MULLALY & BEDDOE

[2015] FamCA 891

FAMILY COURT OF AUSTRALIA

MULLALY & BEDDOE [2015] FamCA 891

FAMILY LAW – PRACTICE & PROCEDURE – application to exclude Family Report – whether Family Report writer qualified to offer an opinion - where Family Report writer not appointed pursuant to Regulation 7 – whether the Family Report writer failed to reveal the basis for her opinion – where application dismissed.
FAMILY LAW – PRACTICE & PROCEDURE – disclosure.
FAMILY LAW – PRACTICE & PROCEDURE – application to for leave to adduce expert report – where leave necessary to adduce or tender report – where leave sought to obtain report – where leave not necessary.

Family Law Act 1975 (Cth)

Family Court Regulation 1984 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Mullaly

RESPONDENT: Mr Beddoe

FILE NUMBER: BRC 149 of 2011

DATE DELIVERED: 23 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 20 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr White SC

SOLICITOR FOR THE APPLICANT: Jones Mitchell Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Senior from Senior Legal

Orders

IT IS ORDERED THAT:

1. Ms B Beddoe is joined as a party to the proceedings.

2. Paragraphs 1 – 7 of the Amended Application in a Case filed 24 March 2015 are dismissed.

3. In the event it is within his possession or under his control, the husband  provide the original loan repayment schedule (or any part of it) between himself and his parents, Mr A Beddoe and Ms C Beddoe, covering the period 10 April 2009 - 27 January 2012 and 12 April 2014 - 16 April 2014 (a partial copy of which was exhibited to the affidavit of Mr A Beddoe filed 15 September 2014) to the wife’s lawyers, Jones Mitchell Lawyers, within seven (7) days of the date of this Order so as to enable the wife, at her cost, to have that document forensically examined.

4. In the event that the husband provides a document to the wife’s solicitors pursuant to Clause (3) of this Order, that document shall be returned to his solicitors within seven (7) days of the completion of any forensic examination.

5. Save as is ordered and in respect of any application for costs by either party, the Amended Application in a Case filed 24 March 2015 and the Response to an Application in a Case filed 10 February 2015 are dismissed.

IT IS NOTED

A.During the hearing the Court informed Senior Counsel for the mother that any application for leave to adduce or tender any further expert reports would be more appropriately made after the reports themselves were available.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mullaly & Beddoe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 149 of 2011

Ms Mullaly

Applicant

And

Mr Beddoe

Respondent

REASONS FOR JUDGMENT

1. The parties married in 2008 and separated on about 27 January 2010. They have one child together: D (the child), born in 2007. The child currently lives with his mother and spends five nights each fortnight with his father.

2. On 22 April 2014, the father filed an Initiating Application in the Federal Circuit Court by which he sought, amongst other things, an order restraining the mother from removing the child from the Commonwealth Australia. On 17 June 2014, the mother filed a Response by which she sought permission to relocate the child to the United States of America to live there permanently with her.

3. When the matter first came before Judge Jarrett on 24 June 2014, his Honour ordered that the mother provide the father with a list of three names from which to choose the author of the Family Report agreed to be prepared in the matter. The list provided by the mother included Ms E.

4. Ms E holds undergraduate and post graduate qualifications in psychology. She has been a psychologist in private practice since 2004. Prior to that, she worked in Correctional Centres and for the Department of Families. Throughout her private practice she has undertaken “psychological assessment, report writing and intervention.” She is a facilitator of the Triple P Positive Parenting Program and has been since 2005.

5. The father chose Ms E.

6. A joint letter of instruction was prepared by the parties’ respective solicitors on 3 July 2014.  This contains a brief background of the parties’ relationship and details the current care arrangements for the child.

7. One of the submissions made by Senior Counsel for the mother was that Ms E failed to address and identify questions she was asked to address. However, the joint letter of instruction does not in fact contain a specific list of issues for Ms E to address nor does it contain a list of specific questions for her consideration and in respect of which she asked to offer an opinion.

8. The parties and their respective partners or spouses attended upon Ms E on 9 July 2014. Her report was released to the parties on 21 July 2014. The parties contributed equally to the cost of Ms E’s report.

9. Ms E recommended that the current parenting regime remain in place. Her report itself suggests that the bases she expressed for this conclusion appear to be that:

   a)as it is in the child’s best interests that he maintain a relationship with both of his parents, spending time with each of his parents as currently occurs best facilitates this and so it would be best for him to remain living in Australia; and

   b)the quality of the child’s relationship with his father would not be the same if he was to just spend time with him during the school holiday periods; and

   c)given the child’s age, there is concern about the period of time he would have without seeing his father and extended family (presumably, if he moved to live in America) and (presumably, consequently) these relationships would not be very strong in the future.

