MCELHINNEY and MCELHINNEY
[2021] FCWA 14
•28 JANUARY 2021
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MCELHINNEY and MCELHINNEY [2021] FCWA 14
CORAM: O'BRIEN J
HEARD: 25 JANUARY 2021
DELIVERED : Ex tempore
FILE NO/S: PTW 2207 of 2018
BETWEEN: MR MCELHINNEY
Applicant
AND
MRS MCELHINNEY
Respondent
Catchwords:
PARENTING – Where matter is listed for trial and the registration of the appointed Single Expert Witness as a psychologist has been suspended – Whether reports already prepared are admissible at trial – Where husband proposes the appointment of a new Single Expert Witness on a limited basis to review the reports and give opinion evidence about the conclusions drawn in them – Where leave is sought to issue a subpoena to compel the appointed Single Expert Witness to attend trial to give evidence as to factual matters only – Discharge of appointment of Single Expert Witness – Application for further limited appointment and issue of subpoena dismissed - Discussion of relevant principles.
Legislation:
Evidence Act 1906 (WA)
Evidence Act 1995 (Cth)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms Giles SC |
| Respondent | : | Mr Berry SC |
| Independent Children's Lawyer | : | Ms Arnold |
Solicitors:
| Applicant | : | West Family Law |
| Respondent | : | Baily Family Law |
| Independent Children's Lawyer | : | West Coast Law |
Case(s) referred to in decision(s):
Albert & Plowman [2020] FamCAFC 23
Bass and Bass (2008) FLC 93-366
Ibrahim v Medical Board of Australia [2015] NSWCA 207
In the marriage of Hall and Hall (1979) FLC 90-713
Lee v The Queen (1998) 195 CLR 594
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McCarney and McCarney (1977) FLC 90-200
Re W (Sex abuse standard of proof) (2004) FLC 93-192
U v U (2002) 211 CLR 238
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym McElhinney & McElhinney has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1The proceedings between [Mr McElhinney] (“the husband”) and [Mrs McElhinney] (“the wife”), which commenced in March 2018 are listed for trial before a magistrate to commence on 15 March 2021. The proceedings relate to the parenting arrangements to be made for the children of the marriage [Child A] born [in] 2014 and [Child B] born [in] 2015, and the alteration of the interests of the parties in property.
2Pursuant to interim orders made on 12 April 2019 with some subsequent variation, the children live primarily with the husband and spend time each weekend with the wife.
3An issue arises as the Single Expert Witness (“SEW”) in the parenting proceedings, Dr [P], was the subject of disciplinary proceedings brought by the Psychology Board of Australia in [another jurisdiction] under the Health Practitioner Regulation National Law(WA)Act 2010 (“the National Law”). Those proceedings were settled [in late] 2020. To give effect to that settlement Dr P was reprimanded, her registration was suspended for a period of 18 months from the date of the orders, and various conditions were imposed on her subsequent registration, to take effect once the period of her suspension ends.
Dr P’s appointment and reports
4Dr P was appointed as the SEW on 2 November 2018, by an order made at the joint request of the parties and the Independent Children’s Lawyer (“ICL”). No terms of reference were specified at that time, on the basis that the parties and the ICL would seek to agree them. Subsequent orders were made, again by consent, on 21 January 2019 specifying the terms of reference in what may fairly be described as standard terms.
5Dr P published an initial report on 1 June 2019. For the purpose of preparing that report, she interviewed both parties at some length, and both undertook personality assessment testing. In addition, Dr P conducted observations of the children with each of the parties at their respective homes. Both children were, in her view, too young to be interviewed.
6It is unnecessary for present purposes to detail the matters raised in the report. It is sufficient to note that concerns raised as to the mother’s mental health are among the matters addressed.
7Dr P prepared a further, updated report which was published on 30 October 2020. For the purpose of preparing that report, she interviewed both parties again, and reviewed various documents filed in the proceedings and documents produced under subpoena.
8As can be seen, Dr P continued to undertake work as the SEW up to a point very shortly prior to the scheduled mediation in another jurisdiction at which the disciplinary proceedings were settled. I have no information as to the period over which the disciplinary proceedings were on foot, or whether Dr P alerted the parties to them prior to their resolution. Similarly, I have no information as to the point at which it might reasonably have been clear to Dr P that the disposition of those proceedings would likely involve a period of suspension.
