

FAMILY LAW – CHILDREN – Interim Application - Exclusion of Family Report - Disqualification of Family Report Writer – Apprehension of Bias by Report Writer – Legitimate Material and Objectionable Material in Report – Whether Opinions Expressed by Report Writer are Outside Area of Expertise

Family Law Act 1975 (Cth)

R and R [2003] FamCA 1180
Ebner v The Official Trustee in Bankruptcy and Anor (2000) 176 ALR 644
Idoport Pty ltd v National Australia Bank Ltd [2001] NSWSC 123
Pownall v Conlan Management P/L (1995) 12 WAR 370
Makita (Australia) P/L v Sprowles [2001] NSWCA 705
Davie v Lord Provost, Magistrates & Councillors of the City of Edinburgh (1953) SC 34 at 39-40

APPLICANT:

Mr Kernot

RESPONDENT:

Ms Matson

INDEPENDENT CHILDREN’S LAWYER:

Abrams Turner

FILE NUMBER:

SYC

1958

2007

DATE DELIVERED:

4 September 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson, Senior Counsel

SOLICITOR FOR THE APPLICANT:

York Family Law

COUNSEL FOR THE RESPONDENT:

Mr Greenway

SOLICITOR FOR THE RESPONDENT:

Thurlow Fisher Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gathercole

Orders

Orders made 23 July 2008 :

Orders 1 and 2 as sought in the application made by the father in the Application in a Case filed 22.08.08 be dismissed.
.....
The father’s further oral application in the same terms as sought in Order 1 in his Application in a Case filed 22 July 2008 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Kernot & Matson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1958 of 2007

MR KERNOT

Applicant

And

MS MATSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The father and the mother seek different parenting orders in relation to W born in September 1997, R born in October 1999 and D born in June 2002. This case was set down for a final hearing commencing 28 July 2008.
The father filed an Application in a Case on 22 July 2008 in which he sought the following orders:-
1.That the Family Report [sic], Ms [V], be disqualified or excluded from evidence to be relied upon.
2.That in the event that order 1 is made, then:-
2.1A fresh Family Report be prepared by a Family Court Consultant [sic] as a matter of urgency;
2.2That the hearing of this matter commencing on 28 July 2008 be vacated.
The father also applied for a vacation of the hearing dates commencing 28 July 2008 based on other reasons. That application was successful for those other reasons.

THE FAMILY REPORT

Dr V (“the report writer”) prepared a report which was released by Federal Magistrate Sexton on 11 July 2008. The report was originally restricted to the legal representatives, but was then released to the parties, on conditions, by way of further order made 17 July 2008.
The report writer carried out interviews with the father, the mother, Ms B (the father’s partner) Mr Matson (the mother’s husband) and the three children on 20 May 2008. She has inquired broadly, having read affidavit material that had been filed in the proceedings; a Notice of Child Abuse filed by the father, documents from the Department of Community Services, L School, P School, N School, Benevolent Society, B House, G Children’s Centre, L Co-operative Limited and C Counselling and Family Services.
The report writer:-
6.1.Records background material provided by each of the parties and material in relation to current living arrangements and the proposal of each of the parties;
6.2.Nominates issues which are in dispute between the parties (at page 7);
6.3.Expresses opinions about how each of the parents and their respective partners presented during the interviews;
6.4.Sets out information provided by each of the parents and each of their partners.
6.5.Records the father’s concerns in great detail; concerns about the mother’s capacity and concerns about comments the mother makes about him and his family (for example, see paragraph 18 of the report).
As Counsel for the Independent Children's Lawyer points out, the report writer has recorded at paragraph 19 that the father actually had an opportunity to respond to the allegations made by the mother about his family.
The report writer met with the three children and made observations about the interaction of the children with each of their parents, Ms B and Mr Matson. She expressed opinions about their presentation and recorded statements made by the children during the interviews, including their expressed views.
In discussing the extensive documentation read by her, the report writer says (at paragraph 57):
The documentation suggests that each of the children has received personal counselling in 2007 to help them deal with the expression of their emotions from the [children’s assistance] program offered by [L] Co-operative Limited. It would seem form [sic] the documentation that there has been a long standing concern with the children’s reactions resulting from the messages that the [Kernot] family has been imparting to them about their mother and step father.
The report writer also opines that the documentation from the Department of Community Services suggests that the mother and her new husband have been supportive of and have embraced recommendations made by the Department.

