MS R and MR R

[2003] FamCA 1180

[2003] FamCA 1180

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT SYDNEY  FILE NO:SY 5374 of 2002

BETWEEN	MS R (Applicant)
AND	MR R (Respondent)

DATE OF HEARING:	8 October 2003
DATE OF JUDGMENT:	8 October 2003

EXTEMPORE JUDGMENT
OF THE HONOURABLE JUSTICE BOLAND

APPEARANCES:	Mr Richardson of Senior Counsel instructed by Karras Partners, appeared on behalf of the Applicant.
Mr Doolan, Solicitor, Doolan Wagner & Callaghan, appeared on behalf of the Respondent.
Ms Wearne, Solicitor, Legal Aid Commission of NSW, appeared as the Child’s Representative.

INTRODUCTION

1. The matter before me raises the issue of whether or not an Expert Psychologist appointed under s.30A of the Family Law Act 1975 (Cth) should be discharged.

THE APPLICATION

1. The formal application before me is an Application by Ms R (“the wife”) filed on 25 September 2003.  In that Application she seeks the following orders:

“1.That the Order made on 12 February 2003 for the appointment of an Order 30A Expert to provide a Family Report, be vacated.

2.That, in the alternative to Order 1 hereof, the appointment of Mr B be discharged and another expert be appointed in lieu.

3.That the Report prepared by Mr B, Psychologist, daetd 26 August 2003 be place in a sealed envelope in a separate part of the Court file, such envelope not to be opened without further Order.

4.All parties in these proceedings are restrained from distributing or showing a copy of the Report to any other person or discussing the evidence or contents of the Report with any other person including any further expert appointed for the purpose of these proceedings.

5.That the children’s representative pay the costs of this Application.

6.That this Application be dealt with urgently.”

1. When the matter commenced before me today the wife abandoned the relief sought in proposed order 5 namely that the Children’s Representative pay the costs of this Application.

1. The Application is orally opposed by Ms Wearne the Child Representative and by Mr R (“the husband”).

THE SUBSTANTIVE PROCEEDINGS

1. The substantive proceedings before the Court are proceedings for property settlement and parenting orders they have been fixed for hearing commencing 9 December 2003.

THE ISSUES

1. The core matters in issue in this Application have been clearly identified by the parties and the Child Representative.

1. It is asserted by Mr Richardson of Senior Counsel on behalf of the wife that Mr B’s report:

·     discloses actual bias and lack of impartiality;

·     contains inaccurate representations of fact;

·     does not comply with Practice Direction No. 2 of 2003;

·     if objectionable parts of the report are held to be inadmissible then the basis for the conclusions and opinions expressed by Mr B are unsupported by evidence;

·     The expert has adopted a “dual role” offering therapeutic assistance to the parties as well as reportable counselling.

1. On behalf of the husband and child representative it is asserted that:

·     the report does not disclose bias, rather the wife objects to the report because substantial parts of it are unfavourable to her;

·     that there are no inconsistencies in statements of fact made by Mr B in the report and statements of the wife;

·     that experts in the past have adopted both a therapeutic and reporting role and the parties were at all times aware that Mr B was to prepare a report for the Court;

·     that the conclusions in the report support the wife’s case;

·     that re-interview of the children would not be in their best interests;

·     that the Child Representative has a duty to put the wishes of the children before the Court in an admissible manner.

EVIDENCE IN THIS HEARING

1. The wife relies on:

·     her affidavit sworn on 3 October 2003 and filed on the same date;

·     affidavit of Ms C, psychologist, sworn 7 October 2003 and filed 8 October 2003;

·     the Order 30A expert report prepared under the heading “Mr B, Psychologist”;

·     a letter tendered in the proceedings being a letter from the wife’s instructing solicitors to the Legal Aid Commission of NSW. 

RELEVANT LAW

1. Mr Richardson has referred me to s.135 of the Evidence Act 1995 (Cth). s.135 is in the following terms:

“The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a)be unfairly prejudicial to a party; or

(b)be misleading or confusing; or

(c)cause or result in an undue waste of time.”

