Marsh & Marsh
[2011] FamCA 193
•18 March 2011
FAMILY COURT OF AUSTRALIA
| MARSH & MARSH | [2011] FamCA 193 |
| FAMILY LAW - DISCHARGE OF SINGLE EXPERT – Whether orders found in judgment were final or interlocutory – Whether doctrine of Res Judicata applies rendering application incompetent or otherwise - Whether the Court should allow the rehearing of the same issue – Principles for conducting child related proceedings FAMILY LAW - COSTS –application for costs – Financial circumstances of the parties - Where application is wholly unsuccessful |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Evidence Act 1995 (Cth) |
| Russell v Russell (1999) FLC 92-877 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd ( 1995) 133 ALR 206 Hall v Nominal Defendant (1996) 117 CLR 423 Bass and Bass [2008] FamCAFC 67 Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 O’Sullivan v Medical Tribunal of NSW [2009] NSWCA 374 Res Judicata by Spencer, Bower and Handley (4th edition) |
| APPLICANT: | Ms Marsh |
| RESPONDENT: | Mr Marsh |
| FILE NUMBER: | SYC | 3464 | of | 2009 |
| DATE DELIVERED: | 18 March 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 24 February 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson SC |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
Orders
Pursuant to Division 15.5.2 of the Family Law Rules 2004 Dr R prepare an updated report on matters relating to the welfare of L born … October 1999, and that in preparing the said report to the Court, the expert consider and report on the following matters:
(a) Whether L is at risk of being exposed to any psychological harm in the care of either parent;
(b) Any view expressed by L and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(c) The relationship between the L and each of his parents;
(d) The willingness and ability of each of L’s parents to facilitate and encourage a close and continuing relationship between L and the other parent;
(e) The likely effect of each of the parties’ competing applications about L’s living arrangements, if implemented;
(f) The capacity of each parent to provide for the physical, intellectual and emotional needs of L;
(g) The attitude to L and to the responsibilities of parenthood;
(h) Any other living arrangement that the report writer may recommend and the basis for that recommendation;
(i) The effect on L, if spending equal time, or substantial and significant time, with each parent having regard to parent’s current and future capacity to:
(i)Implement such an arrangement; and
(ii)Communicate with each other and resolve difficulties that might arise;
(j) The mental state of both parents as far as it relates to parenting issues;
(k) The special needs of the children;
(l) Any recommendation he may wish to make in relation to the regime of time L should spend living with each of his parents and any other provision he considers to be in the interests of L’s welfare; and
(m) Any other matter the expert considers relevant.
In the event that the husband seeks any other specific topics be reported upon by Dr R he is to provide to the wife’s solicitors a list of such matters for the wife’s consideration. If there is dispute about any particular topic the husband may list the matter before Justice Le Poer Trench for determination of that issue.
The balance of the orders sought by the wife in her minute of order set out in her Outline of Case document filed in relation to the hearing conducted on 24 February 2011 are refused.
The husband is to pay the wife’s costs of and incidental to the application in a case filed by the husband on 9 February 2011. Such costs to be as agreed or if no agreement can be reached as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Marsh & Marsh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: SYC 3464/2009
| Ms Marsh |
Applicant
And
| Mr Marsh |
Respondent
REASONS FOR JUDGMENT
Before the Court are two applications for determination:
a)The application of the wife that Dr R be discharged as a single expert witness for the proceedings; and
b)The wife’s cost application arising from the hearing of the husband’s application filed on 9 February 2011.
A. Wife’s Application That The Single Expert Witness Be Discharged
Before the Court is an application on behalf of the wife for orders which are set out in Part C of the Outline of Case document filed on behalf of the applicant wife for the interim hearing listed on 24 February 2011. In essence the application seeks that Dr R be discharged as a single expert witness for the proceedings. It seeks the appointment of Dr Q as the single expert witness to enquire into and report on matters relating to the welfare of L born in October 1999.
In the event that an order is not made discharging Dr R as the single expert the wife seeks that he be required to prepare an updating report addressing specific matters identified in her application. Those matters are very broad ranging and, with the exception of requesting that he make a recommendation should he so feel disposed, appear to me to be adequate and appropriate.
The husband opposes the orders sought. The orders which he seeks are set out in a Minute of Order provided to the Court for the hearing on 24 February 2011. The husband seeks that the wife’s application be dismissed so far as it calls for the appointment of a new single expert. He seeks an order that Dr R prepare an updated report upon the wife’s return to Australia with the child L. There are four specific matters which the husband submits the report should be required to deal with.
For the purposes of the hearing conducted on 24 February 2011 the parties agreed that I should first determine a preliminary matter identified by the respondent husband.
It is the husband’s case that the doctrine of res judicata operates to preclude the Court from hearing the wife’s application to have Dr R discharged as the single expert and have another expert appointed in his stead. The husband has identified the issues in his outline of case document prepared for the interim hearing heard 24 February 2011 as follows:
a)Whether the orders of her Honour Justice Ainslie-Wallace found in her judgment on 8 September 2010 were an interlocutory or final order;
b)Whether the doctrine of res judicata then applies rendering the current application by the wife incompetent or otherwise, whether the Court should allow the rehearing of the same issue in any event.
The husband, having raised the preliminary point, effectively becomes the applicant in relation to the preliminary point.