QUALIFICATION OF THE EXPERT

On 27 November 2007 Federal Magistrate Sexton ordered the preparation of a report under s.62G Family Law Act (“FLA”).
At page 24 of her report, it is indicated that the report writer is a “Regulation 7 Family Consultant” (although I am yet to receive her curriculum vittae).
Regulation 7(b) of the Family Law Regulations 1984 provides that a family consultant includes somebody who is appointed in writing, relevantly in this case, by the Chief Executive Officer of the Federal Magistrates Court. “Family Consultant” is defined in s.11B FLA (as per s.4(1) FLA). Section 11B(c) provides that a person is a family consultant if appointed as a family consultant under the Regulations.
There was no challenge, in this interlocutory application, to the qualification of Dr V to give the opinions set out in the report. Pursuant to s.62G(8) FLA the report may be received in evidence. Section 69ZU FLA says that, without the consent of the parties, the report would not be taken into account unless the family consultant “gave the opinion as sworn evidence”. It is anticipated that the report writer would be available to verify her report and to be cross examined.

BASIS UPON WHICH THE FATHER SEEKS THAT THE FAMILY REPORT WRITER, DR V, BE DISQUALIFIED OR THAT THE FAMILY REPORT BE EXCLUDED FROM EVIDENCE

Senior Counsel for the father proceeded on two underlying assertions:
15.1.Apprehension of the report writer’s bias.
15.2.The report writer had demonstrably expressed opinions outside the realm of her expertise and the purpose of appointment so that the report was deprived of admissibility under s.79 of the Evidence Act 1995 and, as a consequence, was not relevant opinion because it was no longer expert opinion.

