Larkin & Neale
[2023] FedCFamC1F 1054
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Larkin & Neale [2023] FedCFamC1F 1054
File number: SYC 3539 of 2021 Judgment of: CHRISTIE J Date of judgment: 8 December 2023 Catchwords: FAMILY LAW – EVIDENCE – Application to adduce expert evidence – Application to vacate final hearing dates to facilitate expert evidence – Where the parties’ competing application for final parenting orders is listed for final hearing – Where the applicant asserts that the first respondent’s illness is terminal and disputes that the first respondent is in remission – Where the first respondent has provided recent evidence from his treating doctor – Where the applicant does not have admissible evidence which calls the evidence of the first respondent’s treating doctor into question – Where the first respondent intends to rely on evidence from his treating doctor at trial – Where it accords with the overarching purpose of the family law practice and procedure provisions to retain the final hearing dates – Application dismissed. Legislation: Family Law Act1975 (Cth) s 69ZT
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 7, r 7.02 and r 7.04
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Hague Convention on the Civil Aspects of International Child Abduction
Division: Division 1 First Instance Number of paragraphs: 39 Date of hearing: 8 December 2023 Place: Sydney Solicitor for the Applicant: Mr Le Nguyen, Unified Lawyers Counsel for the Respondents: Ms Van Oosterom Solicitor for the Respondents: ALP Lawyers Solicitor for the Independent Children’s Lawyer Phillip A Wilkins & Associates ORDERS
SYC 3539 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS B NEALE
Applicant
AND: MR LARKIN
First Respondent
MS C NEALE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.The first respondent provide to the other parties within seven (7) days:
(a)A list of all treating health professionals in Australia and Country D;
(b)Copies of all medical records including reports relating to his health in the last two (2) years as are within his possession or control (noting he is not required to provide copies of documents already discovered);
(c)A signed authority addressed to any of his treating health professionals permitting those persons to release documents relating to the father to the solicitors for the mother.
2.The application is otherwise dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Larkin & Neale has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application in a proceeding filed by Ms B Neale (“the mother”) which deals with two issues:
(a)Vacation of the final hearing listed for 22-25 January 2024; and
(b)Appointment of an expert medical practitioner to provide evidence about the father’s health.
Mr Larkin (“the father”), the respondent father, opposes the vacation of the hearing date. The respondent maternal aunt opposes vacation of the hearing date.
The Independent Children’s Lawyer (“ICL”) also made submissions in support of the dismissal of the application in a proceeding.
BACKGROUND
The primary proceedings, which are listed for final determination before me commencing 22 January 2024, concern parenting arrangements for the one child of the relationship X born 2015. X is eight years old.
In 2020 X came to Australia in the company of the mother. The father says he believed it was a vacation to visit the maternal relatives. The father was unable to persuade the mother to return with X and commenced proceedings.
There is an existing interim order which provides that X live with the maternal aunt and spends supervised time with the mother. At present X lives with the maternal grandparents (with the agreement of the maternal aunt and father). The father sees X when he travels to Australia. The maternal family say the mother has failed to exercise all the time available to her – the mother disputes this.
There is a current Apprehended Domestic Violence Order (“ADVO”) in place to protect the child from the mother.
A Family Report dated 20 November 2023 was released to the parties on 22 November 2023.
On 24 November 2023 I made directions for trial as follows:
1.The matter be listed for a final hearing for 4 days commencing on 22 January 2024.
2.That any Application in a Proceeding seeking to adduce expert evidence be filed and served by 4.00 pm on 1 December 2023.
3.That any Response to Application in a Proceeding be filed and served by 4.00 pm on 7 December 2023.
4.The Application in a Proceeding, if filed, shall be listed for determination at 10.00 am on 8 December 2023.
5.The applicant and respondent shall file and serve any Amended Application and Response seeking final relief by 4.00 pm on 10 January 2024.
6.All affidavits are to be filed by 4.00 pm on 15 January 2024.