Background
The parties have competing applications in relation to the parenting of L. He is currently 11 years of age and is residing with the wife in the United States of America pursuant to order of the Court. L is apparently gifted at Sport 1 and is residing in the United States so that he might pursue his sport. The Court orders envisage that he will be returned to Australia in April of this year.
On 28 August 2009 consent orders were made in this matter which inter alia appointed Dr R as the single expert “to prepare a report in relation to the child and the competing interim and final application of the parties, having regard to the matters in section 60CC and such other matters as are considered relevant.”
Dr R delivered a report pursuant to that order. The report is dated 23 October 2009.
On 30 April 2010, in a response to an application in a case filed by the husband, the wife sought orders that a report be prepared by a single expert witness to enquire into and report on matters relating to the welfare of L. She sought that Dr R W be appointed to prepare the report. In the event that that order is refused, she sought an order that Dr R be appointed to prepare an updating report in relation to the same matter. There was an amendment to that response filed by the wife on 8 June 2010, however, relevantly it did not depart from the orders which had been sought earlier and which are referred to above.
The application and response referred to above were part of the matters required to be determined by Ainslie-Wallace J in a 2 day hearing listed to commence on 26 August 2010.
On page 63 of the transcript of the proceedings dated 27 August 2010 Mr Richardson SC, appearing for the wife, told her Honour “Can I then address Dr [R’s] report and if our orders sought about it be ineloquent – certainly it was made clear in February we were seeking to discharge Dr [R] and to exclude his evidence.”
It is submitted on behalf of the husband that Ainslie-Wallace J addressed all of the issues raised by the wife’s counsel in support of the application for the discharge of Dr R and the exclusion of his evidence. He submits this can be seen in the judgment of her Honour commencing at paragraph 16 and concluding at paragraph 40.
Justice Ainslie-Wallace delivered reasons and made orders following the hearing on 26 and 27 August 2010. That judgment was delivered on 8 September 2010. Nowhere in the orders is there an order that deals with the wife’s application to discharge Dr R as the expert and appoint another single expert in his stead to prepare a further report. The husband says that her Honour’s determination can be found in paragraphs 39 and 40 of her judgment. They are as follows:
39. I do not propose to reject the report.
40. It is apparent that for the final hearing for the issues in this matter a further report will be required. It was argued for the mother that another expert should be appointed to conduct the interviews and make the report. It is generally undesirable for children to be subject to multiple interviews in the preparation of reports. In my view it would not be appropriate for another expert to be engaged to prepare a report.
Notwithstanding those conclusions, her Honour made no orders relative to same or the application of the husband above referred to.
Husband Submissions
The orders by her Honour dated 8 September 2010 have never been engrossed. The husband argues that the failure to engross the orders is not fatal to his case that the doctrine of res judicata can be applied to the case.
The husband submits the wife is seeking to review the case which had failed before Ainslie-Wallace J so far as the discharge of Dr R as a single expert is concerned and the appointment of a new expert in his stead.
The husband submits that, in order to determine whether the doctrine of res judicata applies, it is essential to determine whether or not the order following on from the determination by her Honour was an interlocutory order or a final order. (It needs to be remembered at this time her Honour made no order which could clearly be seen to deal with or dispose of the relevant application of the wife before the Court.)
The husband in his submissions drew my attention to the decision in All State Life Insurance Co v ANZ Banking Group Limited (No. 3) (1996) 64 FCR 35 at 58 where Lindgren J said “The nature of proceedings is not to be determined by the form of them, for example, by the fact that they were brought by Notice of Motion in existing proceedings, but by a reference to the kind of relief sought.”
The husband said that in that same judgement His Honour referred to a passage in the judgment of Windeyer J in Hall v Nominal Defendant (1996) 117 CLR 423 at 444 when the following was said “A final order is one that finally disposes (subject to appeal) of an action or an existing dispute between the parties.”
The husband submitted that the issue of whether Dr R should be discharged on the basis of bias or apprehended bias, was a confined issue before Ainslie-Wallace J for determination. It is submitted that Ainslie-Wallace J’s determination was a final determination.
The husband further submits the determination of her Honour, in relation to the wife’s application is a final determination. He submits, accordingly, that the doctrine of res judicata has application. He submits that there is nothing new in the material placed before the Court by the wife in respect of this application when compared with the material relied upon by her in the application before Ainslie-Wallace J.
Wife’s Submissions
The wife, in answer to the husband’s argument that the doctrine of res judicata prevents the wife from further pursuing her application in this Court for discharge of Dr R based on actual bias or apprehended bias, is misguided by dint of a misconception of what her Honour Ainslie-Wallace J was undertaking in the hearing conducted on 26 and 27 August 2010.
The wife says firstly there is no order to be identified as either an interim order or a final order. She submits that the husband has known since 15 December that the wife was pursuing this application. He had ample opportunity to apply to her Honour to issue an order including orders under the slip rule which might have flowed from the determination by her Honour contained in her judgment dated 8 September 2010. No such proceeding has taken place. The wife submits it was only on 26 February 2011 that the husband understood the potential flaw in his case due to the fact that there was no order made by her Honour associated with the subject matter currently before the Court and which could be described as either an “interim” or “final order” or an “order which disposed of” the wife’s then application.