APPREHENSION OF BIAS

Senior Counsel for the father submitted that an application to disqualify or remove a family consultant should be based on similar principles to those which guide the court in considering the applications for a judge to be disqualified. I am comfortable in accepting that proposition.
Senior Counsel for the father referred to an unreported decision of Boland J in R and R [2003] FamCA 1180. He conceded that the facts of that case were very different to the current case. In that case, Boland J made an order discharging the appointment of a Order 30A expert (now a Chapter 15 expert) relying upon principles enunciated by the High Court relevant to disqualification of a judge.
In Ebner v The Official Trustee in Bankruptcy and Anor (2000) 176 ALR 644 at page 647 the High Court said that a judge should disqualify himself or herself:-
....if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question a judge is to decide
The main charge laid against the report writer by senior counsel for the father was that she, as an expert, embarked upon a course of considering factual matters and reached conclusions about factual matters (including conclusions about the credit of the parties) that meant that she no longer brought an impartial mind to the opinions that she was expressing and the recommendations that she was making.
One charge against the report writer is she had made an ultimate determination of issues of credit and as such she acted outside the scope of her authority and has pre-determined an issue for the court.
Senior counsel for the father referred specifically to paragraphs 60 through to 71 of the report. Those paragraphs contain the report writer’s evaluation and recommendations.
Senior Counsel for the father specifically refers to paragraph 62 where the report writer comments that there are some contradictions between the father’s espoused wish for the children to go to private school education when compared with the reality of the financial support he provides for them. Senior Counsel for the father did not explain how that comment by the report writer was not, at least prima facie, underpinned by part of the father’s case contained in his Application for Final Orders which includes an application for a large amount of child support arrears to be discharged. The father raises as an issue whether child support as assessed should be paid.
Next was a reference to the report writer’s comment:-
There are also some serious concerns about the allegations that have been made about conversations Mr [Kernot] and his extended family have had with the children and their mother, step-father and half siblings. The children were consistent in their disclosures of such conversations having occurred.
Senior Counsel for the father commented that whilst that comment is not a matter of great concern, it is an indication of what is to come. It is, however, important to note in relation to the passage quoted, that in the following paragraph of the report the very next sentence starts with the words “if in fact, this has been the case”.
Senior Counsel for the father complains that the report writer then links the allegations made by the children to other allegations made by the children about their father’s physical discipline of them. Senior Counsel commented that these allegations are factual controversies.
Firstly, there is nothing in paragraph 62 which would indicate that the report writer considered that they were otherwise.
Secondly, the Independent Children's Lawyer read paragraphs 10, 11, 12 and 13 of the father’s affidavit filed 21 July 2008. Counsel for the Independent Children's Lawyer points out that in that affidavit the father himself concedes that “in hindsight, the way I discipline the children physically may have not been the best method of discipline available” (paragraph 12 of his affidavit of 21 July 2008). So the father concedes some factual basis for some of the complaints made by the children to the report writer.
The pivotal point in the submissions by senior counsel for the father is his reference to paragraph 63 and the first sentence of paragraph 64 of the report which is in the following terms:-
63.If indeed the allegations made by the children are correct, her behaviour in wanting to protect the children from him and his family is appropriate and child focused in spite of Mr [Kernot’s] observations that it is gate keeping. If the allegations are not correct it raises questions about her capacity to facilitate the relationship between the children and their father. However, given the children’s independent disclosures over a period of time to a number of agencies and their ages, some acknowledgement needs to be given to the veracity of those allegations.
64.The dynamics of the relationship between the parents and the influences they are exposed to especially in the father’s household seem to be affecting the children profoundly.
Senior Counsel for the father submits that the report writer has formed a view as to the truthfulness or otherwise of what the children are saying to her. The complaint is she should not have reached any conclusion as to factual matters given that those factual matters are a matter of contention. The father’s case at trial is that the children have been “brain washed” in the mother’s household. The father submits that this is evident because, as he asserts, all three children of disparate ages have made almost identical allegations.
Senior Counsel for the father then goes on to submit that other statements made in paragraphs 65, 66 and the recommendations themselves are then infected by the view the report writer has formed about the children’s truthfulness.
As I commented during submissions, the two sentences that preceded the last sentence in paragraph 63 seem not to prejudge the issue (“if...correct...if...not correct...”). In relation to the last sentence of paragraph 63, I am unsure as to whether or not the report writer has in fact reached a conclusion or whether or not the last sentence in paragraph 63 is simply poorly expressed.
During submissions counsel for the Independent Children's Lawyer agreed that the meaning of the last sentence of paragraph 63 is ambiguous. It could mean some consideration might need to be given as to whether or not the long history of statements by the children to other agencies are true or not true; or it could mean that the report writer had personally formed the view that all the statements made to her by the children were true, having spoken to the children and having made some assessment as to how they express themselves. Those questions, however, are a matter that is properly a subject for exploration in cross examination at the final hearing.
It is open to the report writer to make an assessment that the children were telling her the truth based upon the report writer’s observation of them at the time that the children were making the statements. Interviewing children is an area where specialist training is a very useful thing to have. Opinions formed in the process of interviewing children are by their very nature subjective. That, however, is not a basis for rejecting, out of hand, the opinion if given by a person with the requisite specialist knowledge (see Einstein J in Idoport Pty ltd v National Australia Bank Ltd [2001] NSWSC 123 at [83]).
As for the reference to statements allegedly made by the children to other people in material that the report writer has seen, I am, of course, at this point unaware of what is in material from other agencies and whether or not it contains similar statements to the statements the children made to the report writer. Again, that in my view is the province of cross examination of the report writer or submissions on tendered material.
Senior Counsel for the father argued that the first sentence of paragraph 64 means that the hypothesis that there is ambiguity is not available. In my view, this overlooks the words in that sentence “seems to be”. The first sentence of paragraph 64 also is not a comment confined to influences in the father’s household but also encompasses the dynamics of the relationships between the parents and influences in the mother’s household. I am unable to place upon the first sentence in paragraph 64 of the report the importance and the absolute interpretation that senior counsel for the father finds in it.
Senior Counsel for the father also complains about the first sentence of paragraph 65 which is in the following terms:-
Most concerning in this family, however, is the pressure the children seem to experience over the possibility that the father’s application may be successful.
Senior counsel for the father originally suggested that that comment arises out of the conclusion the report writer has reached in relation to the factual basis of what the children are saying to her. I am not prepared to accept that this is obviously so. The report writer met with the children. She made observations of them. She certainly made observations that would lead one to conclude that W was feeling pressure and in fact was distressed. She reported D said he felt “really scared” about seeing his father. During discussion, senior counsel for the father did concede that in part the statement in paragraph 65 may have been the result of observations the report writer had made of the children, contenting himself with a further submission that this statement must be partly infected by opinions and conclusions that were incorrectly reached by the report writer. I am unable to accept that amended submission.
Senior Counsel for the father also complained about the first sentence of paragraph 66 which is in the following terms:-
It would also appear important, if the children are to maintain a relationship with their father, that they are not exposed to discipline that is excessively punitive or threats aimed at their mother and family.
Again, senior counsel for the father contends that when linked to the last sentence of paragraph 63 this statement should be read as the report writer forming the view that excessive discipline and threats have happened in the father’s household. Given what I have already said about paragraph 63, linking it to paragraph 66 does nothing to advance any submission about paragraph 66. Also, the report writer in paragraph 66 goes on to express the opinion that there is some fragility in the relationship between W and R and their father. As a preliminary impression and subject to the report writer being tested, I am content to infer that this opinion is primarily based upon her observations of the children with their father and statements that W and R made to her. The recommendation made by the report writer that the father should take action immediately to do things which would address the children’s concerns seems to flow from what she observed and what she was told by the children.
The last sentence of paragraph 66 sets out the report writer’s opinion as to the effect on the emotional and cognitive development of the children if they are in fact exposed to abusive environments where they do not feel free to express their feelings openly and without fear of retribution “as they allege has happened in the past”. I find no apparent bias in the expression of that opinion.

