Moyland & Shearer
[2023] FedCFamC2F 1202
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Moyland & Shearer [2023] FedCFamC2F 1202
File number(s): CAC 1659 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 15 September 2023 Catchwords: FAMILY LAW – Practice and procedure – discharge of expert via oral Application for which no leave was sought – similar Applications regarding the same expert made in the Family Court of Western Australia both of which failed – non-compliance by Mother and her lawyer with Rules regarding filing Affidavits in support of Applications in a Proceeding – further non-compliance by Mother’s lawyer with Court Order to answer questions in the form of interrogatories with those same basic questions previously asked of Counsel at the hearing – in the light of the FCWA judgments, Mother’s identical Application was doomed to fail but continued to be pressed – accusations however made by the Mother that any delay and or expense was somehow the Court’s fault where the Mother alone pressed two separate Applications on the Court – oral Application dismissed – costs reserved pending submissions. Legislation: Evidence Act 1995 (Cth) ss.76, 79, 122(2), 144
Family Law Act 1975 (Cth) ss.121
Federal Circuit and Family Court of Australia Act 2021 (Cth), ss. 140, 176
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r.1.05, 1.33, 1.34, 2.01(4), 5.04, Part 6.3, Division 7.15
Health Practitioners Regulation National Law 2018 (ACT) ss.148, 149, 213, 214, 243
Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 230 CLR 175
Dasreef v Hawchar (2011) 243 CLR 588
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Fagenblat & Feingold Partners Pty Ltd [2001] VSC 454
HG v The Queen (1999) 197 CLR 414
Honeysett v The Queen (2014) 253 CLR 122
Jenkins & Grothe (Discharge of Single Expert Witness) [2023] FCWA 160
Kennedy v Wallace (2004) 142 FCR 185
McElhinney and McElhinney [2021] FCWA 14
Mann v Carnell (1999) 201 CLR 1
Mortimer & Mortimer (Discharge of Single Expert Witness) [2023] FCWA 177
R & R [2003] FamCA 1180
Re W and W (2001) 28 Fam LR 45
I. Freckleton and H. Selby, Expert Evidence: Law, Practice, Procedure and Advocacy Fifth Edition, (Sydney: Thomson Reuters, 2020)
B. White, F. McDonald, L. Willmott, Health Law in Australia, Third Edition, (Sydney: Thomson Reuters, 2018)
Division: Division 2 Family Law Number of paragraphs: 145 Date of hearing: 23 – 24 August 2023 Place: Canberra Counsel for the Applicant Ms R Dart Solicitor for the Applicant Robinson + McGuinness Family Law Counsel for the Respondent Mr I Duane Solicitor for the Respondent Farrar Gesini Dunn Independent Children’s Lawyer Legal Aid ACT ORDERS
CAC 1659 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MOYLAND
ApplicantAND: MS SHEARER
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
15 SEPTEMBER 2023
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The oral Application of the Mother made 24th August 2023 seeking to discharge the Single Expert Witness be dismissed.
2.Absent any Application to the contrary, within 7 days from the date of these Orders, being by 22 September 2023, each party and the Independent Children’s Lawyer is to file and serve Written Submissions of no more than 2 pages (plus a further page on the actual costs sought) on the issue of costs.
3.Within 7 days, the parties are to jointly notify Chambers with respect to the procedural course proposed to resume the Final Hearing.
4.Any matters relating to the Orders of 29th August 2023 for the Mother’s lawyer to answer interrogatories will be stood over to the resumed hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction & Overview
These reasons are, most regrettably, tediously long (and not infrequently repetitive), and sometimes dolefully direct. For reasons explained at too great a length, but most significantly, in the light of two very recent decisions of the Family Court of Western Australia that involved the same expert and the same media article, there should have been some realisation that the Mother’s oral Application to discharge the expert was essentially otiose and should have been discontinued. Alas, for all concerned, it obviously was not.
The “modern” fons et origo regarding trial management is the High Court decision in AON Risk Services Australia Limited v Australian National University.[1] For current purposes, it is sufficient that the following matters be noted from it.
[1] AON Risk Services Australia Limited v Australian National University (2009) 230 CLR 175 (“AON v ANU”)
First, in the joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ, their Honours said, at [112] – [114] (internal citations omitted; italicised emphasis in original; underlined emphasis added):
[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[114] Rule 21 of the Court Procedure Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.
In an essentially concurring judgment, after quoting (at [133]) from a judgment of the New South Wales Supreme Court that referred to the importance of parties doing their “thinking in due time and to tell the Court and their opponents their full and true positions”, Heydon J said, at [145] (emphasis added):
… Adherents to that school of thought would think that a party in the position of ANU was under an obligation to burn the midnight oil, to move with a degree of haste, and even to "rush it". After all, ANU was represented by senior counsel who had delivered a well prepared, lucid and detailed address in order to secure the adjournment from 15 November to 27 November 2006. It was represented also by two junior counsel and a substantial firm of solicitors. It employed at least one solicitor of its own in-house. It was seeking to recover $75 million in a commercial cause which it had chosen to institute in a busy court which had 18 days left of the time fixed for the trial. The amendments should have been ready by the morning of 15 November 2006, or at least it should have been possible to provide them within a few hours thereafter.
Summarised, the Court has before it (without leave) an oral Application to discharge the agreed, Court-appointed expert, Dr B. It was made late on the second day of the trial. The Application was never formalised and put into written form. Contrary to this Court’s Rules (5.04), no Affidavit was filed, or evidence called. The only “evidence” so-called, was an article produced by the ABC on 19th June 2023 (“the ABC article”) that refers to parties, and a therapist, with anonymised names. Despite repeated questions to Counsel for the Mother regarding who discovered this article, when it was discovered, and its relevance to the matter currently before the Court, there were no satisfactory answers (indeed, no answers generally or at all) to these and other questions. Nor is there any information, for example, whether the persons referred to in the ABC article are engaged in any other litigation; whether, for example, they have made formal complaints against the therapist referred to; and/or if other therapists have endured the wrath of the same people. For all the Court knows, the persons referred to may be vexatious litigants; there may have been some form of entrapment undertaken here. The recording of the conversations may have been (and perhaps was) done illegally. Similarly, the conversations recorded may have been edited. The Court simply does not know; nor does it know any other potentially relevant background of it. There are, and remain, so many genuine questions about the provenance of the article, the persons referred to, and ever so much more. As I stated in the course of the hearing, the argument(s) advanced by the Mother on this Application might require all experts (or even lawyers) in the future to declare if they have ever had any complaint made against them even if nothing ever came of the complaint. Of course, a complaint is one thing; a formal finding by a regulatory body, or Court, is quite another.[2]
[2] It might also be noted that lawyers, for example, not infrequently have different and various “complaints” made against them from time to time. There is no requirement that they not be entitled to appear in Court and to continue their professional life while-ever there is no relevant finding and disciplinary finding against them that would preclude the continuation of their professional lives. The same general comments apply to other professions, such as medical practitioners, who also reasonably frequently have complaints filed against them. It is only upon a finding by a disciplinary body, and relevantly if and when some sanction is imposed, is there any formal restriction upon their practice.
What is very concerning here is that there is no suggestion, even in the ABC article, that there has been any finding of misconduct by any regulatory body against the therapist involved, or any disciplinary action taken. Yet the Court is being asked, effectively, to become a one-off regulatory body (almost a modern-day Star Chamber) and disqualify an expert against whose professional material and opinion before the Court there has been no challenge. The Court is further being asked to proceed and, de facto, to make adverse findings regarding the conduct of the expert, to the detriment of the conduct of the trial (and its flow-on effect, on the parties and the children most particularly) on the basis of un-named and unrecognisable persons in a media article. As was noted during the hearing, this looked (and looks) and sounds awfully like “trial by media”, as opposed to trial by evidence, where evidence is tested and proper process is followed.
Dr B declined to answer questions put to her regarding any connection between her and the article produced by the ABC. She did so on various grounds, including client confidentiality, and s.121 of the Family Law Act 1975 (Cth) (“the Act”). On one view, Counsel sought (metaphorically) to summarily execute the expert due to her lack of answers or lack of responsiveness to his questions, whereas his own lack of responsiveness to the Court’s questions, seemingly, was acceptable and did not (or does not) warrant censure of any kind. Such double standards was both unfortunate and inappropriate.
Counsel submitted that Dr B’s refusal to answer his questions was sufficient to warrant the Court effectively to draw, by implication only, some link between the unnamed expert in the ABC article and Dr B, and also to draw an adverse inference against the expert that her behaviour (apparently sometime after the Report in this matter was concluded), as an expert, including (apparently) not disclosing any complaints against her, was sufficient to warrant her discharge. This was in circumstances where (a) her detailed primary Report had been available to the parties since October 2022 with no adverse claim against either the Report, its processes, or the Report writer, (b) the Report was admitted into evidence on the first day of the trial without objection, and (c) (as a variation of (a)) no challenge was recorded, either in any Case Outline or orally, regarding the process of interviews undertaken by Dr B of the parties or the children involved, or likewise to the robust conclusions in her two Reports.
Counsel argued that cases “evolve” in the course of a trial, and this was one of them where, somehow and somewhere – both unknown and otherwise undisclosed – some anonymised information disclosed in the press “came to light”, supposedly in relation to the expert’s position and evidence. This opaque and penumbral “anonymous information” in the media is the sole basis for the oral Application. Respectfully, if accepted, this submission would mean that no party, or any Court, would be able to know (and parties be bound by) the case to be presented at trial. This is anathema to proper case, and trial management. It is also procedurally unfair to the other parties involved, and to the Court. This is not to say that, in exceptional circumstances, urgent Applications cannot be made. But exceptional circumstances require exceptional “evidence.” The “best evidence” the Respondent Mother has in relation to this very late, urgent oral Application, at its highest, is innuendo and some implied guilt that has been determined by a media article. There is no causal connection or link between the ABC article and Dr B, or in relation to the matter currently before the Court. In my view, it would be improper for a Court to proceed, and actually determine, the Application only on the basis of an unproven implication. It is also in circumstances where Dr B firmly denied that she could make any connection between her three current matters under complaint and the anonymised parties (and anonymised therapist) in the ABC article.
Counsel for the Mother protested that Dr B’s responses were somehow “pre-prepared” and “legal”.[3] This was, respectfully, a rather quaint argument: someone daring to use “legal arguments in a Court”! Effectively, it amounted to the Mother contending that Dr B should not use (or be able to do so) legal responses to an Application that seeks her discharge, albeit where the grounds of the Application are quite undefined (or ill-defined). It was almost tantamount to disbelief, or worse, that the expert would dare to respond using legal or quasi‑legal terms, such as “confidentiality”, and refer to sections of legislation and regulatory authorities, to protect herself against the challenge to her suitability and/or integrity. How and why anyone would be questioned about their entitlement to protect their reputation, and much else besides, was never explained. In my view, such a response highlighted the poverty of the evidence relied upon, and in consequence, the imprudence of the Application.
[3] See T 190.
Remarkably, no authority was cited in support of the oral Application, or for any of its arguments and submissions; some authorities were provided after the hearing, but to no avail (they are discussed later in these reasons). Again I note that no leave was sought regarding the oral Application. Absent relevant detail as to Application, and as to evidence, everyone, including the Court, was “flying blind.” Counsel parried, but perhaps impliedly (if not explicitly) conceded, that the Application would not have been made if the Report had been favourable to his client. That brief exchange was as follows (emphasis added):[4]
HIS HONOUR: ‑ ‑ ‑ but if the article was favourable to your client I assume you wouldn’t be making this application?
MR DUANE: Well, that’s one way of exploring the issues. That’s a good – that’s a good ‑ ‑ ‑
HIS HONOUR: I’m just asking the question that if it was – if the recommendations and the comments, etcetera, were against the father, as I say, presumably ‑ ‑ ‑
MR DUANE: Well ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ the mother wouldn’t be making this application.