The present application and response
9On 4 January 2021, having been made aware of the suspension of Dr P’s registration, the husband filed an application in a case in which he sought:
(a)the discharge of Dr P’s appointment as the SEW “unless the parties wish to cross examine her concerning factual matters underlying her reports… In which case leave be given to subpoena her to attend the trial due to commence on 15 March 2021”.
(b)the appointment of Dr [T] on a “limited basis” as the SEW in the case;
(c)that the appointment of Dr T be on the basis that he:
(i)review Dr P’s reports and the respective trial affidavits of the parties;
(ii)review Dr P’s notes in the event they can be obtained;
(iii)produce a written report; and
(iv)“attend the trial to give his view and opinion on recommendations (sic) for arrangements for the children”.
10The husband sought that the trial proceed as scheduled. In his affidavit filed in support of the application, he set out the details of the suspension of Dr P’s registration, and outlined the correspondence between the parties and the ICL subsequent to them becoming aware of that suspension. He annexed to his affidavit an email from the ICL which in turn reported that, in response to the ICL’s enquiry, Dr P said that based on legal advice, she did not consider that she could continue to act as the SEW in the case, albeit if she was compelled to attend to give evidence she would of course do so. The husband confirmed the willingness and availability of Dr T to be appointed on the terms proposed.
11The application was initially listed before the trial magistrate. On 14 January 2021 her Honour adjourned the application for hearing before me, on the basis that the issues which have emerged in this case might assume some general importance given that there are various proceedings on foot in this court, involving different parties, in which Dr P is presently the appointed SEW.
12Her Honour made orders requiring the wife and the ICL to file and serve any responding documents by the close of registry on 20 January 2021, and gave both parties and the ICL the opportunity to file written submissions if they chose to do so. Those submissions were to be filed by the close of registry on 21 January 2021.
13The wife filed a response and affidavit on 18 January 2021. She agrees that the appointment of Dr P as SEW should be discharged, but otherwise does not agree with the orders sought by the husband. She proposes that the parties confer in relation to the appointment of a new SEW, that the trial be vacated for that purpose, and that a witness other than Dr T be appointed. She notes that Dr T works in the same practice as Dr P, and expresses some concern as to his independence. More fundamentally, she questions how he can reach a suitably informed opinion without personally interviewing the parties and assessing them.
14Senior counsel for the husband filed written submissions on 21 January 2021.
15No responding documents were filed by the ICL. No written submissions were received from the ICL or from the wife.
16In submissions this morning the ICL indicated her support for the position adopted by the mother.
The issues which emerge
17The issues which arise for consideration are:
(a)whether, by virtue of the suspension of her registration, Dr P is prohibited from undertaking the work that would still be required of her as the SEW in the case;
(b)if not, whether her appointment should be discharged in any event because of the suspension of her registration;
(c)the admissibility of her affidavits exhibiting her reports, and most particularly the opinion evidence contained in them;
(d)whether leave should be granted to the parties and/or the ICL to issue a subpoena compelling the attendance of Dr P at trial;
(e)if so, whether the terms of the subpoena or the scope of Dr P’s evidence can properly be constrained as proposed by the husband; and
(f)whether an appointment of Dr T on the terms proposed is appropriately made.
The statutory framework – regulation of health practitioners
18The professional conduct of psychologists is regulated by the National Law. Part 7 of the National Law deals with the registration of “health practitioners”; by definition that includes psychologists. In the various disciplines covered by the National Law, National Boards are established; the Psychology Board of Australia is the relevant National Board in this case.
19The functions of National Boards include registering suitably qualified and competent persons in the relevant health profession and, if necessary imposing conditions on the registration of persons in the profession, deciding the requirements for registration, and the development of registration standards.[1]
[1] Health Practitioner Regulation National Law (WA) Act 2010 (WA) (“The National Law”), s 35.
20The published standards and guidelines adopted by the Psychology Board of Australia provide for a standard of general registration, entitling psychologists to work in any area of psychology that is within their scope of practice, and to use the title “psychologist”. It is a requirement of registration that psychologists practice in accordance with the APS Code of Ethics (2007).