Shortly before the luncheon adjournment I invited the husband’s Counsel to take instructions as to whether a short adjournment might be sought in order to approach Ainslie-Wallace J for the purposes of having her Honour make an order dealing with the wife’s application for discharge of Dr R and or the appointment of an alternate expert to prepare a report for the Court. No such application was made to me following that adjournment.
Exhibit H1 is a copy of letter from the husband’s solicitors to the wife’s solicitors dated 22 February 2001, in which the following is contained:
It would appear to be correct that Her Honour has not made a formal order dismissing your client’s application.
Would you please advise us by return facsimile or email whether your client will join with us making an application to Her Honour to have that order engrossed and made consistent with Her Honour’s findings.
It is the wife’s case that even if orders were made they would not operate to prevent the wife from pursuing her application in this hearing.
The wife says that the application of the wife needs to be looked at as two discretely different applications:
a)An application for Dr R to be disqualified;
b)An application under s 135 of the Evidence Act 1995 (Cth);
Those were the matters which were considered by her Honour in her judgment.
The wife submits that the determination based on s 135 of the Evidence Act is only a ruling on a particular application confined to the determination by that particular judge. It is an evidentiary ruling only.
In relation to the disqualification issue, the wife says that paragraph 26 of her Honour’s judgment sets the exact context in which her Honour was determining the wife’s then application. That paragraph is as follows:
26. If one accepts the analogy as being appropriate and considers the fair-minded lay observer that observer would be informed by the knowledge that the report in an interim hearing is untested but the maker would be subject to cross-examination in a final hearing. The observer would also understand that the constraints of an interim hearing are such that the experts report might attract less weight because there is no opportunity to question the author of the report. Armed with that knowledge I do not believe that such an observer would apprehend bias.
Her Honour went on to set out the following in paragraph 27:
27. The concept of apprehended bias is generally associated with reference to prejudgment of issues by a trier of fact. It was argued that it is an appropriate analogy by which to make the objection. I am not persuaded that it is. There is in my view a significant difference between the adjudicative role and an expert who provides evidence to the Court that is assessed as part of the adjudicative process.
Between paragraphs 27 and 31 of Ainslie-Wallace J’s judgment her Honour deals with particular arguments put on behalf of the wife. These highlight the principal complaints made by the wife about matters contained in the report and the way in which interviews were conducted by Dr R. Her Honour concludes in paragraph 31 that “The matters to which the mother deposes in her affidavit are, in my view, all matters which go to the weight to be attached to the report, not to its admissibility.”
The wife submits that the process has been corrupted by an erroneous report. The errors in Dr R’s report are said to be those specifically referred to in the affidavit evidence of the wife. None of the wife’s assertions relative to her interaction and communication with Dr R in the process of preparing the report have been tested. None have been put to Dr R. This aspect of the case was not argued by the husband who simply relied on the doctrine of res judicata.
Counsel for the wife referred the Court to the Full Court decision in Russell v Russell (1999) FLC 92-877 at paragraph 68 where the Court quoted from the decision of Justice Lockhart in the Full Court of the Federal Court in the decision of Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 209-211. The particular words which the Courts attention was drawn to are as follows:
The slip rule applies were the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy; nor does it extend to mistakes that are the consequence of a deliberate decision.
The wife submits that, in this case, the slip rule can not apply to permit her Honour to make an order dismissing the wife’s application for the discharge of Dr R. It is submitted that it is a matter of controversy whether her Honour had determined that application.
The wife also refers me to paragraph 69 in the decision of Russell v Russell where the Full Court said as follows:
69. In the circumstances of the present case, regard should also be had to the principal that for the purpose of the operation of the slip rule, an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist.
Again it is submitted on behalf of the wife “that there is a real difference of opinion” in relation to whether her Honour had determined the wife’s application for the discharge of Dr R. It is further submitted that there is real controversy over whether her Honour intended to make a final order about Dr R’s continued involvement in the hearing.
Counsel for the wife relied on part of the text titled “Res Judicata” by Spencer Bower and Handley (4th edition). The Courts attention was drawn to chapter 5 where the heading “Finality” appears. I do not set out the paragraphs here as I have included it later in these reasons.
My attention is drawn to page 109 of the transcript of 27 August 2010 where at line 27 the husband’s Counsel said to her Honour:
Which reminds me, or reminds me to remind Your Honour that the application that is before the Court of 8 June of this year – which has never got dealt with until today because of the fact that cases are not getting reached – is that there would be an updated report.
Her Honour: I think that’s – everybody agrees, it seems to me, in one form or another, that there would be a new report. The only issue is whether that is something that I order or whether it goes to the docket judge.
It is submitted by the wife that those words from her Honour, when coupled with the judgment that is referred to in these reasons, indicates an intention by her Honour in the judgment not to order the preparation of a new or updated report nor to determine who should prepare that report. It is submitted that the inference the reader of the subject passage from the transcript and her Honour’s reasons is compelled to appreciate is that her Honour did not intend to make an order which determined either who should prepare a further or new report or what matters the report might address. It is submitted that the words of her Honour contained in paragraph 40 are nothing more than a reciting of common approach by officers of the Court to the interview of children for the preparation of reports ordered by the Court. In those circumstances, it is submitted that the content of paragraph 40 of her Honour’s judgment is obiter.