10. On 15 August 2014, the mother’s solicitors wrote to the father’s solicitors outlining that the mother objected to Ms E’s report, intended to file an application seeking that her report be struck out or, alternatively, that another person be engaged to prepare a further report.

11. By Amended Application in a Case, filed 24 March 2015, the mother seeks that:

    a)an order be made excluding Ms E’s Family Report, dated 21 July 2014, from the evidence relied on at any further hearing and the final hearing of the competing applications for parenting orders; and that

    b)she be granted leave, pursuant to Rule 15.52 of the Family Law Rules 2004, to obtain, at her cost, a further Family Report prepared by Ms F.

12. In the event that her application to exclude Ms E’s report is unsuccessful, the mother seeks leave to rely upon an adversarial expert report as prepared by Ms F at the trial of the matter. No report from Ms F is before the Court at present, nor is there any affidavit material which deals with those matters contained in Rule 15.52 of the Family Law Rules 2004.

13. The mother objects to the admission of Ms E’s report because she asserts that :

    a)Ms E is not a Regulation 7 Family Consultant; and

    b)Ms E failed to identify the questions she was asked to address,  failed to set out each of the assumed factual findings relied upon by her as the basis for her opinion and failed to separate the factual findings or assumptions from each of her opinions; and

    c)Ms E’s opinions are not based on specialised knowledge; and

    d)Ms E has expressed an opinion outside the realms of her expertise and has taken into account an irrelevant consideration and has failed to take into account a relevant consideration.  

14. Stated broadly, the father’s position is simply that the mother is dissatisfied with the opinion expressed by Ms E in her report and is attempting to seek to obtain another opinion – one which she can be presumed to hope will be more favourable to her case and, therefore, supportive of her desire to relocate with the child to live in America.

15. Counsel for the mother submitted that as Ms E is not a Regulation 7 Family Report writer, she cannot perform the duties of a Family Consultant as identified by s 11A of the Act or prepare a report pursuant to s 62G of the Act: in essence, he submitted that, as she had not been designated as a ‘Family Consultant’ pursuant to the Regulations, she was not ‘capable’ of providing a Family Report for use in the proceedings.

16. A “Family Consultant” is a person appointed as a Family Consultant under s  38N of the Act, or appointed as a Family Consultant in relation to the Federal Circuit Court of Australia under the Federal Circuit Court of Australia Act 1999 or appointed as a Family Consultant under the Regulations or appointed under a law of the State as a Family Consultant in relation to a Family Court of that State.[1]

    [1]          s 11B of the Act.

17. Regulation 7 of the Family Law Regulations (1984) provides that, for the purpose of paragraph 11B(c) of the Family Law Act 1975, a Family Consultant may be appointed in writing by the Chief Executive Officer of either the Family Court of Australia or of the Federal Circuit Court.

18. Section 11A of the Act provides that the functions of Family Consultants are to provide services in relation to proceedings under the Act, including assisting and advising Courts and giving evidence in relation to the proceedings[2], reporting to the Court under s 55A and s 62G[3] and advising the Court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the Court can refer parties to proceedings.[4]

    [2]          s 11A(b) of the Act.

    [3]          s 11A(d) of the Act.

    [4]          s 11A(e) of the Act.

19. The mother’s material suggests that, before the matter first came before the Court, the parties exchanged correspondence about the nomination of a person to be the author of a Family Report. There is nothing to suggest that the parties thought themselves bound to engage the service of a person who came within the definition of ‘Family Consultant’, nor that they had agreed that they would be restricted to using the services of a person who fell within that definition.

20. Additionally, the only order made in relation to the appointment of Ms E or the preparation of the report is that made by Judge Jarrett on 24 June 2014. It provided:

    The panel of report writers shall be [Ms F] and [Mr G] and the wife will add one (1) further name so that there is a panel of three (3).  The father shall within seven (7) days of receiving that panel choose one (1).[5]

    [5]          Clause 5, Order made 24 June 2014.

21. Nothing in His Honour’s Order restricted the mother to proffering only a person who is a ‘Family Consultant’. No order was made pursuant to s 11F of the Act directing the parties to attend an appointment with Ms E. No order was made pursuant to s 62G of the Act. This is, perhaps, explicable given the reference in those sections to ‘Family Consultants.’