WHAT HAPPENS IF THERE IS A MIXTURE OF LEGITIMATE MATERIAL AND OBJECTIONABLE MATERIAL IN A FAMILY REPORT?

If I am wrong and there is some apparent bias in some statements made in the report, what should happen to the objectionable material?
These are proceedings filed after 30 June 2006 and which attract Division 12A of Part VI of the FLA.
At this point objection has been taken to the report as a whole and no formal objection has been taken to any part of the evidence or opinion given by the report writer, although senior counsel for the husband foreshadowed that he intended to consider making an application pursuant to s.69ZT(3) FLA. Trimming parts of the report however is an entirely different thing to making an order that the report writer be discharged and that the report as a whole not be taken into evidence.
Senior Counsel for the father referred to the judgment of the Full Court of the Supreme Court of Western Australia in Pownall v Conlan Management P/L (1995) 12 WAR 370. At page 376 Ipp J said:-
As regards evidence that contains a mixture of objectionable hearsay and legitimate material, obviously there may be instances where the evidence will be trimmed, with the objectionable material being discarded so that the legitimate evidence remains. But there may be cases where the inadmissible and the admissible evidence are so intertwined that they cannot readily be separated. In such event, the entire body of evidence will be rejected. The same result follows where it is not possible to say which of the evidence is admissible and which not, or to what degree the witness has relied on the inadmissible evidence.

