LANGAN & THURSTON
[2010] FMCAfam 781
•23 July 2010
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 29th 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 2nd 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 22nd and 23rd July 2010; and
c)The parties were to file and serve any further affidavit material by 9th July 2010.
On 16th 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 18th May 2010. Ms L prepared a report on 11th June 2010. Those reports were provided to Dr B and are referred to in his report.
Dr G’s report of 18th May 2010 is annexed to an affidavit which he swore on 10th July 2010. Ms L’s report of 11th June 2010 is annexed to an affidavit which she swore on 8th July 2010.
Dr G’s affidavit was filed on 14th July 2010. Ms L’s affidavit was filed the following day, the 15th July.
Submissions
Mr Maurice of counsel, who appears for the applicant, submitted that the two reports should not be admitted because the expertise of the two deponents was not sufficient for the purposes of the proceedings. He referred to the decision of the Supreme Court of New South Wales in Makita (Australia) Pty Ltd v Sprowles[1] at [85].
[1] (2001) 52 NSWLR 705
He further submitted that the two reports were partisan and that the report of Dr G, in particular, appeared to be acting as an advocate for the respondent. He referred to a passage in the report where Dr G offered a diagnosis of the applicant, whom he had never met.
It was further submitted that the report of Ms L was not a therapeutic report but a report prepared as an expert report for the purpose of these proceedings.
The reports, he submitted, did not comply with the relevant Federal Magistrates Court Rules, particularly Rule 15.07.
Counsel for the applicant submitted that an expert should not be an advocate for a party (re W and W: Abuse Allegations; Expert Evidence[2]; J and Director-General, Department of Community Services[3]).
[2] (2001) FLC 93-085
[3] (2007) FLC 93-342
Counsel for the respondent, Mr Watkins, conceded that Dr G’s report appeared to be flawed. He told the Court that it was at the request of
Dr B that Dr G’s report was provided to him.
He further conceded that the reports may seem to overlap into the area of the single expert but the purpose of the tender was to show the steps taken by the respondent when he had sought treatment.
The Relevant Law
Subsection 79(1) of the Evidence Act 1995 provides:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
The Federal Magistrates Court Rules consider the use of expert evidence. Experts have a duty to the Court, set out in r.15.07:
for an expert’s duty to the Court and for the form of expert evidence, an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses.
Note: While not intended to address all aspects duties, the key points to the guidelines are:
· An expert witness has a duty to assist the Court on matters relevant to the expert’s area of expertise
· An expert witness is not an advocate for a party
· The overriding duty of an expert witness is to the court and not to the person retaining the expert
· If expert witnesses confer at the direction of the Court it would be improper for an expert to be given or to accept instructions not to reach agreement.
In HG v The Queen[4], Gleeson CJ said at [44]:
…It is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture ‘opinions’ (sometimes merely on their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority; and legitimate processes of fact-finding may be subverted.
[4] (1999) 197 CLR 414; [1999] HCA 2
Expert evidence, unless it is to be admitted by consent, should be on affidavit, deposed to by the author of the document or report (see SZNCR v Minister for Immigration & Anor[5] at [27]). The expert’s qualifications should be set out in the document and the questions put to the expert by the lawyers who commissioned the report should be included.
[5] [2009] FMCA 338
Conclusions
The affidavit of Dr G annexes a report by Dr G dated 18th May 2010. On the first page of that report there appears a curriculum vitae. On the final page of the report, Dr G states:
If by any chance this is presented to Court I would like to confirm I am aware of the Code of Conduct for Expert Witnesses, I have read such, and its principles were always abided by (sic) in my examination of Mr Thurston and preparation of this report.
The Report makes it clear that the respondent was referred to Dr G by his treating general medical practitioner, Dr R, after he had already seen by Ms L.
It is clear that Dr G prepared his report on the basis of a consultation with the respondent and the history which he gave. Whilst Dr G sets out his opinion of the respondent, he also sets out his views of both the applicant and her new husband, Mr O, neither of whom has he seen.
