Lochan & Lochan
[2024] FedCFamC1F 90
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lochan & Lochan [2024] FedCFamC1F 90
File number: CRC 42 of 2020 Judgment of: CAMPTON J Date of judgment: 22 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks leave to adduce evidence from an expert witness other than from a single expert witness by way of a non-treating psychiatrist for the purposes of a Kennon v Kennon (1997) FLC 92-757 contention that her contributions were made significantly more arduous – Where the wife did not attempt to confer to appoint a single expert witness – Where the psychiatrist was not provided with the wife’s trial affidavit material – Where the interviews were conducted with the wife’s son and daughter-in-law acting as interpreters – Where the son and daughter-in-law are not giving evidence in the trial – Where the wife’s treating general practitioner is not giving evidence at the trial – Where the psychiatrist relied on part upon second-hand and third-hand hearsay as the basis for the opinion – Where the basis of the opinion is derived from intertwined hearsay and non-hearsay sources – Where the psychiatrist provides opinions as to subject-matters where it is agreed he has no expertise – Leave to adduce the evidence of an expert other than a single expert is refused – Application dismissed. Legislation: Evidence Act 1995 (Cth) s 79
Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.01, 7.02, 7.03, 7.04, 7.10, 7.11, 7.13 and 7.22
Cases cited: Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 22 February 2024 Place: Sydney Counsel for the Applicant: Ms Petrie Solicitor for the Applicant: Bryant McKinnon Lawyers Counsel for the First Respondent: Mr Todd Solicitor for the First Respondent: Tiyce & Lawyers Solicitor for the Second Respondent: No appearance ORDERS
CRC 42 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LOCHAN
Applicant
AND: MR B LOCHAN
First Respondent
MR C LOCHAN
Second Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding of the wife filed 14 February 2024 is dismissed.
2.The costs of the parties incidental to the Application in a Proceeding are reserved to trial.
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 the pseudonym Lochan & Lochan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine an Application in a Proceeding of Ms Lochan (“the wife”) filed 14 February 2024 pursuant to r 7.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) seeking leave to adduce expert evidence other than from a single expert, from a psychiatrist Dr D for the purposes of a s 79 trial listed to commence over four days commencing on 16 April 2024. Mr B Lochan (“the husband”) opposes the leave sought. The second respondent, Mr C Lochan, the husband’s father, filed a submitting notice to the application.
For the reasons that follow, the Application in a Proceeding is dismissed.
Background and Context
The husband and wife married in 1998 in Country E and separated on 20 July 2019.
By way of an Initiating Application filed on 7 February 2020 in what was then the Federal Circuit Court of Australia at City F the wife sought orders as to the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) between she and the husband. The husband filed a Response to an Initiating Application on 25 June 2020 for different orders as to the adjustment of property.
The wife contends in the proceeding that her contributions have been made significantly more arduous than they ought to have been due to the violent conduct and behaviour of the husband, and accordingly those contributions should be afforded greater weight (Kennon v Kennon (1997) FLC 92-757 (“Kennon”)). The husband puts the wife’s evidence and contention into issue.
The s 79 proceeding was certified as ready for hearing and listed for trial at City F in the Federal Circuit and Family Court of Australia (Division 2) on 22 November 2022. Each of the husband and they wife had filed their affidavit evidence in preparation for that trial, including the wife seeking to rely on Dr D affidavit filed 17 January 2022 annexing his medico-legal report dated 1 October 2021.
For reasons that are not evident from the court file, on 22 November 2022, the Division 2 Judge scheduled to hear the trial, transferred the proceeding to the Federal Circuit and Family Court of Australia (Division 1) in the Brisbane Registry. The wife had not sought nor obtained leave to rely on the evidence of Dr D in the proceeding in Division 2. No application appears to have been made by the wife pursuant r 7.10 before the Division 2 judge prior to transfer.
On 12 June 2023 leave was granted to the wife to amend her Initiating Application to join the husband’s father as the second respondent. The second respondent asserts that the husband owes him a significant sum of money advanced during the relationship between the husband and the wife. He appears to seek conflicting relief grounded from the same circumstance, such relief being the transfer by the husband to him of a real property at Town G, NSW in specie by application of equitable principle arising from funds advanced to acquire that property, or in the alternative, repayment of the funds advanced, enabling the acquisition of that property and interest thereon, by way of a secured loan agreement.
On 28 August 2023 the proceeding was transferred to the Sydney Registry.
On 7 February 2024, the following orders were made:
1.The proceedings are listed for trial over 4 days before me commencing 16 April 2024.
