Naczek and Dowler (No. 3)

[2008] FamCA 311

FAMILY COURT OF AUSTRALIA

NACZEK & DOWLER (NO. 3) [2008] FamCA 311

FAMILY LAW – PRACTICE AND PROCEDURE – Evidence – Ruling on admissibility

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Palmer v R (1998) 193 CLR 1
Smith v R (2001) 206 CLR 650

APPLICANT: Mr Naczek

RESPONDENT: Ms Dowler

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1222 of 2006

DATE: 11 March 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John SC with Mr Strum

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kirkham, QC with Mr Wood

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER

Ms Bender

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. That the further hearing be adjourned to a date to be fixed for final judgment after submissions as set out hereafter.

1. That the Independent Children’s Lawyer file any submission that she wishes to make by 24 March 2008.

1. That the wife file any submission she wishes to make by 18 April 2008.

1. That the husband file any submission he wishes to make by 9 May 2008.

1. That the wife and the Independent Children’s Lawyer file any submission in reply to that of the husband and/or the wife by 23 May 2008.

UNTIL FURTHER ORDER IT IS ORDERED BY CONSENT

1. That Order 4.1 of the orders of this Honourable Court made 10 April 2006 be suspended.

1. The husband communicate with the children N born … March 1998 and L born … February 2001 (“the children”) as follows:

   (a)    during school term each Monday and Thursday at 8.45am and such communication shall take place with the husband telephoning the children’s school commencing Thursday 6 March 2008;

   (b)    on 11 March 2008 at 8.45am and such communication shall take place with the husband telephoning the children’s school;

   (c)    as otherwise agreed between the parties.

1. The husband spend time with the children in Australia as follows:

   (a)    from 9.00am on 23 March 2008 to 5.00pm on 30 March 2008;

   (b)    as otherwise agreed between the parties.

1. That during the first term school holidays 2008, both parents shall enable the children to telephone the parent they are not with upon their reasonable request to do so.  Otherwise there will be no telephone communication between the children and the parent they are not with.

1. The husband shall collect the children from and return the children to the wife’s residence at the commencement and conclusion of his time with the children pursuant to Order 2 herein.

1. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this ruling under the pseudonym Naczek & Dowling is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF1222 of 2006

MR NACZEK

Applicant

And

MS DOWLING

Respondent

INDEPENDENT CHILDREN’S LAWYER

RULING

1. On 29 February 2008, I completed the hearing of the evidence in this matter and have adjourned the proceedings to a date to be fixed effectively for judgment.

2. However, I have also made orders setting out a timetable for each party to file submissions.  Before the first of those submissions can be filed however, I was required to contemplate the issue of whether certain evidence was to be admitted as part of the proceedings. 

3. The evidence which is the subject of some contention is contained in the notes of Ms W who is a psycho-analytic psychotherapist.  Ms W has been seeing the wife since approximately April 2007 in her professional capacity as a result of a recommendation made by the expert witness in the proceedings Dr M.

4. Upon the completion of the evidence on 29 February 2008, Mr St John SC on behalf of the husband requested that I admit into evidence all of the notes of Ms W notwithstanding the fact that she was not to be called as a witness.  The question of whether or not Ms W was to be called as a witness was in itself contentious.  Senior Counsel for the wife indicated during the running of the hearing that he did not propose to call Ms W.  The Independent Children’s Lawyer adopted a similar position.  Dr M strongly opposed Ms W being a witness because as a psychotherapist, subjecting the relationship to scrutiny could have an adverse effect upon not only the relationship but also indirectly, the children.  In 2007, I made specific orders about the wife attending psychotherapy leaving open the question of what would happen with that evidence at trial.  I made it clear however, that the psychotherapy had to be transparent and for that purpose, ordered that the psychotherapist produce all of her notes.  It is those notes which are now the subject of controversy.

5. I had also contemplated the question of calling Ms W myself but each party including the husband, raised doubts as to whether the Court could or should do that.  In the end, I decided that it was inappropriate for me to embark upon that course of action as a result of hearing the evidence of Dr M.

6. The question therefore is whether or not the notes of Ms W should be admitted into evidence and if so, on what basis.  With the agreement of all parties, it was accepted that I should read the notes and then determine whether or not they should be admitted.

7. The other feature of this issue is that the wife was cross-examined by Senior Counsel for the husband about a number of matters relating to her discussions with Ms W. 

8. Ultimately, I propose to refuse to admit the documents into evidence for the reasons that follow.

9. On a brief reading of the notes, it can be seen that the relationship between the wife and Ms W commenced about the end of April 2007.  I have evidence that up until that time, the wife was attending upon a counsellor.  It was clear from the notes that it was a condition of the psychotherapy that the wife cancel her relationship with the counsellor.

