Nepean & Treloar

[2010] FamCA 781

FAMILY COURT OF AUSTRALIA

NEPEAN & TRELOAR [2010] FamCA 781

FAMILY LAW – PRACTICE AND PROCEDURE – application for disqualification of single expert psychiatrist – documents provided to single expert psychiatrist without the parties’ joint consent – breach of Rule 15.54(3) – single expert’s report took into account the material in making various statements concerning the father – fair minded observer might reasonably come to the conclusion that a breach of the provisions of the Rules had occurred

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Kernot and Matson [2008] FamCA 756

APPLICANT: Mr Nepean

RESPONDENT: Ms Treloar

FILE NUMBER: SYC 7700 of 2009

DATE DELIVERED: 23 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 16 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

COUNSEL FOR THE RESPONDENT: Mr Lethbridge SC with Ms Christie

Orders

1. The orders of 29 April 2009 appointing Associate Professor Carolyn Quadrio as single expert are hereby discharged.

2. The mother, on or before 4.00 pm on Friday, 27 August 2010 provide to the father the names of three persons qualified as Child and Family Psychiatrists, to enquire into and prepare a report into the parenting arrangements for the child, X, born … June 2003, and who are able to prepare that report in a timely fashion, and in time for the days on which this matter is fixed for hearing.

3. The father is to choose one of the proposed experts and each party is instructed jointly with the other to do all such acts and things in accordance with the Rules necessary to instruct the expert and attend on the expert so appointed with the child at such times and places nominated by him or her to permit the report to be produced.

4. The parties are to equally bear the costs of the report prepared pursuant to these Orders.

5. The costs of this application are reserved to the final hearing of the matter.

6. Liberty is granted to the parties to apply on 48 hours’ notice in relation to any difficulty arising in respect these Orders.

THE COURT NOTES that this matter is tentatively listed for final hearing for five days commencing Monday, 13 December 2010, subject to the matter being able to proceed and ready to proceed.

IT IS NOTED that publication of this judgment under the pseudonym Nepean & Treloar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7700 of 2009

MR NEPEAN

Applicant

And

MS TRELOAR

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court are interim proceedings in which the father seeks that orders appointing an independent expert, Associate Professor Quadrio, made on the 29 April 2009 should be discharged.

2. Consequential orders are sought for the appointment of a further Child and Family Psychiatrist to be appointed as a single expert witness to enquire into and prepare a report in relation to the parenting arrangements for the parties’ child, X, born in June 2003.

3. The application was foreshadowed by the father the day after the single expert’s report was produced. The father became aware that the single expert had been provided with a document by the mother’s solicitor which was not provided consensually and was conceded to have been provided in breach of the provisions of Rule 15.54(3) of the Family Law Rules 2004 (Cth) (“the Rules”). The father contemporaneously raised the matter with the Court and reserved his right to make the present application.

4. The document so provided of some twelve pages contained allegations of “fact” and statements of opinion and was a mixture of allegation and submission.  It was a document which had apparently been prepared for the purpose of submissions to the Court in relation to whether or not leave should be given to issue subpoenas.  It could not be gainsaid that the document was not flattering of or supportive of the father’s case and indeed made statements which denigrated him.  I am informed that a large number of the matters raised as “fact” were in issue between the parties.  The document also contained assertions as to the procedural failings in the litigation by the father, which were not agreed by him.

5. By reason of the undisclosed submission of the document the father had no opportunity to reply to the allegations it contained.

6. The father submits that the independent expert’s report is rendered contaminated by the document and that in the circumstances the independent expert cannot be seen as providing an independent report likely to be of use to the Court.

7. By reason of the clear and admitted breach of the provisions of Rule 15.54(3) it is asserted by the father that the report ultimately produced took into account the material in making various statements concerning him, and should not be relied upon in evidence.

8. The Rule is, he says, in effect there to provide integrity to reporting and is designed to provide a reliable source of expert opinion based on the documents jointly submitted by the parties.  Rule 15.59(3)(a) notes that an expert witness has the obligation to “give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability”.  He says to permit the report to be used in circumstances where the Rule has not been obeyed is to counter the policy that he says attaches to the Rule.

9. In addition, the father says that by reason of the contamination occasioned by the provision of the document without consent he perceives that the single expert is biased against him and says that for that reason she should be disqualified.

10. In submissions counsel for the father took the Court to a number of examples which he contended drew their impact and flavour from the contaminating document.  Counsel for the mother pointed however to the fact that many of the matters raised by the document and referred to were referred to clearly without adoption of the facts.  In other words, the expert’s opinion was based on an assertion that if a certain set of facts were correct then a certain set of consequences would occur, and if it were found not to be so, then different consequences would occur.

