Lyon and Lyon

[2014] FamCA 573

FAMILY COURT OF AUSTRALIA

LYON & LYON [2014] FamCA 573

FAMILY LAW – PROCEDURAL – Application for an adversarial expert in parenting proceedings – Where the father seeks to challenge opinions and alleged biases of the Chapter 15 single expert – Where the father has not complied with the Family Law Rules 2004 (Cth) in respect of having an adversarial expert appointed

Family Court Rules 2004 (Cth) rr 15.45, 15.49, 15.52
Federal Circuit Court Rules 2001 (Cth) r 15.09, 15.12

APPLICANT: Ms Lyon

RESPONDENT: Mr Lyon

INDEPENDENT CHILDREN’S LAWYER: Mr Walkden

FILE NUMBER: PAC 5089 of 2010

DATE DELIVERED: Orders:      21 July 2014
Judgment:  25 July 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 21 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: McPhee Kelshaw

RESPONDENT: Self-represented Litigant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Blacktown Family Law

Orders

1. The Application in a Case filed 8 July 2014 is dismissed and reasons will be published shortly.

2. Leave is granted to the parties to approach the List Clerk for the allocation of trial dates when appropriate.

3. Both parties are to file and serve any amended Application or Response upon which they intend to rely by no later than 28 days before the commencement of the trial.

4. Each party is to file and serve one consolidated affidavit of their own evidence in chief and one affidavit from each of the witnesses upon which they rely in support of the orders sought by them with such affidavits to be in compliance with Rule 15.12 of the Family Law Rules 2004, by no later than 28 days before the commencement of the trial.

5. Neither party may rely on any documents filed other than in compliance with these orders without leave of the Court.

6. Each party is at liberty to issue such subpoena as they consider relevant to the issues in these proceedings and such subpoena shall be made returnable no later than 7 days before the commencement of the trial and the documents produced are to be inspected prior to the hearing.

7. The Independent Children’s Lawyer has liberty to re-list the proceedings for mention before a Registrar in the event of issues arising in relation to preparation for trial.

8. The Independent Children’s Lawyer is to make arrangements for the attendance of Dr B and is to provide to Dr B a copy of each of the parties’ affidavits filed for the purpose of the hearing and any witness affidavits to be relied upon at trial no later than 7 days prior to the commencement of the trial.

9. The Applicant is to provide to the Respondent not less than 28 days before the commencement of the trial a draft Chronology setting out the Applicant’s contentions as to relevant dates and matters and the Respondent within a further 14 days insert into that Chronology the Respondent’s responses thereto and the relevant dates and matters contended for by the Respondent.

10. The Respondent is to cause the completed Chronology to be forwarded to the Court for filing not less than 7 days prior to the commencement of the trial.

11. Each party is to file and serve an outline of case document not less than 7 days prior to the commencement of the trial setting out:

    (a)a precise Minute of Orders sought;

    (b)a list of documents to be read in their case;

    (c)a brief summary of argument touching upon the matters set out s 60CC of the Act with reference to the relevant evidence relied on;

    (d)a list of authorities to be relied upon.

12. The proceedings be listed for a readiness check before a Registrar on a date to be fixed not less than 14 days prior to hearing.

13. In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the Applicant and Respondent shall pay any such fee equally no later than 21 days after the allocation of trial dates by the List Clerk.

Notations – Trial Plan

(a)Applicant – Day 1

(b)Respondent – Days 2 and 3

(c)Other – Dr B – Day 4

Witnesses

(a)It is noted that the following witnesses are to be called on behalf of the parties:

(a)Applicant

a.Mother

b.Mr C (Mother’s partner)

(b)Respondent

a.Father

b.Ms D (former girlfriend) – to be confirmed

c.Prof E (University of F) – to be confirmed

d.Dr G (University of F) – to be confirmed

e.Ms H (former friend) – to be confirmed

(c)Other

a.Dr B

Length of hearing

(b)It is noted that the parties anticipate that the final hearing will take approximately five (5) days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lyon & Lyon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5089 of 2010

Ms Lyon

Applicant

And

Mr Lyon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

1. The Applicant is engaged in parenting proceedings with his former wife in relation to their three children. For the purposes of these proceedings, the Court appointed a Chapter 15 single expert, Dr B.

2. The father contends that Dr B’s report is flawed and biased and wishes to present evidence from an adversarial expert.

3. On 21July 2014 I dismissed the father’s application for the appointment of an adversarial expert and indicated that I would publish my reasons for that decision at a later stage. These are those reasons.

Background

1. The parties were married in 1994, separated in 2009 and divorced in January 2011.

2. In September 2011 the mother commenced proceedings in the Federal Magistrates Court, as it was then known, in relation to the parties’ three children. On 15 November 2012, following an interim hearing, Judge Halligan of the Federal Circuit Court ordered an expert report.

3. The expert report of Dr B was initially released to the Independent Children’s Lawyer only in December 2013 and on 10 February 2014 was released to the mother and the father.

4. In the course of the hearing before Judge Halligan it became apparent that due to the complexity and likely length of the hearing the proceeding should be transferred to the Family Court. The proceedings were transferred to the Family Court on 8 April 2014.