…
8.In the event the wife proposes to adduce expert opinion evidence other than by a single expert at trial, being that of a medico legal psychiatrist [Dr D] by way of his affidavit filed 17 January 2022 or by way of a handwriting expert [Mr H] by way of his affidavit filed 11 November 2022, she is to file and serve such Application in a Proceeding to adduce such evidence and any affidavit in support thereof on or before 14 February 2024. The husband and/or the second respondent is to file and serve any Response to that Application in a Proceeding and affidavit in support thereof on or before 20 February 2024.
9.Such Application in a Proceeding, if filed, is listed for hearing before me in person on 22 February 2024 at 10am. For the purpose of such hearing, each party is to file and serve and outline of case document containing such submissions as they consider appropriate on or before 4pm 21 February 2024.
On 14 February 2024, the wife filed an Application in a Proceeding seeking leave to adduce:
(a)Evidence from Dr D, by way of his affidavit filed 17 January 2022; and
(b)Evidence from Mr H, a handwriting expert, by way of his affidavit filed 11 November 2022 annexing his report dated 24 January 2022.
The husband filed a Response to an Application in a Proceeding on 20 February 2024 seeking that the application be dismissed. The husband’s father did not appear at the hearing.
The wife abandoned her application for the leave to adduce evidence from Mr H.
THE LAW
It is not in contest that Dr D’s evidence is within the province of s 79 of the Evidence Act 1995 (Cth).
As to the instructions to be given to an expert, r 7.13 states:
7.13 Instructions to expert witness
(1) This rule applies to any expert witness, whether a single expert witness or an expert witness engaged by only one party or some parties.
(2) A party who instructs an expert witness to give an opinion for a proceeding or an anticipated proceeding must:
(a) ensure the expert witness has a copy of the most recent version of, and has read, Divisions 7.1.4, 7.1.5 and 7.1.6 of these Rules; and
(b) obtain a written report from the expert witness.
(3) All instructions to an expert witness must be in writing and must include:
(a) a request for a written report; and
(b) advice that the report may be used in an anticipated or actual proceeding; and
(c) the issues about which the opinion is sought; and
(d) a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and
(e) full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’s function.
(4) If a single expert witness is appointed, the parties must give the expert an agreed statement of facts on which to base the report.
(5) However, if a single expert witness is appointed and the parties do not agree on a statement of facts:
(a) unless the court directs otherwise, each of the parties must give to the expert a statement of facts on which to base the report; and
(b) the court may give directions about the form and content of the statement of facts to be given to the expert.
Rule 7.22 provides the requirements for the content of an expert’s report, being:
7.22 Contents of expert’s report
(1) An expert’s report must:
(a) state the reasons for the expert witness’s conclusions; and
(b) include a statement about the methodology used in the production of the report; and
(c) include the material referred to in subrule (2) in support of the expert witness’s conclusions.
(2) For the purposes of paragraph (1)(c), an expert’s report must include the following in support of the expert witness’s conclusions:
(a) the expert witness’s qualifications;
(b) the literature or other material used in making the report;
(c) the relevant facts, matters and assumptions on which the opinions in the report are based;
(d) a statement about the facts in the report that are within the expert witness’s knowledge;
(e) details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person’s qualifications and experience;
(f) if there is a range of opinion on the matters dealt with in the report—a summary of the range of opinion and the basis for the expert witness’s opinion;
(g) a summary of the conclusions reached;
(h) if necessary, a disclosure that:
(i) a particular question or issue falls outside the expert witness’s expertise; or
(ii) the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
(iii) the expert witness’s opinion is not a concluded opinion because further research or data is required or because of any other reason.
Rule 7.02(c) prescribes that, if practicable and without compromising the interests of justice, expert evidence is to be given on an issue by a single expert witness.
Rule 7.03 provides the process for the parties to jointly agree as to the appointment of a single expert. Rule 7.04 sets out the process whereby an application can be made by a party to appoint a single expert witness. Importantly, that rule provides that a party does not need the courts permission to tender a report or adduce evidence from a single expert witness.
Rule 7.01 of the Rules sets out an exception in relation to a treating medical practitioner. It is agreed that Dr D’s report is outside the compass of r 7.01. The introduction of his report records:
At the commencement of the interview, I explained to [the wife] that she had been referred for an independent medico-legal examination. She understood that I was not her treating doctor and could not give her any treatment advice.
The Permission Rule
Rule 7.10 provides:
7.10 Permission for expert’s reports and evidence
(1) A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, other than a single expert witness.
