Padley & Padley

[2020] FamCA 717

FAMILY COURT OF AUSTRALIA

PADLEY & PADLEY [2020] FamCA 717

FAMILY LAW – EVIDENCE – Expert evidence – competence and apprehended bias – where the mother contends the subject child made disclosures regarding alleged sexual abuse perpetrated by the father – whether single expert who has prepared two reports in the proceedings should be disqualified for apprehended bias on the question of risk arising from sexual abuse allegations – where mother seeks appointment of an additional single expert with expertise in relation to allegations of sexual abuse – where mother argues expert evidence about risk of sexual abuse can be given as discrete expert evidence – where held apprehended bias not available on point of principle to disqualify existing single expert – where no basis for apprehended bias in any event – where the existing single expert is known to the child and familiar with the parties and the proceedings – where mother’s application dismissed.

Family Law Act 1975 (Cth) s 60CC
Family Law Rules 2004 (Cth) rr 15.49, 15.59(3)(a)

Bass & Bass (2008) FLC 93-366
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454
FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33
McGrath v McGrath [2012] NSWSC 578
Nagel & Clay (2020) 60 Fam LR 550
Thompson & Platt [2016] FamCA 1116

APPLICANT: Mr Padley

RESPONDENT: Ms Padley

INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

FILE NUMBER: SYC 1219 of 2015

DATE DELIVERED: 1 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: In Chambers by way of written submissions

DATE OF LAST SUBMISSION: 17 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ginges

SOLICITOR FOR THE APPLICANT: Hal Ginges & Co

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Eleanor Murphy & Company Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ng

Orders

1. Paragraphs 2 and 3 of the mother’s Amended Application in a Case filed 30 January 2020 be dismissed.

2. The parties and the Independent Children’s Lawyer confer and prepare a proposed agreed form of order to appoint Dr H, with appropriate letter of instruction, to prepare a further updated report as single expert, with such report to inquire into and report upon the considerations in s 60CC of the Family Law Act 1975 (Cth), including disclosures of sexual abuse made by the child born on … 2013 and such other matters as Dr H considers relevant.

3. The proposed agreed form of order specified in Order 2 be submitted to Chambers by no later than 9:00 am on 4 September 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Padley & Padley 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 1219 of 2015

Mr Padley

Applicant

And

Ms Padley

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. Mr Padley (“the father”) and Ms Padley (“the mother”) have been involved in protracted proceedings in this Court regarding their only child, X (“the child”) born on … 2013, since February 2015. The child is currently seven years old.  

2. The substantive proceedings were set down for trial to commence 18 December 2019. Unfortunately, those dates were subsequently vacated as a result of disclosures the child made on 13 October 2019 regarding alleged sexual abuse perpetrated by the father. The father’s time with the child was suspended, and the proceedings were stalled pending police investigation.

3. Following the conclusion of the investigation, the Independent Children’s Lawyer (“ICL”) brought the matter back before the Court.

4. Dr H has provided two earlier single expert family reports in the proceedings. There is no dispute that further expert evidence is required, regarding the child’s allegations of sexual abuse.

5. On 24 October 2019, the mother filed an Application in a Case seeking a range of orders, including an allocation of sole parental responsibility to her, that the child spend no time with her father and the father be restrained from approaching the home of the child and her school. On 4 November 2019, the father filed his own Application in a Case seeking orders for sole parental responsibility in his favour, that the child live with him and spend time with the mother as agreed between the parties, and a return to orders made on 24 April 2019.

6. The mother amended her Application on 30 January 2020 to include orders for the appointment of Ms P, a clinical psychologist, as an expert witness about sexual allegations, not to replace, but in addition to, Dr H. This Application is opposed by the father, who submits that Dr H should continue as the only expert in the matter and should be engaged to prepare a further report.

7. This judgment concerns only the mother’s Application for the appointment of Ms P as an additional single expert. The balance of the parties’ competing interim Applications remain to be heard and determined.

Brief Background

1. The father is 45 years old. He presently resides in Suburb N, and describes himself as a professional.

2. The mother is 42 years old. She presently resides in Suburb O, and describes herself as an public servant. 

3. The parties commenced their relationship in September 2008. They began living together in November 2010, and were married on … 2011. Their relationship broke down, and on 17 October 2014 the parties separated on a final basis.

4. The father has had, and continues to have, mental health issues. In short he was diagnosed with a psychotic condition. Dr H has opined that medication has successfully suppressed the father’s acute symptoms of hallucinations and delusions but there are some remaining social deficits and interpersonal deficits as part of the illness that do change with the medication. In his 2016 report at page 20, Dr H recorded that in 2003 the father developed a psychosis and has had four admissions to hospital, 2003, 2004, 2005 and 2006. Since 2006, the father has been stable on medication. In his 2018 report at page 23, Dr H observed that the condition is one where there can be a good return to function, if not full function, and the father’s presentation is consistent with such a diagnosis. For the purposes of this judgment; it is sufficient to note that such issues exist and are not disputed.

5. Following separation, the child lived with the mother in the maternal grandparent’s home. The father initially spent time with the child, albeit in the presence of the maternal family.

6. On 26 February 2015, the father commenced parenting proceedings in the Federal Circuit Court. Orders were made on 14 August 2015 for the parties to have equal shared parental responsibility, and for the father to spend three blocks of unsupervised time with the child each week, each spanning 2.5 hours. The order for the father to spend time with the child was subsequently suspended on 26 November 2015, and the matter was transferred to the Family Court of Australia. The father appealed against the suspension of time by way of a Notice of Appeal filed 21 December 2015, and the appeal was eventually allowed by consent.