Relevant Authority
Interlocutory or Final Orders For The Purpose Of Determining a Defence of Res Judicata
For the purpose of determining this question, I accept the proposition submitted by the husband which is sourced in the judgment of Windeyer J in Hall v Nominal Defendant (1996) 117 CLR 423 at 444 where the following was said:
A final order is one that finally disposes (subject to appeal) of an action or an existing dispute between the parties.
I also accept the submission of the wife where I was referred to the text “Spencer Bower and Handley RES JUDICATA 4th edition” paragraphs 5.01 and 5.02. I repeat those passages here (omitting the lengthy reference to decided cases):
5.01 A judicial decision English or foreign is only a res judicata if it is final. The burden of establishing this rests on the party who relies on the decision.
Meaning of Finality
5.02 A judicial decision may be final for one purpose but not another. Decisions on finality for purposes of appeal are not always relevant. Some decisions which are final for appeal are not final for res judicata and some which are interlocutory for appeal are final for res judicata. A more stringent test of finality applies when a decision is the foundation for an action. The decision must then finally determine the defendant’s liability leaving nothing to be judicially determined to fix the amount recoverable and render the judgment effective and capable of execution. Many decisions which are not final for this purpose finally declare or determine some right or obligation and can be set up as estoppel in other proceedings. Declaratory orders and Chancery decrees which have to be worked out by accounts and inquiries are final for res judicata and final for appeal. A further class of decisions which are final for present purposes, although interlocutory fir appeal, decide some question although the proceedings continue on other issues, or for the purpose of working out the rights of the parties, or execution. Some interlocutory decisions are not final for any purposes, and do not create a res judicata even in the same proceedings. Interlocutory orders in matters of practice and procedure remain under the control of the Court and subject to review and in such matters a dismissal is not a bar to another application. An action cannot be brought on an interlocutory order for an ascertained amount, e.g. an interlocutory order for costs which have been taxed.
The Doctrine of Res Judicata
The doctrine of res judicata is defined in paragraphs 1.01 and 1.02 of the text “Spencer Bower and Handley RES JUDICATA 4th edition”. Those paragraphs I repeat here:
ELEMENTS OF RES JUDICATE ESTOPPEL
1.01 A res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment. A judgment in personam binds the parties and their privies, and because this is so basic it will generally be assumed in what follows. A judgment in rem is binding on all, party, privy or otherwise.
1.02 A party setting up res judicata as an estoppel against his opponent’s claim or defence, or as the foundation of his own, must establish its constituent elements, namely that:
(i)the decision, whether domestic or foreign, was judicial in the relevant sense;
(ii)it was in fact pronounced;
(iii)the tribunal had jurisdiction over the parties and the subject matter;
(iv)the decision was –
(a)final;
(b)on the merits;
(v)it determined a question raised in the later litigation; and
(vi)the parties are the same or their privies, or the earlier decision was in rem.
Once it is determined that a decision relied upon by a party has what the text describes as the “elements of res judicata estoppel” then the doctrine operates to prevent a party further litigating the same issue between the same parties.
The Discharge of a Jointly Appointed Single Expert
Relevant Provisions of the Family Law Rules 2004 (Cth)
Part 15.5 of the Family Law Rules 2004 (Cth) deals with expert evidence. Rule 15.42 provides that the purpose of this Part is:
Purpose of Part 15.5
The purpose of this Part is:
(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 case;
(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; and
(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 necessary in the interests of justice.
Rule 15.44 deals with the appointment of a single expert witness by parties and provides:
Appointment of single expert witness by parties
(1)If the parties agree that expert evidence may help to resolve a substantial issue in a case, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue.
Note Subrule 15.54 (3) sets out the requirements that apply to instructions to a single expert witness appointed by agreement between the parties.
(2)A party does not need the Court’s permission to tender a report or adduce evidence from a single expert witness appointed under sub rule (1).
Other rules in Part 15.5 deal with matters relating to the appointment of expert witnesses including applications by a party to be able to rely on adversarial expert evidence which challenges the evidence of a single expert appointed pursuant to the Rules. It is not necessary to examine the minutia of those rules in these reasons. It is sufficient to note that the rules do not provide a guideline for the Court in considering an application to discharge a single expert.
A decision which is of assistance in determining this matter is Bass and Bass [2008] FamCAFC 67 (Finn, Warnick and Thackray JJ).
In that case, the father made an application for leave to appeal against orders which, in effect, refused his application to discharge the single expert witness in a parenting case where that expert had been jointly appointed by the parties.
Counsel for the father highlighted parts of the expert’s report, in order to support the submission that there was a perceived bias in the report against the father. Counsel for the father sought the discharge of the single expert witness and the appointment of alternate expert to provide a report to the Court. The trial judge refused that application.
In the judgment the Full Court noted:
While acknowledging that Professor Q's report was ultimately adverse to the father, his Honour concluded that on the face of the report it could not be concluded that Professor Q was biased, and that the real remedy for the father's problems with the report would lie in cross-examination of the Professor.
The Court further dealt with the issue of bias utilising the following observations made by Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454:
The principal rationale of the test of reasonable apprehension of bias is to ensure that decision makers are perceived to be truly independent in their decisions. A biased witness does not impugn the independence of the decision maker, especially where the proceedings are adversarial and the evidence can be tested. The possibility that a witness of fact or expert opinion may be biased does not infect the impartiality of the Court… In such a case the role or function of the expert may perhaps come to be incorporated into that of the decision maker, and, where the expert's role or function is such that there is actual decision making by the expert, then I can see some scope for the application of the test of reasonable apprehension of bias to exclude the evidence. I can see no scope for that test, however, to exclude expert evidence that may assist the Court where the expert is called in adversarial proceedings by one party and where an opposing party is at liberty to test whether any bias corrupts the evidence.