7.Each party is to file an Outline of Case Document by 4.00 pm on 18 January 2024. The Case Outline Document shall contain a:
(a)List of material relied upon;
(b)Short chronology;
(c)List of issues in dispute; and
(d)Brief outline of the submissions to be made in support of the final relief.
The father told the family report writer that he had been assessed as being in remission from his illness and physically healthy enough to be able to care for a child.
The mother challenges the information the father provided to the family report writer and seeks the appointment of an expert to express an opinion about the father’s health.
THE LAW
Expert evidence is dealt with in Ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(“the Rules”).
It is important to understand the purpose of the Rules which is set out at 7.02:
7.02 Purpose of Part 7.1
The purpose of this Part is as follows:
(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 proceeding;
(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;
(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 that is necessary in the interests of justice.
It is also important to have regard to the operation of r 7.04 of the Rules which provides as follows:
7.04 Order for single expert witness
(1)The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.
(2) When considering whether to make an order under subrule (1), the court may take into account any matters relevant to making the order, which may include the following (without limiting the matters which may be relevant):
(a)the overarching purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 7.02);
(b) whether expert evidence on a particular issue is necessary;
(c) the nature of the issue in dispute;
(d)whether the issue falls within a substantially established area of knowledge;
(e) whether it is necessary for the court to have a range of opinion.
(3)The court may appoint a person as a single expert witness only if the person consents to the appointment.
(4)A party does not need the court's permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).
In considering the application to vacate the hearing date it is appropriate to have in mind the provisions of s 67(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) which provide:
67 Overarching purpose of family law practice and procedure provisions
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
CONSIDERATION
Vacation of hearing dates
The hearing dates were allocated upon receipt of the family report. Both parties are entitled to test its recommendations but that does not permit me to ignore the fact that the report indicates that a child is currently living separated from both parents in circumstances where she has expressed a view that she wishes to live with her father (in Country D). She has been in Australia since early 2020 and living with the maternal family since 2021.
In applying s 67 of the FCFCA Act, it is necessary to retain the allocated hearing dates. The section is not intended to operate to override considerations of procedural fairness but functions as a reminder of the overriding value of achieving concluded outcomes for court users – most particularly in the circumstances of this case, children.
I will discuss the receipt of expert evidence further below and I accept that, if further evidence were necessary, then there may be some inevitability to vacation of the hearing dates. But, as discussed below, I have not been persuaded that the proposed expert evidence is necessary or that a failure to permit same would constitute a denial of procedural fairness to the mother.
The mother’s lawyer submitted that she has moved as expeditiously as possible given the Family Report was only released on 22 November 2023. However, that ignores the fact that the father’s application has always sought that the child live with him in Country D and the mother is presently having only supervised time. The report did not introduce a new potential resolution of the proceedings through its release.
Expert evidence
The mother asserts that the father’s condition is terminal. The evidence upon which she seeks to rely is of limited evidentiary value because it is hearsay by an unnamed person or her own (non-expert) views. While s 69ZT of the Family Law Act1975 (Cth) (“the Act”) may permit me to receive that evidence it does not require that I afford weight to assertion without proper foundation.
The father has filed a number of medical reports by his treating doctor, Dr E.
Dr E wrote a letter dated 6 December 2023 as follows:
This is to certify that:
Name : [Mr Larkin]
DOB : […] 1976
…
Has been under my care and treated for [an illness] since [early] 2022. He underwent [treatment] and subrequently [sic] [another type of treatment].
[…] [The illness] was not [evident] anymore at the most recent [test][in mid] 2023. As of this date, we can only state of the [illness] is in remission.
Note: [Mr Larkin] underwent [surgery] in [early] 2022.
(As per the original)
The father tells the Court that he has never been diagnosed with terminal illness. He agrees that he was diagnosed with an illness and underwent treatments and improved to the extent that he did not require a certain surgery.
The mother’s submissions also relied upon asserted non-disclosure by the father in relation to his medical condition. As I understand the history, the father was diagnosed with an illness in early 2022. He annexed a medical report to his affidavit of April 2022. In the meantime he had had treatment and surgery both of which are referred to in the report. To the extent that there is an assertion of non-disclosure, it is not established.
