MCELHINNEY and MCELHINNEY - [2021] FCWA 14

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading MCELHINNEY and MCELHINNEY

Details

AGLC: MCELHINNEY and MCELHINNEY [2021] FCWA 14
Case: [2021] FCWA 14
Decision Date: 28 JANUARY 2021

CaseChat Overview and Summary

In the Family Court of Australia, the matter of McElhinney and McElhinney was brought before the court for determination of parenting issues. The father, the Applicant, sought to adduce expert evidence from a psychologist who had been appointed as a Single Expert Witness. However, the registration of this expert had been suspended, and the parties had already exchanged reports from the expert. The mother, the Respondent, objected to the father’s attempts to use the expert’s reports and to subpoena the expert to give evidence. The court was required to decide whether the reports were admissible and whether leave should be granted to issue a subpoena to compel the expert to attend and give evidence.

The court examined the principles governing the admissibility of expert evidence and the appointment of Single Expert Witnesses. It considered the objectives of the Family Law Act and the inherent jurisdiction of the court to control its own process. The court concluded that the reports were not admissible as the expert was no longer registered and thus unable to give evidence. The court also held that issuing a subpoena to compel the expert to give evidence as to factual matters only would be an abuse of process. The court further found that discharging the appointment of the Single Expert Witness was appropriate and that the application for a further limited appointment and subpoena should be dismissed.

Accordingly, the court dismissed the father's application to adduce the expert's reports and to issue a subpoena to compel the expert to attend and give evidence. The court's decision was based on the inadmissibility of the reports and the potential abuse of process in subpoenaing the unregistered expert. This outcome ensures that the court's processes are adhered to and that only admissible evidence is considered in determining parenting matters. The final orders reflect the court's dismissal of the father's applications, maintaining the integrity of the proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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