OTHONOS and COSTA-OTHONOS
[2023] FCWA 5
•16 JANUARY 2023
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : TYSON J | ||
| HEARD | : [REDACTED] | ||
| DELIVERED | : 16 JANUARY 2023 | ||
| FILE NO/S | : [REDACTED] | ||
| BETWEEN | : MR OTHONOS |
Applicant
AND
MS COSTA-OTHONOS
Respondent
Catchwords:
FAMILY LAW - PRACTICE & PROCEDURE - Expert Evidence - Where orders were made by consent for the appointment of a Single Expert Witness to prepare an occupational health assessment with respect to the wife - Where the husband seeks the discharge of the Single Expert Witness and permission to appoint an expert other than the Single Expert Witness - Where the wife unilaterally obtained a neuropsychological report for the purpose of the proceedings without leave of the Court or the consent of the husband - Where the Single Expert Witness has relied upon the neuropsychological report - Where the parties are required to confer and appoint a Single Expert Witness for the purpose of preparing a neuropsychological report - Where the Court is satisfied the circumstances warrant the discharge of the Single Expert Witness - Where the Court considers the parties should confer and appoint a Single Expert
[2023] FCWA 5
Witness for the purpose of preparing an occupational health assessment of the
wife - Where the Court declines the husband’s application to appoint an
adversarial expert - Case turns on its own facts
Legislation:
Evidence Act 1906 (WA)
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Senior Counsel A and Junior Counsel A |
Respondent : Senior Counsel B
Solicitors:
Applicant : Law Firm A Respondent : Law Firm C
Case(s) referred to in decision(s):
Albert & Plowman [2020] FamCAFC 23
Bass and Bass (2008) FLC 93-366
Bowen & Williams [2015] FamCA 545
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Lambard & Lambard (No 4) [2021] FamCA 47
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Marcin & Marcin [2020] FamCAFC 85
Marsh & Marsh [2011] FamCA 193
McElhinney v McElhinney (2021) 62 Fam LR 624
Neil & Zang (2021) 62 Fam LR 432
Othonos and Costa-Othonos [2021] FCWA 142
Othonos and Costa-Othonos [2022] FCWA 16
Othonos and Costa-Othonos [2022] FCWA 189
Payne & Payne [2009] FamCA 1005
Saller & Danell (No 2) [2017] FamCA 712
[2023] FCWA 5
Simonsen & Simonsen [2009] FamCA 698
Sullivan & Tyler and Anor (2016) FLC 93-708
Swefford & Tarbell [2012] FamCAFC 80
Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521
[2023] FCWA 5
TYSON J
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Othonos and Costa-Othonos has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
1 [Mr Othonos] ("the husband") and [Ms Costa-Othonos] ("the wife") are unable to agree on orders by way of alteration of property interests and maintenance, following the breakdown of their marriage. In determining the competing applications, a central issue in dispute is the wife's health, and whether her health impacts upon her income earning capacity.
2 To address this issue, the parties appointed [Dr E] as a Single Expert Witness, pursuant to consent orders made in April 2020. Dr E was jointly instructed and produced his report, which was attached to his affidavit filed 29 September 2020.
3 Dr E's report is the subject of controversy. In the latest instalment of litigation, the Court is required to determine (1) whether Dr E should be discharged as the Single Expert Witness, or in the alternative, whether Dr E's affidavit should be determined as inadmissible at trial, and (2) whether [Dr J] should be engaged as an adversarial expert, at the behest of the husband. The wife opposes the husband's application.
4 For the reasons which follow, I have determined (1) the parties are required to confer and agree on the appointment of a further Single Expert Witness to prepare a neuropsychological assessment of the wife, (2) for Dr E to be discharged as the Single Expert Witness, and (3) for the parties to confer and agree on the appointment of a further Single Expert Witness to prepare an occupational health assessment of the wife in relation to her current and future earning capacity. I have declined the husband's application to appoint Dr J.
[2023] FCWA 5
TYSON J
APPLICATIONS AND EVIDENCE RELIED UPON
5 The husband seeks orders in terms of paragraphs 8 to 11 of his Application in a Case filed 20 August 2021, together with the orders set out in his further Application in a Case filed 20 July 2022. In summary, he seeks Dr E be discharged as the Single Expert Witness, or in the alternative, an order that Dr E's 'affidavit filed 29 September 2020 be "inadmissible at trial". He further seeks to appoint Dr J as his expert witness, to prepare a report as to:
(a) whether, as a result of the wife's health, the wife is unable to engage in paid employment or otherwise earn income; (b) the details of any health problems from which the wife suffers, and if such problems affect the wife's ability to engage in paid employment or otherwise earn income; and (c) the wife's prognosis in respect of any such health problems from which the wife suffers.