The determination of the wife’s mandatory application for permission to adduce the identified evidence of each expert is governed by r 7.11 of the Rules:
7.11 Application for permission for expert witness
(1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Proceeding.
(2) The affidavit filed with the application must state the following:
(a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c)the issue about which the expert witness’s evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
(f)the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue;
(g) whether there is any previous connection between the expert witness and the party.
(3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account the following:
(a) the purpose of this Part (see rule 7.02);
(b) the impact of the appointment of an expert witness on the costs of the proceeding;
(c) the likelihood of the appointment expediting or delaying the proceeding;
(d) the complexity of the issues in the proceeding;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only;
(f) whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the proceeding.
(4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.
Note: Despite an order under this rule, a party is not entitled to adduce evidence from an expert witness if the expert’s report has not been disclosed or a copy has not been given to the other party (see rule 7.17).
The Full Court has consistently not read down the circumstances where there are genuine issues in the proceedings that warrant the adducing of probative expert evidence. As such, the view often taken is that the permission rule must not be applied in a way that results in what may be a significant issue in the proceedings being foreclosed from effective challenge, or in a way that would compromise the interests of justice in preventing potentially relevant evidence being placed before the Court.
THE EXPERT EVIDENCE
Dr D’s affidavit gave evidence that he had read and understood the relevant provisions of the Rules. He opined that as at 1 October 2021 the wife met the diagnostic criteria for Post Traumatic Stress Disorder (“PTSD”). He does not give evidence as to any recommended treatment.
The letter of instruction was annexed to the wife’s affidavit. It reads as follows:
We have a matter in the Federal Circuit Court in [City F] where we act for [the wife].
Our client describes a long history of serious control through the 30 odd years of her marriage.
We understand that she was not even able to go to Woolworths on her own and we have uncovered significant indicates that the husband controlled all of her finances and regularly signed her signature on bank documents.
Our client has disclosed to us that she would like to investigate with you your assessment as to whether the husband’s behaviour has impacted on her mental health.
The instructions were for the expert to provide an opinion as to a finding of fact to be made by the Court. He was not asked to provide a diagnosis.
Dr D recorded that the single document provided to him for the purposes of his opinion was the wife’s Patient Health Summary from J Medical Centre. His report cites entries reproduced, in part only, from that document over a seven-year period from 2014 to 2021.
Dr D was not instructed with the wife’s affidavits to be relied upon at trial.
The first assessment was conducted by Dr D over a video link to Ms Lochan’s home for approximately 90 minutes. The wife’s daughter-in-law, Ms K, acted as the wife’s interpreter. Dr D said that the wife was offered a professional interpreter and “was aware that sensitive issues would be discussed” however preferred for Ms K to act in that capacity. Dr D said Ms K “did an excellent job of interpreting” for the wife. It is not apparent that Dr D could have known this to be the case as he does not speak the other language.
Mr L, the son of the parties, acted as an interpreter for the second assessment. Both the son and Ms K reside at the same address as the wife at Town G. Neither will give evidence in the wife’s case at the trial. On page 5 of his report under the heading “Mental State Examination”, Dr D said that he “could not assess thought-form [of the wife] because of the language difference”.
Dr D report identifies broad summary statements as to the husbands’ reported behaviour from 2011. He identifies a specific incident in 2015. He identifies the husband assaulting the wife in Country E in 2017 and other second-hand and third-hand hearsay sources. Dr D then recites clinical notes of Dr M, such as at page at 18, saying:
She has developed trauma-based mood and anxiety problems, which she has discussed with [Dr M] since at least 2015. He has treated her with counselling and medication […].
Dr D purports to give evidence as to some matters agreed at the hearing to be outside of his expertise. On the last page of his report, he records that it “is not uncommon for women to feel trapped in abusive relationships and to try to get along with their partners, even at risk to themselves.” The wife submitted that this part of his report could be struck out.
The wife in her affidavit filed 14 February 2024 stated that the report was necessary because:
9.In these proceedings I am seeking that the Court consider the family violence that I experienced throughout the relationship and the impact that it has had on me.
…
11.The assessment of [Dr D] is an assessment of the impact that I say I have experienced at the hands of the husband.
12.I would have felt deeply uncomfortable if the husband and his solicitors had a say in engaging the person with whom I would submit myself to an assessment and had a say in dictating the terms of his engagement.
13.Were that to have occurred I do not know if I would have been as open with [Dr D] if that were the case and I think this would have impacted on my ability to prepare the best evidence I could for my claim against the husband.
