Nayar & Groth (No 2)
[2023] FedCFamC1F 547
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nayar & Groth (No 2) [2023] FedCFamC1F 547
File number(s): CAC 1702 of 2021 Judgment of: GILL J Date of judgment: 3 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Expert evidence – Where the mother seeks to rely on reports of her treating psychologist – Where parts of expert evidence is not compliant with r 7.01 – Opinion evidence - s 79 of the Evidence Act 1995 - Specialised knowledge – Discretionary exclusion - s 135 of the Evidence Act 1995 - Meaning of unfair prejudice - No significant risk of unfair prejudice Legislation: Evidence Act 1995 ss 79, 135 and 137
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 - r 7.08
Cases cited: Dasreef Pty Ltd v Hawchar [2011] HCA 21 Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 3 July 2023 Place: Canberra Counsel for the Applicant: Mr Duane Solicitor for the Applicant: Farrar Gesini & Dunn Counsel for the Respondent: Mr Coleman SC with Mr Stagg Solicitor for the Respondent: Parker Coles Curtis Solicitor for the Independent Children's Lawyer: Ms Mussato, Legal Aid ORDERS
CAC 1702 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GROTH
Applicant
AND: MR NAYAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
GILL J
DATE OF ORDER:
3 JULY 2023
THE COURT ORDERS THAT:
1.The affidavit of Mr P filed on 15 May 2023 containing reports from 19 December 2022 and 12 May 2023, excluding the matters struck out, may be relied upon by the mother.
2.The objections to the mother’s reliance upon this affidavit are otherwise overruled.
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).
EX TEMPORE REASONS FOR JUDGMENT
Gill J
The mother seeks to rely upon an affidavit prepared by Mr P that contains two reports. Mr P is a treating psychologist for the mother and I am told that his evidence is led on the issue of the mother’s anxiety in relation to these proceedings, and X, and treatment of that anxiety. To the extent that it is led for that purpose it may be assumed that submissions will not be made in the future about it being useful for other purposes.
A series of cascading objections were taken, firstly pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) being objection that the reports contained there were not confined in the manner that is mandated by that Rule.
The second basis was pursuant to s 79 of the Evidence Act 1995 given that these are proceedings to which I have applied the opinion rules. The particular objections there were firstly that there has been no identification of specialised knowledge by Mr P and further, that there has been no identification of the factual matters relied upon by him with an ancillary complaint that he has merely accepted the assertions made by the mother.
The third of the objections is pursuant to s 135 of the Evidence Act and it is the assertion that the admission of the reports of Mr P are unfairly prejudicial as they put the father into a position of dealing with evidence without the identification of the assumed or observed facts that underpin the opinions offered by Mr P.
As noted what are being dealt with in the affidavit are two reports. The affidavit was filed on 15 May 2023 and contained reports of 19 December 2022 and one, which although it is dated 12 May 2022 is actually from 12 May 2023. It should be accepted that both of the reports strayed significantly outside what is required pursuant to r 7.01. Although Mr P is giving evidence as a treating practitioner for the mother his evidence strayed significantly into the offering of opinions regarding X, which went beyond the subject matter of his interactions with and treatment of the mother.
Accordingly, the mother did not read a number of portions of that affidavit material. On her invitation I was asked to, if necessary, identify further portions that may not be compliant with either r 7.01 or s 79. A number of those matters have been identified to counsel for the mother who has indicated that there is no need to be further heard in relation to those matters and they accordingly will also be struck out from the material.
Striking those matters out due to non-compliance with r 7.01 left the complaint that the reports are non-compliant with s 79 of the Evidence Act. That provision requires as an exception to the prohibition on opinion being offered that opinion may be offered by a person who holds specialist knowledge based on that person’s training, study or experience. There is a requirement that that specialised knowledge or the evidence that is given is wholly or substantially reliant or based upon that knowledge. The first objection was a lack of identification of specialised knowledge.
It is accepted that what is necessary to demonstrate specialised knowledge will vary from case to case. It may also be observed that where the specialised knowledge is of an outlier expertise further evidence may be required to demonstrate such specialised knowledge than in more run‑of-the-mill cases. This is not an outlier case. The expertise called upon here is the expertise of a clinical psychologist. In this case the provision of the qualifications in the CV annexed to Mr P’s affidavit are sufficient, he has been demonstrated to be a psychologist with expertise in clinical practice. Those matters are sufficient to establish that holds specialised knowledge directed to anxiety and the treatment of the mother, particularly when they are read in accordance with the overall thrust of the CV that he has provided.
The second objection is that he has failed to identify adequately the application of the expertise to facts assumed or observed, by reason of his failure to identify such facts with, as identified earlier, an ancillary complaint that he has assumed the facts asserted by the mother to be true.
Each of the reports recites a number of factual propositions in a manner sufficient to identify that they were what was relied upon. Throughout the report opinions are offered with sufficient connection to the recital of facts, demonstrating a rational connection between the expertise and the asserted facts. Those matters are sufficient to demonstrate application of the specialised knowledge as indicated at paragraph 72 of Dasreef Pty Ltd v Hawchar [2011] HCA 21. It may be that Mr P’s apparently uncritical acceptance of the mother’s assertions may undermine the conclusions that he has reached. That will be a matter for assessment and for the assigning of weight at the trial, but is not a basis to exclude for failure to comply with s 79.
Finally, objection is sought to exclude the reports pursuant to s 135 of the Evidence Act. Reliance was placed on the assertion that the evidence of Mr P was unfairly prejudicial to a party. I understand that the content of unfair prejudice contained at s 135 is the same as content of that phrase as used in s 137 of the Evidence Act. That is it is dealing with the danger that a factfinder will make a decision on an improper or perhaps emotional basis or in any event misuse the evidence. I do not perceive of any such significant risk here, nor that such a risk, if it has been identified, substantially outweighs the probative value of the evidence.
The objection is otherwise overruled.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 3 July 2023
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