MR DUANE: ‑ ‑ ‑ it wouldn’t be necessary because they – in – so the steps are the parties and the court effectively give their approval by way of an order to a particular person as being appropriate and competent to perform the role they’re asked to. And if there are issues that give rise to whether that is the – whether that order ought to be discharged then wherever they come from then that’s where they come from and that’s a different consideration to whether the same sort of material might be able to be used to say the expert was right or wrong.
[4] T 199.
To put it as neutrally as possible, the Application varied and changed in its parameters, along the way. Among many issues, “precision”, attention to detail, or relevant authority, were not its obvious strong points. Nor was compliance with the Rules.
As explained in detail below, the Father, and the Independent Children’s Lawyer (“the ICL”), opposed the Application.
For the reasons already given, and those which follow, the oral Application of the Mother must be dismissed. Having already reserved costs at the end of the hearing, to minimise further cost and delay, absent any Application to the contrary, the Court proposes to deal with the issue of costs “on the papers.” Accordingly, within 7 days from the date of these reasons and Orders, the parties are to file submissions of no more than 2 pages on the question of costs, which were formally reserved at the conclusion of the hearing.
Oral Application for Discharge of the Single Expert Witness
A brief chronology provides relevant context for the Mother’s oral Application.
On 6th June 2022, the matter was listed for final hearing for 2 days on dates to be advised. On 7th February 2023, the matter was listed for final hearing for 2 days, commencing on 23rd August 2023.
On 15th June 2022, the Court made Orders by consent for Dr B to be appointed as the single expert in this parenting matter.
On 28th October 2022, Dr B filed an Affidavit which had attached to it her detailed Report, dated 14th October 2022. In keeping with standard practice for experts, her qualifications and experience were attached to this Report (at pp.40 – 44).
On 7th August 2023, in answer to a series of questions posed by the Mother’s lawyers, Dr B provided a further Affidavit. This supplementary “Report” ran to approximately 9 pages.
Case Outlines were filed by the parties, and the Independent Children’s Lawyer (“the ICL”), on the following dates: 16th August 2023 (Father); 21st August 2023 (Mother); and 17th August 2023 (ICL). In none of these Case Outlines was there (or is there) any adverse comment directed to or levelled against Dr B personally, the processes or methodology regarding her interviews of the parties or the two children of the relationship (13 year old X and 10 year old Y), or in relation to any of her robust comments or recommendations in either of her Reports.
Summarily, and in very general terms here, both Reports from Dr B were significantly adverse to the Mother. No claim of bias, of any kind, has ever been levelled, or even hinted at, against Dr B. Nor has there ever been raised any question regarding the processes that led to both Reports (e.g. interviews, language used, recommendations).
On the second morning of the trial, Counsel for the Mother alluded to a possible Application regarding the evidence of Dr B. No details were provided, other than confirmation that some information had come to his attention the previous evening and that, on the second morning of the trial, he had alerted the Father’s Counsel, and the ICL, to whatever this new information was.[5]
[5] See T 120 – 124.
What was particularly curious, as well as concerning, was that at no stage was leave sought to bring this oral Application. In this regard, I note that Rule 2.01(4) requires that any Application for an interlocutory Order “after the start of the proceeding and before final Orders have been made in the proceeding, the Application must be made by filing an Application in a Proceeding.” This has never occurred; and Counsel never sought leave to proceed with an oral Application, and similarly never sought leave to dispense with the Rules requiring that there be filed an Application in a Proceeding.[6] Perhaps everyone on the Mother’s side would do well to consider the old adage: act in haste, repent at leisure.
[6] Among other places, see generally rr.1.33 and 1.34.
Dr B was scheduled to give her oral evidence on the second day of the trial. This was to commence at 2pm. At that time, she was duly affirmed (virtually) and Counsel for the Mother commenced to pose questions that, he said, arose out of an article (“the ABC article”) that had been broadcast and published by the Australian Broadcasting Corporation (“the ABC”) in June 2023. No Application (or Affidavit) was filed, or otherwise formalised, on the Mother’s behalf, before, during or after the oral Application. Thus, every aspect of the Application was done, literally, “on the run”, which led to multiple attempts by the Court to secure relevant precision regarding the evidence relied upon, and the legal bases and proper characterisation, of the Application. Unsurprisingly, the ABC article gives no identifying information regarding the parties referred to, or involved, in it. Nor does the ABC article provide any identifying information regarding the therapist who was involved.[7]
[7] The ABC article, together with a very brief Media Release by this Court, both of which were published on 19th June 2023, were provisionally admitted into evidence.
Despite regular questions about the following matters, at no stage was it explained (a) when the ABC article came to the attention of the Mother’s lawyers (accepting that it only came to the attention of her Counsel the previous evening)[8], (b) why no Application was formalised so that all others involved in the litigation (including the Court) might have a better understanding of the evidence relied upon, and the proper [legal] grounds of the Application, what the Mother’s Application regarding Dr B was, (c) why there was such delay between June when the ABC article was “published”, and the oral Application in late August, and (d) how and why the ABC article, apparently, only came to light or the attention of the Wife’s lawyers in the course of the trial. It is as well to repeat the High Court’s comments, earlier noted, from AON v ANU, at [114] (emphasis added):
Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.
[8] For example, presumably it had not come to the attention of the Mother’s lawyers at or around the time of Dr B’s second Report in early August. To state the obvious: had the Mother’s lawyers been aware of the article at that time, and the Application not made until day 2 of the trial in late August, extremely serious issues arise.
The same general comment applies here regarding the lack of explanation from the Mother’s lawyers to many of the most pressing questions raised by the Court during the hearing of the Application, some of which have already been noted, while others are recorded below, perhaps the most critical being when and how the ABC article came to the attention of the Mother’s lawyers.
In any event, Dr B was asked a number of questions about the ABC article, and in particular, whether she was the expert referred to in it. As noted earlier, she declined to answer on the grounds of (a) the question being improper, (b) client confidentiality, and (c) various statutory provisions, such as s.121 of the Family Law Act 1975 (Cth). She referred more generally to various other pieces of legislation or regulatory guidelines which, she said, directed and protected her from identifying any person or matter in which she has been, or currently is, involved in her professional capacity.
After repeated, further questioning, summarised, she confirmed that (i) almost all psychologists receive, or are the subject of, regular complaints by disgruntled or disaffected litigants, and (ii) she currently has 3 outstanding complaints, each of which relate to “therapy” issues (as opposed to any report she has written). She further stated that there was no way she could (or would) identify anyone in the ABC article, or similarly to link any of the persons noted in that article with any of her 3 current complaints. Further still, she said that she was the subject of an ongoing social media attack from various sources.
Counsel for the Mother invited the Court to draw adverse inferences against Dr B because she was not answering, or refused to answer, the questions put to her. As I have indicated, it was not that Dr B declined to answer the questions put to her about un-named persons in the ABC article. Rather, for the reasons noted above, she said that she was unable to comment or discuss such matters. Indeed, it was as if Counsel was suggesting that Dr B was not entitled to defend herself against the implicit attacks directed at her, and further, that any “legal’ response or “defence” from her should somehow be treated as some form of admission of “guilt”, which, thereby, made her an unsuitable expert to remain in the case and her Reports should likewise be discarded. Such contentions, especially in the absence of actual evidence of, for example, relevant bias, lack of proper process or some regulatory penalty (none of which had been articulated at any stage prior to or at the trial), were remarkable. Effectively, condemnation by implication to be drawn from an anonymised article. Procedural fairness, proper process, tested evidence, findings and penalty of a regulatory body or Court, need not be applied here. And even if the recordings referred to in the ABC article had been obtained illegally, who cares; nothing to see (or hear) here. Condemnation first; presumption and assumption of guilt is sufficient; no “defences’ permitted, and if raised, they further condemn Dr B.
The difficulties, on multiple fronts, regarding the Application, were made plain in the following exchanges, first with Counsel for the Father (who summarily noted a range of basic flaws in the Application), then with Counsel for the Mother (emphasis added):[9]
[9] See T 189 – 192.
MS DART: I think it [the ABC article] was originally an audio file. Nevertheless, while I don’t make a formal objection to your Honour reading it I’m unclear as to the basis on which the application is made to disqualify [Dr B] as an expert. And, in my submission, that needs to be articulated to say there is a news article, there is a media release where an expert hasn’t been identified but has some connection – and I use that broadly – but is more so an expert that works in the family law field and it’s – her answers are unsatisfactory. How did that lead to an application for disqualification in relation to this matter in circumstances where no evidence has been led as to the conduct of the interviews in this case? No evidence has been led or suggested as to any impropriety of the single expert in this case in the manner that she interviewed the parties or the children or in the way that she conducted her assessment and you haven’t been taken to any of the contents of the report that would give rise to – in the circumstances of this case a basis for discharge in the particular circumstance of this case.
What you’re left with is there has been a media article in which allegations are made. There may be – or there may not be a complaint. There has certainly been no findings of a regulatory body but on the basis that there might be or on the basis that that was not absolutely disavowed you would remove an expert from this case. And I say the nexus as to disqualification is simply not there. Particularly, absent any suggestion about the way that the assessment in this matter was conducted.
HIS HONOUR: Perhaps if I just double-check with Mr Duane. So in terms of “legal principle” what’s the legal principle? Is it absent of process? Is it procedural unfairness? Is it apprehended bias? What is it?
MR DUANE: It’s suitability. So a complete lack of confidence as to the suitability of the expert in circumstances where she has refused to deny that she is the person who is the subject of the article. And that has – and the difficulties that there has been in engaging with her in any examination of whether there are any issues as to competency as a result of the avoidance of the topic. Now, she could easily have said, yes, and here is a copy of the complaint. No doubt this is not the first or the last of the difficulties that will arise as a result of this sorry predicament. And instead, there are excuses and dissemination and avoidance, in my submission, and your Honour will make findings about it about some simple inquiries that were – that you might – that the court might necessarily wish to embark upon where these issues are raised. There’s just nothing. And it’s that failure to engage ‑ ‑ ‑
HIS HONOUR: No, but how – sorry to interrupt but how did you draw a link between [Dr B] and whatever is in this report or this media story?
MR DUANE: Well, that probably doesn’t matter. Your Honour knows ‑ ‑ ‑
HIS HONOUR: Well, I would have thought it does because if this witness – as she said, “I can’t draw any link between the complaints that I’m aware of and this article,” that you say that’s her avoiding saying yes I was or no I wasn’t the person named.
MR DUANE: Well, she came straight out with it, “I can’t answer it for legal reasons.” You know, her first answer is almost a pre-prepared answer on the topic. A legal defence to answering the question. Your Honour, it’s common knowledge ‑ ‑ ‑
HIS HONOUR: Sorry, what’s common knowledge?
MR DUANE: Who the author of the report is.
HIS HONOUR: Well, I’m sorry. I hate to ‑ ‑ ‑
MR DUANE: Not common to your Honour.
HIS HONOUR: I hate to live in a cave but it’s not common knowledge to me.
MR DUANE: Well ‑ ‑ ‑
HIS HONOUR: You know, do I have to make a – you know, some sort of a check with all of the family consultants of the court or what?
MR DUANE: Clearly, the – well, clearly, it wasn’t common knowledge to your Honour or you would have done something about it or mentioned it in the trial if you thought it was a problem.
HIS HONOUR: I didn’t know anything about any of this until you raised it for the first time and your application seems to be based primarily upon the responses or what you say the evasive responses of [Dr B] as opposed to whatever you or your client – but you wouldn’t have been able to speak to her last night when you first became aware of it. Whatever the basis was of drawing whatever connections between this article when you became aware of it and flagging it this morning to your colleagues.
MR DUANE: Yes. Well, she’s very – so my client’s position is that the report writing process was very much against her and that the ‑ ‑ ‑
HIS HONOUR: And – sorry. And where and how is this raised other than now from you?
MR DUANE: Well, it would be certainly raised during the course of cross‑examination if we had to get there ‑ ‑ ‑
HIS HONOUR: Sorry.