The Full Court further stated as follows :
(iii) Conclusion in relation to leave to appeal
1.Notwithstanding the important issues raised in the submissions of senior counsel for the father, we are not persuaded that we should grant leave to appeal in this case. As we indicated during the hearing before us, we consider that both the application made to Steele J, and thus the application for leave to appeal, have what can best be described as a premature quality. We take this view for two main reasons.
2.First, Division 15.5.6 of Part 15.5 provides a procedure for clarifying matters contained in a report prepared by a single expert witness. It was confirmed before us that that procedure had not so far been employed in this case. While we acknowledge that procedure may only be of limited assistance to the father given the nature of his complaints, we are nevertheless, of the opinion that that procedure ought to have been attempted before the application was made to Steele J, or to this Court.
3.Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings, as indeed was recognised by Steele J. Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial Judge. It is not particularly unusual, in our combined experience, for trial Judges not to accept, or to only give limited weight to, the opinion of a single expert in a children’s case.
4.It would, of course, remain open to the ultimate trial Judge to adjourn the trial for the purpose of obtaining another expert report, if he or she considered that the matter could not be satisfactorily determined without such assistance. We appreciate that such a course, if it had ultimately to be adopted, would have disadvantages to all involved in the case. But in our view, those disadvantages would be outweighed by the disadvantages of permitting a second expert to be engaged whenever a party to parenting proceedings is the subject of an adverse single expert report (as the father has been in this case). In this regard it must be remembered that for an expert to be able to give satisfactory evidence in relation to arrangements for child, it is generally necessary for the expert to have conducted an interview with the child – a procedure which should be sparingly employed (as was, in effect, submitted by the Independent Children’s Lawyer).
5.Certainly no error of principle on the part of Steele J in his application of R 15.49 has been established. It must be remembered in this regard that his Honour was not determining the applications before him as the trial Judge of the parenting proceedings, but rather on an interlocutory basis only.
6.Nor are we satisfied that any substantial injustice has been occasioned to the father. As we have indicated, he still has avenues available to him to challenge Professor Q’s opinions, both prior to and during the course of the trial of the parenting proceedings.
Thus it can be seen that, in a case such as that under consideration, an assertion of bias will best be able to be established through cross-examination. Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight. The trial judge may, even during the final hearing of a parenting case, require the appointment of another expert should the evidence of an appointed single expert prove to be of no or limited assistance to the decisions to be made by the Court.
Determination Of The Res Judicata Defence
In order to determine this application, a close scrutiny of her Honour’s judgment of 8 September 2010 is necessitated.
Paragraph 17 sets out what her Honour recorded as the mother’s case:
That the report should be rejected and excluded from consideration by the Court on this Interim Application and in any further proceeding between the parties.” The bases for such exclusion were “apprehended bias, unreliability and the operation of section 135 of the Evidence Act 1995.
Her Honour then deals with the argument described by the heading “Apprehended Bias”. Her Honour referred to specific portions of the report to which her attention had been drawn and the arguments of the wife which followed. She then referred to a passage from the decision in O’Sullivan v Medical Tribunal of NSW [2009] NSWCA 374.The passage is as follows:
25. As the NSW Court of Appeal observed in O’Sullivan v Medical Tribunal of NSW [2009] NSWCA 374 at 40 and 41:
“Nevertheless, the fair-minded lay observer is a construct of the law; he or she must be assumed to have a degree of knowledge of the circumstances and structure within which the law is administered…”
“Further, the fair minded observer must be taken to understand the general nature of the proceedings…”
Her Honour sets out in paragraph 26 of the judgment her determination of whether “the fair minded lay observer” would apprehend bias in the context of an interim hearing where the weight which might be given to the report in those circumstances is constrained by the Court not having heard any cross-examination of the single expert.
In paragraph 27, her Honour determines that the principles applicable to the disqualification of a judge on the basis of apprehended bias are not applicable to a determination as to whether a single expert should be discharged. She points out “There is in my view a significant difference between the adjudicative role and an expert who provides evidence to the Court that is assessed as part of the adjudicative process.” With respect to her Honour it is clear that such a determination was in keeping with the determination of Pagone J in Fagenblat v Feingold Partners Pty Ltd such determination not being disturbed by the Full Court decision in Bass and Bass.
In paragraph 31 of the judgment, her Honour says “The matters to which the mother deposes in her affidavit are, in my view, all matters which go to the weight to be attached to the report, not to its admissibility.”
In paragraph 32 through to paragraph 38 of her judgment, her Honour deals with the argument that the report should be not be admitted to evidence because of the operation of s 135 of the Evidence Act.
In paragraph 39, her Honour concludes “I do not propose to reject the report.”
To that point, her Honour has dealt only with the admissibility of the report in the hearing before her. If her Honour was proposing to have that determination apply to any future hearings where her Honour was not the adjudicator then, in my view, that would have to be specified.
In paragraph 40 of her judgment her Honour said:
Updated Report
40. It is apparent that for the final hearing of the issues in this matter, a further report will be required. It was argued for the mother that another expert should be appointed to conduct the interviews and make the report. It is generally undesirable for children to be subject to multiple interviews in the preparation of reports. In my view it would not be appropriate for another expert to be engaged to prepare the report.
