Mady & Farha (No 4)
[2023] FedCFamC1F 385
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mady & Farha (No 4) [2023] FedCFamC1F 385
File number(s): SYC 5754 of 2018 Judgment of: CAMPTON J Date of judgment: 16 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks leave to rely on a report prepared by a clinical psychologist – Where the clinical psychologist is not a single expert witness nor a treating psychological – leave refused. Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) Pt VII, Div 12A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, rr 7.01, 7.02, 7.08
Cases cited: Mady & Farha [2022] FedCFamC1F 306
Mady & Farha (No 3) [2023] FedCFamC1F 379
Number of paragraphs: 17 Date of hearing: 16 May 2023 Place: Sydney Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Legal Aid NSW Domestic Violence Unit Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers ORDERS
SYC 5754 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
BETWEEN: MR MADY
Applicant
AND: MS FARHA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
16 MAY 2023
THE COURT ORDERS THAT:
1.That insofar as is necessary, the father have leave to make an oral application to adduce and rely upon the report of Dr O dated 29 September 2022, attached to his affidavit filed 10 October 2023.
2.The father’s oral application for leave to adduce and rely on the report of Dr O dated 29 September 2022 is refused, such that Annexure A to his affidavit filed 10 October 2022, is struck out.
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 Mady & Farha has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
The father by way of an oral application seeks leave pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), insofar as it is necessary, to rely on a report of a clinical psychologist Dr O dated 29 September 2022. That report is Annexure A to the father’s affidavit filed on 10 October 2022 (“Dr O’s report”).
The mother opposes the application for leave. The Independent Children’s Lawyer (“ICL”) expresses sympathy with the submissions made on behalf of the mother and her position, but does not wish to be heard so as to formally opposed the father’s oral application for leave.
By way of background, these reasons assume familiarity with the reasons for judgment delivered on 10 May 2022 (Mady & Farha [2022] FedCFamC1F 306) and those delivered yesterday, 15 May 2023 (Mady & Farha (No 3) [2023] FedCFamC1F 379). I am advised by counsel for the father today that the process of translating the documents identified in each of the aforementioned decisions from English to Language B for the father has been completed.
In the updated family report of the Court Child Expert dated 19 April 2022 (Exhibit C3 in the proceedings), the Court Child Expert opined as follows:
80.[The father] has, understandably experienced much grief and loss at being estranged from his only child. It is unknown how [the father] may respond if the outcome of the Court were to be limited or no time, given his comments about having little to live for without [X]. It will be important for [the father] to access supports for himself, such as individual counselling. His proposal appears somewhat unrealistic given the lengthy periods of no contact and [X’s] strong views and rejection of him. Even if time is ordered, it may be a difficult pathway, and it is important that [the father] is prepared professionally for responses from [X] which may be upsetting or difficult for him to accept.
…
83.During Family Report interviews in 2020, [the father] said that he would be happy with any time ordered by the Court. In his Amended Application (dated 19 January 2022), [the father] proposed equal time on a week about basis. He was not able to consider that this might be difficult for [X], given she has not spent any overnight time with him since separation in 2018 and has only rarely seen him in a contact centre or in Court assessment since separation when [X] was about three years […]. [The father] believes that [X] happily adjusts after a few minutes (during supervised time) and that she would be fine at his home with the paternal family.
84.In her Amended Response (dated 4 February 2022), [the mother] proposed that [X] spend no time with [the father]. However, during Update Family Report interviews, [the mother] said that she wants [X] to have a relationship with her father, but that [X] is not happy to go and she added that, if [X] is to spend time with her father, it needs to be supervised until [the father] is able to change his behaviour. She suggests that the time should be slowly stepped up, commencing with one hour of supervised time. Notwithstanding this, [the mother’s] actions, as noted in the [K Family Services] Report demonstrate her difficulty in letting [X] go to spend time with her father, even though supervised.
Arising from these opinions and observations, the Court Child Expert recommended:
93.That [the father] attend a parenting program and concurrent coaching and that this ideally occur with [a Language B] speaking male therapist.
On 12 May 2022, after the adjournment of the trial on a part-heard basis and arising from the contents of updating family report, the following order was made by consent:
8. The Father shall:
(a)Within 14 business days of these Orders, attend upon a general medical practitioner for the purpose of obtaining a Mental Health Plan to see a properly qualified clinical psychologist;
(b)Within 10 days after the father has obtained the Mental Health Plan, the Father is to make an appointment to attend a properly qualified clinical psychologist (“the Father’s Therapist”), who shall be fluent in [Language B] or otherwise assisted by a properly qualified interpreter, for the purpose of addressing the difficulties experienced by the Father, including but not limited to anger management, as identified in the Family Report dated 30 November 2020 (“the Family Report”) and the Updated Family Report dated 19 April 2022 (“the Updated Family Report”) prepared by [Ms G] (“the Court Child Expert”);
(c)Within 24 days of the date of these Orders, the Father or his legal representative shall notify the ICL and the Mother’s solicitor in writing of the name and address of the Father’s Therapist;
(d)No less than five (5) business days prior to the Father’s first consultation with the Father’s Therapist, the Father’s solicitor shall supply to the Father’s Therapist, copies of the following documents:
(i)A copy of these Orders;
(ii)The Family Report and;
(iii)The Updated Family Report;
(iv)The whole of the bundle of documents prepared by [P Family Service] and produced to the Court in answer to subpoena, being Exhibit ICL-8 on the final hearing of the Father’s Amended Initiating Application (“the [P Family Service] Counselling Notes”).
