LANGAN & THURSTON - [2010] FMCAfam 781

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANGAN & THURSTON

[2010] FMCAfam 781

FAMILY LAW – Children – residence.

EVIDENCE – Admissibility – expert evidence – admissibility of expert evidence – consideration of the basis on which expert evidence is admissible – whether affidavits annexing medical report and report from social worker should be admitted – whether leave should be granted to adduce evidence of the opinions contained in the reports.

Evidence Act 1995 (Cth), s.79
Federal Magistrates Court Rules 2001, rr.15.06A, 15.07, 15.09, 15.10, 15.12

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Re W and W; Abuse Allegations; Expert Evidence (2001) FLC 93-085
J and Director-General, Department of Community Services (2007) FLC 93-342
HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
SZNCR v Minister for Immigration & Anor [2009] FMCA 338

Applicant:

MS LANGAN

Respondent:

MR THURSTON

File Number:

SYC 4362 of 2008

Judgment of:

Scarlett FM

Hearing date:

22 July 2010

Date of Last Submission:

22 July 2010

Delivered at:

Sydney

Delivered on:

23 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

Eleanor Murphy & Company

Counsel for the Respondent:

Mr Watkins

Solicitors for the Respondent:

Beswick Solicitors

ORDERS

The Respondent is refused to rely on the affidavit of Dr G sworn 10 July 2010.
The Respondent is granted leave to rely on the affidavit of Ms L sworn 8 July 2010.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 4362 of 2008

MS LANGAN

Applicant

And

MR THURSTON

Respondent

REASONS FOR JUDGMENT

Application

The respondent seeks to rely on two affidavits of expert witnesses. The applicant opposes the reports being admitted into evidence because:
a)The deponents’ qualifications are not of sufficient standard to meet the requirements of the Court as to their particular expertise;
b)They are “one-sided” because they express biased opinions; and
c)They were both filed out of time.

Background

The substantive application concerns an application to vary parenting orders that were made by consent in the Family Court on 29^th July 2008. A significant feature of the applicant’s case relates to a series of inappropriate and abusive text messages, emails and repeated telephone calls made by the respondent.
On 2^nd March 2010 I made orders to the following effect:
a)There was to be a single expert’s report, being a child and family psychiatric assessment;
b)The application was listed for final hearing on 22^nd and 23^rd July 2010; and
c)The parties were to file and serve any further affidavit material by 9^th July 2010.
On 16^th June 2010 I made orders by consent appointing Dr B to be the single expert.
The respondent consulted Dr G, a psychiatrist, and Ms L, a mental health social worker.
Dr G prepared a report on 18^th May 2010. Ms L prepared a report on 11

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LANGAN & THURSTON

Details

AGLC: LANGAN & THURSTON [2010] FMCAfam 781
Case: [2010] FMCAfam 781
Decision Date: 23 July 2010

CaseChat Overview and Summary

In the case of Langan & Thurston, the primary dispute concerned the residence arrangements for the children of the parties involved. This matter was adjudicated in the Family Court of Australia. The father sought to challenge the admissibility of certain expert evidence presented by the mother, specifically reports from a medical professional and a social worker, which were intended to influence the court's decision regarding the children's living arrangements.

The legal issues before the court were centred on whether the affidavits annexing the medical report and the social worker's report should be admitted as evidence. The court had to assess the basis on which the expert evidence was admissible, ensuring that it met the requisite standards of relevance and reliability. Furthermore, the court needed to decide whether the respondent should be granted leave to present the opinions contained within these reports during the proceedings.

Upon review, the court found that the affidavit of Dr G was not admissible as it did not adequately support the basis for the expert opinion presented. Conversely, the affidavit of Ms L was deemed admissible as it sufficiently substantiated the opinion provided. Consequently, the court ruled that the respondent was granted leave to rely on Ms L's affidavit, while disallowing reliance on Dr G's affidavit. This decision was pivotal in shaping the court's consideration of the evidence pertinent to the children's residence arrangements.

Orders

Orders of the court

The Respondent is refused to rely on the affidavit of Dr G sworn 10 July 2010.

The Respondent is granted leave to rely on the affidavit of Ms L sworn 8 July 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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