That which is contained in paragraph 40 represents the only reasons provided by her Honour on the issue of whether a different expert should be appointed to prepare a report for a trial. In making the determination, it is unclear whether her Honour has given effect to the principles set out in s 69ZN.
Although, it ought not to be assumed that her Honour, as a long serving trial judge, would in any circumstance seek to tie the hands of the trial judge who will be allocated to finally determine the matter. It seems clear that in making no such order her Honour saw it as an interim or interlocutory proceeding and, in such circumstances, did not seek to bind the trial judge. As I understand her Honour in paragraph 40 makes a statement about which there could be no dispute, namely “It is generally undesirable for children to be subject to multiple interviews in the preparation of reports’. She then says effectively “I would not, at this time, order another expert be engaged in this case.”
It is also clear from a reading of all that is said by her Honour in the judgment relating to the discharge of Dr R, that the evidence and submissions placed before her Honour by the wife, would not warrant the Court removing Dr R as the single expert. It is further clear that in a case such as this, the determination of such an application made prior to the applicant availing him or herself of the provisions of Rules 15.64A, 15.64B, 15.65 and/or prior to the matters of alleged error, omission or prejudice (actual) being put to the expert in cross-examination is unlikely to occur. Such application at such a time is likely to be seen as premature by the Court.
In all the circumstances, I could not comfortably conclude that her Honour intended to make a final determination on the issue of the discharge of the single expert and clearly her Honour did not make an order either granting or refusing the wife’s application. At best, the order her Honour may have made if pressed at the time would probably have been “I decline to make an order discharging the appointment of the single expert at this time”.
In the absence of being able to determine that a judgment, relied upon to operate as an estoppel against further determination on a discrete issue between the same parties, was a final determination of that issue, then the defence relied upon by the husband must fail.
The application for the discharge of the single expert is now made by the wife to the trial judge. The trial has now commenced before me. It is appropriate that any application to discharge the single expert should be determined by me.
When the hearing of the subject applications commenced before me there was discussion between counsel as to the position to be taken by the husband in relation to the wife’s applications. There was a concession extracted by the wife’s counsel from the husband’s counsel that the only defence the husband was mounting to the wife’s application was that of res judicata. As such, I understand the wife to be arguing that if the defence of res judicata did not find favour with the Court then the Court should make the orders sought by the wife on an undefended basis.
Notwithstanding the position achieved by the wife, as set out in the previous paragraph, I am bound by Division 12A of Part VII of the Act. In particular s 69ZN of the Family Law Act 1975(Cth) (“the Act”). That section is as follows:
FAMILY LAW ACT 1975 - SECT 69ZN
Principles for conducting child-related proceedings
Application of the principles
(1) The Court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The principles set out in subsections (3), (4) and (7) are of particular application to this determination.
I have read the material relied upon by the wife to support her application that the single expert be discharged. That material includes evidence and a written submission contained in a document titled “Outline of case document- applicant wife -interim hearing 24 February 2011”. I consider that application to be in a similar position as that seen by the Full Court in Bass and Bass. That is, the application is premature. I make that determination having regard to the matters set out in s 69ZN of the Act.
The wife’s case, as outlined in the “Outline of Case” document referred to above also made reference to reliance on s 135 of the Evidence Act. Again, I conclude that such application is premature. Again the wife has not availed herself of the procedure enabled by Rules 15.64A, 15.64B and 15.65.
I do not see any obstacle to the wife making an application to me under s 135 of the Evidence Act, even though she made an application under that section before Ainslie-Wallace J. I consider it is open to make such application provided there is a different issue to be determined in each case or provided the circumstances are different in some material way. In this case the material difference is that I am to be the trial judge for the final determination of the parenting proceedings between the parties.
I consider the needs of L require, at this time, that there not be a change of single expert. The parties agreed on the appointment of Dr R. There is no issue that both were legally advised at the time. L should not be required to be questioned by multiple professionals on a subject which I accept is likely to be anxiety provoking for him and about which he should be expected to experience some discomfort.
In reaching the determination, set out in the previous paragraph I have taken into account that the Court needs to be alert to the possibility that the claims made by the wife about the single experts report and methodology may be denied by the expert and ultimately rejected by the Court. Similarly, the Court is also cognisant of the possibility that ultimately the wife is successful in convincing the Court that the services of Dr R should be terminated and in such circumstances time will have been lost, further expense wasted and L will then be subjected to still further questioning and contact with a new expert.
The orders sought by the wife in her application before the Court in this hearing are as follows:
1.That [Dr R] be discharged as the single expert witness in these proceedings.
