MCCALL & CLARK

[2016] FamCA 896

FAMILY COURT OF AUSTRALIA

MCCALL & CLARK [2016] FamCA 896

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural fairness – Where further evidence should be taken de bene esse – where the expert witness was recalled – where material had emerged during the course of the trial – where there was a significant change in the recommendations the expert witness had previously made – where the admission of evidence could be subsequently debated

Family Law Act 1975 (Cth) s 79ZN

Allesch v Maunz (2000) 203 CLR 172
Farmer & Rogers [2010] FamCAFC 253

APPLICANT: Mr McCall

RESPONDENT:	Ms Clark
FILE NUMBER:	BRC	4776	of		2007

DATE DELIVERED: 25 October 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 10 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney QC

SOLICITORS FOR THE APPLICANT: Cooper Family Law

COUNSEL FOR THE RESPONDENT: Mr Cremin

SOLICITORS FOR THE RESPONDENT: Denovo Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym McCall & Clark 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 BRISBANE

FILE NUMBER: BRC4776/2007

Mr McCall

Applicant

And

Ms Clark

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 10 October 2016, during the course of the trial of parenting proceedings between the parties then being conducted before me, I determined that further evidence from the Family Report writer should be taken de bene esse, with the argument as to its subsequent admission, and any further cross-examination of her by the counsel for the mother, being deferred.  These are my reasons for so ruling.

BACKGROUND FACTS

1. The trial of these parenting proceedings commenced before me on Tuesday 4 October 2016 in Brisbane.  The first witness to give evidence was the father.  At the time he was called, I was advised without objection that the Family Report writer, Ms B, was not available to give evidence until after lunch on the first day, and that she would be interposed during the father’s evidence at that time.  That is in accordance with the Brisbane practice, regularised by a direction given to the profession by the then case management judge, to the effect that in parenting proceedings, the Independent Children's Lawyer’s experts, and particularly the Family Report writer, should ordinarily give evidence at the commencement of the proceedings.

2. In accordance with that arrangement, Ms B commenced her evidence on the first day of trial, ultimately concluding it on the following day.  She was cross-examined by both Queen’s Counsel for the father, and counsel for the mother.  She was then excused from further attendance, and the father’s cross-examination resumed.

3. The trial then progressed, until on Friday 7 October 2016, when the prospect of Ms B being recalled to give further evidence based upon material that had emerged during the course of the trial, was foreshadowed.

4. On Monday 10 October 2016 counsel for the Independent Children's Lawyer indicated that it was his intention to recall Ms B to give such evidence, and he went on to open that evidence, including a significant change in the recommendations which she had previously made both in her Family Reports and in her oral evidence.  He proposed that the means of eliciting that further opinion from her would be by him, firstly, providing her with an oral summary of the evidence in the trial, at the conclusion of which any error or omission in that summary could be remedied by counsel for the mother and father.  He then proposed that he would ask her whether, in the light of that new material, her opinions and recommendations had changed, and given that he anticipated that her recommendations would indeed change in significant respects, he proposed that in order to provide procedural fairness to the mother (who was most affected by the likely change in recommendations) the cross-examination of the Family Report writer would then be deferred to a later date.

5. The Independent Children's Lawyer was supported in that proposal by the father.  However it was opposed by counsel for the mother for reasons I will detail in due course.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

1. Section 79ZN of the Family Law Act mandates the court to give effect to principles there enumerated, not only in performing duties and exercising powers in relation to child related proceedings, but importantly, by sub-paragraph (b), also in making other decisions about the conduct of child related proceedings.

2. Relevant to this application is principle 5, contained in sub-section 7 of s 79ZN. It provides:

   The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality in form as possible.

3. In Farmer & Rogers [2010] FamCAFC 253 the Full Court had occasion to consider the impact of Division 12A upon the obligation to ensure a fair trial and to afford procedural fairness to the parties in parenting proceedings in this court. At [224], having previously discussed the content of procedural fairness and noted the effect of Division 12A, the court concluded “However, we emphasise that the fact of more judicial control does not mean that there is any lessening of the obligation to ensure a fair trial and to afford procedural fairness to each party.”