6 The husband seeks ancillary orders requiring the wife to attend upon Dr J and provision of documents, information and requests as made by Dr J. The husband seeks leave to rely on Dr J's 'evidence at trial. He proposes to pay the costs of Dr J and the wife's reasonable travel expenses for her attendance on Dr J.
7 The husband relies upon his affidavit filed 20 August 2021, and the affidavit of his solicitor, [Solicitor A], filed 20 July 2022. The wife seeks the husband's application be dismissed.[1] She relies upon her affidavits filed 27 April 2022 and 15 November 2022.
8 Also in evidence were the affidavits of Dr E filed 29 September 2020, and 9 November 2022.
9 I have read and carefully considered all of the evidence, and had the benefit of submissions from senior counsel on behalf of each party. Where I have not referred to part of the evidence, that is not to say I have ignored or overlooked it.
BRIEF BACKGROUND FACTS
| 10 | I have delivered a number of decisions in these proceedings in which I have set out the history of the litigation, and the background facts, namely, Othonos and Costa-Othonos [2021] FCWA 142, Othonos and |
[2023] FCWA 5
TYSON J
Costa-Othonos [2022] FCWA 16, and Othonos and Costa-Othonos [2022] FCWA 189 ("September Reasons"). I incorporate and adopt those Reasons, which do not require repetition.
11 For present purposes, it is sufficient to simply record the
following.
12 In 2019, the husband commenced the current proceedings. In January 2020, the wife filed her responding documents, including an interim application for spousal maintenance.
13 In February 2020, the wife filed an Application in a Case seeking leave to file "any further affidavits [the wife] wishes to rely upon from any medical practitioner, treating medical practitioner or medical expert by no later than 30 March 2020."
14 On 30 March 2020, the wife filed an affidavit of [Dr B], attaching the joint neuropsychological assessment report of Dr B and [Dr N] dated 20 February 2020 ("the neuropsychological report") in support of the interim application then before the Court.
15 The neuropsychological report was prepared at the request of the wife's then solicitors, seeking an assessment of the wife's cognitive functioning. The letter of instruction:[2]
(a) Set out the wife's instructions in relation to the accident which occurred in [mid] 2017, the wife's reported injuries and disabilities, and the wife's case that she sustained "significant injuries which have left her with permanent physical disabilities and neurological problems". (b) Advised the wife had attended upon "various specialists and treating practitioners", and requested a history be obtained from the wife, and her medical records, if required. (c) Requested a "[redacted] "report" which addressed a number of matters, including, findings on examination, diagnosis, any recommended treatment, "the impact that her condition (if any) [has] upon her future employment … [and] her psychological
wellbeing, and [y]our finding on how any injuries you may find
may impact upon her generally".(d) Enclosed a copy of Divs 15.5.5 and 15.5.6 of the Family Law Rules 2004, and a practice note from the Federal Court of Australia.
[2023] FCWA 5
TYSON J
16 The neuropsychological report contains Dr N's assessment of the wife, under the oversight of Dr B. Dr N is a clinical neuropsychology registrar. Dr B is a senior clinical neuropsychologist. Dr B and Dr N's qualifications and relevant work experience was contained in the report, together with the documents reviewed, the five-and-a-half-hour assessment conducted with the wife, and her interview.
17 The neuropsychological report concluded the wife had sustained a [neurological disorder], and her presentation was "consistent with a diagnosis of [Psychiatric Disorder A] "due to domestic abuse".[3] The report concluded the wife's Psychiatric Disorder A "will likely impede her ability to participate in full-time employment. Resolution of her Psychiatric Disorder A with appropriate treatment may result in the concurrent resolution of these difficulties, and therefore open up prospects for her to participate more fully in employment opportunities".[4]
18 In anticipation of the interim hearing, the wife filed a Minute setting out her proposed orders, which included the appointment of "one such [S]ingle [E]xpert [W]itness to prepare an occupational health
assessment of the [wife] … and the other [S]ingle [E]xpert [W]itness to
prepare a neuropsychological assessment of the [wife]".[5]
19 In April 2020, consent orders were made for the appointment of a Single Expert Witness to prepare an occupational health assessment of the wife's current and future earning capacity. The balance of the wife's application was adjourned.
20 Pursuant to the consent orders, the wife was required to (1) provide information and documents as may be requested by the Single Expert Witness, and (2) authorise the Single Expert Witness to obtain information and documentation as may be specified from time to time, directly from each medical practitioner whom the wife had consulted in the preceding three years.[6]
21 The husband objected to the provision of the neuropsychological report to the Single Expert Witness, with his solicitors writing "[a]lthough the order provides that each party can provide court documents to the [S]ingle [E]xpert [Witness], in our view that cannot sensibly include inadmissible evidence. Accordingly, each of the affidavits setting out the
[2023] FCWA 5
TYSON J
opinions of third parties and filed on behalf of your client must not be
provided to Dr E".[7]
22 In reply, the wife's solicitors referred to the consent orders and wrote the husband "had an opportunity to raise objections to any specific material being sent to the expert when those [o]rders were negotiated and agreed. [The husband] did not do so. [The husband] is now seeking to amend those agreed [c]onsent [o]rders and this is unacceptable to [the wife]".[8]
23 The husband's solicitors responded:
In our view:
1. Rules 15.51(1) and 15.49(1) cannot be ignored. 2.
If an affidavit has been filed without leave for it to be filed, in contravention of rule 15.51(1), the mere act of filing it does not render the improperly filed document a "court document" for the purposes of paragraph 5 of the draft consent order attached to the order of 17 April 2020 ("the order").