2.Pursuant to Division 15.5.2 of the Family Law Rules 2004 [Dr Q] be appointed as the single expert witness to enquire into and report on matters relating to the welfare of [L] born […] October 1999 (“[L]”), and that in preparing the said report to the Court, the expert be requested to consider the following matters:
2.1 whether [L] is at risk of being exposed to any psychological harm in the care of either parent;
2.2 any view expressed by [L] and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
2.3 the relationship between [L] and each of his parents;
2.4 the willingness and ability of each of [L’s] parents to facilitate and encourage a close and continuing relationship between [L] and the other parent;
2.5 the likely effect of each of the parties’ competing applications about [L’s] living arrangements, if implemented;
2.6 the capacity of each parent to provide for the physical, intellectual and emotional needs of [L];
2.7 the attitude to [L] and to the responsibilities of parenthood;
2.8 any other living arrangement that the report writer may recommend and the basis for that recommendation;
2.9 the effect on [L], if spending equal time, or substantial and significant time, with each parent having regard to parent’s current and future capacity to:
2.9.1implement such an arrangement; and
2.9.2communicate with each other and resolve difficulties that might arise;
2.10 the mental state of both parents as far as it relates to parenting issues;
2.11 the special needs of the children; and
2.12 any other matter the expert considers relevant.
3.That in the event that Order 1 is refused, [Dr R] shall prepare an updating report that addresses all of the matters required pursuant to Order 2.
I propose at this time to refuse the order sought in paragraphs 1 and 2 of the minute of order sought by the wife and grant the order set out in paragraph 3 of the wife’s minute of order.
I also propose to require that Dr R provide the Court with any recommendation he may wish to make in relation to the regime of time L should spend living with each of his parents and any other provision he considers to be in the interests of L.
B. Cost Application Arising From The Hearing Of The Husband’s Application Filed On 9 February 2011
Before the Court is an application for costs sought by the wife arising from the application filed by the husband on 9 February 2011.
On 9 February 2011 the husband filed an application which sought inter alia the following:
…
2.That the wife be available at and attend the Family Court of Australia at Sydney on 24 February 2011.
3.That the wife return the child, [L] born […] October 1999, to Australia at the time she returns pursuant to order 2 above.”
4.That during the time that the child is in Australia the father spend 7 consecutive nights with the father (sic).
5.The mother provide all necessary authorities and consents to permit the father to have copies of all medical records associated with any injury suffered by the child or medical treatment given to the child while in the United States between December 2009 to date.
In support of that application the husband filed an affidavit on 9 February 2011. That affidavit referred to the fact that the matter was next listed before the Court on 24 February 2011 for determination of an application by the wife to discharge Dr R as the single expert.
The husband asserted that the wife should be present at Court on 24 February 2011 to take part in the less adversarial trial process. Upon the conclusion of the wife’s application in respect of Dr R, the husband annexed a copy of a letter dated 4 February 2011 from his solicitors to the wife’s solicitors. In that letter the following passage appears:
The Court has set the matter down for the day of 24 February 2011 and we require your client’s attendance at Court in respect to the application to discharge [Dr R] and to also permit the Court to swear in the parties and commence the LAT process. Would you please ensure your client’s attendance on 24 February 2011. [L] is not [participating in Sport 1] as he has broken a bone in his shoulder. Your client has the financial capacity to meet the expense of return airfares for herself and [L] and has (sic) the property at [C] is available to her for her accommodation.
Both parties are experienced international travellers and your client has no difficulty in requiring the husband to fly to the United States to spend three nights with his son each month.
In the period that your client and [L] return to Australia, it is our client’s proposal that [L] attend his orthopaedic surgeon in Sydney to obtain a second opinion on the injuries suffered by him.
Our client would also propose spending time with his son while he is in Australia in terms of the current orders; [L] could also resume his schooling during the period that [L] is in Australia.
Would you please urgently confirm your client will be in attendance on 24 February 2011.
In his affidavit the husband said further that on 20 January 2011 he had received a voicemail message from the wife advising that L had been injured while participating in Sport 1 and had broken a bone in his shoulder. He said that he had received no specific information about L’s injury or prognosis.
The husband further annexed to his affidavit a letter dated 4 February 2011 requesting from the wife an authority to medical practitioners who have been attending upon L in the United States over the period December 2010 to January 2011. A further authority was sought in relation to an attendance by L at a hospital in the United States of America at some time prior to 30 April 2010.
The husband’s application was listed on short notice at his request and was before the Court on 21 February 2011. On that day, the wife filed in Court a response and affidavit which she had sworn on 19 February 2011.
In her response the wife sought that the husband’s application filed 9 February 2011 be dismissed and that an order be made for the husband to pay the wife’s costs of and incidental to the application in a case filed by him. In her affidavit the wife set out her answer to the husband’s application that she be in Australia to attend at Court on 24 February 2011 and that she bring L with her. Inter alia, she referred to orders made by Ainslie-Wallace J permitting her to be absent from Australia and live in the United States with L during the period that included 15 December 2010 to 24 January 2011.
In relation to the injury suffered by L, the wife says that L broke his clavicle whilst participating in Sport 1 on 8 January 2011 at S in the United States of America. On 8 January 2011 the wife rang the husband and left a message about L’s injury on his telephone. On 9 January 2011, the wife again rang the husband and said to him “[L] has broken his clavicle. They say it will heal really quickly because he is young. It is nothing major, but it’s painful. He has to wear a sling for three weeks and keep his arm at a ninety degree angle. He is not allowed to move it. I am going to take him to see him to see a specialist to make sure it is ok.” L then spoke to his father.
The wife attests to a further conversation on 12 January 2011 when the husband rang her. She says the parties discussed advice received from Dr D, a clinician who had attended upon L.
The wife says that on 1 February 2011 after L attend upon Dr D she telephoned the husband and left a message as to the outcome of that appointment. No return telephone call had been received by the husband.