4. In Farmer & Rogers, at the conclusion of the trial of parenting proceedings, the Independent Children's Lawyer indicated for the first time that they would seek interim, rather than final, orders.  The matter was a little complicated by the fact that the mother in the trial self-represented.  However in allowing the appeal on the grounds of a lack of procedural fairness, at [229] the Full Court listed matters which the relevant Federal Magistrate should have done to ensure procedural fairness in that case.  Leaving aside those which relate to the obligations of a court when dealing with self-represented litigants, those which relate directly to the requirements of procedural fairness, were that the court should have (at least):

   ·Required the Independent Children's Lawyer to give notice of the reasons why such a proposal was being put forward;

   ·Explained that the parties should have the opportunity to put on further evidence to deal with the proposal for an adjournment of the hearing; and

   ·Explained that the parties should have the opportunity to further cross-examine each other and the lay and expert witnesses.

THE PARTIES’ ARGUMENTS

The Independent Children's Lawyer and father

1. Counsel for the Independent Children's Lawyer, during the course of his submissions, tendered into evidence a chain of email communications between the lawyers for the parties and the Independent Children's Lawyer.  Initially, by email of 17 June 2016, the Independent Children's Lawyer adverted to the practice direction in relation to experts giving their evidence at the commencement of the trial, and flagged the possibility that, in this case, those witnesses should go last after the parties have been cross-examined.  On 20 June 2016, the solicitor for the father indicated that he required the experts to go last “as we expect evidence to be given by the parties which is critical to the formulation of the report writer’s views.” 

2. On the following day the solicitor for the mother disagreed, and concluded “there is nothing in this matter that would displace the practice direction.”  Later that day the Independent Children's Lawyer sent an email, which said in part “we agree with [the father’s solicitors] that given the contentions in this case, the experts should go last after the parties have given their evidence.”  On the following day the solicitor for the mother sent an email which concluded “The Courts will rely upon the expert reports untainted by the evidence of the parties, the parties have every opportunity to give factual reports to the experts in conferences.  We will oppose any attempt to have the expert reports used in this manner.” 

3. Although there was continuing debate between the solicitors, it appears as though, given there was no agreement to a different course than that suggested by the practice direction, the parties conducted themselves in accordance with it.

4. The point of this evidence was that although the mother maintained that she was taken by surprise at the prospect of Ms B’s being recalled, in fact she had been on notice of the prospect of that from at least 17 June 2016.  Moreover, she was aware that the father asserted that the evidence of the parties may be relevant to the ultimate formulation of opinions and recommendations by the report writer.

5. Counsel for the Independent Children's Lawyer argued that, given that Ms B was likely to significantly change her recommendations, it was important for the court to receive her evidence.  In fairness to the mother, that was not seriously challenged.  Accepting that her revised opinions and recommendations had not been previously foreshadowed, and the trial had progressed on the basis of other recommendations, counsel for the Independent Children's Lawyer emphasised the need for procedural fairness to be afforded to the mother.  He said that could best be done by the procedure which he proposed, namely him orally informing her in the witness box of the factual matters that had emerged during the course of the trial, giving the parties an opportunity to contradict or augment that material, and then asking her to express her opinion, before deferring her cross-examination for a period so as to enable the mother to properly prepare for that, and also to supplement her material in any way that she saw fit to meet those changed recommendations.

6. Both he and Queen’s Counsel for the father indicated that, in the event that the mother wished to seek to adjourn the proceedings to enable that to occur, they would not oppose such a course.

The mother

1. Whilst not directly opposing Ms B’s being recalled to give evidence, the mother proposed a quite different course by which that would occur.  Her counsel argued that the appropriate course was for the court to provide the transcript of the four days of evidence to Ms B, and for her to provide an updated report (seemingly in writing) upon the provision of which, the parties would then consider their positions and file any further material, before undertaking further cross-examination of Ms B.