The first question – does the suspension of Dr P’s registration of itself prohibit her from undertaking further work in the case, including giving evidence?
21The answer to this question is not as readily found as might be expected. There is no singular provision of the National Law which expressly states that a psychologist must not practice unless registered.
22Nevertheless, when regard is had to the objectives and guiding principles of the National Law, and its operation in practice, in my view the answer is clear.
23Section 5 of the National Law defines “psychologist” to mean “a person registered under this Law in the psychology profession”. For a person to refer to themselves as a psychologist, and practice as such, they must be registered with the Psychology Board of Australia. The effect of a suspension is that the suspended practitioner is taken by the Board not to be registered and eligible to practice for the relevant period. Offences are created by the National Law as to the use of protected titles, and false claims as to registration; those provisions are utilised to prosecute suspended practitioners who continue to practice.
24The scope of “practice” is not defined in the National Law, nor directly in the APS Code of Ethics. The Code does, however, define “psychological service” to mean “any service provided by a psychologist to a client including but not limited to professional activities, psychological activities, professional practice, teaching, supervision, research practice, professional services and psychological procedures”.
25That broad definition is consistent with the objectives and guiding principles of the National Law, and in particular the protection of the public “by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered”.[2]
[2] The National Law, s 3.
26The work required of a SEW in a parenting case, where that expert is appointed by reference to his or her “relevant specialised knowledge, based on …training, study or experience” as a psychologist would in my view clearly meet the broad definition of “psychological service”, noting that the examples set out in that definition are not exclusive.[3]
[3] See, for example, albeit in a different context, Ibrahim v Medical Board of Australia [2015] NSWCA 207.
27Accordingly, in my view the suspension of Dr P’s registration precludes her from being appointed as a SEW during the period of her suspension, and disqualifies her from continuing any existing appointment during that period.
28In case I am wrong in that view, it is appropriate to still consider the next question.
Even if the terms of Dr P’s suspension do not preclude her from undertaking single expert work, should her appointment nevertheless be discharged?
29Dr P was appointed as the SEW by the court, not by the parties. It is accordingly a matter for the court as to whether or not her appointment should be discharged; the positions of the parties inform the court’s consideration of that question, but are not determinative of it.
30There can be no suggestion that the SEW is anything more than just that – a witness. The power and responsibility to determine the dispute fall to the judge.[4] Once expert evidence is admitted, the court is not bound to accept or reject the whole or any part of it.[5]
[4] In the marriage of Hall and Hall(1979) FLC 90-713, at 78,819; Albert & Plowman [2020] FamCAFC 23.
[5] U v U (2002) 211 CLR 238, at 261.
31There is no magic in a single expert report, and while the views of a SEW will normally have weight with the court, the question of how much weight will depend on the individual case and the whole of the evidence.[6]
[6] In the marriage of Hall and Hall(1979) FLC 90-713, at 78,819.
32It is against that background that the question posed should be answered.
33Dr P’s registration was suspended after a finding by another jurisdiction that she had behaved in a way that constituted professional misconduct as defined in s 5 of the National Law. It is unnecessary to set out the agreed facts which led to that agreed finding; it is sufficient for present purposes to note that the conduct in question centred on the formation of a personal relationship with a former client. The criticism of that conduct was founded in ethical considerations, and not based on any finding as to Dr P’s specialised knowledge, training, study or experience.
34The absence of any negative finding as to Dr P’s competence, as distinct from adherence to ethical considerations, is not, however, the end of the matter for present purposes.
35While a SEW is not in any sense the decision-maker in a parenting case, it is understandable that the parties to a case would regard the expert’s evidence, including his or her expressed professional opinions, as being of particular significance in the decision-making process. It is also understandable that the parties would anticipate that, all things being equal, the judge would likely give weight to those opinions.
36Against that background, it is not uncommon for a party to raise assertions of bias on the part of a SEW. On occasion, those assertions manifest in an application for the discharge of the relevant appointment.
37Neither party suggests bias on the part of Dr P in advancing their joint position that her appointment as SEW should be discharged; rather, it may be inferred that they have either concluded that as a matter of law she is disqualified from continuing her appointment, or that in any event they have lost confidence in her.