3.
To place before a single expert witness documents that are not properly before the [C]ourt would:
(a) be at odds with the stated purpose of the rules about appointing a single expert; and (b) run the risk of clouding the judgment (sic) of the single expert. 4. Paragraph 4 of the order requires the parties to provide to the single expert such other information and documentation from the parties as the single expert requests.
5. Without conceding that documents filed without leave fit the description of "court document", we propose the following approach to enable the appointment with [Dr E] to go ahead as booked.
6. The parties should provide to [Dr E] (with copies to the other party):
(a)
their own affidavits (as specified in the joint letter of instruction);
[2023] FCWA 5
TYSON J
(b) their respective statements of fact; and (c) their respective lists of other documents that they wish him to take into account after he has assessed your client (and these would only be provided to him if he requests them). 7. If the way forward as to the joint instructions of the single expert cannot be agreed, it would seem that directions will be required from the [C]ourt.
… For the reasons set out above, the amended joint letter does not contemplate the provision to [Dr E] of affidavits (or attachments to affidavits) that breach rule 15.51(1), except if Dr E requests them after having assessed your client himself.[9]
24 As observed, Dr E was jointly instructed in August 2020, at which time he was provided with a list of agreed documents, including a statement of facts from the husband and the wife, various affidavits filed in the proceedings, and surveillance footage.
25 In the husband's Minute of interim orders sought filed in September 2020, he sought the affidavit of Dr B be uplifted from the Court file. That application was adjourned.[10]
26 There is some confusion as to when, and how, Dr E received the neuropsychological report. On the day Dr E assessed the wife, his offices wrote and requested the neuropsychological report,[11] which was provided by the wife's solicitors the following day.[12] Dr E has since deposed the wife provided him with the report, when she attended for assessment.[13] The wife deposes to the best of her recollection, she did not take any documents with her to the appointment with Dr E.[14] I am unable to determine this issue, on the basis of the disputed facts.
27 In February 2021, the husband's solicitors complained about the provision of the neuropsychological report to Dr E, together with other medical reports. They advised the husband would object to Dr E's report being admitted into evidence, in the absence of the author of each of the reports being available. The husband foreshadowed, if the wife sought to
[2023] FCWA 5
TYSON J
lead evidence from the deponents of those reports, he would seek leave to
obtain his own expert assessment of the wife.
28 In August 2021, the husband's solicitors wrote to the wife's solicitors, asserting Dr E's report was "fatally flawed", such that "the [C]ourt cannot properly rely on it", it failed to comply with the Family Court Rules 2021 (WA) ("the Rules"), and improperly relied on reports of supposed "experts" unilaterally instructed by the wife's solicitors. The husband proposed Dr J be instructed, in similar terms as those provided to Dr E. He sought the wife's consent to an examination and to release her medical records to Dr J. The wife did not agree, and suggested Dr E prepare an updated report.
29 When making that request, the husband did not disclose he had instructed Dr J to critique Dr E's report and received Dr J's critique dated 17 November 2020. Dr J's report was disclosed to the wife in August 2021.
30 Dr J was unilaterally instructed by the husband to assess Dr E's methodology and conclusions. Dr J did not meet with or examine the wife. Dr J stated Dr E's report (1) provided limited information with respect to the wife's medical conditions, (2) contained insufficient information to enable an assessment or understanding of the wife's previous employment, and (3) indicated a limited physical examination was conducted. Dr J "struggled to understand" the basis of Dr E's opinions and considered the report provided insufficient information to justify the conclusions. Dr J also raised questions pertaining to the wife's health, her employment history, and the circumstances in which she ceased work.
31 In June 2022, the husband's solicitors wrote to the wife's solicitors[15] repeating their view that Dr E's report was inadmissible and absent steps to remedy the position, there should be a ruling with respect to its admissibility prior to trial. The letter set out the chronology of events, and set out two potential options: either (1) Dr E's report be deemed inadmissible, or alternatively, (2) Dr E's report stand, on the basis that authors of the reports upon which he relied are called to give evidence and be available for cross-examination at trial, and the wife make herself available for assessment by experts to be appointed by the husband. The letter stated "[p]ut simply, the position we find ourselves in arises by reason of your client filing expert reports for which she did not have
[2023] FCWA 5
TYSON J
permission to do so and then providing them to Dr E without our client's
consent. The problem needs to be fixed".
