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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mady & Farha (No 4)

Details

AGLC: Mady & Farha (No 4) [2023] FedCFamC1F 385
Case: [2023] FedCFamC1F 385
Decision Date

CaseChat Overview and Summary

In this case, the father, Mr Mady, sought leave to rely on a report prepared by a clinical psychologist, Dr O, in the context of family law proceedings. The mother, Ms Farha, opposed the application, and the Independent Children's Lawyer did not wish to formally oppose the application but expressed sympathy with the mother's position. The matter was heard by Campton J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether Mr Mady should be granted leave to rely on the report of Dr O. This issue hinged on the Rules governing expert evidence in family law proceedings, specifically the requirement for expert evidence to be given by a single expert witness or a treating psychological expert, and the principles of fairness and the interests of justice.

Campton J found that the report of Dr O did not meet the criteria for being admissible as expert evidence under the Rules. Dr O was not a single expert witness nor a treating psychological expert, and his report lacked the necessary foundation and availability for cross-examination. The court emphasised the importance of ensuring that expert evidence is relevant and necessary to resolve the issues in dispute, and that it does not compromise the interests of justice. Given the circumstances, the court concluded that the father's application for leave to rely on Dr O's report was devoid of material utility.

The court ultimately refused the father's application for leave to adduce and rely on the report of Dr O. Consequently, the report was struck out from the proceedings.

In summary, the court denied the father's application to rely on the psychologist's report, finding it did not meet the criteria for admissibility under the Rules and lacked material utility in the context of the proceedings.

Orders