22. Nothing in the Act or Rules requires that all reports prepared by the agreement of parties to proceedings be prepared by persons who are “Family Consultants”. Section 62G of the Act simply empowers the Court to direct a Family Consultant to give the Court a report on matters relevant to the proceedings as the Court thinks desirable and confers upon the Court the power to make any other orders or give any other direction is considered appropriate for the purpose of the preparation of the report[6] and provides that a report given to the Court pursuant to the direction may be received in evidence in any proceedings under the Act.[7]

    [6]          s 62G(5) of the Act.

    [7]          s 62G(8) of the Act.

23. Whilst s 69ZS of the Act empowers the Court, at any time during child related proceedings, to designate a Family Consultant as ‘the’ Family Consultant in relation to the proceedings, no such designation has occurred.

24. I accept the submission made by the father’s legal representative to the effect that there is no requirement that Ms E be a ‘Family Consultant’ before her report is admissible in the proceedings. As he noted, her name was included by the mother within the list of potential report authors and she was the person selected by the father in compliance with Clause 5 of Judge Jarrett’s June 2014 Order. Additionally, the parties forwarded a joint letter of instruction to her and objection to her preparation of the report arose only after her recommendations were not favourable to the mother’s case.

25. As provided for in the Rules[8], the parties clearly agreed that expert evidence may help to resolve a substantial issue in the case; they clearly agreed jointly to appoint a single expert witness (Ms E) to prepare a report in relation to the issue. She followed their joint instructions and prepared such report in writing and provided it to each party.[9] Neither party requires the Court’s permission to tender Ms E’s report or adduce evidence from her.

    [8] Rule 15.44, Family Law Rules (2004).

    [9] Rule 15.48, Family Law Rules (2004).

26. The terms ‘expert’ and ‘expert witness’ are defined in the Dictionary of the Rules as meaning:

    Expert: “an independent person who has relevant specialised knowledge, based on the person’s training, study or experience.”

    Expert witness: “an expert who has been instructed to give or prepare independent evidence for the purpose of the case.”

27. The mother must be taken to have identified Ms E as an expert given that she included her name on the list of persons intended to form the panel from which the father would choose the author of the report agreed by the parties to be prepared to assist the Court in the resolution of their dispute.

28. There is nothing at this stage to suggest that Ms E is not an independent person. I am not persuaded at this stage that the mere fact of knowing that the mother had ‘challenged her authority’ (as was submitted) by seeking the relief sought in the Amended Application in a Case has had or is likely to have a deleterious impact on Ms E’s independence. The mere fact of communication between a party and a person in the role occupied by Ms E does not, of itself, invariably establish that that person thereafter lacks the necessary independence.

29. Ms Hushes has outlined her qualifications and experience: this includes that she has previously worked for the Department of Families, has undertaken psychological assessment, report writing and intervention and is a facilitator of the Triple P Parenting Programme.  On the face of it, she appears to have relevant specialised knowledge based on her training, study or experience. Whether this remains the case after cross-examination is, of course, a matter that can only be determined then – as can the weight ultimately to be accorded to her opinion, which is, of course, only one piece of the evidence upon which the Court entrusted with the determination of the parties’ dispute on a final basis will be asked to act.

30. Whilst it is submitted that Ms E took irrelevant matters into account or failed to take relevant matters into account in formulating the opinions expressed in her report, the mother’s affidavit does not particularise those matters said to fall within either category. The extent to which Ms E considered or failed to considered those matters advance by Senior Counsel in submissions is, I think, a matter more appropriately addressed at trial.

31. Further, it seems to me that asserted deficiencies in Ms E’s report can be  addressed by using the provisions contained within Division 15.5.6 of the Rules, headed “Clarification of single expert witness reports”. The purpose of the Division is to provide ways of clarifying a report prepared by a single expert witness.[10] Such clarification may be obtained at a conference under Rule 15.64B or by means of questions under Rule 15.65.[11] If parties do not agree about conferring with the single expert witness, the Court may, on application by a party, order that a conference be held in accordance with any conditions the Court determines.[12] Additionally, a party seeking to clarify the report of a single expert witness may ask questions of that witness: either within seven days after the conference referred to or, if no conference is held, within 21 days after receipt of the report.[13] A single expert witness must answer a question within 21 days of receiving it and must do so in writing and by way of specific reference to the question and in a manner that answers the substance of the question.[14] Further, a party may apply to the Court for directions relating to a conference with a single expert witness or the asking of questions under the Division.[15]

    [10] Rule 15.64A (1), Family Law Rules (2004).

    [11] Rule 15.64A (2), Family Law Rules (2004).

    [12] Rule 15.64B (7), Family Law Rules (2004).

    [13] Rule 15.65, Family Law Rules (2004).

    [14] Rule 15.66, Family Law Rules (2004).