32 The wife's solicitors replied, disputing that Dr E's report was inadmissible, rejecting the husband's proposals and observing the husband would be able to cross-examine Dr E at trial.[16]
33 Further attempts between the parties to resolve the issues, failed.[17] The wife's solicitors confirmed the wife would not be relying on the neuropsychological report at trial, nor another medical report, and accordingly, the authors would not be called.[18]
34 In the September Reasons, at [87]-[113], I set out the husband's application with respect to the appointment of Dr J, which included the relevant factual matters, the salient aspects of Dr E's report, the husband's complaints and criticisms of Dr E's report, and Dr J's critique of Dr E's report, which I adopt and do not intend to repeat.
35 At that time, I declined to make orders to appoint Dr J. I made orders extending the time in which the husband could put questions to Dr E, pursuant to the Rules, stating as follows:
[110] In my view, the husband's application is premature. Many of the matters which he complains of, should have been addressed through asking questions of Dr E, pursuant to the Rules. No explanation was provided for the husband's failure to do so, notwithstanding the period of time since receipt of Dr E's report, and since the husband's receipt of Dr J's report.
[111] For instance, the husband queries whether Dr E was advised that the wife had been to a [redacted] resort prior to the assessment. That could be easily clarified by asking Dr E. Presumably, further questions may then arise about the relevance of that fact, and whether it impacts upon the assessment. Similarly, the husband's queries about the extent to which Dr E relied upon other medical reports of the wife, and the wife's self-reporting, as opposed to his assessment of the wife, could be clarified through that mechanism. I am not persuaded the nature of the husband's complaints and criticisms, which on his case, have contaminated Dr E's report, should excuse the husband from utilising the procedures pursuant to the Rules.
[2023] FCWA 5
TYSON J
[112] I am unable to determine, on an interim basis, whether the reports the wife provided to Dr E were from her treating medical practitioners, and whether the wife had leave to file affidavits from those practitioners. The wife provided the reports at Dr E's request, as she was obliged to do.[19] The provision of the reports was not subject to, or conditional upon, the husband's consent.
[113] I propose to extend the period of time in which the husband can put questions to Dr E pursuant to the Rules. If, after receipt of answers from Dr E these matters remain unresolved, then the husband will have liberty to relist his application to appoint Dr J. I will therefore adjourn the husband's application.
36 On 10 October 2022, the husband posed a series of questions to Dr E. On 5 November 2022, Dr E responded by way of letter to both parties. Following receipt of Dr E's answers, the husband pressed his application for leave to appoint Dr J, and further orders with respect to Dr E, which I am now required to determine.
THE LAW
37 The proceedings are determined under the Family Law Act 1975 (Cth) ("the Act"). At [105]-[106] and [108]-[109] of the September Reasons, I set out the relevant Rules and applicable authorities, with respect to expert evidence, which I adopt and do not intend to repeat.
38 The giving of expert evidence is regulated by Pt 15 Div 5 of the
Rules.
39 The Rules are subject to the overriding provisions contained in Pt 1 of the Rules, which include:
(a)
The main purpose of the Rules is to ensure each case is resolved in a just and timely manner, at a cost to the parties and the Court that is reasonable in the circumstances of the case;[20]
(b)
The Court must apply the Rules to promote the main purpose and actively manage each case including by ensuring that parties and their lawyers comply with the Rules and consider whether the likely benefits of taking a step, justify the cost of that step;[21]
(c)
To achieve the main purpose the Court must apply the Rules in a manner that deals with each case fairly, justly and in a timely manner, that is proportionate to the issues in a case and their
[2023] FCWA 5
TYSON J
complexity, and the likely cost of the case, and that promotes the
saving of costs.22
40 Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, summarised the relevant principles in relation to the admissibility of expert evidence, at [85], in the following terms:
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached; that is, the expert evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or
observed so as to produce the opinion propounded …
41 The High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, approved the above passage in Makita (supra).
42 Also relevant are the observations of the Full Court in Albert & Plowman [2020] FamCAFC 23, where they wrote, at [20]:
Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.
| 43 | Justice O'Brien in McElhinney v McElhinney (2021) 62 Fam LR 624, at [30]-[31], observed a Single Expert is no more than a witness, and: |
[2023] FCWA 5
TYSON J
[T]he power and responsibility to determine disputes falls to the judge. Once expert evidence is admitted, the court is not bound to accept or reject the whole or any part of it.
There is no magic in a single expert report, and while the views of a [Single Expert Witness] will normally have weight with the court, the question of how much weight will depend on the individual case and the whole of the evidence.