The report provided discloses the treating physician Dr E and is headed “[…] Medicine Department”. In large part it details scans and then provides conclusions under the heading “Impression”.
The father filed a further affidavit in September 2022 in which he gave evidence about his treatment and annexed a further medical report dated mid-2022 in the same format.
The father attached to his affidavit filed in response to this application copies of scans undertaken at the hospital and the records from early, mid and late 2023 which indicate remission of disease under the heading “Impression”. Those reports are in the same format as the original reports discussed above.
In the report dated early 2023:
Impression :
-Still no […] recurrence […].
-Still no [progression].
-Still no [progression].
These description was still suggestive for complete metabolic response. Short term clinical correlation / follow up is recommended.
(As per the original)
In the report dated mid-2023:
Impression :
-There was still no […] recurrence […].
-There was still no [progressions].
-There were still no [progressions].
This featured was still suggestive of complete […] response. Please correlate/clinical monitoring.
(As per the original)
And then more most recently in late 2023:
Impression :
-There was still no […] recurrence […].
-There were still no [progressions].
-There were still no [progressions].
This featured was still suggestive for complete […] response.
Please correlate/clinical monitoring
(As per the original)
The mother’s lawyer submitted that the mother questioned the integrity of the medical evidence coming from Country D. In her affidavit, she expressed a concern that the father may have paid bribes. The assertion and the submission were absent foundation. The father has provided multiple reports from the same source. Unless the mother has an objective basis to question these documents, the submission is misconceived.
The mother’s lawyer said that the evidence was necessary because if the father’s prognosis was terminal, the mother would have difficulty changing the child’s place of residence from Country D to Australia in the event of the father’s death. I explored that submission with the solicitor at the hearing and he made reference to his client’s perceptions of the operation of the family law system in the Country D Courts and the fact that Country D is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. These will be issues which can be raised at the final hearing by the mother if she has any evidentiary basis upon which to do so. It cannot be overlooked that until the mother travelled to Australia for Lunar New Year in 2020, the whole family lived in City F.
I accept that the father’s health (and prognosis) is an issue in the proceedings and one about which there is a dispute. However, it is important to see the dispute in context as follows:
(a)While the mother may question the father’s remission, she does not have admissible evidence which calls it in to question;
(b)The father has filed recent evidence from his treating doctor; and
(c)The father intends to rely on evidence from his treating doctor at trial.
The mother submitted that the father’s treating doctor is not impartial or independent. I accept that he is not independent, he is the father’s treating doctor. As the father’s treating doctor, if he provides evidence as foreshadowed, he will be obliged to take an oath or affirmation. While his evidence will be filed in the father’s case it will be opinion evidence of an expert (albeit a treater).
The Rules say that the Court should “restrict expert evidence to that which is necessary to resolve or determine a proceeding”. I could not be satisfied that the evidence proposed by the mother is necessary. Something does not become a dispute which the court must adjudicate by one party filing medical evidence and another party merely asserting that the medical evidence is not accurate.
The single expert rules in Ch 7 of the Rules provide for appointment of a person. The mother’s application does not identify any person. The Rules provide the person must be qualified and consent. I have no information about this aspect.
The Rules provide that, unless the Court orders otherwise, the costs of a single expert will be shared equally. The mother in this case proposes that the usual rule apply or in the alternative that she meet the costs. The mother has filed a financial statement which makes her capacity to comply with the orders she herself seeks appear illusory. The mother has filed no evidence about the proposed costs of the single expert.
The ICL submitted that the interests of the child required that the hearing proceed on the allocated dates. She has lived in Australia since early 2020. Litigation in respect of her parenting arrangements has been on foot since 2021 and there have been state court proceedings for her protection. I accept the submission that the hearing dates should be retained and the application to appoint a single expert dismissed.
That will not prevent the mother from challenging the evidence which is to be filed in the father’s case concerning medical issues - she will be entitled to do so. If there are any issues which arise at the proceedings, she can make a relevant application. But in the circumstances which are before me today her application will be dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 8 December 2023
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