MR DUANE: ‑ ‑ ‑ but, for example, if I can just deal with this in submissions. She gives various opinions which are not explained in terms of the basis for arriving at the opinions. Many of them are assessments that rely on her integrity in terms of assessing and putting a label on behaviours. So there was some fairly pejorative descriptions of the mother including a suggestion that she moved – her move to Brisbane was manipulative. And ‑ ‑ ‑
HIS HONOUR: Sorry, this is – this is getting more into like the usual kinds of queries about whether or not there was a legal basis for the opinion and the connection there.
MR DUANE: But ‑ ‑ ‑
HIS HONOUR: That’s a different thing to running an application now because there was this media story about someone who did or didn’t do (a), (b) or (c) whatever it is.
MR DUANE: Well, your Honour, it isn’t raised lightly. The contents of the article which you will see ‑ ‑ ‑
HIS HONOUR: I’m [not] suggesting it was.
MR DUANE: ‑ ‑ ‑ when they were raised were raised for squarely the suitability if any – if the things that are set out in the – which are recorded in the articles. So the article deals with one of the two parties taking lengthy recordings of what occurred during therapy. So this isn’t something that the ABC – they’re not – we’re not talking about the – I’m assuming there might be the [Town C Newspaper] or something like that. There might be a small media enterprise making publications. This is a reputable – large reputable organisation that has done an investigation and produced a report and there are recordings. So on the face of it, it is a matter – that they are matters that are worthy of some explanation. And what explanation have you been given? It’s totally unsatisfactory.
HIS HONOUR: Sorry, an explanation about what?
MR DUANE: Well, if – so one might expect that if the single expert was not the person referred to the – in the article they could simply say so rather than all of what you heard.
HIS HONOUR: Well, you’ve kind of ‑ ‑ ‑
MR DUANE: And ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ mentioned it a number of times so I’ve got that point.
MR DUANE: All right. I will try not to be any more repetitive.
Counsel for the Mother sought more time from the Court to formulate and to make the Application more precise. The High Court’s comments in AON v ANU about urgency and “burning the midnight oil” again come to mind. Counsel acknowledged that this was, in part, because of the urgency of the Application and the need to formulate more precisely the detail of it, and further because, in his submissions, of the non-responsiveness of Dr B. Exactly why the imprecision of the Application was somehow Dr B’s fault was not immediately apparent. Indeed, Counsel never explained what answers he had hoped for and, if he had obtained whatever it was that he sought, what (if any) Application he might make. It was genuinely all so rushed and imprecise. Indeed, it was so difficult that the Court sought to assist Counsel in framing the Application, namely (and simply) to have the single expert discharged. More is said on these matters later in these reasons. The need for some clarity about the Application was in circumstances where the Court was quite unclear what the basis was for the Application, for example, was there a contention of apprehended bias, procedural fairness, or what?
Likewise the Court inquired whether there was any issue regarding the foundation of the Application based on long-established principles in cases such as Dasreef v Hawchar.[10] It was all, unfortunately, quite opaque, and so rushed, with the crucial flow-on effect of interrupting the finish of the trial. Ultimately, however, the Application was run on the basis that there had been, so it was contended, some breach or other of specific parts of the Court’s Rules regarding expert witnesses. Again, however, there was no challenge to (a) the qualifications or experience of Dr B, (b) the processes of, or methods used by, Dr B in relation to interviews of the parties or the children, or (c) either of Dr B’s Reports or recommendations. In the course of submissions, there were attempts to broaden the grounds of the Application. Regrettably, the oral Application was something of a “moveable feast.” And, to state the obvious, the Mother was seeking to challenge the two Reports of Dr B, not on anything said or done by her during the Report processes, or in the comments or conclusions in the Reports, but solely on ex post facto discovered anonymised material (exactly when discovered remains a mystery) from which the Court is asked to draw adverse inferences!
[10] Dasreef v Hawchar (2011) 243 CLR 588.
The basic contours (together with selected parts of) (a) Dr B’s evidence, and (b) the Mother’s sort of further refined submissions regarding the oral Application, were as follows.
Regarding the Oral Discharge Application: Summary of Dr B’s Evidence
Dr B’s oral evidence regarding the ABC article and related matters, was as follows.[11]
[11] Dr B’s evidence is at T 169 – 186.
Dr B was first taken to various compliance requirements referred to at the end of her report and her qualifications and experience. These related to various professional codes of conduct of, for example, the Australian Psychological Society. Then she confirmed that she was a person of more than sufficient competence and professional standing, saying that she had been working as a single expert witness for over 15 years.
The following question was then put to her; “…as a single expert witness to the Court, it is important that you make declarations about any significant matters that you expect the Court would be interested to hear about?” Dr B responded; “If there are any.”[12] What constituted “significant matters” was never explained, or who determined (and how) what was and what was not “significant.”
[12] T 171.
In a similar vein, the following somewhat opaque question was put to her;
…Certainly, if your professional conduct or professional ethics had been called into question significantly, you ought to reveal that the Court in the course of these proceedings; is that right or not? --- …well, there is no issue.
Dr B was then taken to the ABC article. This was titled; “Lies, Threats and Manipulation. How Recordings Exposed a Rogue Expert Witness in a Case.” Counsel for the Mother confirmed that the ABC article “appears to be dated 19th June 2023.” Dr B confirmed that she knew the article that was being referred to. She was asked directly; “And you are the psychologist? – are you the expert referred to in that article?” She immediately responded in the following terms;[13]
Your Honour, I consider the question is greatly improper. I am prevented by answering by a whole lot of both Commonwealth laws and State laws. You might want to know that difficulties with complaints are – is a universal and international problem of which I have spoken about to a Senate inquiry […]. It’s an improper question.
HIS HONOUR: So do I take that as a formal objection to the question ‑ ‑ ‑?‑‑‑I do, your – you do, your Honour.
Right?‑‑‑I am happy to answer questions about this matter, but I think the question is improper, and I am prevented from answering.
[13] T 173.
Dr B said that there was no follow up to the ABC article. Again she was asked if she was the person referred to in the ABC article; again she stated that, in her view, this was an ‘improper question’ and that she was constrained in disclosing anything pursuant to s.121 of the Family Law Act 1975, and also as a result of principles of confidentiality referred to in various other regulatory instruments (the latter reference is the Court’s language in circumstances where Dr B referred to some other “Health Practitioners Regulation Act” which may likely not exist); such matters are canvassed briefly later in these reasons.
Notwithstanding the same responses given by Dr B on a number of occasions, she continued to be asked questions about the ABC article, and that for reasons already given she was not able to respond. She confirmed, however, that she was happy to answer any questions in relation to the matter before the Court.
It was at this juncture that the Court questioned the utility and validity of such questions that, on its face, could be taken to suggest some form of “trial by media” of Dr B. To this query, Counsel for the Mother said that “it is a question which might lead to other questions in relation to whether or not this witness is able to give evidence as a single expert witness in these proceedings.”[14] Counsel confirmed that, in his view, the matters raised in the ABC article gave rise to questions regarding Dr B’s “suitability” to remain as the expert in the case. Certainty and clarity of “evidence” asserted by Counsel remained, in my view, extremely elusive as well as necessarily speculative, especially in the light of Dr B’s responses.
[14] T 175.
Next, Dr B was asked whether or not she had been the subject of a complaint to a range of regulatory bodies, such as the Psychology Board. Counsel for the Father objected to this question on the basis that the necessary nexus between the ABC article and any relevant complaint had yet to be established. Further, Counsel for the Father contended, in my view reasonably, that a general question as to whether somebody has ever been the subject of a complaint is a very broad question and was, in its terms, unfair to this witness. The Court noted some earlier comments from Dr B that receiving complaints was an occupational hazard for psychologists; the Court noted that it was not uncommon for lawyers, doctors and many others to receive complaints in relation to their professional conduct.
At a little length, Dr B commented that, having been a single expert for over 15 years, there have been perhaps about 6 months when she has not been the subject of a complaint or some ongoing investigation. She said that out of some 25 or so complaints, they have all been dismissed. She said she was cautioned once and in part, this was due to the vexatious and difficult nature of the litigants involved, and also the general difficulties in dealing with the regulatory body AHPRA.[15] Dr B confirmed that she had received a caution twice in her career. She said in both instances, no reasons were given for the caution involved. She noted also that, such decisions were non-appellable. She thought that those complaints were in, maybe 2009 and 2012.
[15] T 176. “AHPRA” is the Australian Health Practitioner Regulation Agency; it is discussed briefly later in these reasons.
She said she currently has three complaints outstanding, which she said was not an unusual number. They were matters involving three different families. She confirmed further that she has been the subject of an ongoing social media campaign, especially by a particular woman who has been collecting complaints about Dr B. That matter appears to be the subject of an ongoing investigation and her defence of it. She denied that that complaint (or either of the other two), related to anybody or anything referred to in the ABC article. Indeed when it was put to her directly whether or not she had any complaints “arising from or following the news article [the ABC article]…”, she replied in the negative. When asked further about details concerning the three outstanding complaints she simply said that they were being dealt with by the Psychology Board of Australia, but that she would not otherwise provide any information about the specific matters. She also noted that, in relation to the three outstanding complaints, because of the constraints on her under the Family Law Act and otherwise, she was not in a position to “defend myself”, nor could she do anything about them, and that she was not going to answer any more questions about specifics concerning those matters.
Notwithstanding the clear grounds upon which Dr B refused to answer “specifics”, Counsel for the Mother still pursued the same line of questioning. Dr B then outlined, in very general terms, the wide range of sometimes extraordinary allegations against her, a couple of which included breaking up relationships, and other things which she said that such matters “range from ridiculous to absurd.” She continued by explaining about one particular matter, obviously still in general terms, relating to various parties where there was mutual denigration. Dr B simply commented that the denigration was the substance of the complaint in one of these matters and then observed further that such matters were things that “happen in family law.” She was pressed further by Counsel for the Mother to confirm that she was giving a full and accurate description of what was the nature of the complaint was against her. She confirmed that it was. She also said that the complaints arose out of therapy that she was providing to various families and that such therapy can, at times, mean that parties have “robust words” with one another, and that they then complain about the therapy.[16]
[16] T 179.
Dr B was then taken through very specific alleged complaints involving her, somewhat summarised thus; whether or not she had been accused of advising that she could write a report, as it were, tailored for the proceedings in question. She said she has no complaint about such a matter. Next she was asked whether or not she has a complaint involving coercion against a family. To this, she simply said that the complaints that she currently has relate to the parties “denigrating each other.” She denied that there was any complaint in relation to coercion of a family. Next, she was asked whether or not there was a complaint suggesting that she had admitted to contacting a solicitor without consent. She denied that there was such a complaint. Finally she was asked whether or not there had been a complaint about conducting traumatic therapy sessions in busy parks and shopping centres. She commented that this subject had been the topic of the social media campaign against her. In part, this was because there were various misconceptions about therapy needing to take place only in an office, in contrast to various therapies which take place in public places as part of ‘immersion therapy’ or ‘community-based therapy.’ She said that there were complaints about this kind of therapy, but only conducted through social media.[17]
[17] T 180.
Then followed something of a protest from Counsel for the Mother, saying that the responses from Dr B were “unsatisfactory” and “indeed wholly unsatisfactory.” I took this to be a generalised complaint that Counsel was not getting the responses he expected or wanted. Such, of course, is the nature of cross examination. He went on to contend that “the parties paid a lot of money to have, and the Court has a great interest in having, expert witnesses about whom there is confidence to give evidence.” He said therefore he was compelled to go through the detail of the ABC article, but expected there to be “non-responsive answers.” At this juncture the Court outlined its “grave concern” about the way this examination of Dr B was “playing out”, both as to the time being consumed and the gravamen of the accusations being made and rebuffed. Counsel said that he accepted this.