38It is the latter point which properly draws attention. In my view, the relevant considerations are analogous to those to which the court must turn its attention in any application based on a reasonable apprehension of bias; justice must be seen to be done, and the parties must be placed in a position where the reasonably informed lay observer would have confidence in the integrity of the process.
39That reasonably informed lay observer could not in my view be expected to have any concerns allayed by the drawing of a distinction between adverse findings as to competence, and adverse findings as to ethical behaviour. Similarly, he or she could not be expected to have any concerns allayed by the fact that Dr P is no more than a witness, given the important role of a SEW in informing the decision‑making process undertaken by the court.
40The fact of the suspension of Dr P’s registration would, of itself, in my view raise a reasonable apprehension as to the integrity of the decision-making process in circumstances where she continued in an appointment as the SEW in the case.
41It is in that context that I agree with the joint position of the parties (and, it might fairly be noted, Dr P) that it is inappropriate for Dr P’s appointment as SEW in the case to continue in the present circumstances, even if I am wrong in my conclusion as to the effect of the suspension of her registration as a psychologist.
42The question might also be considered another way. It cannot, in my view, seriously be suggested that the court would appoint as a SEW a person under suspension at the time of the proposed appointment. If that is accepted, then the only arguments for an appointment to be maintained after suspension are expediency, reduction of costs, and avoidance of delay – and the impact of those considerations on the parties and on the children. Those arguments could not in my view take precedence over the integrity of the decision-making process.
43Without the benefit of considered argument, it is unnecessary for the purposes of the present case to determine whether considerations of judicial comity would lead in any event to a conclusion that Dr P’s appointment by this Court should not continue during the period of a suspension imposed by another [jurisdiction].
44There is a second limb to the question just posed, which is conveniently considered at the same time. It might be suggested that a person whose appointment as the SEW in a case is discharged might nevertheless still be called by one party or the other to give expert evidence.
45If I am right in my conclusion as to the effect of the suspension of Dr P’s registration, the question does not arise. The giving of expert evidence would amount to the provision of “psychological services” as defined, and be precluded by the terms of the suspension.
46If I am wrong in my conclusion as to the effect of the suspension of Dr P’s registration, I would nevertheless consider it unlikely that a judicial officer would accede to an application under rule 15.52 for permission to tender a report or adduce evidence from an expert under suspension.
47I turn now to consider whether Dr P’s reports may be tendered in evidence, for the purposes contemplated in the husband’s application for the “limited” appointment of Dr T, and the associated questions raised by the terms of the husband’s application.
The rules of evidence and child-related proceedings
48Section 69ZT of the Family Law Act 1975 (Cth) (“the Act”) provides that certain provisions of the Evidence Act 1995 (Cth) (“The Commonwealth Evidence Act”) do not apply to child-related proceedings. Those provisions include Parts 3.2 to 3.8 of that Act, which deal with a variety of matters including hearsay and opinion evidence.
49Section 202H of the Family Court Act 1997 (WA) adopts for the purposes of proceedings in this court the provisions of s 69ZT, by providing that the “excluded rules of evidence” do not apply to child‑related proceedings, and defining the term “excluded rules of evidence” to mean such provisions of the Evidence Act 1906 (WA) (“The State Evidence Act”) and the rules of evidence as most closely correspond to the provisions of the Commonwealth Evidence Act referred to in s 69ZT of the Act.
50The provisions of 202H and, by reference, s 69ZT do not simply render the rules of evidence irrelevant for child-related proceedings; they provide that certain rules do not apply.
51The rule against opinion evidence does not apply in any event to an opinion wholly or substantially based on specialised knowledge based on the training, study or experience of the witness. The exclusion by s 202H of the rule against opinion evidence operates to permit the admission of non-expert opinion, which will then be given whatever weight the court considers appropriate.
52The exclusion of the rule against hearsay operates to permit the admission of evidence of a previous representation made by a person to prove the existence of a fact asserted by that representation.
53Senior counsel for the husband properly draws attention to the principles by which child-related proceedings are to be conducted.
