Lambard & Lambard (No. 4)
[2021] FamCA 47
•2 February 2021
FAMILY COURT OF AUSTRALIA
Lambard & Lambard (No. 4) [2021] FamCA 47
File number(s): SYC 2664 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 2 February 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of an adversarial expert – Where the mother seeks permission to tender a report and adduce evidence from an additional expert – Whether the criteria in Rule 15.49 of the Family Law Rules 2004 have been met – Application dismissed – Where leave is granted to provide documents to a shadow expert – Adjournment of final hearing granted to allow for single experts to confer and the parties to exercise their rights under the Rules to ask questions of the single expert and seek clarification. Legislation: Family Law Act 1975 (Cth) ss 69ZN, 97(3)
Family Law Rules 2004 Pt 15.5, rr 15.42, 15.49, 15.64B, 15.65B
Cases cited: Bass and Bass (2008) FLC 93-366
Farnell & Farnell [2019] FamCA 981
Gyselman and Gyselman (1992) FLC 92-279
Owners of Strata Plan 58577 v Banmor Developments Finance Pty Ltd [2006] NSWCA 325
Salmon and Ors & Salmon [2020] FamCAFC 134
Number of paragraphs: 35 Date of hearing: 2 February 2021 Place: Sydney by web conference Counsel for the Applicant: Ms Lioumis Solicitor for the Applicant: Mcauley Hawach Lawyers Counsel for the First Respondent: Ms Giles SC Solicitor for the First Respondent: Linden Legal Counsel for the Second Respondent: Mr Kenny Solicitor for the Second Respondent: Matthews Folbigg Pty Ltd Counsel for the Third Respondent: Mr Harper Solicitor for the Third Respondent: Mitchell Lawyers ORDERS
SYC 2664 of 2020 BETWEEN: MS LAMBARD
Applicant
AND: MR LAMBARD
First Respondent
MS DABELL
Second Respondent
MS M LAMBARD
Third Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
2 FEBRUARY 2021
IT IS ORDERED THAT:
1. The Application in a Case filed 1 February 2020 by the mother is dismissed.
2.These proceedings are adjourned for hearing over seven (7) days commencing on 9 August 2021 at 10am, with an additional two days, 18 and 19 August 2021 being reserved if necessary.
3.I DIRECT that within 14 days, Dr NN confer with Dr BB the mother's treating psychiatrist and desirably also Dr AA, the mother's treating psychologist, regarding the mother's mental health and mental health prognosis.
4.For the purpose of obtaining assistance in formulating questions to Dr NN or to assist in preparing cross examination of expert witnesses, the parties have liberty to provide to such an appropriately qualified person as they deem fit;
(a)the reports of Dr G and Dr NN, and
(b)the tender bundle of documents provided to Dr NN for the preparation of her report.
5.The parties are granted liberty to apply on apply on 48 hours' written notice to my Chambers and to the other parties.
IT IS NOTED THAT:
A.In the period between now and the relisting of the matter, the mother and maternal grandmother intend to pursue the avenues set out in Division 15.5.6 of the Family Law Rules 2004 to seek, from the single expert Dr NN, clarification of her report.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lambard & Lambard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
McClelland DCJ:
INTRODUCTION
This matter concerns an Application by Ms Lambard (“the mother”), pursuant to r 15.49 of the Family Law Rules 2004 (Cth) (“the Rules”), to be permitted to seek a report and adduce evidence from Professor RR in relation to her mental health. The Application is made in circumstances where this matter was set down for a seven (7) day final hearing listed to commence yesterday, 1 February 2021. The substantive proceedings are parenting proceedings involving the mother, Mr Lambard (“the father”), Ms Dabell (“the maternal grandmother”) and Ms M Lambard (“the paternal grandmother”) and concern the child X (“the child”), born in 2019.