Dr G makes these observations:
In looking at this “evidence:, my observations are:
· Whilst I empathise with his ex-wife over the inappropriateness and frequency[6] of the texts he sent to her, for which there is no excuse, he has ceased this activity. He, himself has made his own realistic assessment of this, accepts his inappropriateness, acknowledged the necessity to cease such activity and I believe he is fully insightful when declaring his judgment of such inappropriateness and conforming he will not do this in future…
· With respect to “[name omitted]”, in these particular circumstances, I would think it unrealistic of us, Mental health Experts or the Court etc, to condemn a “cuckolded spouse” for being hurt and angry at the offending third party, in this case i.e. [name omitted]…
The bottom line here is there is no evidence or suggestion of Mr Thurston not performing his duties, not one whit less than is admirable, consistent, excellent and as promised.
I have had the opportunity to see writings which I believe to be writings of his ex-wife, and apart from her reaction to the texts etc, which I have covered, I believe the only concern is the brief period of repeated telephone calls which are inexplicable in his coming to terms with, and ventilating his anger and grief at the most significant loss, for him, the most traumatic loss in his life so far. Surely that can be understood and is perhaps acceptable, in that context, particularly when it has ceased and there is the confirmation that it won’t happen again. It is appropriate to accept that confirmation because of his clear insight into this…
…If his ex-wife is being unrealistic with respect to his coping, with respect to his distress at such a significant loss (particularly as there is no evidence of his “grief’ being detrimental to his parenting skills and his relationship with [X]) and that loss is her doing, not only does my experience tell me her reaction is unrealistic, it also reveals her lack of empathy. In the presence of loss of contact with reality and lack of empathy one wonders about the fairness of one, not both spouses undergoing psychiatric assessment, (such a need, in my experience, should be both).[7]
[6] Emphasis in text
[7] Annexure A to affidavit of Dr G 10.7.2010 at pages 3 and 4
To my mind, comments such as these take Dr G’s report well past the area that his report was, presumably, intended to cover, namely, an assessment of the respondent and a description of any treatment that he might require. The report makes serious criticisms of the applicant and her new husband, based on some documents apparently written by the applicant and mainly on the respondent’s account of their behaviour.
With respect, it does not appear that the court could put much, if any, weight on an opinion of the applicant and Mr O based mainly on the history given by an opposing party in litigation.
The report is so partisan that it falls foul of the criticism made by Gleeson CJ in HG v The Queen[8] at [44]:
Experts who venture ‘opinions” (sometimes merely on their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted.[9]
[8] supra
[9] (1999) 197 CLR 414; [1999] HCA 2 at [44]
The report is effectively advocating the respondent’s case, not only trespassing on matters that should more properly be the province of the single expert in his report, but also on factual matters which are to be decided by the Court.
As such, the report does not meet the requirements of the evidence of an expert witness, and the respondent will be refused leave to adduce that evidence (see r. 15.12)
The affidavit of Ms L sworn 8th July 2010 annexes a copy of her report to Dr R dated 11th June 2010. Ms L is a Mental Health Social Worker who provides a copy of her curriculum vitae and a document in which she sets out more of her experience in the field. She also states:
This document and the letter/report to the GP attached hereto, is prepared by me as an expert witness in my field and I am cognizant of the code of conduct that applies to expert witnesses and this letter/report abovementioned has been prepared in accordance with that code.[10]
[10] Affidavit of Ms L 8.7.2010 Annexure A
The entire first page of Ms L’s report contains a history given to her by the respondent and should be seen in that light. It is clear that the respondent’s reasons for consulting Ms L and Dr G stem from his failure to understand why he had to see a psychiatrist in the form of
Dr B:
Further to my experience of 37 years in Mental Health I had found no evidence of mental illness in my initial interviews with Mr Thurston, however he was distressed that he was being directed by the Court to be assessed by a Psychiatrist from a list of four Psychiatrists and he requested to see a Psychiatrist as he has never in his life seen a Psychiatrist and was perplexed at the prospect.[11]
[11] Ibid
In my view, this report should be admitted into evidence, once it is seen for what it is. Ms L’s report is a report containing an assessment of the respondent and a description of her plan for his treatment. Ms L sets out that she will “continue with treatment with Focused Psychological Strategies as per my letter to you[12] of 22 April 2010 following two sessions, in my capacity as Medicare Provider of Focused Psychological Strategies.[13]
[12] i.e. Dr R
[13] Annexure A
Ms L’s report is a report of a treating practitioner giving her assessment of the respondent and is admissible. The respondent will be given leave to adduce that evidence under rule 15.12.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 27 July 2010
4
2