54Division 12A of Part VII of the Act is directed to the conduct of child-related proceedings. The court is required by s 69ZN to give effect to certain principles, including principles that:
(a)the court is to consider the needs of the child, and the impact that the conduct of the proceedings may have on the child, in determining the conduct of the proceedings; and
(b)the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
55Section 69ZX is headed “Court’s general duties and powers relating to evidence”; it does not, in fact, then prescribe any duties. It does, however, specify a range of powers enabling the court to make orders about the matters in relation to which evidence is to be given, by whom evidence is to be given, and how it is to be given. The powers are directed primarily to facilitating another of the principles set out in s 69ZN - the active direction, control and management of the conduct of the proceedings.
Can Dr P’s reports be tendered into evidence without her presenting as a witness?
56It must first be borne in mind that Dr P’s affidavits are not yet in evidence for the purposes of trial.[7] Rule 15.61 does not alter that position.
[7] See notes to Part 15.2 of the Family Law Rules 2004 (Cth).
57In the normal course, the reports would be admitted into evidence upon Dr P attending at trial, confirming them, and presenting for cross examination. Absent issues regarding her suspension, they could otherwise be tendered into evidence by consent if the parties did not seek to challenge her evidence in any way. That is not the case here.
58In my view Dr P is precluded by the terms of her suspension from attending court voluntarily to give evidence confirming the content of her reports; in effect, giving evidence while under suspension as to both the factual observations set out in the reports, and her conclusions and opinions.
59In those circumstances, and bearing in mind the principles of judicial comity,[8] it would be entirely inappropriate to authorise the issue of a subpoena to compel her to give that evidence, or order her to do so as permitted by rule 15.14. I will return to the question of whether a subpoena could properly issue to compel her attendance for a limited purpose, as proposed by the husband.
[8] See, for example, McCarney and McCarney (1977) FLC 90-200, at 76,058.
60Against that background, can the reports nevertheless be tendered?
61Section 79C of the State Evidence Act permits the admission into evidence of a statement in a document tending to establish a fact or opinion where the statement is made by a qualified person. Dr P’s reports meet the relevant definition of “statement”, and she was a qualified person at the times they were made.
62Nevertheless, s 79C(2) provides that the author of the statement must be called as a witness unless certain conditions are met; the only such condition of potential relevance is that set out in s 79C(2)(g) whereby attendance can be excused if “having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling [the witness]”. Those conditions are not met here.
63With respect, the submission by senior counsel for the husband to the effect that “any opinions offered in her reports, which were published prior to her suspension, are admissible as to the content of those opinions, given at a time when [she] was a registered psychologist”, misses the point already made as to the means by which the reports may properly come into evidence, and is not able to be saved by recourse to s 79C of the State Evidence Act or for that matter s 69ZX of the Act.
64I conclude that the reports cannot simply be tendered into evidence, other than by consent.
65Similarly, I reject the proposition that Dr P is able to usefully give evidence now as a statement merely of fact, that she held a particular opinion at a previous time when she was qualified to give it.
66Even if the reports of Dr P were capable of admission into evidence, without her presenting as a witness, further issues would immediately arise, as properly acknowledged by senior counsel.
67Self-evidently, and even leaving aside the express legislative provisions, doubt arises as to the weight to be given to evidence, including opinion evidence, in circumstances where either the witness is not available for cross examination or the scope of cross examination is artificially restricted.
68If the deponent of an affidavit does not present for cross examination, the court may refuse to permit reliance on the affidavit, allow the affidavit to be relied on only on terms, or order the deponent to attend for cross examination.[9] That is consistent with the long-established “central significance” of cross examination to the common law adversarial system of trial.[10] As has been observed:
“The first object of cross examination is to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross examination is conducted. The second is to cast doubt upon the accuracy of the evidence in chief given against that party”.[11]
[9] Family Law Rules 2004 (Cth), rule 15.14.
[10] Lee v The Queen (1998) 195 CLR 594, at [32].
[11] J D Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017), at [17430].
69That in turn would mitigate against the admission of the reports by tender, even by consent.
The husband’s proposal for the appointment of Dr T, and for liberty to issue a subpoena compelling Dr P to give evidence for a limited purpose
70In considering the unusual course proposed, the principles as to the use of expert evidence must be borne in mind.
71The giving of expert evidence is regulated by Part 15.5 of the Family Law Rules (“the rules”). The purpose of Part 15.5 is set out in rule 15.42, and includes limiting expert evidence to that necessary to assist in determining significant issues, and avoid unnecessary costs.