(footnotes omitted)
44 The Rules do not provide any guidelines for the Court in considering an application to discharge a Single Expert Witness.[23] It is a power that is assumed to exist, including at an appellate level,[24] and by a number of single instance judges.[25]
45 Where the Court has the power to make orders to appoint a Single Expert Witness,[26] and the power to set aside or vary any order made in the exercise of a power under the Rules,[27] I am satisfied the Court has the power to discharge a Single Expert Witness. Further, pursuant to r 311 of the Rules, the Court has the power to set aside an order if it is interlocutory.[28] An order appointing a Single Expert Witness is an interlocutory order, and accordingly, the Court has the power to set such an order aside.
46 A review of the authorities establish Courts have been reluctant to discharge a Single Expert Witness and, in the absence of exceptional circumstances, will not do so until other mechanisms available under the Rules for testing and clarifying an expert's opinion are exercised.
47 The husband seeks orders to appoint Dr J as his adversarial expert, to prepare an assessment on terms as identified, at his cost. The application relies upon sub-r 274(2) of the Rules, which provides:
The court may allow a party to tender a report or adduce evidence from
another expert witness on the same issue if it is satisfied that –
[2023] FCWA 5
TYSON J
(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue; or (b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or (c) there is another special reason for adducing evidence from another expert witness.
48 The purpose of r 274 is well-recognised as imposing limitations on the use of adversarial evidence, subject to the discretion of the Court. The exercise of discretion must be founded upon satisfaction of at least one of r 274(2)(a), (b) or (c).
49 In Marcin & Marcin (2020) FLC 93-956, at [33], the Full Court
said:
Litigants are not permitted to call adversarial expert evidence which they consider to be more favourable simply because of their dissatisfaction with the evidence proffered by a single expert. Rule 15.49(2) of the Family Law Rules 2004 (Cth) ("the Rules") [as were then in force], which is adopted and applied in Western Australia by rr 12 and 13 of the Family Court Rules 1998 (WA) [as were then in force], does not permit a party to call adversarial expert evidence once a single expert has been appointed, unless certain conditions are fulfilled. The Rules impose a system which seeks to avoid, as far as is possible the multiplication of contradictory expert opinions.
50 In Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521, at
[26], Kent J observed:
In any case where a single expert has been appointed, allowing another party to tender evidence from another expert on the same issues creates an imbalance. That is, only one party may have what may be described as an adversarial expert, while the other party has only the evidence of the single expert who has acted within the constraints, in terms of instructions, as provided for in the rules. The further possibility is the other party seeking to have their own expert to redress that perceived imbalance, undermining the original purpose of appointing a single expert; that is, to avoid a "battle of the experts".
(footnotes omitted)
51 The husband relies primarily upon r 274(2)(c) of the Rules. That sub-r refers to a "special reason" for adducing evidence from another expert witness. As to what special means:
[2023] FCWA 5
TYSON J
(a) In Simonsen & Simonsen [2009] FamCA 698, at [12], Murphy J wrote: The general thrust of the Rules has been referred to by the Full Court in Bass & Bass (2008) FLC 93-366. As the court in that case made clear, the adducing of evidence from an additional expert, is not something which ought occur in the usual course, or simply by application made by a party. In simple terms, the word "special" as used in r 15.49 has real meaning.
(b) In Bowen & Williams [2015] FamCA 545, at [21]-[22], Tree J noted that special connotes "out of the ordinary … extraordinary
or exceptional".
(c) In Lambard & Lambard (No 4) [2021] FamCA 47, at [14], McClelland DCJ wrote: It is necessary to pay attention to the actual words used in 15.49(2)(c) being that "there is another special reason". I have not been referred to any definition of "special reason", however, I construe the word "special" as requiring a reason which is more than "the ordinary": see Gyselman and Gyselman (1992) FLC 92-279 at 79,064.
NEUROPSYCHOLOGICAL REPORT
52 It is appropriate to return to the neuropsychological report, which is central to the husband's application.
What is the husband's case?
53 The husband submits the neuropsychological report was unilaterally obtained by the wife, without leave of the Court, or his consent. Dr E has placed significant reliance on the neuropsychological report, in circumstances where (1) the wife does not intend to call the author of the report to give evidence at trial, (2) the author was not the wife's treating medical practitioner, and (3) the report is inadmissible in the absence of the author giving evidence and leave of the Court. The husband asserts Dr E's report is inadmissible, in the circumstances.
54 Further, the husband submits Dr E's report has been "infected" or "tainted" by his reliance on the neuropsychological report. If Dr E is to give admissible evidence, the author of the neuropsychological report must be called, which in turn means the husband must have an opportunity to cause similar expert evidence, in the interests of procedural fairness.