The proceedings were originally listed for final hearing in August 2020 however, I granted an adjournment of those hearing dates to allow for the preparation of a single expert report,[1] to be prepared by Dr NN who was appointed as a single expert for reasons outlined in my decision dated 14 October 2020 (“the October 2020 decision”).[2]
[1] [2020] FamCA 789
[2] [2020] FamCA 858
Other than for several mentions during the course of the day yesterday, the matter was unable to proceed as a result of the fact that the parties only received the single expert report from Dr NN on the day before the hearing, being Sunday, 31 January 2021. That Sunday was the day that the mother had the care of the child. In those circumstances, I determined that it was entirely appropriate that the parties have the opportunity of reading, in detail, the single expert report of Dr NN and that the legal representatives for each party have the opportunity to obtain instructions from their clients.
APPLICATION
The mother, with leave of the Court, pursuant to her Application in a Case filed 1 February 2021, seeks orders as follows:
1. Pursuant to Rule 15.49 of the Family Law Rules 2004, the applicant mother be permitted to tender a report or adduce evidence from Professor RR, in relation to the mental health of the mother, Ms Lambard.
2. That within twenty-four (24) hours the applicant mother shall prepare a letter of instruction to Professor RR and that letter of instruction will contain a request for Professor RR to consider and comment on the following matters:
2.1 Any comments (to the extent possible) on previous diagnoses and the risk, if any, of relapse;
2.2 Any view as to the mother’s current diagnosis and prognosis;
2.3 Any view as to whether, as a result of issues relating to the mother’s mental health, the child is at risk of being exposed to any physical or psychological harm;
2.4 Any view as to whether the current relationship between the child and the mother has been adversely impacted by mental health issues and, if so, how;
2.5 Any view as to whether, any mental health issues adversely impact upon
2.6 the mother’s capacity to provide for the needs of the child, including
2.7 physical, emotional and intellectual needs and, if so, how; and
2.8 Such other matters as the report writer considers relevant.
3. Leave is granted to the applicant mother to provide the following documents to Professor RR:
3.1 A copy of the report of Dr G dated 1 August 2020.
3.2 A copy of the report of Dr NN dated 31 January 2021.
3.3 A copy of the tender bundle provided to Dr G and Dr NN.
THE LAW – CONCEPTS AND PRINCIPLES
Rule 15.49 of the Rules relevantly provides:
(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.
In this case, two single experts have been appointed namely Dr G and Dr NN.
Rule 15.49 should be read and applied in the context of the purpose of Pt 15.5 of the Rules, which is set out in r 15.42, 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.
Also of relevance are the principles for the conduct of parenting proceedings as set out in s 69ZN of the Family Law Act 1975 (Cth) (“the Act”). Relevantly, the fifth principle is that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”.
The purpose to Pt 15.5 of the Rules also needs to be viewed in accordance with s 97(3) of the Act, which requires the Court to “ensure that proceedings are not protracted”.
Essentially, those legislative provisions to which I have referred, require the Court to balance, as far as possible, “expeditious resolution of disputes” and fairness and justice to the parties: see Owners of Strata Plan 58577 v Banmor Developments Finance Pty Ltd [2006] NSWCA 325 at [2].
The history of law reform in respect to these issues is both helpfully and interestingly set out by the Full Court in Salmon and Ors & Salmon [2020] FamCAFC 134 (“Salmon”) at [23]–[38] (per Kent J). That decision confirms that the Court should be mindful of the main purpose of the Rules, as set out in r 1.04, which 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”.
CONSIDERATION
Adversarial expert
As noted, the primary considerations in this matter are to balance, as far as possible, an expeditious resolution of the dispute while ensuring fairness and justice to the parties. Rule 1.04 also requires the Court to have regard to the potential cost implications of any procedural order. Those cost include not only costs to the party who is paying for the adversarial expert report, in this case the mother, but also the potential costs to the other parties in terms of:
·preparing for cross examination of the adversarial expert;
·the length of cross examination;
·the fact that an adversarial expert witness would also be required to confer with the other single expert witnesses;
·the fact that each expert may need to be on hand to hear the evidence of the other expert or for the evidence to be taken jointly by way of what is called a ‘hot tubbing’ where both expert witnesses are present and answer questions from the witness box; and
·where there would potentially be three witnesses in the witness box, namely Dr G, Professor RR and Dr NN, or, alternatively, if the ‘hot tubbing’ process was not followed, each witness would have to be available during the presence of the other witness giving evidence.