72“Expert” is defined by the rules as “an independent person who has relevant specialised knowledge, based on the person’s training, study or experience”. As properly acknowledged by senior counsel for the husband, the court requires “properly accredited and qualified experts to give evidence as to the best interests of children”.[12]
[12] Written Submissions, at paragraph 12(v).
73The opinion evidence of an expert is admissible by virtue of the expertise so described. The well-known principles were summarised by Heydon JA in Makita:[13]
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded”.
[13] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, at [85].
74Of potential relevance to the present dispute is the following recent observation of the Full Court:
“Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict”.[14]
[14] Albert & Plowman [2020] FamCAFC 23, at [20].
75The husband proposes that Dr T be appointed “on a limited basis” as the SEW in the case, and describes that “limited basis” as requiring Dr T to:
“1.Review Dr [P]’s reports and the parties’ respective Trial Affidavits;
2.Review Dr [P]’s notes, in the event that they can be obtained;
3.Produce a written report; and
4.Attend the Trial to give his view and opinion on recommendations for arrangements for the children the subject of the proceedings”.
76The written submissions of senior counsel for the husband make clear what is implied in those terms. It is proposed that Dr T “review [Dr P]’s reports and her notes (if they are available) and provide a further written report to the Court, advising as to whether he supports or opposes the recommendations made by [Dr P]” (emphasis added). The perceived advantages of that proposal are that the expense already incurred in obtaining Dr P’s reports would not be completely lost, and the trial can proceed as listed.
77It is submitted on behalf of the husband that the court “can have available to it the expert evidence of Dr [T], who can offer opinions as to Dr [P]’s recommendations, including determining whether her recommendations are supported by the evidence”, and that the requirements of procedural fairness will be met if the parties are permitted to require Dr P to present for cross examination as to “the factual matters referred to in [her] reports”, and to test the “facts and opinions provided by Dr [T]” by cross examining him.
78As I indicated to counsel, I do not doubt that the husband’s proposal is well motivated, and I acknowledge that those advising him have sought to devise a creative solution to a problem not of the parties’ making. I also acknowledge the submissions made on behalf of the husband as to the undesirability both for the parties and more importantly for the children of further delay in the proceedings.
79All that said, there are significant and in my view insurmountable obstacles to what is proposed.
80Firstly, for the reasons earlier set out, the reports of Dr P are not in my view made admissible simply by being referenced in any report by Dr T or for that matter exhibited to any report he might prepare. Fundamentally, therefore, the opinions expressed by Dr T would be based at least in part on matters not in evidence.
81Secondly, and even if that first hurdle can be overcome or I am wrong in my conclusions as to admissibility, the husband’s proposal contains an express caveat that Dr T would review Dr P’s notes “if they are available”. The proposition that Dr T could adequately critique the report and recommendations made by Dr P if the notes are not available is problematic, and is not addressed.
82Thirdly, it is not proposed that Dr T would himself meet with the parties. The husband would contend that Dr T can nevertheless form his own opinions by reference to statements of fact in the reports of Dr P, and that her observations of the parties in meeting with them represent no more than statements of fact. He would contend further that as on his proposal Dr P could be cross examined as to factual matters only, no unfairness would arise.
83The difficulty with that proposition lies with the contention that observations by Dr P as to the presentation of the parties when she met with them involve no more than statements of fact. The content of the reports includes (by way of example only) the expression of the view that the wife’s “self-concept appears to involve a fixed, rather negative self-evaluation and is likely to be self-critical and to focus upon past failures”. The first report further includes interpretation of the wife’s Personality Assessment Inventory, and observations that during interviews she “appeared relatively distressed, highly anxious, and at times having difficulty staying on track and focusing her thoughts”. The husband’s interpersonal style was described as being “best characterised as warm, friendly and sympathetic”, with Dr P observing that the results of his Personality Assessment Inventory were “consistent with his presentation at interview”. There were brief descriptions of Dr P’s observations of the children with each parent at their respective homes.
84While it is permissible for a lay witness to give opinion evidence with regard to matters not requiring special knowledge where it is virtually impossible to separate their inferences from the facts upon which they are based,[15] to a degree at least, Dr P’s observations of the parties during interview as recorded in her reports involve the application of her professional skills in interpreting what she saw and heard. Any characterisation of those observations as being merely statements of fact is, in my view, simplistic.