[2023] FCWA 5
TYSON J
55 Dr E's answers to questions confirm that as part of his assessment, he (1) discussed the neuropsychological report with the wife, (2) relied on the neuropsychological report, including with respect to (a) the wife's diagnosis of Psychiatric Disorder A,[29] and a neurological disorder with cognitive impairment,[30] (b) his understanding of the cognitive limitations on the wife,[31] and (3) relied upon the contents of the neuropsychological report, in lieu of having personally conducted a psychiatric examination or neuropsychological assessment of the wife.[32]
What is the wife's case?
56 The wife submits Dr E was entitled to have regard to whatever information he considered appropriate, in preparing his report. She says it is not open to the husband to assert the neuropsychological report was provided to Dr E "without the express approval of the Court or of the [husband]" in circumstances where the Court's approval and the husband's consent was expressly built into the terms of the relevant consent orders, which required the wife to provide "all such information and documentation to the [S]ingle [E]xpert [W]itness as the [S]ingle [E]xpert [W]itness may request from time to time". The wife says the husband expressly consented to the provision of the neuropsychological report, in the joint letter of instruction to Dr E.
57 Dr E requested documents, including the neuropsychological report, and the wife was "bound by the [c]onsent [o]rders to comply with Dr E's request". The wife submits the husband's current position cannot be reconciled with the consent orders.
DISCUSSIONS
58 The following matters are established by the evidence:
(a)
The wife initially acknowledged the need to obtain expert evidence with respect to neuropsychological issues. She proposed the appointment of a Single Expert Witness for that purpose, separate to the appointment of an expert to prepare an
[2023] FCWA 5
TYSON J
occupational health assessment. That application was never
determined.
(b) The neuropsychological report was not prepared by the wife's treating medical practitioner. That is self-evident from the report itself, and the letter of instruction. Accordingly, the neuropsychological report does not fall within the exception set out in r 267 of the Rules. Further, none of the other exceptions in r 267 apply. To the extent the wife submitted otherwise, I do not agree. (c) It follows that Pt 15 Div 5 of the Rules applies to the neuropsychological report. Accordingly, the neuropsychological report is not admissible expert evidence. It was unilaterally obtained by the wife, without leave of the Court,[33] or compliance with the relevant Rules for the appointment of a Single Expert Witness, for these proceedings. (d) The fact the neuropsychological report has been filed, attached to the affidavit of Dr B, does not cure the deficiencies and non-compliance with the Rules. The mere filing of an affidavit does not make it evidence. It is only when the affidavit is relied upon by a party at a hearing or trial, that it becomes evidence for that hearing, or trial, subject to any rulings on admissibility. (e) Dr E has relied on the neuropsychological report, as clarified through his answers.
59 Without the author of the neuropsychological report being called to give evidence, and without leave being granted to permit the wife to rely on the neuropsychological report, Dr E's report is inadmissible. Dr E's reliance and reference to the neuropsychological report does not render the contents of the neuropsychological report admissible. The opinions expressed by Dr E are, in part, based upon matters not in evidence, and accordingly, his report is inadmissible.
60 The fact the neuropsychological report was provided to Dr E pursuant to the consent orders, does not remedy the fact the neuropsychological report is inadmissible, nor does it render the report admissible.
[2023] FCWA 5
TYSON J
61 The husband clearly articulated his objection to the provision of the neuropsychological report to Dr E prior to the joint instruction. The wife was on notice about these issues in advance of the engagement of Dr E. The chronology demonstrates the husband's objection to Dr E relying upon the neuropsychological report, and to the extent it was suggested otherwise, I do not agree. In any event, even if the husband agreed to the provision of the neuropsychological report to Dr E, that does not cure the problem of the report being inadmissible.
62 I do not agree with the wife's submissions that no complaint has been made as to the independence or expertise of the author of the neuropsychological report, or the likelihood that another expert would
result in a different outcome. Those submissions both "[miss] … the
point, but proceeds on the erroneous … basis that somehow the [husband]
should be bound by the views of an expert who is not a Single Expert Witness, whose examination was not sanctioned by the [C]ourt whose affidavit has been filed other than pursuant to an order of the [C]ourt and who the [wife] does not intend to call to give evidence at trial".[34]
63 Senior counsel for the wife referred to s 79C(1) of the Evidence Act 1906 (WA) ("the Evidence Act"), which permits the admission into evidence of a statement in a document tending to establish a fact or opinion where the statement is made by a qualified person, without calling the author or subjecting him or her to cross-examination, notwithstanding the rules against hearsay evidence.
64 Section 79C(2) of the Evidence Act provides the author of the statement must be called as a witness, unless certain conditions are met. While the author of the neuropsychological report is from interstate, it was not seriously suggested that his attendance could not be secured. None of the other prescribed exceptions, were suggested to apply. In any event, s 79C does not render the neuropsychological report admissible, if it is not otherwise admissible.[35]
65 In the circumstances, I accept it is procedurally unfair to the husband to be bound by the neuropsychological report. That is highlighted by the fact it was prepared upon the wife's unilateral instructions, without the benefit of the husband's input, where the author of the report is not the wife's treating medical practitioner, is not proposed by the wife to be called to give evidence at trial, and where the husband has no capacity to
[2023] FCWA 5
TYSON J
put questions to the author, pursuant to the Rules, given the author is not a
Single Expert Witness.
