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…
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CaseChat Overview and Summary
The central legal issue before the court was whether the criteria set out in Rule 15.49 of the *Family Law Rules 2004* had been met to justify the appointment of an adversarial expert. Specifically, the court had to determine if there was "another special reason" for adducing evidence from an additional expert, as contemplated by Rule 15.49(2)(c). The court also had to balance the need for an expeditious and just resolution of the dispute with the potential cost implications of allowing further expert evidence.
McClelland DCJ reasoned that the primary purpose of the Rules, as stated in Rule 1.04, is to ensure cases are resolved justly and timely at a reasonable cost. The court considered the mother's submission that her treating psychiatrist, Dr. BB, was reluctant to play a forensic role, and that this reluctance constituted a "special reason" for engaging an adversarial expert. However, the court construed "special reason" to mean something more than ordinary, and did not find Dr. BB's reluctance to be a sufficient special reason to justify the appointment of an adversarial expert. The court noted that the term "special reason" had been interpreted in *Gyselman and Gyselman* (1992) FLC 92-279.
Ultimately, the court dismissed the mother's application to tender a report or adduce evidence from another single expert. However, the court granted leave for the parties to provide the reports of Dr. NN and Dr. G, along with the tender bundle of documents provided to Dr. NN, to an appropriately qualified person for the purpose of formulating questions for Dr. NN and preparing for cross-examination. The proceedings were adjourned to allow for single experts to confer and for parties to exercise their rights to seek clarification from the single expert. The court also directed Dr. NN to confer with the mother's treating psychiatrist and psychologist regarding her mental health and prognosis.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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”.CONSIDERATIONAdversarial 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.