The concluding paragraph of the wife’s affidavit is as follows: “The husband has my consent to access and all records relating to [L] although I say he does not need the same. He is [L’s] father and as such he can obtain those records for himself.”
Tendered in evidence is a letter from the wife’s solicitor to the husband’s solicitor dated 18 February 2011. That letter sets out details of the injuries suffered by L and the treatment being undertaken by him. It includes full contact details for Dr D.
The letter of 18 February 2011 asserted that the listing on 24 February 2011 is solely in respect of the wife’s application to have Dr R discharged. It asserts that both parties must have clearly understood when the matter was listed that the wife would not be in attendance on 24 February 2011.
At paragraph 4.1 of the letter dated 18 February 2011 the following appears:
As [L’s] father, your client is able to obtain medical records any medical practitioner [L] attends upon. If there is any doubt as to your client’s ability to do so this letter can be taken as our client’s authority.
Exhibit B in the proceedings is a copy of a letter dated 21 February 2011 from the wife’s solicitors to the husband’s solicitors. That letter is as follows:
We have now had the opportunity to pursue the transcript of the directions hearing that took place before His Honour Le Poer Trench on 15 December 2010.
The transcript supports our own recollection of what took place namely:
1.That the only matter listed for hearing on 24 February 2011 is the question of an update of [Dr R’s] report or exclusion of the report and the ordering of a fresh report.
2.That the matter was listed on 24 February 2011 on the specific understanding that our client would not be required to attend in Sydney for cross-examination or any other purpose.
3.In light of both those matters we invite you to withdraw the present application you are seeking to have listed for hearing on 24 February 2011 and do so by noon today.
A copy of the transcript of proceedings on 15 December 2010 was provided to the Court. The following appears on page 7 of the transcript:
Mr Richardson: The only issue that would emerge in relation to April is, my client has sworn an affidavit deposing to some matters factually that go to what she said to [Dr R] and what the facts were. And if Mr Ackman wished to seek Your Honour’s leave to cross-examine her about that matter, then that would carry with it potentially - or inevitably – a post April date. Or if he was content to precede without cross-examining her or Your Honour was to rule that it should proceed without cross-examination of her then we don’t see her being in attendance as essential to the matter proceeding and it can happen before April .
His Honour: There is a third alternative that she is available to be cross-examined either by telephone or videolink.
Mr Richardson: Yes if that is satisfactory to people.
His Honour: Right
Mr Ackman: Thank you very much, You Honour.
On page 14 of the transcript I clarified with Mr Richardson what application would be required to be determined by the Court on 24 February 2011. Mr Richardson said “The question of an update of [Dr R] or exclusion of his report and the ordering of a fresh report.” Mr Richardson said that the wife would provide a minute of the orders that she would be seeking.
On the next page of the transcript Mr Ackman said:
We join with that, Your Honour. The only matter I raise – it may be that I might not have fully comprehended what my learned friend is saying – but the one day we would be certainly sufficient if it is done by submission. If my learned friend is seeking to call [Dr R], which I did not understand he was, but if he is, then obviously a day may not be sufficient, Your Honour.
Again on page 15 the following exchange took place:
His Honour: So Mr Ackman, on the wife’s side, there will be an application for the appointment of the new single expert, on your side there will be an application for the existing single expert to update his report. Is that right?
Mr Ackman: Yes thank you Your Honour obviously in opposition to the wife’s application.
It is the wife’s case that the husband’s application in all respects was either misconceived or should have never been brought.
At the conclusion of submissions made on 21 February 2011 in relation to this application for costs, the husband sought an adjournment of the application until 24 February 2011 in order to determine whether a suitable and appropriate authority is forth coming from the wife directed to L’s treating medical clinician. That adjournment was granted.
When the matter was before the Court again on 24 February 2011 the husband submitted that there should be a further adjournment of this cost application until information has been provided as to the child’s current state of health. The husband acknowledged that the mother had provided the authority requested by him and contact had been made with Dr D’s personal assistant, however, the contact with Dr D had not yet been achieved.
Section 117 (2A) of the Act sets out the matters which need to be considered in determining a costs application. Section 117 otherwise provides that each party to the proceedings under the Act should bear his or her own costs. Section 117(2) empowers the Court to make such order as to costs as the Court considers just.
In this case the parties financial circumstances are known to the Court because evidence in relation to their financial circumstances has been filed and orders have been made of a financial nature. I am satisfied that the financial circumstances of the husband are not such as to mitigate against a cost order being made. Neither party is in receipt of a legal aid grant.
The wife relies on the conduct of the husband in commencing and continuing the proceeding in circumstances where she submits the application had no prospect of success. The wife submits that the husband has been wholly unsuccessful in his application. The authority which the wife has agreed to sign authorising medical practitioners to provide information to the husband in relation to L’s treatment and state of health is something which she clearly would have provided without the necessity of the husband making application to the Court. The wife submits that the husband’s application that she be present at Court on 24 February 2011 was wholly misconceived.
The husband did not press his application for the wife to be present at Court on 24 February 2011 when the matter was before the Court on 21 February 2011.
Having regard to all the matters set out herein I consider that a costs order is warranted and accordingly I grant the order sought by the wife in her response filed in Court on 21 February 2011, namely that the husband pay the wife’s costs of and incidental to the application in a case filed by him on 9 February 2011.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench
Associate:
Date: 17 March 2011
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