10. The notes are all sequentially dated but there is no clear indication of the duration of each session.  It was abundantly clear from the cross-examination of the wife that Senior Counsel was targeting apparent quotes of the wife about her reluctance to be involved in the psychotherapy.  The notes contained many apparent quotes but nothing by way of diagnosis or prognosis.  Ms W provided a report which says little more than that the wife was attending.

11. I heard evidence from Dr M about just what happens in psychotherapy and I shall deal with those matters ultimately in the substantive judgment.  Suffice to say, I understand why there is no diagnosis or prognosis contained in the notes of Ms W.  The process for therapy is a long and slow one and I now have evidence from the wife of her desire to continue that.  I also have evidence from Dr M that he recognises an improvement in the wife’s self-esteem.

12. The concern I have about relying upon anything in the notes is that in so far as the quotes about which cross-examination occurred was concerned, I could not draw any inference without understanding the context in which the statement was made.  In addition, I am not aware of whether making statements as to reticence about continuation of such treatment is part of the very symptom of borderline personality disorder diagnosed by Dr M.  As Dr M told me, it was not appropriate for Ms W to profess such an opinion. 

13. To admit into evidence the notes without them being subjected to cross-examination would also give me a very slanted view on what was being discussed in circumstances where the notes are anything but comprehensive.  It may be that the notes would trigger for the witness a much wider interpretation of what was happening that particular day.  For me to try and interpret that would be inappropriate.

14. Finally, the Independent Children’s Lawyer supported the view of Dr M that admitting into evidence the notes from which I could be asked to draw conclusions was exactly the same as putting the psychoanalytic therapy relationship under scrutiny and hence putting it at risk.  Whilst that is what I contemplated in August 2007, I then had in mind evidence of a much more substantive nature than just the notes of a psychotherapist.

15. In short therefore, the notes are of little value to me. 

16. Section 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”) which is a mandatory consideration, says that the proceedings are to be conducted with as little formality and legal technicality as possible.

17. I am entitled to make the orders that I propose to make as a result of s 69ZR(1)(b) and (c).

18. Section 69ZT(1) deals with the evidentiary provisions.  I could under the provision, admit into evidence matters in documentary form.  More importantly, s 69ZT(1)(c) excludes Part 3.2 to 3.8 of Chapter 3 of the Evidence Act 1995 (Cth); that leaves Part 3.1 standing.

19. Part 3.1 deals with the question of relevance and admissibility.

20. Section 55(1) of the Evidence Act says as follows:

    The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

21. It is important therefore to assist me to determine whether this evidence is relevant, to identify what it is that I have to decide in the final hearing.  If I accepted the documents as evidence, would they affect the probability, even indirectly, of the existence of a fact that I have to determine?

22. In Palmer v R (1998) 193 CLR 1 at 555, McHugh J said:

    In general, evidence of a relevant fact is excluded only when it infringes some policy of the law, one of which (even in civil cases) is that evidence of the relevant fact is not admissible if the probative value of that fact is so low that it cannot justify the time, convenience and cost of litigating its proof.

23. Here, I am not at all convinced about the probative value of the material in the notes of Ms W for the reasons that I have set out.  However, in Smith v R (2001) 206 CLR 650, Gleeson CJ, Gaudron, Gummow and Hayne JJ said

    Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised.  Evidence is relevant or it is not.

24. In the circumstances, it seems to me that the evidence contained in the notes which I have now read is not relevant to any issue that I have to determine.  It is most probable that the wife said the things suggested in the notes but what they mean and how that affects the situation is of little significance.  That is particularly so having regard to the diagnosis of Dr M.

25. Even if the evidence should be admitted as having some relevance albeit small, the Court retains the general discretion to exclude evidence under s 135 of the Evidence Act. That provision reads:

    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 undue waste of time.

26. In this case, for reasons which I have set out, to draw any inference from the notes could be misleading and confusing the issues that I have to determine.  In so far as it might be suggested that the wife was using the psychotherapy simply to enhance her chances in court, the admission of selective quotations from the notes would be unfairly prejudicial to her having regard to her responses in cross-examination.  In those circumstances, I rule that the probative value of the notes is substantially outweighed by the danger that the evidence might be either unfairly prejudicial to the wife or be misleading and confusing.

27. Accordingly, I propose to make orders.

I certify that the preceding Twenty Seven (27) paragraphs are a true copy of the Ruling of the Honourable Justice Cronin

Associate: 

Date:  11 March 2008