2. To these propositions counsel for the Independent Children's Lawyer indicated, without objection, that there was no funding available to meet the likely costs of the mother’s proposal, and particularly the funding cap for Ms B’s involvement in the proceedings had already been reached.  To this counsel for the mother suggested that the court should pay for any costs associated with the provision of the four days of transcript, and that since the problem had been created by Legal Aid (in the sense that the Independent Children's Lawyer was an employee of Legal Aid) it simply was insufficient for it to rely upon its own funding caps as a basis for refusing to meet the costs of a need that its conduct had created.

Evaluation

1. The key to resolving the dispute between the parties in this respect is to be found in a consideration of the requirements of procedural fairness.  At its heart, that is to “afford a person whose interests may be adversely affected by a decision an opportunity to present material, information and submissions relevant to such a decision before it is made.”[1] However, by virtue of s 79ZN(7) I am obliged to afford that fairness “without undue delay and with as little formality and legal technicality in form as possible.”

   [1]Allesch v Maunz (2000) 203 CLR 172 at [35] per Kirby J.

2. In an ideal world of limitless judicial and public resources, the course proposed by the mother would be attractive.  There would be a reduced prospect of the oral summary provided to Ms B being deficient in any respect, or incorrect.  However that would require the provision of four days of transcript, and Ms B reading it with a view to discerning for herself the significant matters of fact that have emerged.  Further, it would give her the opportunity for reflection upon the impact of that material upon her opinion and recommendations, and enable her to articulate any changes in writing, and hence to review and, if necessary, revise the expression of those opinions with the benefit of further reflection.

3. However we do not live in such an ideal world.  It is a matter of public record that the court itself is facing unprecedented budgetary pressures, and that Legal Aid funding for proceedings such as these is likewise an ever diminishing resource.

4. Procedural fairness does not require Rolls Royce proceedings.  It requires adequate notice, and a reasonable opportunity to put on material and mount arguments.

5. In this case the proposal of the Independent Children's Lawyer achieves procedural fairness, at a much reduced cost to the public than the mother’s proposal would entail.  Particularly:

   ·Any error or omission in the oral factual statement of facts provided by the counsel for the Independent Children's Lawyer can be immediately addressed by counsel for the mother, with any such error being corrected, or omission remedied, prior to the Family Report writer expressing any revised opinion or recommendations;

   ·The oral presentation of that factual material will occasion no delay of the kind which requiring the report writer to read four days of transcript would entail;

   ·Assuming that she is able to provide an updated opinion and recommendations, the provision of those to the mother – albeit orally – will enable her to know the case which she has to meet sooner than she would be aware of it on her proposal;

   ·Adjourning the further cross-examination of Ms B would permit the mother an opportunity to properly marshal any material which is to be put to Ms B to challenge her recommendations, and for that cross-examination to be prepared;

   ·Likewise the adjournment would permit the mother to put on any additional evidence which she may seek to rely upon in order to meet the new recommendations;

   ·Similarly, the adjournment will permit the mother to consider whether she wishes to further cross-examine any of the witnesses that have previously given evidence in the proceedings, so as to properly present her case in the light of any altered recommendations;

   ·The delays which the mother’s proposal would inevitably entail would likely see the resumption of this trial, and its ultimate conclusion, delayed by some, and perhaps many, months.

6. In my view those matters weighed strongly in favour of the course proposed by the Independent Children's Lawyer, and for that reason, I adopted his proposed course.  However during the course of argument, I raised with both he and the father, that to cover any unexpected eventuality that may arise during the course of Ms B’s evidence, it was prudent to take it de bene esse, so that its ultimate admission, if it was said to be incurably unfair to the father, could be subsequently debated.  It follows that the admission of her further evidence will be the first matter that needs to be addressed by the parties on the resumption of the trial in due course.  

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 October 2016.

Associate:

Date: 25 October 2015