Rule 15.49 sets out certain criteria that a party may rely on to satisfy the Court that it is necessary and appropriate for the Court to permit a party to call evidence from an adversarial expert witness. In the circumstances of this matter, the potentially relevant provision is that set out r 15.49(2)(c), which is:
Whether there is another special reason for adducing evidence from another expert witness.
It is necessary to pay attention to the actual words used in 15.49(2)(c) being that “there is another special reason”. I have not been referred to any definition of “special reason”, however, I construe the word “special” as requiring a reason which is more than “the ordinary”: see Gyselman and Gyselman (1992) FLC 92-279 at 79,064.
There are essentially two bases upon which the mother seeks to establish such a special reason. One is, as referred to in paragraph 21 of her Affidavit filed 1 February 2021, as follows:
21. Because of Dr BB’s concern about playing a forensic role in the proceedings, I would like the opportunity for another expert to be appointed in these proceedings.
Dr BB is the mother’s treating psychiatrist who has expertise in post-natal mental health. I do not, however, find Dr BB’s reluctance to play a forensic role in these proceedings to be something that establishes a special reason justifying the engagement of an adversarial witness by the mother to give evidence in these proceedings.
Dr BB has sworn an Affidavit in these proceedings and attached a report referring to the mother’s mental health and her treatment of the mother. I accept that Dr BB has indicated to Dr G that she does not wish to provide a prognosis of the mother’s mental health because of the impact that may have on the mother and her relationship, as the mother’s ongoing treating psychiatrist.
Nonetheless, Dr BB will be called to give evidence and the parties and the Court will be in a position to ask questions of Dr BB, including in respect to the mother’s mental health prognosis. In that context I, yesterday, made orders permitting the release of the reports of Dr G and Dr NN to Dr BB. In summary, Dr BB, who is accepted as an expert in post-natal mental health and who has the advantage of being the mother’s treating psychiatrist, will be giving informed and relevant evidence in this matter.
The second basis advanced by the mother as establishing a special reason is that Dr NN, regrettably, did not consult with Dr BB before she prepared her report. This is despite the fact that, in my October 2020 decision, I specifically stated that the Court would expect Dr NN to consult with Dr BB (at [28]). The October 2020 decision explained my reasoning as being, in summary, the fact that Dr NN would not necessarily have the postnatal experience of Dr BB. It is regrettable that such consultation did not occur. I have accepted into evidence as Exhibit A the joint letter of instruction dated 19 October 2020 that was sent to Dr NN, noting on the bottom of page 2 the request:
You are requested to consult with the mother’s treating psychiatrist and psychologist, as referred to in the report of Dr G.
I accept that the mother’s second reason for seeking to call evidence from an adversarial witness is a more significant reason than that set out in paragraph 21 of her Affidavit to which I have referred. However, it does not, in my view, at this stage, establish a special reason in terms of r 15.49(2)(c). This is because the absence of consultation can be rectified by appropriate directions for Dr NN to so consult, at least, with Dr BB.
Accordingly, weighing up the wording and the concept of special reasons, in the context of the purpose of Pt 15.5 of the Rules, to which I have referred, and the background as helpfully set out by Kent J in Salmon, I am not satisfied that the mother has established special reasons for the Court to make an order permitting her to obtain a report or adduce evidence from an adversarial witness.
Adjournment
The question then becomes whether the Court should accede to the second aspect of the Application of the mother – that is, should the proceedings be adjourned for the purpose of the mother, having the opportunity to pursue the avenues set out in the Rules for her to, first, submit questions to a single expert (r 15.65 of the Rules) and, second, then to arrange a conference of the parties with the single expert (r 15.64B of the Rules)?
This is in circumstances where a significant natural justice issue arose from the late receipt of the report of Dr NN with the report being provided to the parties on Sunday, the day before the first day of trial, and it has clearly not been possible for the parties to ask question or organise a conference with Dr NN.
Senior counsel for the father has set out the circumstances in which that delay of the report occurred, being that an issue was taken earlier in the proceedings by the mother as to the identity of the single expert. There is some substance to that submission however, nonetheless, we are at a point in time where there is a significant natural justice issue that has now arisen from the receipt of the report of Dr NN and the past stance of the mother does not justify denying her the opportunity of properly presenting her case, in the context of the report of Dr NN raising a significant issue regarding the extent and cause of the mother’s mental health and the likelihood of the mother in the future experiencing an acute mental health episode.