[15] J D Heydon, Cross on Evidence (LexisNexis Butterworths, 12th edition, 2020), at [29015].
85Dr P interviewed each parent for a period of three hours for the preparation of her first report. She interviewed them again for the preparation of the updated report, but the length of interviews is not specified. Were it not for the issues presently faced, it would clearly be anticipated that she would be cross examined in some detail regarding those interviews, and her observations recorded as a result of them. Again, the distinction sought to be drawn by the husband in the proposed parameters of any cross examination of Dr P is problematic.
86There is an obvious further problem. The process proposed by the husband would clearly call into question the weight to be attributed to any opinions formed by Dr T and confirmed by him in evidence. Again, on the husband’s proposal, Dr T will not have met with the parties, and will have had access to Dr P’s notes “only in the event that they can be obtained”. The observations of the Full Court in Re W[16] as to the dangers of “relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children” referred to by senior counsel for the wife are apposite.
[16] Re W (Sex abuse: standard of proof) (2004) FLC 93-192, at [38]-[39].
87While it might be submitted on behalf of the husband that those are matters for trial, that rather begs the question. The court is being asked to appoint Dr T as SEW, over the objections of the wife, in circumstances where the potential problems just identified are self‑evident. It would be one thing for the parties to agree to a potentially flawed process, jointly accepting the risks associated with it; it is quite another for the court to impose that process. Even had the parties agreed to the proposed process, I would harbour doubts as to whether the court could properly appoint a SEW where the significant questions as to the weight to be attributed to his evidence were apparent at the time of the proposed appointment.
88Having reached those conclusions it is unnecessary to consider further the possible issues which would arise on the husband’s proposal for the issue of a subpoena to Dr P to attend to give evidence in relation to “factual matters” only. While I acknowledge the possibility that a robust application of s 69ZX might facilitate the required limitations on cross examination, the matter is attended with doubt. More fundamentally, I am unconvinced that the proposed limitation to cross examination on factual matters would of itself mean that the granting of leave to issue the subpoena would not run contrary both to the terms of Dr P’s suspension and the principles of comity earlier noted.
89The Form 2 application of the husband will be dismissed.
Steps from this point
90While on the papers it appeared to be common ground that the trial presently listed would necessarily be vacated if the orders sought by the husband were not made, I propose to give the parties and the ICL a further opportunity to consider that matter.
91I do so as, with no disrespect to anyone, it appears that the proposed limitations on the appointment of Dr T may have been driven primarily by economic considerations rather than necessarily being founded in unavailability on his part to undertake the work proposed and to himself interview the parties. In making that observation I do not dismiss the concerns expressed by the mother as to the possibility of unconscious bias on the part of Dr T in the sense of being predisposed to defence of Dr P’s views, nor her expressed concerns that information may have already passed between them – there is insufficient material before the court at present to properly consider those concerns. In any event, where issues are raised in a more typical situation suggesting bias on the part of the SEW, the authorities make it clear that those matters are properly explored in cross examination rather than in disqualification of the witness pre-trial.[17]
[17] Bass and Bass (2008) FLC 93-366.
92I note also the observation in the most recent report of Dr P that “there is still no clear understanding as to the mother[’s] mental health status and her ability to care for the children and make wise decisions”, and her recommendation that, in her words, “this be a priority for the court, and that an independent report [be] sought”. I make no comment beyond drawing that to the attention of the parties.
93Rather than vacating the trial at this point I propose to refer the file back to the magistrate before whom it is listed, so that she may consider whether to list a directions hearing once the parties and the ICL have considered the matter further. I acknowledge also that, depending on the outcome of those considerations, the parties may wish to seek an alternative direct listing for trial, and that as mentioned by senior counsel for the husband, they may have interim matters to agitate which might conveniently be allocated to the date presently listed for trial.
Orders
1.The Form 2 application filed by the Applicant on 24 December 2020 and the Form 2A response filed by the Respondent on 18 January 2021 be and are hereby dismissed.
These reasons are the reasons for decision delivered on 25 January 2021, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
Associate
28 JANUARY 2021
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