    [15] Rule 15.67A, Family Law Rules (2004).

32. I am not persuaded by the balance of the submissions made by Counsel for the mother in support of orders which would prevent Ms E’s report from being used in the proceedings. In arriving at this conclusion, I note the operation of s 69ZT (1) and (2) of the Act.

33. Rule 15.49(1) of the Rules provides that, if a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the Court’s permission.

34. Hence, the mother’s application for leave to tender or adduce evidence from Ms F. Whilst the Court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if satisfied:

    a)that there is a substantial body of opinion contrary to any opinion given by the single expert witness; and

    b)that the contrary opinion is or may be necessary for determining the issue; and

    c)that another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or

    d)there is another special reason from adducing evidence from another expert witness,[16]

    the evidence before me does not persuade me of these necessary matters.

    [16] Rule 15.49(2), Family Law Rules (2004).

Interim and procedural matters relating to the property aspect of the proceedings

1. Whilst it is uncontentious that the parties bought their former matrimonial home – held in the father’s name alone - from the father’s parents, the issues of contributions and repayments are contested.

2. The father’s parents indicate that, over time, they lent the father money.  A portion of what is described as a Schedule of Repayments in relation to these funds is annexed to the affidavit of Mr A Beddoe.[17] The mother takes issue with the contents of this document and asserts it is a recent fabrication. She wants to have the original forensically examined to date the paper and ink.

   [17]         Filed 19 September 2014.

3. The father’s legal representative indicated that the father has indicated that, whilst he has the original copies of the last three pages of the document (which have been provided to the mother’s solicitors, he is not in possession of the original of page one of the Schedule of Repayments.

4. Following a discussion with the bar table, I indicated my intention to make a notation to the effect that a discussion was had with Senior Counsel for the mother in respect of leave to have an expert report prepared in relation to the forensic examination of the original document. As I conveyed, it is, I think, a matter for any party to obtain the evidence that party would seek to adduce at trial and, having obtained that evidence, seek whatever leave may be necessary to adduce the same.

5. There is no evidence about what may be involved for the father or his parents if an order is made requiring them to provide whoever the forensic examiner might be with “such documents and information as that person may reasonably require”. Given this and that the purpose of the mother’s application for access to the original of the Schedule of Repayments is to have it examined to date the paper and the ink, I am not persuaded that it is appropriate or necessary or that the balance of convenience favours the making of a mandatory injunction directed to the father in the terms sought by the mother. It is always open to the mother to cause specific questions to be directed to the father in order to obtain whatever additional information may be required by the person engaged to determine the authenticity of the Schedule.

1. As neither of the father’s parents are parties to the proceedings and neither has been heard in respect of the injunctive relief sought against them, I am not persuaded that it is appropriate or necessary or that the balance of convenience favours the making of a mandatory injunction directed to them in the terms sought by the mother.  

2. Each of the parties to the proceedings has a duty to the Court and each other to give full and frank disclosure of all information relevant to the case in a timely manner.[18] This duty continues until the case is finalised. The matters in respect of which a party to a financial case must make full and frank disclosure are particularised in Rule 13.04. The consequences of a failure to comply with the Rules and of a finding that a party has failed to make full and frank disclosure are well known: that is, if established that a party has deliberately failed to disclose matters relevant to the determination of the issues in dispute, the Court should not be unduly cautious about making findings in favour of the innocent party.[19]

   [18] Rule 13.01, Family Law Rules (2004).

   [19]         See, for example: Weir and Weir (1993) FLC 92-338; Kannis & Kannis (2003) FLC 93-135

3. Given that both parties are represented by experienced legal practitioners who, I have no doubt, would have made them aware of the broad reach of their disclosure obligations, I am not persuaded that it is necessary to make orders for disclosure as sought by the father: the obligation already exists and the consequences of non-compliance are, as I have said, clear. Additionally, given that part of the dispute is about whether it is in the child’s best interests that he relocate to live in America, the capacity of the parties – and their households -to contribute financially to costs associated with him visiting either Australia or America is obviously relevant to the parenting dispute also.

4. Given that the mother has lodged a caveat over the former matrimonial home and that the father and his wife (herself now a party to the proceedings) have given an undertaking to give seven days’ notice of any intention to refinance the mortgage currently encumbering that property, I am not persuaded that it is necessary or appropriate to make injunctive orders in the terms sought by the mother in this respect. Neither the father nor his wife could have any doubt whatsoever that any attempt to diminish the value of the property by seeking to increase any liability for which it provides security would have adverse ramifications for them during the final determination of this matter.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 October 2015.

Associate:    

Date:    23 October 2015