In considering this matter, I have had regard to the decision of the Full Court in Bass and Bass (2008) FLC 93-366 (“Bass”) which concerned an application for evidence to be adduced from another expert, in circumstances where it was contended that the single expert who had been appointed, and who had prepared a report in the proceedings, was biased.
I appreciate that the same issue of bias has not been raised in respect to the report of Dr NN, however, relevantly for my consideration of the present matter at 82,487,[49], the Full Court said:
First, Division 15.5.6 of Part 15.5 provides a procedure for clarifying matters contained in a report prepared by a single expert witness. It was confirmed before us that the procedure had not so far been employed in this case. While we acknowledge that the procedure may only be of limited assistance to the father, given the nature of his complaints, we are, nevertheless, of the opinion that procedure ought to have been attempted before the application was made to Steele J, or this Court.
In having regard to Bass, I am conscious of the fact that these proceedings have been brought on urgently. They were delayed in August 2020 as a result of the Court agreeing with the father that there needed to be clarification of the issue of any potential risk to the child as a result of the potential of the mother suffering poor mental health in the future. I accept that, despite that delay which has occurred, there is still a need for this matter to be heard and determined as soon as possible.
Nonetheless, the inescapable reality is that the parties have received Dr NN’s report at an extremely late stage in the proceedings.
In those circumstances, it has not been possible for the mother to avail herself of the process set out in the Rules for seeking clarification of a single expert report. Despite the fact that we will lose six (6) days of hearing which have been set aside, I respectfully agree with counsel for the maternal grandmother that an adjournment is appropriate in order to ensure justice is done and, in circumstances where it is now, in any event, unlikely that the matter would be finalised in the remaining time which has been set aside for the hearing.
I further agree with counsel for the maternal grandmother that, in the circumstances of what is a complex and very sensitive case, it would be better if the matter is heard in the one sitting and without the matter being part heard and returning for further hearing with the prospect of witnesses potentially being recalled in light of further information being obtained from the expert witnesses in the intervening period.
In those circumstances, there is, in my view, no reasonable basis upon which to refuse the mother’s Application to have time to pursue those processes set out in the Rules to obtain further clarification of the report of Dr NN.
Leave to provide the reports of Dr NN and Dr G to a shadow expert
The last issue becomes whether I accede to an Application, which was proposed by counsel for the maternal grandmother and adopted by counsel for the mother, to grant leave to the parties to release the reports of the single experts for the purpose of those reports being provided to a “shadow expert”, being an appropriately qualified expert engaged for the purpose of providing assistance to prepare questions to the single experts, and, also, potentially to assist in the preparation of the matter for hearing including assisting to prepare cross examination of the single experts.
In that respect, counsel for the maternal grandmother referred the Court to a the decision of Farnell & Farnell [2019] FamCA 981, whereby Rees J acceded to an application to appoint an adversarial expert, it being noted that application was not opposed.
The granting of approval for the information to be provided to a shadow expert or experts may, in some ways, be seen as being contrary to the purpose and intent of Pt 15.5 of the Rules to which I have referred, however, having regard to the complexity of issues in this case, I agree it would be appropriate for all parties to be able to obtain that assistance if they so choose.
CONCLUSION
I will dismiss the mother’s Application for permission to tender a report or adduce evidence from another single expert. I will make a direction for Dr NN to confer with at least Dr BB, and also, desirably, Dr AA, the treating psychologist of the mother. I will adjourn the proceedings, noting that the parties intend to pursue their rights under the Rules to seek further clarification of the report of Dr NN. I will further make an order granting leave to the parties to provide the reports of Dr NN and Dr G to an appropriately qualified person for the purpose of preparing questions to ask of Dr NN and for cross examination of each expert witness. In those circumstances, it was accepted that it would also be appropriate to permit the parties to provide the same background documentation, as was considered by the single experts, to the shadow experts that may be retained by the parties.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 15 February 2021
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