CONSIDERATION
The husband has been placed on notice that the wife has been seeking to rely upon Dr D’s evidence since his affidavit was filed in January 2022. At no time prior to trial did he raise any issue with the affidavit being adduced into evidence. Weight is to be given to that failure for the purposes of this consideration.
This is a closely balanced matter. I accept the wife’s submission that there is some relevance to Dr D’s diagnosis, albeit applicable to a time more than two and a half years ago, as to the wife then meeting the diagnostic criteria of PTSD. The foundations, or the basis, of Dr D’s opinion as to the causation of that diagnosis encounters challenges. Balanced against those circumstances, are the following:
(a)The wife conceded that she has not attempted to confer with the husband for the purposes of appointing a single expert witness to opine as to the matters that she considers underscore her Kennon claim. I give this issue significant weight.
(b)I attach little weight to the contents of paragraphs 12 and 13 of the wife’s affidavit. The contended foundations of the matters relied upon by Dr D have been known to the husband since early-2022. In those circumstances, I do not accept that her feelings of being deeply uncomfortable as to the husband knowing these matters has any nexus to the terms of engagement of a single expert. It would be a matter for the wife as to whether she would propose to be as open with a single expert as she says she was with Dr D.
(c)I attach weight to the fact that the diagnosis of Dr D is somewhat antique.
(d)I attach weight to the failure of the wife to provide Dr D with her trial affidavit material. This creates significant prejudices, in my view, to the testing of the evidence in that the husband will be left in a position where it is likely that Dr D will have access to further trial material before he gives oral evidence, where any amendments or other foundations for his opinion will not be known unless and until he gives that oral evidence and hence the husband will be required to “cross-examine him on the run”.
(e)I attach weight, for the purposes of this determination, that neither the parties’ son nor their daughter-in-law, who acted as interpreters for the wife for the purposes of the assessments with Dr D, will give evidence at the trial and cannot be cross-examined in relation to the terms of that process of interpretation between the other language and the English language. For the purposes of the testing of the foundations of the evidence of Dr D, the integrity of the translation may be pivotal.
(f)Additionally, Dr D is relying on second-hand and third-hand hearsay by way of what is contained in the clinical notes of Dr M, where those notes report conversations between the wife and other persons who will not be giving evidence in the proceedings.
(g)I give significant weight for the purposes of this determination that the wife’s treating general practitioner, Dr M, whose clinical notes Dr D relied upon, will not give evidence at the trial as to the wife’s presentation, symptomology, treatment, and the advice that he provided to the wife over the period to which his clinical notes relate. Again, pivotally for the purposes of this determination, it appears that Dr M attended upon both the husband and the wife on a number of these instances identified in the clinical notes.
Many of the above matters underscore the weight that could be attached to Dr D’s opinion. I do not accept the wife’s submission that the admission of Dr D’s expert evidence would be not prejudicial to the husband. If the wife had adopted the pathway prescribed by the Rules to obtain single expert evidence on the subject matters contained in Dr D’s report, both parties would have had the capacity by way of the Rules to clarify the expert’s opinion, whether by way of specific questions in writing, or a conference. They would have had the opportunity to consider leading adversarial expert evidence on the same subject matter, including requiring the wife to submit for the purposes of engagement with an adversarial expert, and a level playing field could have been achieved between the parties for the purposes of the trial.
The primary evidence of the wife will be adduced going to a significant issue in the proceedings. That subject matter is not foreclosed. In all of the circumstances and for all of the above reasons, the relief as sought by the wife in her Application in a Proceeding filed 14 February 2024 will be refused and the Application in a Proceeding is dismissed.
THE HUSBAND’S RELIEF
The husband, by way of his relief sought in his outline of case document filed 21 February 2024, sought leave to adduce evidence from, and rely upon at trial, what he described as “an updating affidavit of [Mr N] as to events flowing [after] 22 November 2022”. That affidavit has not been served upon the wife. The husband can make such application as he is advised to adduce further evidence outside the terms of the trial directions after providing the wife with the material so that she can have an opportunity to adequately respond to his application for leave. Insofar as the husband seeks leave to rely on a further affidavit from Mr N, currently, that relief is refused.
AMENDING RELIEF
Each of the husband and the wife have indicated that they will seek leave to amend their substantive orders as sought. It is matter for each of the parties to place the others on notice as to the terms and form of any amended relief sought, including the second respondent. Again, the parties can make such application for leave to amend their final relief sought as they are advised. As indicated to the parties during the hearing today, if those matters are the subject of consent, I do not anticipate that such leave will be refused.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 23 February 2024
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