1. He also relies on the authorities relating to disqualification of a judge or apprehended bias or conflict or interest and I have regard to relevant portions in the decision of Johnson v Johnson (2000) 174 ALR 655 and Ebner v The Official Trustee in Bankrupty and anor (2000) 176 ALR 644.

1. Mr Richardson also relies on the judgment of his Honour Justice Ipp prior to his appointment to the NSW Court of Appeal but while he was with the Supreme Court of Western Australia in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 378 and he also relies on the decision of the NSW Court of Appeal in Makita v Sproules 52 NSWLR 705.

FINDINGS

1. Mr Richardson submits that Mr B’s report (“the report”) is likely to lead the reader of the report to apprehend bias on behalf of Mr B. He submits that the report is so prejudicial that it ought to be excluded. He relies on s.135 of the Evidence Act and the authorities which I have earlier cited.

1. Mr Richardson is critical of the Child Representative in forwarding directly to Mr B a letter from the wife’s solicitor raising issues about inter alia a person known to the husband and Mr B.  I do not accept the Child Representatives action was inappropriate.  I am satisfied that the letter was passed on as requested.  In so finding I have regard to the finite resources of the Legal Aid Commission and Ms Wearne’s submission, which I find has weight, that the Legal Aid Commission could have been subject of criticism if an officer rephrased the wife’s concerns.

1. Mr Richardson submits Mr B’s inaccurate reporting is evidenced at page 19 of the report.  Ms Wearne submits that Mr B’s statement is not inconsistent with Ms C’s evidence.  Having regard to Ms C’s evidence I find Mr B’s reporting of his conversation with Ms C in the report does not give a full account of their conversation, is potentially misleading and discloses a bias against the wife.

1. Mr Richardson submits that counselling with Ms C was analogous to confidential counselling rendered privileged by s.19N of the Act.  It is clear the parties may have believed Ms C would maintain their marital counselling as confidential.  However I do not find weight in the submission in this respect.

1. Mr Richardson submits that Mr B’s position is clear by reason of firstly his reaction to Mr Karras’ letter when he draws the conclusion that because the wife refused permission for him to speak to Ms C, that her statement she trusted him implicitly was inconsistent with her solicitor’s letter.  I accept a fair minded person reading Mr B’s conclusion could form the view that he was either unduly sensitive to issues raised by Mr Karras and/or that he disbelieved the wife.  

1. Mr B expresses the view (page 20 of the report) that the wife’s behaviour has been deceitful.  He expressed the view at page 13 when he reported the wife said “We can pay you to help us.  We can pay you for everything you are doing” was that the wife was in the process of offering a bribe to provide a supportive report.  He concludes the paragraph “I have no doubts that I was being offered a bribe”.  It is acknowledged that Mr B never put his belief to the wife.  It is clear at the time of the conversation Mr B had acceded to requests initially made by the husband that he should assist the parties to a mediated solution.  I find there is a plausible explanation for the wife’s statement to Mr B.  I accept a reasonable person reading page 13 of Mr B’s report could form a view that he had formed an adverse view of the wife and this underpinned or clouded his opinions and recommendations.

1. Mr Doolan submits that the problems with Mr B’s report can be overcome by delete those parts which disclose actual or potential bias or which are prejudicial to the wife.  He submits the proper time for this to occur is at the trial by the trial Judge (see Pownall v Conlan Management Pty Ltd (supra)). I do not accept that submission. I accept that these findings of Mr B underpin his view the wife is deceitful, and absent this, and his findings at page 17 the underpinning of his expert opinion is not readily apparent (See Makita –v- Sproules (supra)).

1. I further find Mr B has not been supplied with Practice Direction No. 2 of 2003.  I find that aspects of his report do not comply with the requirements of the Practice Direction. 

1. I find that Mr B’s role in this matter, as reflected in his report, has become blurred.  Whilst I accept that at all times the parties knew the report was to be prepared, I find by adopting a therapeutic role Mr B stepped outside his brief as the Court’s expert to provide an assessment to assist the Court having regard to relevant matters in s.68F(2). 