Dr B was asked whether or not she was aware that the complaint in the ABC article involved “hours of recording being of her voice.” She said that she was not. Curiously if not alarmingly, especially in the light of the denial from Dr B about any knowledge of any “recording”, neither during the questioning of Dr B, nor subsequently, did Counsel make any submission regarding the legality or otherwise of such taping. Similarly, there was no questioning of any “editing” of any recording. Presumably, as Counsel submitted, the ABC was/is a “reputable” organisation, thereby perhaps implying that there was no editing of any kind. That said, the Court may be able to take judicial notice that there must have been some editing, both of the article and the taped recordings at some stage, to some degree.
Dr B was asked whether or not any part of the complaint from either of the parents was about her allegedly dismissing or downplaying family violence. She said she did not think so. Then she was asked whether or not any part of the complaint included that she had traumatised the parties’ teenager, driving “a lasting a wedge between father and son.” She simply, but firmly, said “no.” It was only confirmed a little later, that the questions that had just been put to Dr B related not to her three current complaints, but rather to complaints relating to the ABC article. Among other things, this led the Court to ask Counsel what the time frame was for the events that were recorded in the ABC article. To this straightforward question, unfortunately Counsel parried it, saying “I don’t know, you would have to ask the witness that.”[18] Again, this assumed a significant number of things, none of which had been established. Everything remained based on conjecture and assumption, neither of which was a proper basis for the Application. Conjecture and assumption, without significantly more, are not evidence.
[18] T 181.
In my view, such a response unfortunately showed that such enquiry that had been made hurriedly was again seriously lacking in proper detail, but which was then deflected to cast further aspersion upon Dr B. Rather, the focus should at least have been equally upon the inadequacy of the research and enquiry of those who had foraged for whatever reason for the information that somehow gave rise to this ABC article coming to light, and was now being used to attack the suitability and competence of Dr B, when such matters had never been raised in any material before the Court prior to the oral application by the Mother.
Dr B confirmed that the three currently outstanding complaints she has relate to matters which go back to 2017.[19]
[19] T 182.
When asked to explain or direct the Court’s attention to where this questioning was going, the following exchange took place (emphasis added)[20]
MR DUANE: Well, your Honour, I’ve been chipping away – that’s all I have been doing – trying to get through the article and trying to get the concession that there is a – about whether or not there is a complaint that has – that is active in relation to the contents of this article.
HIS HONOUR: But I thought [Dr B] had already responded to that, namely, she can’t make any connection between the three outstanding complaints, at the moment, relating to therapy and what is or is not in this article.
MR DUANE: Well, she can only do that if she knows – as read the article in detail. We’re dancing around this subject, with respect, your Honour. She does have ‑ ‑ ‑
HIS HONOUR: I have worked that out. Something that I thought and was told might be 10 minutes/might be 15 ‑ ‑ ‑
MR DUANE: Well, I didn’t expect ‑ ‑ ‑
HIS HONOUR: Well, we haven’t really got that one.
MR DUANE: I didn’t expect this level of avoidance.
HIS HONOUR: Well, it might be characterised by someone else in a different way, but – whatever – ask your questions, but I’m not sure, really, for how much longer. How many more – how much more of the article have you – do you say that you’ve got to traverse, especially having regard to what [Dr B] has said?
[20] T 183.
Dr B confirmed further that, apart from the current three outstanding complaints, to the best of her knowledge, all other complaints had been concluded.[21]
[21] T 183.
Dr B was asked again about complaints involving allegations of minimising domestic violence. Counsel for the Father again intervened, noting that a similar or the same question had been answered previously. In any event, Dr B confirmed that she does not have any complaints that relate to an allegation of minimising domestic violence. When asked whether or not she had said to one of the parties that she would provide a favourable report that would give him a better chance at having full custody of the child, her response was unequivocal, “of course not.” The same response was given about whether or not she had said something to the effect of, that she could simply file the report directly in a court case and “drop a bomb.”
At this stage, the Court expressed further concern that the questions now were very generalised queries or complaints, while Counsel for the Father, unsurprisingly expressed concern about being conscious of the amount of time that was being taken up in the current exercise.[22]
[22] T 185.
Finally, Dr B was asked whether or not she was aware of the matter the subject of the ABC article being investigated by both AHPRA and the Psychology Board of Australia. She said she was unaware of any such investigation and said that she simply left such matters to those respective bodies.
Neither Counsel for the Father, nor the ICL, sought to ask any questions of Dr B.
Submissions
Summarised, with occasional comment along the way, the submissions by each of the parties and the ICL, were as follows.
Submissions: Counsel for the Mother
Counsel for the Mother opened his attack on the basis that the admission of Dr B’s report could and should be “reviewed in the light of what has come to light.” Respectfully, the quality, nature, and foundation of “what has come to light” was neither explained, nor clear. He went on to say that there was “a huge amount of evasiveness about a fairly simple question about whether the article was about her or not, and that is extremely unsatisfactory based on the role that she plays.” Respectfully, the description of Dr B’s evidence as “evasive”, in my view, is far too categorical. She plainly knew that she was “literally under attack” in relation to her competence and processes, and not a few other things as well. It would hardly be surprising if a person in her position did not, reasonably, undertake a course which was seen to be much more protective than evasive. And again, how could anyone formally “admit” anything about an article where all persons in it have their identity anonymised. More particularly here, Counsel did not specify exactly what had supposedly “come to light.” Respectfully, it was more a case of everyone groping in the dark rather than being dazzled by what had purportedly “come to light.”
Next it was contended that Dr B had “entered the fray” and had engaged legal submissions in relation to any possible nexus between the ABC article and she being the expert referred to in it. The comment just made in relation to “protection” applies equally here. Protection of one’s professional and personal integrity hardly qualifies as “entering the fray.”
When asked by the Court how Counsel (or the Mother) relevantly engaged with Dr B’s evidence, namely that she only had three outstanding complaints against her, and in the light of this evidence where it left everyone including the Court, Counsel’s response was respectfully unhelpful. He simply said; “… it’s very unsatisfactory because she just failed to engage with the process. She just stepped and stepped and avoided.”[23] Again the same comments above regarding a different characterisation also apply here. Further, respectfully, the questions to Dr B were extremely accusatory. They assumed both moral obloquy and professional negligence – or worse. When the accusations and the assumptions behind them were rebutted, refuted or refused, such replies were suggested to be further foundation for her “guilt” and unsuitability to remain as the expert in this matter. The foundation of the questions was, at best, querulous and flimsy, especially because everything in the article was anonymised. The questions and their assumptions were predicated solely upon a single, provocative media article. Even in that article, there was no suggestion of there having been any regulatory inquiry, let alone any disciplinary action, against the therapist involved. Innuendo and assumption are insufficient, indeed dangerous, bases for Applications, especially where so many “background” and other facts remain unanswered, and apparently unchecked.
[23] T 187.
Shortly after these exchanges, Counsel for the Father again intervened to note her “extreme discomfort” with what was occurring regarding “the application and the submissions.” She also commented that the Court needed to consider the Media Release put out by the Court on the same day as the article in question. Everyone agreed that the Court needed to have before it as exhibits, the ABC article together with the Media Release from the Court (both dated 19th June 2023). Counsel for the Father also raised the issue, not for the first time, that she remained unclear (as did the Court) as to the basis on which the application was being made to disqualify Dr B as an expert. In her own words, as already noted but repeated for ease of reference, the concern was as follows:[24]
MS DART: I think it was originally an audio file. Nevertheless, while I don’t make a formal objection to your Honour reading it I’m unclear as to the basis on which the application is made to disqualify [Dr B] as an expert. And, in my submission, that needs to be articulated to say there is a news article, there is a media release where an expert hasn’t been identified but has some connection – and I use that broadly – but is more so an expert that works in the family law field and it’s – her answers are unsatisfactory. How did that lead to an application for disqualification in relation to this matter in circumstances where no evidence has been led as to the conduct of the interviews in this case? No evidence has been led or suggested as to any impropriety of the single expert in this case in the manner that she interviewed the parties or the children or in the way that she conducted her assessment and you haven’t been taken to any of the contents of the report that would give rise to – in the circumstances of this case a basis for discharge in the particular circumstance of this case.
What you’re left with is there has been a media article in which allegations are made. There may be – or there may not be a complaint. There has certainly been no findings of a regulatory body but on the basis that there might be or on the basis that that was not absolutely disavowed you would remove an expert from this case. And I say the nexus as to disqualification is simply not there. Particularly, absent any suggestion about the way that the assessment in the matter was conducted.
[24] T 189 – 190.
This led the Court again to try to clarify with Counsel for the Mother, what the legal principle was that was the cornerstone or the legal foundation of the application. Although it has been set out earlier in these reasons, to appreciate fully the flow of the discussion, it is as well to set it out again here (emphasis added):[25]
[25] T 190 – 191.
HIS HONOUR: Perhaps if I just double-check with Mr Duane. So in terms of “legal principle” what’s the legal principle? Is it absent of process? Is it procedural unfairness? Is it apprehended bias? What is it?
MR DUANE: It’s suitability. So a complete lack of confidence as to the suitability of the expert in circumstances where she has refused to deny that she is the person who is the subject of the article. And that has – and the difficulties that there has been in engaging with her in any examination of whether there are any issues as to competency as a result of the avoidance of the topic. Now, she could easily have said, yes, and here is a copy of the complaint. No doubt this is not the first or the last of the difficulties that will arise as a result of this sorry predicament. And instead, there are excuses and dissemination and avoidance, in my submission, and your Honour will make findings about it about some simple inquiries that were – that you might – that the court might necessarily wish to embark upon where these issues are raised. There’s just nothing. And it’s that failure to engage ‑ ‑ ‑
HIS HONOUR: No, but how – sorry to interrupt but how did you draw a link between [Dr B] and whatever is in this report or this media story?
MR DUANE: Well, that probably doesn’t matter. Your Honour knows ‑ ‑ ‑
HIS HONOUR: Well, I would have thought it does because if this witness – as she said, “I can’t draw any link between the complaints that I’m aware of and this article,” that you say that’s her avoiding saying yes I was or no I wasn’t the person named.
MR DUANE: Well, she came straight out with it, “I can’t answer it for legal reasons.” You know, her first answer is almost a pre-prepared answer on the topic. A legal defence to answering the question. Your Honour, it’s common knowledge ‑ ‑ ‑
HIS HONOUR: Sorry, what’s common knowledge?
MR DUANE: Who the author of the report is.
HIS HONOUR: Well, I’m sorry. I hate to ‑ ‑ ‑
MR DUANE: Not common to your Honour.
HIS HONOUR: I hate to live in a cave but it’s not common knowledge to me.
MR DUANE: Well ‑ ‑ ‑
HIS HONOUR: You know, do I have to make a – you know, some sort of a check with all of the family consultants of the court or what?
MR DUANE: Clearly, the – well, clearly, it wasn’t common knowledge to your Honour or you would have done something about it or mentioned it in the trial if you thought it was a problem.
HIS HONOUR: I didn’t know anything about any of this until you raised it for the first time and your application seems to be based primarily upon the responses or what you say the evasive responses of [Dr B] as opposed to whatever you or your client – but you wouldn’t have been able to speak to her last night when you first became aware of it. Whatever the basis was of drawing whatever connections between this article when you became aware of it and flagging it this morning to your colleagues.
MR DUANE: Yes. Well, she’s very – so my client’s position is that the report writing process was very much against her and that the ‑ ‑ ‑
HIS HONOUR: And – sorry. And where and how is this raised other than now from you?
MR DUANE: Well, it would be certainly raised during the course of cross‑examination if we had to get there ‑ ‑ ‑
HIS HONOUR: Sorry.
MR DUANE: ‑ ‑ ‑ but, for example, if I can just deal with this in submissions. She gives various opinions which are not explained in terms of the basis for arriving at the opinions. Many of them are assessments that rely on her integrity in terms of assessing and putting a label on behaviours. So there was some fairly pejorative descriptions of the mother including a suggestion that she moved – her move to Brisbane was manipulative. And ‑ ‑ ‑
HIS HONOUR: Sorry, this is – this is getting more into like the usual kinds of queries about whether or not there was a legal basis for the opinion and the connection there.