(e)The Father shall attend upon his Therapist for treatment at such times and frequency as the Father’s Therapist recommends; and
(f)After attending no less than six (6) consultations with the Father’s Therapist, the Father shall do all things reasonably necessary to cause the Father’s Therapist to provide the ICL and the parties with a report pursuant to Rule 7.01 addressing:
(i) The Father’s progress, if any, in therapy; and
(ii)The Father’s Therapist’s recommendations as to what if any future therapeutic intervention that he/she consider the Father may require.
The father subsequently filed an affidavit on 10 October 2022, giving the following evidence:
6. On 12 May 2022, Orders were made by the Court , the I make an appointment to attend a properly qualified clinical psychologist, who shall be fluent in [Language B] or otherwise assisted by a properly qualified interpreter, for the purpose of addressing the difficulties experienced by me, including but not limited to anger management, as identified in the Family Report dated 30 November 2020 (“the Family Report”) and the Updated Family Report dated 19 April 2022 ("the Updated Family Report") prepared by [Ms G] ("the Court Child Expert").
7. On 14 September 2022, I attended a clinical psychologist [Dr O] for my family law matter who prepared the attached report.
Attached hereto and marked “A” is a copy of the report.
(As per the original)
Upon the matter coming before me for case management in anticipation of the continuation of the part-heard trial, the following order was made on 17 April 2023:
2.Each of the mother and the father are to file and serve on or before 10 May 2023 the following:
(a)An affidavit strictly as to updating matters subsequent to 12 May 2022; and
(b)An affidavit from any therapist engaged by a party pursuant to orders made 12 May 2022.
The purpose of the rules relating to expert evidence are expressed in r 7.02 of the Rules, as follows:
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 uncontroversial for the purposes of the father’s oral application for leave to rely on Dr O’s report to establish that he has attended upon a suitable therapist and addressed the difficulties he has experienced to date, including but not limited to anger management, as identified in the updating family report, that:
(a)The father has not obtained an affidavit from Dr O for the purposes of the proceedings; and
(b)The father has not placed into evidence the letter of instruction from his then solicitors directed to Dr O, including what documents (if any) were provided to Dr O to give background for his engagement with the father and as to the purpose and objective of the opinion to be expressed in his report; and
(c)The ICL has caused a subpoena to be directed to Dr O to produce his file and/or clinical notes, and there has been no production of documents by Dr O in response to the said subpoena; and
(d)Dr O is not available for cross-examination in person (nor implicitly, electronically) during the course of the balance of the trial, it being uncontroversial that a medical certificate has been disclosed to the mother and ICL, underscoring the reasons for that absence of availability.
So that it is clear, the Rules prescribe that, if practical and without compromising the interests of justice, expert evidence is to be given on an issue by a single expert witness. An exception to that general position is identified in r 7.01 of the Rules, as follows:
7.01 Application of Part 7.1
(1) This Part (other than rule 7.14) does not apply to any of the following:
(a)evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i)the results of an examination, investigation or observation made;
(ii)a description of any treatment carried out or recommended;
(iii)expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;
(b)evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceeding, being evidence:
(i)about that expert’s involvement with a party, child or subject matter of a proceeding; and
(ii)describing the reasons for the expert’s involvement and the results of that involvement;
(c)evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a proceeding for a purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceeding, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;
(d)evidence from a family consultant employed or engaged by the Federal Circuit and Family Court or the Family Court of a State.
As identified by the mother’s counsel in submissions, it is difficult to conclude or infer that Dr O is an expert providing therapy for the father. The first paragraph of his report confirms that the father consulted him on 14 September 22, “seeking a psychological assessment report for his Family Court matter”, and the last paragraph of his report includes the following:
… If [the father] can find [a Language B] speaking clinical psychologist, forensic psychologist, or counsellor for psychotherapy, I am happy to re-interview [the father] and provide an update on his progress, if the treatment provider does not provide progress reports.
As identified in a number of Full Court authorities, the adducing of evidence from an expert other than a single expert or a therapeutic treating expert is restricted by the matters identified in r 7.08 of the Rules, which is often been described as the permission rule. The Full Court has consistently not read down the circumstances where there are genuine issues in the proceedings that attract the attention of probative expert evidence. The view is often taken that r 7.08 must not be applied in a way that results in what may be a significant issue in the proceedings being foreclosed from effective challenge (at least on a practical level), or in a way that would compromise the interests of justice in preventing potentially relevant evidence being placed before the Court.
However, it is important to keep in mind the weight that would be attached to Dr O’s report. The ICL identified potential issues as to fairness, identifying that the matters addressed by Dr O’s opinion are outside the parameters of r 7.01, and that in the circumstances identified at [10] above there is an element of unfairness to both the mother and the ICL in seeking to challenge the evidence of Dr O. To my mind, these are in reality issues as to the weight to be afforded to the evidence.
Dr O’s report purports to provide expert opinion evidence as to what is identified in his report as a “risk assessment” of the father, or putting it another way, Dr O’s opinion of the contended unacceptable risk posed by the father should he come into contact with X. In circumstances where the foundations of his opinion, the documents recording the terms and the matters exchanged during his two-hour assessment with the father, and Dr O’s unavailability for the purposes of testing his opinion, significantly reduces weight attached if any to the opinion contained within his report.
In the circumstances, consistent with the application of the relevant principles for the conduct of child-related proceedings identified in Pt VII, Div 12A of the Family Law Act 1975 (Cth), and having regard to provisions of s 135 of the Evidence Act 1995 (Cth), I find that the father’s application for leave to rely on Dr O’s report is absent material utility.
For those reasons, I make the orders as set out at the forefront of this judgment.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Campton. Associate:
Dated: 16 May 2023
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