1. Whilst normally I would find a report which contained factual inaccuracies should properly be challenged in cross examination, in this case I do not find either rendering inadmissible parts of the report, or cross examination could overcome the fundamental defect of a perception of bias or actual bias in the report writer.

1. I am cognisant of the inappropriateness of multiple interviews of the children.  The report indicates the parties’ children are intelligent, forthright, and generally robust.  Whilst I regret the necessity for a further report, on balance I do not find a further interview with these young women should adversely impact on them.

1. I am informed that Dr D is available to interview the parties and children on 29 October 2003 so there will be no loss of hearing dates.  I find if this matter of admissibility of the report was not determined at this stage, the hearing could be unduly lengthened or may require vacation of dates.

1. No submissions were addressed to me as to the funding of a report by Dr D.  From the evidence which is before me, being the report of Mr B and from the wife’s stated occupation in her affidavit, I note that she is in part time employment, I also note the assertion that she has received $150,000 from the husband.  Subject to hearing any further submissions from Mr Karras, it appears to me the wife has the capacity to pay initially for Dr D’s report and that the trial Judge would be the appropriate person in determining the property proceedings to then decide as to what portions each party should pay of the costs of Dr D’s report. 

1. I also find it is appropriate that there should be an order, or a least a direction, that copies of Mr B’s report should not be provided to Dr D who can form her own independent view of the parties. 

1. I do not find it is necessary or appropriate that Order 3 sought in the Application is granted.  The trial Judge will only read that material which is in evidence before him or her.  Again I reiterate my earlier indication this morning that having read the report of Mr B and determined this Application, I have formed the view that parties may apprehend a bias in me hearing the matter for the final hearing, and I intend, of my own motion, to disqualify myself from being the trial Judge at the final hearing.

ORDERS

1.By Consent, the children’s representative forthwith pay to Mr B, Psychologist, the sum of $2,500.00 presently held in the Legal Aid Commission of NSW trust account in respect of the Order 30A expert’s costs.

2.The Order made on the 12^th February, 2003 for appointment of Order 30A expert to provide Family Report is discharged.

3.All parties in these proceedings are restrained from distributing or showing a copy of the report prepared by Mr B, Psychologist, dated the 26^th August, 2003, to any other person or discussing the evidence or contents of the report with any other person (including Dr D) with the exception of Counsel or lawyers retained in these proceedings.

4.Order that pursuant to Order 30A Rule 3 of the Family Law Rules, Dr D, Psychiatrist, be appointed to enquire into and report upon matters pertaining to the welfare of the children, X born in 1986, Y born in 1988 and Z born in 1990.

5.Direction that in preparing her report to the Court, Dr D be requested to consider the following matters:-

5.1the relationship between the children;

5.2the relationship between the children and each of the parties;

5.3the wishes expressed by the children and each of them, and the weight to be accorded to those wishes;

5.4the attitude to the responsibilities and duties of parenthood evinced by each of the parties;

5.5the desirability, and likely effect of each of the parties’ proposals as to residence and contact;

5.6any other matters that the Court expert considers relevant.

6.Order that the husband and the wife be jointly liable for the cost of Dr D’s report.

7.Order that the parties and each of them pay to the Legal Aid Commission of NSW such sum as represents half of the estimated costs of the Order 30A expert, within 7 days of being provided with such estimate by the children’s representative.

8.Noted, that the children’s representative will hold such sum as represents the estimated costs of the Order 30A expert in trust for payment out to Dr D upon the rendering of her account.

9.Noted, that the children’s representative will not instruct Dr D to commence preparation of her assessment and report until the parties and each of them have complied with Order 7 above.

10.That leave be granted to the children’s representative to have photocopy access to material produced under subpoenas in the matter, for the purpose of providing same to Dr D, and that the fees in respect of that photocopying be waived.

11.That Boland J is on her own motion disqualified from the final hearing of this matter.

I certify that the preceding 27 paragraphs are a true copy of the reason for judgment herein of Her Honour Justice Boland.

Associate