MR DUANE: But ‑ ‑ ‑
HIS HONOUR: That’s a different thing to running an application now because there was this media story about someone who did or didn’t do (a), (b) or (c) whatever it is.
The so-called discussion and the further but shifting elaboration of the various complaints against Dr B and her reports, which had not been raised previously, unfolded further, thus:[26]
[26] T 192 – 193.
MR DUANE: ‑ ‑ ‑ when they were raised were raised for squarely the suitability if any – if the things that are set out in the – which are recorded in the articles. So the article deals with one of the two parties taking lengthy recordings of what occurred during therapy. So this isn’t something that the ABC – they’re not – we’re not talking about the – I’m assuming there might be the [Town C Newspaper] or something like that. There might be a small media enterprise making publications. This is a reputable – large reputable organisation that has done an investigation and produced a report and there are recordings. So on the face of it, it is a matter – that they are matters that are worthy of some explanation. And what explanation have you been given? It’s totally unsatisfactory.
HIS HONOUR: Sorry, an explanation about what?
MR DUANE: Well, if – so one might expect that if the single expert was not the person referred to the – in the article they could simply say so rather than all of what you heard.
HIS HONOUR: Well, you’ve kind of ‑ ‑ ‑
MR DUANE: And ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ mentioned it a number of times so I’ve got that point.
MR DUANE: All right. I will try not to be any more repetitive.
HIS HONOUR: And I’m trying to – and I understand better than I do at the moment there is what I will call the basis of what you would say – please correct me if I’m wrong. The non-responsive answers, in your view, of [Dr B]. Yes?
MR DUANE: Yes.
HIS HONOUR: And that’s non-responsiveness in relation to ‑ ‑ ‑
MR DUANE: The article.
HIS HONOUR: Sorry, is it sufficient if I just call it the ABC article?
MR DUANE: Yes.
HIS HONOUR: Is – that was the site that it was on, yes?
MR DUANE: Yes.
HIS HONOUR: Right. The ABC article. And then there’s – the other ground that I’m hearing for the first time that you and/or your client have issues about the process of the interviews involving at least the mother, yes?
MR DUANE: Yes. It’s the conclusions ‑ ‑ ‑
HIS HONOUR: And – sorry.
MR DUANE: And the conclusions that are reached in the report.
HIS HONOUR: Yes, yes. But these are more, sort of, standard questions about reports and, therefore, you know, the Dasreef v Hawchar issues about the basis of the opinion reached. The reasoning process and the evidence and the sort of link between the – so that’s another arm of the application, is it?
MR DUANE: Well, it just goes to that aspect so I think you – it is said of me that I haven’t said any – made any criticisms about the report or said anything that’s in issue or that flows from this. There are two primary factual, sort of, broad descriptions that are very much in issue. One is the conclusion that it was manipulative to go to Brisbane and the second is that the mother will not comply with court orders. Will not foster relationship with – between the children and their father if they are in Brisbane. And the nature of the material in the article would give rise to concerns about whether you would accept where that is challenged, the expert’s opinion over the – over the sworn testimony of the parties. The contents of the report are so troubling that they call into question the whole of the process.
HIS HONOUR: Is any of this in the case outline or any of the mother’s material?
MR DUANE: No, because I did not know about this until last night.
There followed some further discussion regarding the purported “evolution” of matters during a trial. For my part, I do not share this evolutionary theory for the simple reason that parties and the Court are entitled to know with as much precision as possible what the case is that they are meant to meet and the Court to decide. A rolling or evolutionary emergence of issues is not something that can or should be permitted, other than in the most exceptional circumstances. Relevant parts of this discussion were as follows;[27]
[27] T 194 – 195.
HIS HONOUR: I’m just trying to – I’m just trying to understand can you take me to any paragraph in the case outline that deals with concerns, issues about the family report? Sorry, about the expert report either as to process to conclusion.
MR DUANE: Well, no, I can’t. I will just take that on notice but I don’t think there is a question that directly deals with those things.
HIS HONOUR: Well, certainly. Yes. I don’t – I don’t recall there being any such issue raised.
MR DUANE: No, but it’s not uncommon for there to be – I’m not sure that it was – it’s not uncommon for there to be a case which develops and for it to be clear that there is a – this amount of evidence about this particular topic. There were these various opinions that were expressed in the report. At the end of hearing all the evidence you should accept the parties’ evidence rather than the conclusion in the family report. There’s so much in a family report and I certainly would contend that the central components of the family report were in issue. The mother certainly doesn’t ‑ ‑ ‑
HIS HONOUR: Just that there won’t – but they won’t articulate it.
MR DUANE: Well, it could have been better articulated, your Honour.
HIS HONOUR: No, not just better. Just done. Just to give notice to everyone this is the case that everyone is having to deal with including the court. I wasn’t aware of any and maybe I missed it when I was going through all this on – over the weekend but I didn’t – and I raised with you yesterday morning – was it only yesterday morning?
MR DUANE: It must be an enjoyable process.
HIS HONOUR: I will get a bucket for my joy. That – sorry, respectfully. That I raised with you what the cornerstones of the mother’s case were.
MR DUANE: Yes.
HIS HONOUR: And you kindly and delicately, as you always do, you know, doing that or, you know, there’s this issue, there’s this issue and this issue and I don’t recall anything. We will obviously check it on the transcript.
MR DUANE: No, there’s no issue. I didn’t say the family report process was flawed in the ‑ ‑ ‑
HIS HONOUR: Or the report itself.
MR DUANE: But I wasn’t addressing you about the family report. I was just addressing you about what the mother’s case is. The consequence of that is that you know my case was genuine, if naïve, move to Brisbane that must have called into question the family report writer’s opinion to the contrary.
HIS HONOUR: Why?
MR DUANE: Because she says it was a manipulative move.
HIS HONOUR: Yes, but every expert that’s what they’re paid to do is to do an assessment, make recommendations, whatever. I mean the court obviously is not bound by whatever any expert says but just because says, well, really this is my view – this is what the expert’s view is, therefore, that one – you know, Houston we have a problem. Well, yes.
MR DUANE: Well, it has only really come about because of the knowledge that has come about subsequently. One wouldn’t jump to conclusions about inadequacy of experts without the sort of things that are dealt with in the article.
HIS HONOUR: The benefit of the 2020, you know, rear view mirror now we understand the problem.
MR DUANE: Well, specifically in relation to the expert. Prior to that one just might leave the topic quietly alone and at the end point to the lack of evidence in support of the conclusion.
At this juncture, when pressed again to give some greater degree of clarity and particularity about the current application, Counsel sought to have a brief adjournment so that such matters could be given “the attention that it deserves.” In the course of this discussion, the Court again asked who made the enquiries and when they were made regarding the ABC article, and why they were not made earlier. After some time, Counsel confirmed that there had been “just discussions between solicitors” regarding the identity of the expert in the ABC article. The “solicitors” referred to were not identified, or how or why such discussion arose.[28] There was no answer to the question “when” the article was discovered.
[28] T 195 – 196.
As a further indulgence, the Court granted Counsel’s further request for an indulgence so that the “clarities” sought might be able to be obtained. This break was for approximately 15 minutes.
At the outset, in response to questions from the Court, the following propositions were accepted as correct:[29]
(a)The ABC article in question does not relate to the current matter before the Court;
(b)Nobody suggests that any of the parties in the current matter went to or received any therapy from Dr B; and
(c)Neither of the parties in the current matter made any complaints that are the subject of the ABC article.
[29] T 199.
It is unnecessary for me to repeat what has been stated earlier in the next part of Counsel’s submissions which confirm that, if Dr B’s report was strongly in favour of the Mother and against the Father, the current application would not be made against the single expert by the Mother. Counsel stated; “…it wouldn’t be necessary.” [30]
[30] T 199, as already noted, the complete text of this exchange between the Court and Counsel for the Mother is set out earlier in these reasons.
In response to further questions from the Court, by reference to Part 7 of this Court’s Rules regarding experts and their reports, it was confirmed that the challenge was to Dr B’s knowledge and or capability, which, it was submitted, arose because of the untested and unparticularised contents of the ABC article. This was in circumstances where it was again acknowledged that the article does not relate to anything in the current matter before the Court. Counsel then went on to put an unusual, if not concerning, proposition to the effect that “if there were a determination that the expert was incompetent.” However, there was no explanation as to who would make such a determination, the basis of such a determination (which could only be based on “information” available only after the preparation of both Reports), and how it could be relevant here, when no such determination has been made - unless Counsel was wanting or seeking to have this Court make such a determination based solely on a media article with anonymised material in the face of the clear denials from the expert.
The almost endless attempts to clarify the nebulously framed propositions against Dr B continued. There was the following exchange, whereby a refusal from Dr B to give the answers that sought, and where she instead gave what I will call protective responses of her position, Counsel proposed again that an adverse inference be drawn against Dr B. It was expressed in the following way (emphasis added):[31]
MR DUANE: No, the questions – there are questions as to competency that are raised in the article and ‑ ‑ ‑
HIS HONOUR: So you’re wanting me to draw a direct link between the article and unidentified parties, etcetera, and this matter?
MR DUANE: Yes, because the expert refused to do the simple task of saying that’s not me in the article.
HIS HONOUR: Right. So is that … ground one or are there other grounds?
…
MR DUANE: So that the contents of the article raise questions as to whether the witness will bring impartiality and independence or objectivity to the process but because of what is alleged to have occurred in the article. So the contents ‑ ‑ ‑
HIS HONOUR: Would you accept though that every report by any expert is going to favour, to some degree – and it’s only a question of degree – pardon me – one side or the other?
MR DUANE: There’s no doubt about that. All one can hope for is that there will be impartiality and the appearance of it prior to entry into the task and that the person who is given that task has that appearance. Now, if there are fundamental questions about their capacity to do so on that score by reason of things that have happened in another matter or are alleged to have happened that are not possible to engage in because of the way the witness answered questions. Then they go to the heart of what is necessary from an expert aside from competence.
[31] T 200.
I simply note, again, that prior to the ABC article coming to light, no questions have ever been raised by the Mother (or anyone else) about the qualifications and experience of Dr B, or about either of her Reports in any respect.
The almost relentless series of questions by the Court, with unfortunately little satisfactory response, regarding who did the initial foraging for the ABC article (and when it came to light) led to the following exchange, and the confirmation that until Dr B responded in the way that she did, in Counsel’s view, there was “no evidence” before the Court in relation to the Mother’s application. The “lack of evidence” concession was almost sufficient, of itself, to dismiss the oral Application. To state the obvious: no Application can or should be brought where there is no relevant evidence or foundation for it. As is plain here, the only evidentiary “foundation” for the Mother’s oral Application was and remained a media report which contained only anonymised characters. The exchange was as follows (emphasis added):[32]
HIS HONOUR: It just seems – can I just say it just seems curious – I will put it as neutrally as I can – the basis for submissions. Hence, my earlier questions before the short break of like you only found out about this article last evening at some stage. Someone obviously had been doing some digging some time beforehand but I’ve got no information about when or how that was done or by whom.
MR DUANE: Well ‑ ‑ ‑
HIS HONOUR: Correct?
MR DUANE: Yes. That’s right. So, you know, that process it’s important to differentiate between gossip and evidence and until today there has not been evidence. So until questions were asked all that there was was whether or not what I needed to satisfy myself of was – there was a reasonable basis for making an inquiry. And the inquiry was put in very particular terms. So it is quite important to have a proper basis for these sorts of applications which is what a lot of – between yesterday and this morning was concerned with is that question but it having arisen and the course that the evidence has taken that one – no step could have been taken to remove the expert until the expert gave an answer to the question. No step could have been taken because that would have just been based on hearsay, gossip.
However you want to describe it. Pretty good gossip or pretty well sourced gossip, one might say, but, nonetheless, not evidence. So it wasn’t possible to take the step prior to today but having done so critical issues concerning competence and objectivity and ethical behaviour generally are the three essential core bases for there being a lack of capacity to continue to perform this extremely important job.
HIS HONOUR: But no questions raised about the report process, whatever, has been raised until this afternoon. Correct?