At page 377 Ipp J said:-
In my opinion, expert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it. I form this view as to admit such an opinion would be to admit, indirectly, the inadmissible evidence itself. If an opinion, based solely on evidence that the court by law is required to exclude, is itself admitted, the inadmissible evidence would have some influence over the court’s decision. Such a result would defeat the purpose of the law that excludes the inadmissible evidence. If the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant and, in my opinion, should be excluded.
Senior Counsel for the father submitted that the expression “objectionable hearsay” can be read more generically to mean evidence which is inadmissible.
Senior Counsel’s reliance upon these passages was predicated on the proposition that the entire report was infected by a biased acceptance by the report writer of the truthfulness of what the children have said to her and for that reason any opinion expressed by the report writer is itself admissible.
I am not satisfied, if there is objectionable material in the report, that it is so intertwined that it cannot be readily separated. There is no need to reject the entire body of the report. There are parts of the report that senior counsel for the husband concedes are admissible. The opinions of the report writer cannot, in my view, be said to be based upon entirely inadmissible evidence. On the face of the report it seems that, at least in part, the report writer has reached conclusions based on observations of the parties, observations of the children, statements made by the children and other secondary material read by her. The report writer’s opinions should not be dismissed out of hand. Those opinions of course can be tested in cross examination. The weight to be placed on these opinions will be a matter for another day.
Senior Counsel also referred to the statements of Heydon JA in Makita (Australia) P/L v Sprowles [2001] NSWCA 705 at page 729 about cross examining in the dark. That comment is made in the context of discussing Davie v Lord Provost, Magistrates & Councillors of the City of Edinburgh (1953) SC 34 at 39-40, where the view was that all an expert needed to do was to establish that there is a relevant field of specialist knowledge; that he or she has expertise in a relevant aspect of it; and that he or she holds opinions relevant to the establishing of one or more of the facts in issue in the litigation. If that was all the report writer did in this case, senior counsel for the father may well need to decide whether “to cross examine in the dark”. I have reached the view that what the report writer has done in the report is sufficiently transparent so as not to create a darkness that would mean that cross examination was perilous.
I accept the Independent Children's Lawyer’s submission that the report writer can be cross examined as to the likelihood of the children having been influenced prior to arriving for the interviews and prior to making the comments that the children made to her.

OPINIONS EXPRESSED OUTSIDE AREA OF EXPERTISE

Senior Counsel for the father submits that the report should not be admitted because it is outside the realm of opinion that the report writer can properly express.
To the extent that this complaint is based on passages in the report already quoted, I reject this submission for reasons already given.
At paragraph 67 and following of the report (page 23) the report writer, having analysed what she understands to be the factual matters between the parties, the issues raised by the parties and the material that she has considered sets forward some recommendations.
As I have already said, the report writer’s qualification as a Regulation 7 report writer has not been challenged.
Even if Part 3.3 Evidence Act were to apply in this case, which at the moment it does not, it would be permissible for a report writer to express an opinion in respect of an ultimate issue (see s.80 Evidence Act).
As I commented during submissions, recommendations are one piece of opinion evidence that is weighed with all the other evidence that the court takes into account. It will be for the court to judge the reliability of the evidence, including whether or not statements made by the children are true. It will be for the court to judge what arrangements are in the children’s best interests.

CONCLUSION

I conclude that there is nothing in the content of the report that would reach the level of bias that is necessary for the success of the father’s application to have the report writer discharged and the family report excluded in its entirety.
I accept that this is a matter where the children have been living with their parents in dispute for a considerable period of time. They were seen by a counsellor last year. There are good reasons why it is in the children’s best interests for further interviews and investigations with them to be avoided if possible. W, who is described as presenting as a sensitive and mature child, was distressed during the interview process. D also showed some apprehension during the process.
I find there is no basis upon which Dr V should be disqualified and no basis for excluding her report and making an order for a fresh family report by a new family consultant.

FURTHER APPLICATION

When, for other reasons, the imminent dates for the hearing of the matter were vacated, senior counsel for the father sought leave to make an oral application again in terms of paragraph 1 and 2 of the Application filed 22 July 2008. He did that on the basis that, notwithstanding I had dismissed an interlocutory application in identical terms, there was no estoppel arising from that application being remade. That application was made without the benefit of knowing the reasons expressed above.
It seems senior counsel for the father made the second application upon the apprehension that, when determining to dismiss the first application, I had given weight to the argument that it was in the children’s best interest for the Family Report to remain so that the imminent hearing dates were not lost. As the above reasons make clear, that was not a matter to which I gave any weight and consequently the decision that I had previously made is not affected by the fact that the hearing dates were vacated. Accordingly, whilst I implicitly gave leave to make the further oral application, I also dismissed it.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: …

Date: 4 September 2008.