Knill and Beckett

[2017] FamCA 1023

FAMILY COURT OF AUSTRALIA

KNILL & BECKETT [2017] FamCA 1023

FAMILY LAW – EVIDENCE – EXPERT EVIDENCE – Role of the single expert - Application to appoint another expert witness – whether substantial body of contrary opinion exists – whether special reason exists

Family Law Act 1975 (Cth) s 60CC

Family Law Rules 2004  rr 1.04, 1.07, 15.42, 15.49

APPLICANT: Mr Knill

RESPONDENT: Ms Beckett

INDEPENDENT CHILDREN’S LAWYER: Mrs A Evans

FILE NUMBER: CAC 712 of 2016

DATE DELIVERED: 15 December 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 7 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howard

SOLICITOR FOR THE APPLICANT: Neilan Stramandinoli Family Law

COUNSEL FOR THE RESPONDENT: Ms Johnson

SOLICITOR FOR THE RESPONDENT: Phelps Reid Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

Orders

1. The Respondent is refused permission to tender reports from, or to adduce evidence from, Dr K.

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 Knill & Beckett 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 CANBERRA

FILE NUMBER: CAC 712  of 2016

Mr Knill

Applicant

And

Ms Beckett

Respondent

REASONS FOR JUDGMENT

1. This matter concerns an application by Ms Beckett to produce evidence from an expert other than the single expert.  In this case the single expert currently appointed is a psychiatrist, Dr L.  The mother seeks to produce evidence from Dr K, also a psychiatrist, but in relation to matters on a narrower focus than those addressed by the single expert.  Dr K was engaged earlier in the proceedings at a time when orders had been made for the child to change residence to live with the father on the basis of concerns about the mother’s psychiatric state.  Dr K was permitted to give evidence in relation to this matter whilst the matter was in the Federal Circuit Court and, reasonably, no opposition was made to the production of such evidence in that court under those circumstances. 

2. Rule 15.42 sets out the purpose of Part 15.5 of the Rules, being the Part that deals with expert evidence.  Rule 15.42 provides as follows:

   The purpose of this Part is:

   (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 case;

   (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; and

(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 necessary in the interests of justice.

1. Rule 15.42 needs to be read in the context of r 1.04 which sets out the main purpose of rules as set out below:

   The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

2. In applying r 1.04, r 1.07 sets out the manner of the use of the Rules to achieve that main purpose as follows:

   To achieve the main purpose, the court applies these Rules in a way that:

   (a)   deals with each case fairly, justly and in a timely manner;

   (b)  encourages parties to negotiate a settlement, if appropriate;

   (c)  is proportionate to the issues in a case and their complexity, and the likely costs of the case;

   (d)  promotes the saving of costs;

   (e)  gives an appropriate share of the court's resources to a case, taking into account the needs of other cases; and

   (f)   promotes family relationships after resolution of the dispute, where possible.

3. It may be observed that in each case the rules focus upon ensuring proceedings are conducted fairly and justly.  This necessitates the parties being placed into a position where they are able to produce evidence to the court that is both relevant to the key issues in dispute and directed to the matters that will help the court to resolve the factual matters necessary to be resolved in order to determine what is in a child’s best interests.  Necessarily, there are limits upon the resources that can be made available, such that the allocation of court resources is to be reasonable to the circumstances of the case, and is to provide an appropriate share of the court’s resources to the determination of issues, reduce or save costs where possible and, importantly, be proportionate to the issues and their complexity. 

4. When it comes to dealing with appointments of experts, the Rules provide a clear mechanism through the use of single experts.  The role of the single expert is to provide the evidence that is necessary to resolve issues in dispute.  The court is required to ensure that the expert evidence relates to significant issues in dispute, is restricted to that which is necessary to resolve or determine the case, and, to avoid unnecessary costs, the court should ensure the use of a single expert, subject to some restrictions. 

5. Those restrictions are that the use of a single expert cannot compromise the interests of justice, and must be a practicable way of dealing with the evidence. 

6. Mechanisms are in place to allow a party to seek permission to produce evidence other than through a single expert.  These are set out in r 15.49:

   (1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court's permission.

   (2) The 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 that the contrary opinion is or may be necessary for determining the issue;

   (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.

7. Rule 15.49 must be read within the purposes set out in r 15.42, and so particular attention must be given to the interests of justice. 

8. In order to allow the use of an expert other than a single expert under the Rules, discretion is granted to the court upon the determination that any of the criteria in subrules 15.49(2)(a)-(c) are met.  On the meeting of these criteria it is specified that the court may give permission for a non-single expert.  That discretion must be exercised in the light of r 15.42. 

9. Of the considerations in r 15.49, the Independent Children’s Lawyer relied on the first and the mother relied on the third. 

10. The mother articulated the special reasons as being the fact that Dr K had been asked to provide her opinion on the singular issue of the mother’s mental health assessment.  It was asserted that because of this she had more time to dedicate to that particular issue than Dr L.  No evidence was adduced to demonstrate that this was in fact the case.  It was further asserted that she has a particular expertise because of the focus of her experience on perinatal mental health.  It may be observed that a significant part of Dr K’s experience is directly related to perinatal issues.  It was asserted that it was necessary to call evidence from her as she expressed a different opinion to Dr L and further that there were deficiencies in Dr L’s reasoning.  The Independent Children’s Lawyer relied on what she perceived to be a difference in opinion between Dr K and Dr L in making this argument.

11. The reference in r 15.49 to a “substantial body of opinion contrary” bears upon the interests of justice consideration.  That is, where there is a genuine, credible substantial conflict between the expert and the single expert, the production of evidence from the non-single expert may be justified because it is in the interests of justice to do so. 