MR DUANE: Yes, that’s quite right. So there will be the normal cross-examination but really this is quite different to that.
[32] T 201.
Finally, the following exchange describes what, in the Mother’s view, the Court would relevantly glean from the ABC article that was said to be matters that would trouble the Court sufficiently so as to warrant the discharge of the expert in this case. Those final exchanges were as follows (emphasis added):[33]
MR DUANE: So really that will be the background. Once you read the article you will be in a position to consider whether you’re troubled about the central matters that are necessary for an expert to discharge their function.
HIS HONOUR: And you say that it’s imperative that I read the article for the purposes of this application?
MR DUANE: Yes, and we’ve, I think, flagged this as being on the voir dire so, you know, it’s – so there isn’t – shouldn’t be any difficulty taking that evidence in for that purpose or that has been received, in any event. And the other last aspect is that the sub (3) of the expert witness’ duties really is – at paragraph (e) is asking the expert to tell the court – and it lists some named things but (ii), in particular:
If the expert witness believes the report prepared by the witness may be inaccurate for any other reason.
Now, it would be my submission that the expert ought to inform the court where there are serious professional conduct complaints made about them of substance. Sorry, serious professional complaints made about them. When I say “of substance” I mean going to their capacity to be an expert witness. I don’t mean that the report writer was biased because they ought made a recommendation in favour of the other party but these are issues that when you look at the article they go far beyond that and deal with competence and ethical matters. That’s it from me.
[33] T 203.
As a general proposition, subject to what is noted further below, and in the other submissions from the Father and the ICL, the crucial aspect of establishing a nexus between Dr B and the ABC article, at its highest, depends upon Dr B declining to say whether she was or was not the expert referred to it. Otherwise, the nexus in any form was not addressed at all in submissions. Indeed, as the following exchange makes clear (noted above), the so-called nexus was, in Counsel’s view, basically irrelevant. In my view, this was an extraordinary proposition (emphasis added):[34]
HIS HONOUR: No, but how – sorry to interrupt but how did you draw a link between [Dr B] and whatever is in this report or this media story?
MR DUANE: Well, that probably doesn’t matter. Your Honour knows ‑ ‑ ‑
HIS HONOUR: Well, I would have thought it does
[34] T 190.
If the Court accepted Counsel’s proposition that there did not need to be any nexus between the ABC article and Dr B, and acknowledging Counsel’s proposition that, prior to her evidence, there was no evidence to ground the Application, it must follow that there remains no evidentiary basis for the Application. Some might consider such a situation, of itself, more than sufficient simply to dismiss the oral Application. Moreover, having “no evidence”, eschewing the need for any nexus between the ABC article and Dr B, this could only then leave Dr B’s firm denials of any nexus presumably as the only basis, so to speak, of the Application. “Remarkable” is only one of a number of similar descriptions that come to mind.
Submissions: Counsel for the Father
Counsel for the Father: Because of their significant brevity and general succinctness, it is as well to set out Counsel for the Father’s submissions directly from the transcript (emphasis added):[35]
…Returning to the question, however, of the discharge of the expert. The application must necessarily only be on the basis of the media article because although it feels much longer when we were here yesterday there was no objection to the receipt of the reports. There was no challenge made to the receiving of the report. There was no challenge made to the professionalism, to the skills or expertise of the expert. What the court is, therefore, left with is a media article. A media article which may or may not have resulted in professional – complaints to professional bodies but one thing we can be certain of it hasn’t resulted and it may never result in findings being made by a professional body.
HIS HONOUR: Against whoever was involved.
MS DART: Against whoever was involved. So your Honour needs to assume for the purpose of the article – for the – sorry, the purpose of the application that the person referred to in the article is [Dr B]. Secondly, you need to assume that the contents of the article are true and correct and fulsome. And, in my submission, the court would approach that with extreme caution. There has been no inquiry, no review of which we’re aware of the allegations that have been raised in appropriate – before an appropriate court or tribunal. It is a long bow, in my submission, to say because [Dr B] didn’t deny it was her and because her evidence, on one view, may have been unsatisfactory you, therefore, conclude that she’s in the article – the topic of the article. You, therefore, conclude that the contents of the article itself are true.
I don’t step away from the fact that issues raised in that article are matters of concern and the court has acknowledged that in the media release. But how does it relate to the report in this matter if nobody has come to the court and the mother hasn’t in her affidavit material or by way of orders sought or submissions made raised concern about the manner in which it was conducted? The mother doesn’t say that [Dr B] was inappropriate in her engagement with her. She doesn’t say that [Dr B] made threats. She doesn’t say that [Dr B] directed her to act in a certain way or otherwise or that she in any way acted less than professionally. So what we’re left with is the mother who is unhappy with the report. On the heel of the hunt finds out information that may be able to assist her and grabs and attempts to run with it. But, as I say, with some fundamental flaws in the argument that your Honour can’t make a finding that [Dr B] was the author of – was the subject matter of the report.
And your Honour cannot make a finding that the contents of that article are true and correct and completely frank. And, in my submission, there is no other basis which is advanced which would suggest that your Honour would discharge the expert. Your Honour has been referred to requirements under the rules. It cannot be said that any of those requirements would expect a expert to disclose to the court if they had been the subject of adverse complaints to a professional body absent findings of professional conduct having been made. There could be no requirement that is inferred by those rules that an expert would need to come to the court and disclose that they are the subject of a media article or they’re the subject of a Facebook post or they’re the subject of a social media campaign. How does that fall squarely within the duty of the experts to the court? In my submission, it doesn’t.
The court cannot draw an inference that there has been bias on the part of the expert in the circumstance in which she conducted the assessment in this matter to which no complaint is made that would lead to the discharge of the report. It remains unclear as to the precise nature in which the application is made. The application appears to be by reference to the professional rules and an inference that there has been – sorry, the expert code of conduct and that there has been a breach of that duty of the court to be inferred from the media article. And, as I say, your Honour identified at the beginning of the matter this appears to be trial by media and that’s what’s you’re asking to do. On the basis of a media article that might be [Dr B], might be somebody else, form the conclusion she’s not a fit and proper person to perform the role of an expert in the circumstances of this case absent anything more. And, in my submission, absent anything more the application must be refused. They’re my submissions.
HIS HONOUR: Sorry, did you wish to say anything about what I will call the other so-called limb? Namely, that in terms of – I mean you already mentioned this earlier on about there’s no complaint in the mother’s material, either affidavit or case outline, about the process during the report or what’s in the report and there was no objection taken when I asked yesterday morning about its submission. So in terms of what I’ve said in a shorthand way about the Dasreef v Hawchar issues did you wish to say anything about those?
MS DART: Yes, your Honour. I will say this briefly. Your Honour was taken to two issues in which that contention is made. It’s in relation to the conclusion by [Dr B] that the mother was manipulative in her move. And, secondly, that the mother wouldn’t comply with orders of the court. And in the totality of the report that is in excess of 30 pages they’re the complaints that have been made and they’re matters could and should – and if the matter continues would be properly put to [Dr B] during cross-examination. If that is the thrust of the complaint though in order to expedite those issues I wouldn’t be heard against those two statements being excised from the report. It’s not a concession that they’re inaccurate but in terms of the evidence that your Honour has heard thus far and what you need to determine those two statements, I say, are not going to be determinative of your Honour’s determination, in any event.
[35] T 204 – 206.
Submissions: the ICL
Further still, as noted multiple times already, the Court (and the other parties) remains “evidence free” from the Mother because there remains the vexing and unexplained lacunæ of any Affidavits in relation to either of her Applications – the oral Application or the faux, putative or threatened one if the Court’s Orders regarding interrogatories are not withdrawn. For reasons already given, apart from the most general claims of privilege, there is also a complete lack of explanation why a few dates and times, and the naming of persons, (a) relevantly attracts any claim for privilege, and (b) why such information is, apparently, so sensitive. It is almost as if blocking, delay, diversion and all else, is somehow the preferred course here. Indeed, the lack of evidence, and the large number of almost completely unsustainable objections set out in submissions (again, I stress, simply general observations at this time), could indicate some more pervasive plan to delay the conclusion of the litigation. I do not take that view. However, the longer and more insistent the objections become, a view about delay might need to receive greater attention and consideration.
In short: the “Mother’s submissions”, filed incorrectly on behalf (and in lieu) of her lawyer, should not have been filed. The Court’s Orders regarding interrogatories should not be challenged informally by way of submissions – either file an Application or answer the questions already asked of Counsel. Any matters relating to the Court’s Orders for the Mother’s lawyer to answer interrogatories will be stood over to the resumed hearing.
Outline of Principle
First, for completeness, I note the following from the 4 authorities the Mother’s lawyers provided to the Court in support of her Application. Respectfully, they do not, in my view, assist the Mother.
Re W and W was a split, Full Court decision in 2001.[44] The majority (Nicholson CJ and O’Ryan J) held that one of a number of experts who had given evidence at the trial based on a Report had overstepped the mark more generally. Kay J disagreed and dissented. The fundamental differences between that case and the present one are: (a) the Full Court’s decision was in relation to the totality of the evidence given at trial. Here, the trial has not concluded, and the expert’s evidence has not been “tested”; and (b) the current Application seeks to pre‑empt any decision by the Court about the expert’s evidence before it is tested, and does so solely on the basis of an anonymised article, from which the Mother seeks to have the Court draw an adverse inference (because there is no formal or other link or connection) between the therapist referred to in the article and the expert in this case.
[44] Re W and W (2001) 28 Fam LR 45.
In McElhinney and McElhinney [2021] FCWA 14 (25 January 2021), a single expert witness (SEW) psychologist made a report for the family in 2019. In 2020, the SEW was reprimanded for inappropriate conduct with a different client to those in this matter, and her registration as a psychologist was suspended. The Father sought to discharge the SEW and have a new expert appointed. The Mother and the ICL consented to the discharge of the SEW but not to the appointment of a new SEW. The Application was dismissed and referred back to the Magistrate for a further listing. Unsurprisingly, the Court held that it would be inappropriate for the SEW to continue in the matter given she was no longer a registered psychologist.
Again, the stark differences between that case and the present matter before this Court are clear. Here, there is no suggestion that the expert has ever had her registration suspended. This is sufficient to distinguish it from the present matter.
In R & R [2003] FamCA 1180 (8 October 2003), a single expert’s report was found to be, or to include material, which led to it being found to be actually biased, or otherwise generally having the features of apprehended bias, as well as there being inaccurate representation of fact, and non-compliance with Practice Direction No 2 of 2003. SEW was discharged from the matter. Again, that matter concerned a formal determination based on the assessment of the Report. Here, until the Application was made, there had been no issue raised by the Mother with any aspect of either the processes beforehand, or the Report itself. The case relied upon by the Mother does not assist her Application.
Fagenblat & Feingold Partners Pty Ltd [2001] VSC 454. This non-family law matter concerned a partnership dispute between solicitors conducting a legal practice. A SEW accountant provided a valuation of the goodwill of the practice. Objections were taken regarding the admissibility of the SEW’s valuation based on (1) bias, and (2) duty to make clear assumptions. The application was dismissed and evidence of the SEW was admissible. How this case assisted the Mother in her current Application was completely unclear.
The second matter to note, because it was not otherwise addressed by the Mother even though Dr B raised it a number of times in her oral evidence, are the ethical principles set out in the Australian Psychological Society Code of Ethics 2007. Principle 5 of that Code is relevantly in the following terms:[45]
[45] There are suggestions that this Code of Ethics, may have been revised, but it is somewhat unclear. There is also a Code of Practice but it also seems that one cannot access this code unless one is a member of this Society. For current purposes, it is sufficient to highlight that “confidentiality” is an important part of the Code of Ethics for the Society. Article 4 of this Code outlines principles regarding “privacy.”
