NEWPORT & NEWPORT

[2017] FamCA 1137

FAMILY COURT OF AUSTRALIA

NEWPORT & NEWPORT [2017] FamCA 1137

FAMILY LAW – PRACTICE AND PROCEDURE Bias – Oral application - Whether the single expert is biased or ostensibly biased against the father - Where the father contends the single expert has expressed views on his credibility  Where the Court applies the same test for bias that would be applied to a judicial officer – Where the Court is not satisfied that the single expert will apply his previously expressed views without giving the matter fresh consideration in light of additional material put to him during cross-examination - Application dismissed

Bass & Bass (2008) FLC 93-366
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

APPLICANT: Mr Newport

RESPONDENT: Ms Newport

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: SYC 2571 of 2015

DATE DELIVERED: 12 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 12 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Excused
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid New South Wales

Orders

THE COURT ORDERS THAT:

1. The father’s application for a finding that the single expert is biased is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newport & Newport (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2571 of 2015

Mr Newport

Applicant

And

Ms Newport

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter, senior counsel for the father has made an oral application for the Court to find that the single expert, Dr F is biased, in that he is actually biased, and also, from his client’s point of view, ostensibly biased insofar as his client perceives him to be biased. 

2. The essential basis of the application is that Dr F has, in the course of giving oral evidence, expressed his views regarding findings of fact and specifically findings in respect of the credit of the father. The father, through his Counsel, contended that Dr F has effectively formed the view that the father has not been telling the truth. 

3. It is submitted that not only would I not be assisted by Dr F’s reports, but that the father would have a concern that the Court would be acting on the basis of a single expert’s report in circumstances where the expert is actually biased against him.

4. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 71, Gleeson CJ and Gummow J said:

   Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind or predisposition, sometimes one that has been publically expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. 

5. Their Honours further went on to say:

   Natural justice does not require the absence of any previous position or inclination for or against an argument or conclusion. 

6. In this matter, I invited a submission from senior Counsel for the father as to whether the tests of bias in respect to a single expert are the same as the test applied to a judicial officer. I am not satisfied that it is necessarily the same test that needs to be applied, but for the purpose of this decision, I should make it clear that I am, in fact, applying the same test, that is, I am applying the same test that would be applied to a judicial officer.

7. In Minister for Immigration and Multicultural Affairs v Jia Legang (2001) 205 CLR 507 at 185, Hayne J said:

   Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.

8. In this matter I accept, for the purposes of argument, that Dr F has expressed an opinion on the basis of the material put to him regarding the credit of the father, in respect to whether he was violent towards the mother. I further accept, for the purpose of argument, that he has expressed a favourable view regarding the daughter’s account that she witnessed the act of violence.

9. Senior counsel for the father contends that the opinions expressed by Dr F in his reports has been coloured by the view Dr F has of the father’s account of the incident, and further, that any evidence that Dr F gives in these proceedings is likely to be coloured by that bias. 

10. At this stage of the proceedings, I am not satisfied that the decision-maker will necessarily apply views that he has expressed to date without giving the matter fresh consideration in light of whatever additional material may be put to him during the course of cross-examination. That new material being; the facts and arguments relevant to the particular issues that have arisen in the affidavit evidence of the parties and in the oral evidence of the parties. 

11. In that context, I refer to the decision of the Full Court in Bass & Bass (2008) FLC 93-366 at 50, where the Full Court considered two issues in respect to an allegation of bias against a single expert but, relevantly for these proceedings, said;

    Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings … Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial judge.

12. In that context, I have indicated to Counsel, and the parties, that I will not attach any weight to the views that Dr F has expressed regarding the credibility of the father. They are matters that the Court will consider. However, I specifically leave open for argument the extent to which I should have regard to Dr F’s views regarding the account that the daughter has provided to him regarding the incident which she alleges she witnessed involving the mother and the father.

13. In conclusion, and having regard to the authorities to which I’ve referred, I am of the view that, at this point in the proceedings, it is not possible to say that Dr F is actually or ostensibly biased in the sense that he is not prepared to give the matter fresh consideration in light of whatever may be put to him by way of facts and contentions during the course of cross-examination. On that basis, I dismiss the application.

I certify that the preceding twelve (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 12 December 2017.

Associate: 

Date:  31 January 2018