5. In the course of a Case Management Hearing before me on 10 June 2014 it became apparent that the father wished to challenge some of the factual matters upon which Dr B relied in his expert report and further directions were made concerning affidavits from intended witnesses relating to these matters. The father also anticipated at this stage that he may wish to call an adversarial expert and was directed to file an Application in the Case if that application was to be made.

6. On 21 July 2014 at a further Case Management Hearing, I dealt with and dismissed the father’s Application in the Case for the appointment of an adversarial expert.

The application

1. In his application the father sought to “secure an adversarial expert report … from a psychiatrist of his choosing”, according to criteria that the father set out in the application, specifically being an expert who has “no religious or faith affiliation and especially not to be of Judeo-Christian persuasion”. The application was opposed by the mother and no position was taken by the Independent Children’s Lawyer.

2. The affidavit filed in support of the father’s Application in a Case contains no details of the basis of the need for an adversarial expert and is more akin to submissions. In it, the father asserts that Dr B is biased towards the mother and that the report is flawed in that Dr B relies upon what the father asserts are factual inaccuracies.

3. Much of the affidavit is also concerned with an explanation for the father’s failure or inability to obtain affidavits from the witnesses he had anticipated would provide evidence to rebut the factual errors relied upon by Dr B. The reason that these matters are included in the father’s affidavit, as I understand it, is because he contends that obtaining an adversarial expert’s report will be less time-consuming and, as he describes it, less “resource intensive” than obtaining the evidence from witnesses to contradict factual matters.

4. There is no evidence in the father’s affidavit relating to his apparent perception that Dr B’s report is in some way flawed on the basis of him being of a particular religious or faith affiliation as referred to in the father’s application.

5. The mother did not file an affidavit or any evidence in response. Submissions made on her behalf were based on the father’s failure to comply with the legislation relating to the appointment of adversarial experts.

The law

1. Dr B was appointed as a Court expert under r 15.09 of the then Federal Magistrates Rules 2001 (Cth) (now the Federal Circuit Court Rules 2001 (Cth)). Pursuant to those Rules, a party may adduce evidence of another expert on the same question arising in the proceedings only with the leave of the Court (r 15.12).

2. After the matter was transferred to the Family Court, the Family Law Rules 2004 (Cth) apply. Pursuant to r 15.45(1) the Court may order that expert evidence be given by a single expert witness.

3. Rule 15.49(1) provides that if a single expert witness has been appointed to prepare a report, or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the Court’s permission.

4. Rule 15.49(2) sets out the matters in respect of which a Court is to be satisfied if it is to allow a party to tender a report or adduce evidence from another expert witness. These matters include there being a substantial body of opinion contrary to that given by the single expert, that the other expert knows of matters not known to the single expert or there being some other special reason for adducing evidence from the other expert.

5. In making an application for permission for a second expert witness r 15.52 applies. Rule 15.52(2) sets out the matters that must be stated in an Applicant’s application. These include the name of the expert witness, the issue about which the expert witness evidence is to be given, the reason the expert evidence is necessary, the field in which the expert witness is expert and the qualifications of the expert to the issue.

6. When considering whether to permit a party to tender a report or adduce evidence from an expert, r 15.52(3) sets out the matters that a Court may take into account, including the impact of the appointment of an expert on the cost of the case, on expediting or delaying the case, whether the expert witness has the appropriate qualifications relevant to the issue upon which the evidence is to be given and appropriate to the value, complexity and importance of the case.

7. Dr B has at all times since the matter has been transferred to the Family Court been regarded as a single expert witness and it is clear from the father’s application that he is seeking the appointment of an adversarial expert

8. The Applicant in this matter has not complied with any of the matters set out in r 15.52(2).

9. The nature of the Applicant’s application and affidavit make it clear that he wishes to challenge the expert’s opinion on the basis that it is biased and is based on an incorrect understanding of the facts. It is not a matter where he is suggesting that there is a substantial body of opinion contrary to Dr B’s opinion and that contrary opinion is or may be necessary for determining the issue or that another expert knows matters not known to Dr B that may be necessary for determining the issue. There is no challenge by the applicant to Dr B’s expertise or identification of any substantial body of opinion contrary to Dr B’s opinion.

10. It is also clear that the Applicant father has not identified an alternative expert, nor has he addressed any of the matters which a Court may take into account under r 15.52(3), such as the impact of the appointment of an expert on the costs of the case and it is not clear who the father proposes will fund the expert report.

11. There is no doubt that obtaining another expert would add to delays in the matter. These proceedings have been ongoing for almost three years and involve children who are currently 10, 13 and 14 years of age. Trial dates for the hearing of this matter have been fixed for November 2014 and there is a risk that those dates will be lost if there is further delay in relation to the matter.

12. The father’s application is essentially based on concerns about bias, which can be addressed under cross-examination, and factual matters, which appear to be only able to be proven by evidence brought by the father. In these circumstances, it is contrary to the purpose of Part 15.5 of the Family Court Rules 2004 (Cth) for an adversarial expert to be appointed. Accordingly, the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 July 2014.

Legal Associate:       

Date:    25 July 2014