A.5. Confidentiality
A.5.1.Psychologists safeguard the confidentiality of information obtained during their provision of psychological services. Considering their legal and organisational requirements; psychologists:
(a)make provisions for maintaining confidentiality in the collection, recording, accessing, storage, dissemination, and disposal of information; and
(b)take reasonable steps to protect the confidentiality of information after they leave a specific work setting, or cease to provide psychological services.
A.5.2.Psychologists disclose confidential information obtained in the course of their provision of psychological services only under any one or more of the following circumstances:
(a)with the consent of the relevant client or a person with legal authority to act on behalf of the client;
(b) where there is a legal obligation to do so;
(c)if there is an immediate and specified risk of harm to an identifiable person or persons that can be averted only by disclosing information …
For completeness, I might also note two things here. First, in addition to the Psychology Society of Australia, there is there is the Psychology Board of Australia. That Board is in the process of preparing its own Code of Conduct. It is unclear when this Code will emerge. In the meantime, this Board has adopted the 2007 Code of Ethics of the Society noted above.
Secondly, each State and Territory has adopted legislation known as the Health Practitioners Regulation National Law. This seems to be universally known simply as the “National Law.” For example, in the Australian Capital Territory, this legislation was enacted in 2018. It may generally be noted further that s.213 of this National Law provides for certain provisions regarding “privacy”; s.214 deals with disclosure of information and confidentiality; s.243 provides for conduct that may constitute an offence and be the subject of disciplinary proceedings, and more generally, Part 8 of this Act deals with various kinds of “notifications” (mandatory and voluntary), while ss.148 and 149 deal with preliminary assessments regarding complaints. I mention these matters, obviously only in passing, because Dr B referred briefly to some form of protection from various State and other bodies when she raised other protections that precluded her from answering questions about the ABC article. It may be that she was intending to refer to this National Law as it has been enacted in Victoria.
For ease of reference, the following sections from Division 7.1.5 of this Court’s Rules, which concern experts and their reports, should be noted (the latter Rule was not formally addressed by the Mother but is included here for completeness):
Rule 7.18(3)
(3)The expert witness has the following duties:
(a)to give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness's knowledge and capability;
(b)to conduct the expert witness's functions in a timely way;
(c)to avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;
(d)to consider all material facts, including those that may detract from the expert witness's opinion;
(e)to tell the court:
(i)if a particular question or issue falls outside the expert witness's expertise; and
(ii)if the expert witness believes that the report prepared by the expert witness is based on incomplete research or inaccurate or incomplete information, or is incomplete or may be inaccurate, for any reason;
(f) to produce a written report that complies with rules 7.21 and 7.22.
Rule 7.22
(1)An expert’s report must:
(a)state the reasons for the expert witness’s conclusions; and
(b)include a statement about the methodology used in the production of the report; and
(c)include the material referred to in subrule (2) in support of the expert witness’s conclusions.
(2)For the purposes of paragraph (1)(c), a expert’s report must include the following in support of the expert witness’s conclusions:
(a)the expert witness's qualifications;
(b)the literature or other material used in making the report;
(c)the relevant facts, matters and assumptions on which the opinions in the report are based;
(d)a statement about the facts in the report that are within the expert witness's knowledge;
(e)details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person's qualifications and experience;
(f)if there is a range of opinion on the matters dealt with in the report--a summary of the range of opinion and the basis for the expert witness's opinion;
(g)a summary of the conclusions reached;
(h)if necessary, a disclosure that:
(i)a particular question or issue falls outside the expert witness's expertise; or
(ii)the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
(iii)the expert witness's opinion is not a concluded opinion because further research or data is required or because of any other reason.
For current purposes, and in particular, because of the complete absence of reference to either (a) relevant provisions of the Evidence Act 1995 (Cth), or (b) to any case law (except post hearing, canvassed briefly above), and recalling again that Commonwealth case law was raised by the Court with Counsel for the Mother during the hearing, I note the following in relation to expert evidence. The absence of detailed discussion here will presumably be required after the hearing is concluded.
Relevant provisions of the Evidence Act 1995 (Cth) include: ss.76 (“the opinion rule”); and 79 (“Exception: opinions based on specialised knowledge”). Section 79 is in the following terms:
79 Exception: opinions based on specialised knowledge
(1)If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2)To avoid doubt, and without limiting subsection (1):
(a)a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and
(b)a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i) the development and behaviour of children generally;
(ii)the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
Again without going into any detail, in circumstances where there is a formal challenge to the evidence of an expert but where there is no reference to (or any discussion of) any statutory provision or High Court authority that discusses those provisions, I need only note the following representative decisions of the High Court that discuss one or both of the provisions referred to here:
(a)HG v The Queen (especially the discussion by Gleeson CJ, at [36] – [44] regarding the admissibility of opinion evidence from a psychologist;[46]
(b)Dasreef v Hawchar (especially at [30] and following of the plurality judgment discussing s.79 and opinion evidence);
(c)Honeysett v The Queen (regarding the admission of opinion evidence and the interface between ss.76 and 79, beginning at [10] regarding the voir dire, and at [20] – [25] regarding “opinion evidence under the Evidence Act”).[47]
[46] HG v The Queen (1999) 197 CLR 414.
[47] Honeysett v The Queen (2014) 253 CLR 122.
Accepting that the sole argument advanced by the Mother related to somehow linking the therapist referred to in the anonymised ABC article to Dr B, and somehow alleging some sort of “guilt” or admission on her part because of her reliance upon “defences” in responding to questions about the article, it is nonetheless regrettable that the Court is doing the work here that lawyers have been paid to do. Questions in this regard also give rise to issues, already briefly canvassed, about inutile and inappropriate use of scarce public resources.
Finally, very recently, both the ICL and the Mother’s lawyer, referred the Court to two decisions of the Family Court of Western Australia.[48] Those decisions both related to Applications to discharge a single expert, based upon the same ABC article before the Court here. The same single expert is involved in all three cases – the two in Western Australia; the third being the one before me. In each case, the discharge Applications were dismissed. In the result, prior to reading these decisions, and with these reasons largely completed, I had come to essentially the same conclusion, with a number of similar or overlapping reasons. The decisions of both Cohen J and O’Brien J, fortify me further in relation to the conclusion to which I have come – namely to dismiss the Mother’s oral Application. Indeed, the decisions of the Family Court of Western Australia explain even more graphically or plainly why the Mother’s Application here must fail. And if more be needed, I gratefully adopt the reasoning of their Honours in the two cases mentioned.
[48] Mortimer & Mortimer (Discharge of Single Expert Witness) [2023] FCWA 177; Jenkins & Grothe (Discharge of Single Expert Witness) [2023] FCWA 160.
For current purposes, I note the following from the decision of Cohen J in Jenkins & Grothe, at [65] – [82] (some internal citations have been omitted; bold emphasis in original; italicised emphasis added):
[62] When I consider the mother's allegations and the evidence she has filed in support, I observe that she makes no real complaint that Psychologist A was biased or that there was an apprehension of bias on her part, although she may attempt to characterise certain of her complaints as such. Certainly, the complaints made by her in her earlier affidavit material would not meet the high bar necessary to support the discharge of an experienced Single Expert Witness. All of her earlier complaints could properly be put to Psychologist A through cross-examination at the trial, which would be the usual process for dealing with such grievances.
[63] I also observe that notwithstanding her grievances with Psychologist A, which are set out in detail in her trial affidavit, the mother elected not to put any clarifying questions to Psychologist A at the time of publication of her primary report, nor did she bring an application for Psychologist A's discharge.
[64] Further, in her trial affidavit, the mother relies on certain aspects of Psychologist A's report which are critical of the father. Litigants cannot have it both ways: one cannot simultaneously rely upon the critiques of the other party and seek to discharge the report in its entirety.
[65] The complexion of the mother's complaints against Psychologist A only take on a more concerning tone following the publication of the ABC Article about "Dr Julie". I am left to wonder why, if the mother held these specific and more serious concerns about Psychologist A's conduct prior to her becoming aware of the ABC Article, they were not set out in her trial affidavit, which was filed on 28 April 2023, which as I have already observed, otherwise comprehensively set out her views of Psychologist A's method and report.
[66] For the parties' benefit, I read the ABC Article and listened to the associated podcast at the time they were published, as I would any news reporting that relates to Family Court issues. I agree the report raises serious concern about the alleged conduct of the subject psychologist.71 I do not in any way seek to minimise or trivialise those concerns. However, I offer the following comments about the ABC Article:
[67] First, I do not know whether the subject psychologist provided her consent to be recorded, which may give rise to an argument about the legality of the recording.
[68] Second, it is apparent that only short soundbites from the recordings were used for the purpose of the ABC Article. Accordingly, I have no context for those aspects of the recordings that were included in the podcast and article, nor do I know whether the recordings were edited in any way for impact or effect.
[69] Third, I do not know whether the subject psychologist has obtained legal advice about the ABC Article or any remedies that person may have available to them, if any. The answer to this question may impact on them commenting on the ABC Article in part or in its entirety.
7[0] Fourth, the subject psychologist was conducting family therapy outside of the Family Court process, which is distinctly different to the role Psychologist A has been appointed to undertake in these proceedings, in which she is the court appointed Single Expert Witness.72 This appointment carries with it an obligation to discharge her responsibilities in a manner consistent with the Rules, the Australian Standards of Practice for Family Assessments and Reporting73 together with her professional obligations arising pursuant to the Australian Psychological Society Code of Ethics.
[71] To the best of my knowledge, and on the evidence before the court, the allegations made against the psychologist the subject of the ABC Article are currently allegations only. The subject psychologist may have a complaint or multiple complaints made against them with AHPRA. However, that person is entitled to due process. They have a right to respond to those complaints in a manner that is procedurally fair to the complainants but also to the psychologist themselves: procedural fairness is not the sole purview of one party.
[72] It may be argued that a Family Court report writer holds a unique and powerful position within a Family Court case. This is true to an extent, but proceedings are not determined by Single Expert Witness reports alone.[49] As important as a Single Expert Witness might be to a proceedings, they may be no more or less important than parties having access to competent and experienced counsel, who are in many ways, equally as invaluable to the court.
[49] See Hall and Hall (1979) FLC 90-713, 78,819 (Evatt CJ, Asche SJ and Hogan J); Muldoon & Carlyle (2012) FLC 93-513 [105] (Bryant CJ, Finn and Strickland JJ). See generally Albert & Plowman [2020] FamCAFC 23 (Aldridge, Watts & Austin JJ).
[73] The sad reality is that Family Court proceedings are often complex because we deal with highly emotive situations, often with traumatised parents and children, with complex family dynamics. When I was in practice and was involved with the Legal Practice Board through my appointment as Senior Counsel, I understood the Legal Practice Board received a large volume of complaints about family law professionals. The proper administration of justice may significantly be impacted in this court if solicitors or counsel were precluded from acting where they had unresolved complaints made about them at the Legal Practice Complaints Committee ("the LPCC").
[74] This court does not require solicitors or counsel to disclose to this court when complaints are made about them to the LPCC nor in respect to the status of any such complaint; it is the outcome of said complaints, or where interim restrictions are put in place pending the finalisation of a complaint that are of significance.
[75] To be clear, I strongly believe people should have a right to make a complaint to a professional's regulatory body; it maintains accountability and should serve to enhance the public's confidence in the profession and the family law system more broadly.
[76] However, it appears to me that it would be manifestly unjust to restrict a family law professional, be it a Single Expert Witness or a legal practitioner, who appears regularly before this court from working in their chosen profession in circumstances where any complaints made against them had not been finalised, particularly where this court does not know if that individual has been afforded procedural fairness or exhausted any legal remedies that may be available to them in respect to the complaint.
[77] Based on the evidence provided by the ICL, there is no legal impediment to Psychologist A practicing as a psychologist. If that changes, I have every confidence that Psychologist A would notify this court promptly.
[78] I do not consider it the role of this court to use these proceedings to unearth the identify of "Dr Julie". That issue is appropriately left to the relevant regulatory body, and should it come to it, the relevant disciplinary tribunal.