66 The remedy requires a Single Expert Witness to be appointed to prepare a neuropsychological assessment of the wife. During the hearing, that outcome was accepted by the husband's senior counsel, and conceded by the wife's senior counsel, as an option open to the Court.[36]
67 I propose the parties agree upon the appointment of a Single Expert Witness to prepare a neuropsychological report of the wife, on terms to be agreed, for one party to nominate three proposed neuropsychologists and provide their curriculum vitae, costs, and availability, with the other party selecting one, in similar terms to the course adopted in the September Reasons and orders of that date.[37]
SHOULD DR E BE DISCHARGED AS THE SINGLE EXPERT
WITNESS?
68 The central plank to the husband's application to discharge Dr E is that Dr E's report has been infected by reliance on the neuropsychological report, and in the absence of the author of the neuropsychological report being called to give evidence, Dr E's report is inadmissible.
69 The husband bears the onus of establishing it is appropriate to discharge the Single Expert Witness. I am persuaded that such a course is warranted, and I intend to discharge Dr E as the Single Expert Witness.
70 As indicated above, there are serious evidentiary questions regarding Dr E's report, in circumstances where he has relied upon a neuropsychological report that is inadmissible.
71 I have concerns about the utility of an updated report by Dr E, in the circumstances. In my view, the husband's criticisms of Dr E, which are reasonably made, will not simply disappear by the parties engaging a further Single Expert Witness to prepare a neuropsychological assessment of the wife, which is then provided to Dr E. In other words, given Dr E has relied upon inadmissible material, raises questions about any future reports he may prepare. The potential for criticisms and questions as to the extent any views expressed in an updated report, may be tainted or infected by his previous reliance on inadmissible material, are self-evident.
[2023] FCWA 5
TYSON J
72 I am not persuaded that cross-examination at trial, or the other options advanced by the wife's senior counsel, may be sufficient to avoid injustice in this case. In my view, there is a real potential of an evidentiary vacuum arising, with respect to important issues requiring determination at trial.
73 In reaching my decision, I stress there has been no suggestion Dr E is biased, or there is a reasonable apprehension of bias, or that Dr E has adopted a closed mind. The decision to discharge Dr E is made where there are serious evidentiary difficulties with his report, and in light of the history of this matter, the need to effectively manage these evidentiary issues.
74 Flowing from my determination, I am satisfied the circumstances warrant the appointment of a new Single Expert Witness, to ensure the Court, and the parties, have admissible, independent expert evidence as to the wife's health and its impact upon her income earning capacity. While that was not an order sought by either party, that outcome is in the interests of justice, in the interests of both parties, and is consistent with the Rules. The appointment of a Single Expert Witness will avoid unnecessary costs arising from the appointment of multiple witnesses, and will ensure the Court has expert evidence from a Single Expert Witness.
75 The appointment of a new Single Expert prior to the Readiness Hearing, will hopefully avoid potential delays and ultimately, save the parties in terms of costs, acknowledging that further costs will inevitably be incurred.
SHOULD THE HUSBAND BE PERMITTED TO ADDUCE EVIDENCE
FROM DR J?
76 The husband has not established any special reason for adducing evidence from an adversarial expert. For the reasons expressed, following the discharge of Dr E, the preferable course is for the parties to appoint a further Single Expert Witness to prepare an occupational health assessment of the wife, as opposed to the husband appointing his own expert witness.
77 Such an approach is consistent with the Rules pertaining to expert evidence and will achieve the main purpose of the Rules. It will also avoid unnecessary costs and the potential for dualling experts. I will dismiss the husband's application.
[2023] FCWA 5
TYSON J
CONCLUSIONS
78 I will cause these Reasons to be distributed from chambers, to afford the parties an opportunity to confer and prepare a Minute to give effect to the Reasons.
79 It is hoped, with sensible conferral, the parties can agree a mechanism for the appointment of a Single Expert Witness to prepare an occupational health assessment of the wife, and a Single Expert Witness to prepare a neuropsychological assessment of the wife, on terms to be agreed.
80 I acknowledge the proposed orders will require the wife to undertake further assessments, which she may find distressing and difficult. In my view, those assessments are necessary, to ensure the Court, and the parties, have admissible expert evidence, with respect to important factual matters requiring determination at trial.
81 On the wife's own case, she asserts her health has not improved throughout the course of the proceedings, and her mental health has deteriorated.[38] The wife has managed assessments to date, with the support of her treating practitioners, whom she continues to attend upon. I consider the wife will be able to tolerate the additional assessments, as required, for the purposes of the proceedings.