11. I will not in this Judgment refer to all the examples to which I was taken by each of the parties.  However, I note that the assertion in the document that the father hated the mother was referred to in the report as was a suggestion that there was proposed an order that the mother be forced to communicate with the father.  No such order had been made.  It was put that the flavour of the submission document was evident in the report and it was said that the submissions contained a synopsis of material in emotive terms.  The father contends that the report has some internal inconsistencies.  For example, the report makes positive assertions about the relationship of the father and the child but nevertheless goes on to suggest a diagnosis for the father’s condition said to be corroborated perhaps in part by a procedural failure (which is denied) by the father to answer a subpoena.  This is said by the reporter to be a possible indicator of a particular type of personality having narcissistic features.

12. It is argued by the father, and with which submission I agree, that the application which he brings requires the Court to apply a test which is not dissimilar to the test applied to the disqualification of a Judge.  That test in summary is whether a fair minded, lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide.

13. It was said on behalf of the mother that the breach of the Rule should not, in this case, lead to the dismissal of the expert.  It was asserted that much of what the expert referred to in her report was available to her from the affidavits of the parties and their provision of histories to her.  It was said that on a fair reading of the document its submissions find grounding in the matters put to the expert by the mother and her family.  It is noted that the report does not necessarily set out all that has been said in that regard and it is possible that the reporter relied in part on the document wrongly provided.  In addition, the mother said that although no exception was taken to it, documents were provided to the reporter by the father without prior consultation with the mother, and which included the final manuscript of a book written by the father.

14. However, the mother says that the expert did not necessarily accept what was in the document.  The mother says that this is evident in her report by the expression of caveats on the facts.  The expert has deliberately declined to determine contested issues of fact and has, she says, simply expressed an opinion based on different versions of the facts.  The mother also says that the report, far from being negative about the father’s relationship with the child, is in fact positive.  The father was concerned for the finding that even if the mother’s current anxiety was groundless it nevertheless existed and would have to be taken into account by reason of its affect on the parenting arrangements and therefore the child.

15. It was suggested by the Court that it should have regard to the decision of Justice Watts in Kernot and Matson [2008] FamCA 756 where he considered the issue of whether reports which contained legitimate and objectionable material could be trimmed of the objectionable material. In this case, however, if the material to which the father takes objection was trimmed then the report overall would not be, in my view, particularly helpful.

16. In considering what a fair minded lay observer would think I consider that a lay observer properly instructed would have his attention drawn to the provisions of the Rules, and in particular Rule 15.54(3) and Rule 15.59 and the obligations imposed on the expert by the Court. In my view, a fair minded observer might reasonably come to the conclusion that a breach of the provisions of the Rules had occurred in this case, by reason of the provision of the submissions to Associate Professor Quadrio, and which submissions contained allegations as to matters of fact which were in issue between the parties, denigrating comments and statements said to be incorrect and denied by the father and without the opportunity being afforded to him to answer those assertions prior to the delivery of the report, and which might lead to a reasonable apprehension of bias. There is sufficient reasonable reference to the unchallenged assertions made in the submission document in the report to give rise to a reasonable apprehension that the report is the product, at least in part, of a breach of the Rules and the influence of the document referred to.

17. It is put that the Court has a clear ability to permit the admission of the report, notwithstanding that it was produced with the stated breach of the Rule.  Indeed it is true that the Court has that power, however I do not think that the Court should exercise that power in this case.  The Rule is an important one and is central to the acceptance and integrity of independent expert’s reports which the Judges in their rule-making power have determined should be the product of joint instruction.

18. This is a case where not only the doing of justice, but also the perception of it being done appropriately, is important for the longevity of result and the welfare of the child.  Decisions in relation to parenting concerned as they are with children’s rights should be made on the best evidence available, and that is evidence untainted by the breaches which I find to have occurred in this case.

19. Such reports should be made in proceedings where parties can accept that the process is beyond reproach, even if the result is not to their liking.  It was suggested that in this case the father was simply seeking to reject a report which he saw as unfavourable to him.  There is however, in my view, sufficient cause to grant the application, which I propose to do.

20. At this stage I propose that the costs of the parties to these proceedings should be reserved to the hearing of the matter.

21. I will direct that the mother on or before 4.00 pm on Friday, 27 August 2010 provide to the father the names of three person qualified as Child and Family Psychiatrists and who are willing and able to prepare a report on parenting matters in these proceedings and to see the parties and produce the report in a timely fashion and in time for the days on which this matter is fixed for hearing.

22. The father is to choose one of the proposed experts and each party is instructed jointly with the other to do all such acts and things in accordance with the Rules necessary to instruct the expert and attend on the expert so appointed with the child at such times and places nominated by him or her to permit the report to be produced.

23. Liberty is given to the parties apply in relation to any difficulty arising in respect of this order and the parties are to bear the costs of such report equally.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  23 August 2010