[79] My job, as is the job of every other judicial officer in this court, is to focus on the specific proceedings before it, and deal with the facts and circumstances that are in issue in those proceedings. In this particular case, it is also to ensure an expeditious trial given the mental health concerns raised about the children.
[80] I do not consider that the interests of justice will be compromised if I do not accede to the mother's application. Whilst the mother has, only after the publication of the ABC Article, raised more serious concerns about Psychologist A's conduct, there is no:
(a)suggestion that Psychologist A has failed to discharge her duties in accordance with the orders made by the court;
(b)dispute about her experience, or her expertise nor is there any claim, supported by the evidence currently before the court, that Psychologist A has acted in a biased manner or in a way which is reasonably likely to have created an apprehension of bias; and
(c)there is no assertion of any substantial body of opinion contrary to any opinions espoused by Psychologist A, or that a contrary opinion may be necessary for determining the issues in dispute, or that there may be matters not known to Psychologist A, which are necessary to determine the issues in dispute.
[81] Further, I do not consider the mother will be prejudiced if I do not make orders as sought by her. In fact, with the trial some few weeks away, I consider the parties and the children more likely to be adversely prejudiced if I were to make an order discharging Psychologist A, as that is likely to result in the trial being vacated so that the parties, the ICL and the court can consider whether a further Single Expert Witness should be appointed.
[82] I have not lost sight of the mother's complaints about Psychologist A, or how the ABC Article would have impacted any parent involved in Family Court proceedings where a Single Expert Witness has been appointed. However, all of the mother's allegations can be properly put to Psychologist A during cross-examination. I will then be in an informed position to make findings about Psychologist A's evidence, including if necessary, her conduct in these proceedings, which is my concern. The impact of those findings will self-evidently inform what weight I consider should be placed on her report and her evidence more broadly. Further, if this Court has concern about Psychologist A's conduct following the conclusion of the evidence, appropriate consequences may follow, which include allowing one or both parties to make a complaint to AHPRA themselves, or in fact, making such a referral itself.
Consideration and Disposition
Because of the regular commentary made throughout the course of these reasons, it is sufficient here basically to summarise the Court’s views on, and determination of, the Mother’s Application.
Summarised, the grounds of complaint against Dr B, which the Mother says warrant her discharge and removal from the litigation, are:
(a)The Mother seeks to have the Court draw some relevant nexus between the anonymised therapist referred to in the ABC article and Dr B. In part, this was on the basis that it was, somehow, “common knowledge” that she was the therapist referred to in the article, accepting that Counsel for the Mother did not have this “common knowledge” himself until the evening before the Application was made, and that the Court and the ICL were similarly ignorant about it, and remained completely ignorant of it until the Application was raised after lunch on the second day of the trial; and
(b)The Mother also seeks that the Court draw an adverse inference against Dr B (i) for not directly denying (or perhaps “not admitting”) that she is the therapist referred to in the ABC article, and in turn, (ii) because she referred to various legal grounds that prevented her from answering such questions (e.g. s.121 of the Act, the principle of “confidentiality”); and
(c)It may be generally inferred also that, in some not fully articulated way, there has not been complete compliance by Dr B with certain parts of Rule 7.18 of this Court’s Rules.
The principal difficulties for the Application to succeed may be summarised as follows. In my view, all three limbs of the Mother’s submission must fail, for the following reasons:
(a)By posing the simple question – “what if the ABC is wrong”, and/or “what if the Mother is wrong” – about the inference to be drawn from an anonymised article, exposes to a significant degree, the obvious difficulty for the Mother in relying upon an inference (her “best evidence”) which is both contestable and otherwise unable to be established on the balance of probabilities, or at all. It is a simple statement of long-held principle that Courts operate and decide matters on facts that are plainly established. The burden is upon the Mother to establish the formal nexus between the anonymised personæ in the ABC article and Dr B. In my view, it is impossible to establish that nexus. Such nexus cannot be established on the basis of the extremely flimsy evidence, and unsupported assertions (e.g. so-called “common knowledge”), propounded here;
(b)Counsel for the Mother even conceded (noted above) that, until Dr B’s evidence, there was “no evidence” to link Dr B with the ABC article. Given that there was neither denial nor confirmation by Dr B but rather a range of reasonable claims available to her, how that link was made after her evidence, and in the face of it, was never explained. It effectively became something of a mantra as the foundation for the Application, namely, the inference that “it must be her because she [Dr B] did not deny it was her.” This is rather like the old story of taking it as an admission when a person is asked whether “you have stopped beating your partner”. Any answer to such a question damns the person immediately;
(c)Thus, at its highest, the Mother was seeking to have the Court draw an adverse inference against Dr B, and further, that there should be a formal finding that the un-named therapist referred to in the article was, in fact, Dr B. Again, how one makes the leap of faith from the anonymised article and the anonymised personæ referred to in it, to Dr B, was not relevantly explained. Respectfully, in the absence of actual evidence, rather than some inference involving anonymous protagonists, this and other arguments discussed below, came awfully close to the notorious “vibe” submission from the iconic Australian film, The Castle;
(d)The so-called “common knowledge” contention used to attempt to draw (or to bolster) some further or related inference against Dr B must also fail, and not only because Counsel did not know of this “common knowledge” until the night before the Application – and the Court and the ICL likewise. It must also fail because there was no compliance with, or reference to, s.144 of the Evidence Act, which deals with “matters of common knowledge.” If a party proposes to refer to such matters, there must be compliance with the Evidence Act. This did not occur here at all;
(e)The contention that the Court should somehow draw some further (or to bolster) adverse inference because Dr B chose not to respond as Counsel for the Mother wished was both novel and troubling. It was as if this expert, or indeed any witness, must be denied any protection available to them. It would be a complete inversion of both process and substance if possible or otherwise common and available “defences” (to speak in general terms) were to be denied to any witness, expert or not. It would be even more perverse to argue, as the Mother did here, that reliance upon a range of statutory (i.e. s.121 of the Act) and other “protections” (e.g. the ethical principle of “confidentiality” set out in the Guidelines issued by the Australian Psychology Association) should be used as some form of “admission”, but only by inference, to support the Mother’s claim. On the Mother’s case, any inference, or complaint, without any proper process or finding, or disciplinary action by an appropriate body, is sufficient to require the discharge of an expert against whose Reports there is no formal challenge;
(f)Each of the completely flawed arguments outlined, and dismissed or refuted, above must also be understood in the crucial context where (i) in her trial Affidavit, the Mother did not raise a single issue about Dr B’s Reports, either as to process, language or conclusion/recommendations, and (ii) both of Dr B’s Reports were admitted into evidence on the first day of the trial without any expression of concern, or any opposition. In the face of the conduct of the Mother (i.e her legal “team”) at the trial in these respects, and then, in the face of that conduct, run the oral Application (without leave) to discharge the expert on the basis of some inference that “should” be drawn from anonymised protagonists, showed how impoverished, if not frail and brittle, the evidence relied upon was;
(g)The concerns and criticisms expressed by Cohen J in Jenkins & Grothe at [67] – [77], set out above, apply with equal force, gravity and concern here;
(h)It is not the role of this Court to act as some sort of disciplinary or regulatory tribunal of experts. Still less is it the role of this Court to pre-empt any regulatory or disciplinary body, in the event that such a course unfolds regarding any expert. Any expert will usually and ordinarily be subject to proper process to investigate any complaint, including a proper opportunity to be heard and to raise any relevant defence. Again I stress the important distinction between “complaint” and “finding” from a disciplinary or regulatory body. If the Court was to act upon the ABC article here as urged by the Mother, leaving to one side the lack of evidence regarding any possible editing of recordings referred to and used in the article (as well as the possible illegality of the recording), it would lower the bar to an almost non-existent or unintelligible level. As propounded by the Mother, an inference (not even a complaint) from an anonymised article will be sufficient to discharge an expert. No Court could seriously countenance such a course. And as the cases from Western Australia point out, it is not unheard of for complaints to be made against lawyers. There is no requirement for any such complaints to be made to a Court before any appearance. A complaint, by definition, does not necessarily lead to some finding of negligence, or worse; and
(i)At perhaps the most basic procedural level, there was never any leave sought either (a) to dispense with the Rules regarding the filing of an Application in a Proceeding, and or (b) to proceed with an oral Application without either a formalised Application and or supporting Affidavit. Under the Rules (e.g. 1.33), failure to comply with the Rules can lead to the matter being dismissed, either in part or in whole. The Application before the Court was breath-taking in its failure to provide the most basic information, which remains outstanding. It was no less remarkable because it presumed upon the Court permitting it to proceeding, without even seeking leave to proceed. To be fair, Counsel for the Mother noted that the Application was subject to any other direction of the Court, but there remained no Application or leave to proceed.
In sum: (a) the evidence relied upon by the Mother for her discharge Application was, at its highest, alarmingly weak; and (b) the discharge of an expert is a very serious step for any Court to undertake. To take such a step requires significant and substantial evidence, such as the de‑registration of the expert, or some disciplinary finding by a Court or disciplinary body. To do so on the basis of an asserted allegation in an article in the media where there is no identifying information about anyone referred to, including the therapist involved, improperly lowers the evidentiary bar significantly, whereby a “complaint” in the press is sufficient to have an expert discharged. Such a course, in my view, is improper. It would amount, as stated in the course of the hearing of the Application, to a form of trial by media, where proper process, detailed evidence, and consideration and determination no longer apply.
Indeed, it was an opportunistic Application, clearly conceived, and executed, in significant haste. Among other things, this meant that proper attention to detail and process was not addressed, even with the multiple opportunities granted to Counsel for the Mother to “refine” the Application. I note again Counsel’s concession that if the Report of Dr B had been hostile to the Father and favourable to the Mother, it is likely that the current Application would never have been made. Such a concession confirms the opportunistic nature of the Application.
On all the available evidence, the Application for discharge of the expert was conceived in great haste and with a significant lack of due diligence. On its face, in its conception and execution, relying as it did on the most gossamer-thin inference, and which improperly dismissed and distorted Dr B’s responses to seek to bolster (or even to ground) this inference, it was an imprudent Application that had no proper evidentiary or legal foundation. It also, by design, or by effect, denied Dr B procedural fairness in terms of this Court not being the appropriate regulatory body, in the event that any complaint is lodged and investigated by that body. Effectively to have Dr B “dis-barred” from these proceedings without proper investigation, and based solely upon an anonymised media article, was inapposite, if not worse. The Mother’s oral Application must and will be dismissed. Indeed, in the light of the two decisions from Western Australia (Mortimer and Jenkins), the Mother’s oral Application for discharge of the expert turned, for example, from “poor” to “next to impossible.” In such circumstances, to save everyone further expense and much else, one might have thought that a prudent course would have been to withdraw the Application. Clearly, this has not occurred. The implications of those decisions (and the Court’s decision here) upon the yet to be filed further Application remains to be seen. Again to quote Heydon J in AON v ANU at [156]: “One hopes for one set of answers. One fears that, in reality, there must be another.”
Because of the conclusion I have reached, it is unnecessary to canvass the import of this Court’s media release/statement earlier referred to. Necessarily, the statement was an expression of general concern and properly qualified with no identifying information. It did not, and could not, assist the Mother in her Application.
In relation to the reserved costs, the parties (including the ICL) are to file submissions of no more than 2 pages (plus one further page that sets out the actual costs sought) within 7 days. The issue of costs should also consider the Mother’s second putative, unfiled Application in relation to the interrogatories. Absent any other Application, I propose dealing with costs on the basis of these reasons and the submissions.
As stated earlier, any matters relating to the Court’s Orders for the Mother’s lawyer to answer interrogatories will be stood over to the resumed hearing.
Within 7 days, the parties are to notify the Court, preferably with a consent position, regarding the future conduct of the matter to finalise it. Presumably (as well as hopefully) the cross examination of Dr B can be accommodated within half a day. I request the ICL to liaise with Dr B and the parties (and the Court) with a view to finding a mutually convenient date to finalise the trial. Thereafter, as previously canvassed, a time-table will be fixed for the filing of final submissions.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 15 September 2023
2
11
0