82 The wife's health, and its impact upon her capacity to work, are relevant issues for determination. The appointment of further Single Expert Witnesses now, will avoid unnecessary costs, and achieve the purpose of the Rules.
PROPOSED ORDERS
83 Subject to hearing from the parties:
1.
The parties are to confer as to the form of orders to give effect to the Reasons, and file no later than 2 clear days prior to the adjourned date a joint Minute setting out those orders which are agreed, and any orders which are not agreed, with the Minute to identify by whom the order is sought.
2. The proceedings be listed for directions on a date to be advised. 3.
The balance of the Applicant's Application in a Case filed 20 August 2021, the Applicant's Application in a Case filed 20 July 2022, the Respondent's Response to an Application in a
[2023] FCWA 5
TYSON J
Case filed 15 November 2022 and the Respondent's Response to an Application in a Case filed 27 April 2022 be and are hereby dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
16 JANUARY 2023
[1] The wife’s Response to an Application in a Case filed 27 April 2022; The wife’s Response to an
Application in a Case filed 15 November 2022.
[4] The affidavit of Dr B, filed 30 March 2020, Annexure B, being the neuropsychological report, page 9 of 10.
[5] Exhibit 1, correspondence from the wife’s solicitors to the Family Court of Western Australia dated
17 April 2020, enclosing a Minute of orders sought.
[7] The wife’s affidavit filed 15 November 2022, Annexure 10, correspondence from Law Firm A to [Law
Firm D] dated 10 July 2020.
[8] The wife’s affidavit filed 15 November 2022, Annexure 10, correspondence from Law Firm D dated 15
July 2020.
[9] The wife’s affidavit filed 15 November 2022, Annexure 10.
[10] By paragraph 3 of the orders [in] March 2021.
[11] The wife’s affidavit filed 27 April 2022, Annexure 8.
[12] The wife’s affidavit filed 27 April 2022, Annexure 9.
[13] The affidavit of Dr E filed 9 November 2022, answer to question 1(a) on page 2.
[14] The wife’s affidavit filed 15 November 2022, paragraph 11.
[15] The affidavit of Solicitor A filed 20 July 2022, Annexure A, being correspondence from Law Firm A to
Law Firm C dated 20 June 2022.
[16] The affidavit of Solicitor A, filed 20 July 2022, Annexure B, being correspondence from Law Firm C to
Law Firm A dated 4 July 2022.
[17] The affidavit of Solicitor A, filed 20 July 2022, Annexures C, D, E, F and G; The wife’s affidavit filed
15 November 2022, Annexure 10.
[18] The wife’s affidavit, filed 15 November 2022, Annexure 10, page 164, being the letter from Law Firm C to
Law Firm A dated 18 July 2022.
[19] Paragraph 4 of the orders made by consent [in] April 2020.
[20] Family Court Rules 2021 (WA) r 5.
[21] Family Court Rules 2021 (WA) r 6. 22 Family Court Rules 2021 (WA) r 7.
[23] Marsh & Marsh [2011] FamCA 193, [49].
[24] For example, see Bass and Bass (2008) FLC 93-366; Payne & Payne [2009] FamCA 1005; Neil v Zang
(2021) 62 Fam LR 432 at [28]-[29]; Sullivan & Tyler and Anor (2016) FLC 93-708 at [240], [352]; Swefford
& Tarbell [2012] FamCAFC 80 at [70]-[88], [98].
[25] For example, Saller & Danell (No 2) [2017] FamCA 712 (McClelland J (as his Honour then was));
Swefford & Tarbell (No 4) [2012] FamCA 888 (Watts J), which was upheld by the Full Court on appeal in
Swefford & Tarbell [2013] FamCAFC 50.
[26] Family Court Rules 2021 (WA) rr 270, 271(c).
[27] Family Court Rules 2021 (WA) r 11.
2.2 and 2.3.
[30] The affidavit of Dr E, filed 9 November 2022, Annexure B, being Dr E's answers to questions, paragraphs
7.1-7.4.
[31] The affidavit of Dr E, filed 9 November 2022, Annexure B, being Dr E's answers to questions, paragraphs
3.3.
[32] The affidavit of Dr E, filed 9 November 2022, Annexure B, being Dr E’s answers to questions, paragraphs
2.2, 2.3, 4.1, 4.2, and 4.3.
[33] Family Court Rules 2021 (WA) r 276.
[34] The husband’s written outline of submissions in reply handed up in Court on [in] December 2022,
paragraph 4.
[35] Evidence Act 1906 (WA) s 79C(3).
[36] The wife’s written outline of submissions filed 6 December 2022, paragraph 19.
[37] See paragraph 9 of the orders dated [in] September 2022.
[38] The wife’s affidavit filed 27 April 2022, paragraphs 45 and 47.
0
17
3