12. A “special reason” is likely to be found where practicalities or the interests of justice of the case call for the reception of the evidence, even though they do not fall within r 15.49(2)(a) or (b).

13. In examining the justifications for the production of Dr K’s evidence it must be recognised immediately that the roles of Dr K and Dr L are distinct.  Dr L’s ultimate opinions are sought as they bear directly upon the best interests of the child.  This involves the synthesis of a number of factors, including the mental health of the mother but also including other factors as might be identified from s 60CC of the Family Law Act 1975. 

14. Conversely, the opinion offered by Dr K is focused upon the mother’s mental health.  Dr K is not in a position to make overall recommendations as to what might be in the best interests of the child.  Given this distinction between the two experts, the critical issue in resolving this matter is not any disparity in the outcomes as recommended by Dr K and Dr L, given that they are based on material that differs in scope, but rather whether there is a disparity in their positions in respect of the mother’s diagnosis and prognosis.

Dr K’s Reports

1. The respondent referred to two reports prepared by Dr K, the first dated 15 September 2016, the second dated 9 October 2017.  The first report diagnosed the mother as having a recurrent major depressive illness, along with symptoms of post-traumatic stress disorder and high levels of anxiety.  The second report differed from the first report.  The mother no longer met the criteria for a major depressive illness, but rather for a Major Depressive Illness (recurrent in significant remission).  Her current symptoms are of anxiety and post-traumatic stress disorder.  The second report particularised the mother’s diagnosis as including anxious worrying, and cognitions of hopelessness and helplessness.

2. Dr K’s diagnoses were reached in consideration, in part, of particular events having occurred in the mother’s life.  The first report addressed specific issues of a diagnosis of post-natal depression following the birth of the child and suicidal ideation throughout this period, however noting that these thoughts were never crystallised into a course of action.  Particular events also included two instances of sexual assault perpetrated against the mother, the first when she was eight, the second when she was at university, a history of family abuse directed towards the mother from her father, and a history of being bullied at school.  The first report also recorded the nature of the parties’ sexual relationship, which was described by the mother as involving acts of sexual abuse and sexual sadism inflicted upon her.  The second report re-stated these underlying issues, and expanded upon the nature of the mother’s relationship with her mother, noting an emotional unavailability during the mother’s childhood.

3. Dr K’s second report made findings about the effect that having to remain in the ACT, or being permitted to relocate to Tasmania, would have upon the mother’s mental health.  Should the mother remain in Canberra, Dr K considered that the mother’s mental health would continue to be vulnerable to fluctuation and depressive relapse, caused in part by conflict with the respondent, financial stress and separation from her own mother.  Should the mother be permitted to relocate, this would lead to an expected improvement in the anxiety and depressive symptoms of the mother, resulting in emotional stability and commensurately improving the mother’s capacity to care for the child.

Dr L’s Reports

1. The applicant referred to two reports of Dr L, the first dated 18 April 2017, the second dated 24 July 2017.  The first report diagnosed the mother as having lowered mood, hypervigilance with symptoms of post-traumatic stress disorder and generalised anxiety disorder.  The first report noted Dr K’s diagnosis contained in her 15 September 2016 report, of a recurrent major depressive illness with symptoms of post-traumatic stress disorder and high levels of anxiety.

2. In reaching his diagnoses in the first report, Dr L noted similar underlying issues as identified by Dr K.  Dr L noted a history of family abuse perpetrated by the respondent’s father during her childhood, a history of school bullying, and a history of mental health issues relating to the birth of the child, including post-natal thoughts of suicide and harm to the child.  He also noted two instances of sexual assault, one during childhood, the other whilst at university, and the general nature of the parties’ sexual relationship as including acts to which the mother allegedly did not consent.         

3. Dr L’s second report also made findings about the effect that having to remain in the ACT, or being permitted to relocate to Tasmania, would have upon the mother’s mental health.  Dr L stated that there was a “reasonable chance” that the mother’s mental health would improve should she relocate to Tasmania, as she could be supported by her mother, and would benefit from distancing herself from the father.  Dr L noted that an improvement in the mother’s mental health would prove beneficial for the child.  Dr L stated that should the mother remain in the ACT, it is likely that she will continue to have significant mental health problems caused in part by the unabated hostility between the parties, which would in turn adversely impact the child.  Dr L noted that in either case, should the mother live in the ACT or Tasmania, she would need ongoing support from mental health professionals for the foreseeable future.

4. Criticism was levelled at the reasoning process evident in the reports of Dr L, namely that he arrived at a conclusion without adequate reasoning.  In his second report, Dr L outlines the considerations he believes important in the event that the mother relocate with the child to Tasmania and in the event that the parties remain in the ACT.  Of primary concern should the parties remain in the ACT is the effect this may have upon the mother’s mental health. Of primary concern should the mother and child relocate to Tasmania is the capacity for the father to maintain a meaningful relationship with the child. Dr L’s final recommendation in his second report states that the child’s best interests will be better served by remaining in the ACT, where she can continue to have a close relationship with her father and his extended family.  This was premised on the uncertainty around any improvement in the mother’s mental health, even should she relocate to Tasmania.

5. Whether this conclusion is adequately reasoned will be the subject of supplementary questions and testing at trial.  Whatever the case, this conclusion is as to a matter that is beyond the proper scope of Dr K’s involvement, being as to the mental health of the mother.

Conclusion

1. It is difficult to observe a difference between Dr K’s report as it deals with the mental health of the mother, and the report of Dr L as it deals with the same matter.  As analysed above, it is disparity in relation to this matter that may have produced a justification for permission being granted for Dr K.  There being no significant disparity, permission will be refused.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 December 2017.

Associate: 

Date:  15 December 2017