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Moyland & Shearer

Moyland & Shearer

Case [2023] FedCFamC2F 1202 15 September 2023

Admissibility of Evidence

Civil Penalty

Sentencing

Family Law

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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
Applicant

AND:
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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Moyland & Shearer [2023] FedCFamC2F 1202
Case: [2023] FedCFamC2F 1202
Decision Date

CaseChat Overview and Summary

The case of Moyland & Shearer involved an oral application by the Mother to discharge a Court-appointed single expert, Dr B, in a parenting matter. The application was made without leave and was based on an article published by the Australian Broadcasting Corporation (ABC) that mentioned an unnamed psychologist. The Mother sought to draw a nexus between Dr B and the unnamed psychologist in the article, and to have the Court infer some guilt or unsuitability on the part of Dr B. The Father and the Independent Children's Lawyer opposed the application. The Court found that the application was poorly conceived and executed, lacking proper evidentiary and legal foundation. The Mother's reliance on the ABC article, which contained no identifying information, was deemed insufficient to warrant the discharge of Dr B. The Court dismissed the application, noting that the evidence relied upon was weak and that the discharge of an expert requires significant and substantial evidence. The Court also highlighted the importance of procedural fairness and the inappropriateness of the Court acting as a disciplinary or regulatory tribunal. The implications of this decision, along with two similar decisions from the Family Court of Western Australia, significantly impacted the prospects of the Mother's further application. The Court reserved the issue of costs pending the submission of written costs by the parties.

Orders