7. In the meantime, the parties met with Dr H who produced his first report dated 18 February 2016. The father recommenced spending regular time with the child pursuant to interim orders made 6 June 2016, being two blocks of 4 hours each week, albeit such time was to be accompanied by an adult member of the paternal family. These orders substantially reflected the recommendations included in Dr H’s first report.

8. On 21 June 2018, orders were made for Dr H to prepare an updated report. This was released to the parties on 16 December 2018.

9. As noted, the progress of the proceedings to finality was disturbed by an alleged disclosure made to the mother by the child on 13 October 2019, after the child returned from spending time with the father on the weekend of 12 and 13 October 2019. On the mother’s case, the child disclosed that he had shown her pornographic videos and had touched her inappropriately.

10. That same night the mother reported the disclosure to Suburb O Police and an investigation was opened and a risk of significant harm report was received, screened in for ‘sexual act molest’ by Department of Family & Community Services (NSW) (as it was then known). The report was allocated for a field assessment at the Joint Child Protection Response Program.

11. The mother attended Suburb O police station with the child on 15 October 2019 and the child and the mother were each interviewed separately by officers from the Child Abuse Squad.

12. Afterwards the mother took the child to her GP, Dr Q whom said she would prepare a report to FACS.

13. A follow up police interview took place on 22 October 2019 with the child.

14. On 5 November 2019, Senior Registrar Campbell made orders referring the matter to the Magellan Registrar and orders were made by consent for the father’s time with the child to be suspended until further order.

15. On 12 November 2019, Orders were made by Registrar Ryan for the Department of Communities and Justice (“DCJ”) to prepare a report pursuant to the Magellan case model protocols (“the Magellan Report”).

16. A Magellan Report was produced on 20 December 2019, however it was noted that in respect of the allegation, the Joint Child Protection Response Program had not yet finalised their assessment. It appears that as yet, there is no updated Magellan Report.

17. On 11 February 2020, a third interview took place at Suburb R with officers from the Child Abuse Squad. According to the mother’s evidence, she was then told by police that the allegations did not meet the threshold for further action.

18. On 5 May 2020, the Independent Children’s Lawyer advised that the police investigation had been finalised with no charges brought against the father and requested that the matter be re-listed.

19. Accordingly, the matter was listed for mention before me on 10 July 2020. The father indicated he would be seeking to file an Application in a Case to resume time with the child. He did so on 17 July 2020 seeking a discharge of the orders made on 5 November 2019 suspending his time with the child and for fresh orders that he spend time with the child unsupervised. This Application appears to be intended to supersede the Application filed on 4 November 2019. The mother filed a Response on 22 July 2020 seeking the father’s Application be dismissed.

20. The Court was also advised that the DCJ had concluded in their investigations that the father was “a person causing harm”. In his evidence the father claimed the DCJ has never interviewed him or his parents and he is seeking an internal review of the conclusion he was “a person causing harm”. He has given evidence denying all allegations made by the child, and giving his version of what took place on 13 October 2019, which, if true, would make the child’s allegations difficult to accept.

21. The matter next came before me on 31 July 2020, and on that date I made orders listing the father’s Application for interim hearing on 30 September 2020, and set down a timetable for written submissions in respect of the mother’s Amended Application in a Case filed on 10 January 2020 in relation to the appointment of Ms P as an expert.

22. The Independent Children’s Lawyer filed no written submissions on this question. 

Discussion

1. The mother is clear in her written submissions that she does not seek to appoint an adversarial expert witness pursuant to Rule 15.49 of the Family Law Rules 2004 (Cth) (“the Rules”) to report on the same issues as Dr H or to discharge Dr H as the single expert psychiatrist. Rather, the mother argues Ms P should be appointed as additional single expert to report on questions of alleged sexual abuse of the child by the father. In other respects, Dr H should remain the single expert.

2. The mother’s contention is that Dr H should not be appointed as single expert on sexual abuse issues for two reasons. The first is that he lacks the relevant expertise. The second is that there is a reasonable apprehension of bias infecting any view formed by him about allegations of sexual abuse of the child.

3. The mother’s contention about the absence of relevant expertise and apprehension of bias rely on comments made publicly by Dr H where he described his expertise in working with childhood trauma.

4. The mother focussed upon the words not specifically sexual abuse and argued they constituted an admission that Dr H lacked expertise dealing with sexual abuse allegations.

5. The mother also relied upon a number of comments made by Dr H about false allegations of child sexual abuse in Family Law in Australia:

6. I do not accept the mother’s contentions about the expertise of Dr H.  His general experience has been set out in his two existing reports for these proceedings. It does not need to be recited for the purposes of this judgment. His experience is extensive. The words in bold above at [32] go very little distance in supporting the mother’s argument about expertise. All Dr H is reported to have said is that his expertise is not “specifically” in sexual abuse cases. But he made clear sexual abuse is one area of his expertise, among other types of trauma suffered by children. His further comments show he has broad experience in dealing with allegations of sexual abuse.  When his comments, relied upon by the mother, are set in the broader context of his long experience, they give no support to the mother’s argument of lack of expertise, in my view.

7. The mother’s arguments about the apprehension of bias raise more complicated questions. She contended that in light of the comments set out in [34] above, Dr H could not carry out the duty in sub-rule 15.59(3)(a) of the Rules, to give an objective and unbiased opinion on whether the child is at risk of sexual abuse. Further, she argued that a fair-minded lay observer might reasonably apprehend that Dr H will not bring an impartial and unprejudiced mind to the question of whether the child is at risk of sexual abuse in her father’s care.

8. The mother relied upon a number of decisions including the decision in Nagel & Clay [2020] FamCA 326; (2020) 60 Fam LR 550 (“Nagel”). In Nagel I expressed the view, with some misgivings, that the weight of authority in this Court probably supported application of the principles of apprehended bias both to expert witness reports, permitting their whole or partial rejection as evidence, and to a process being undertaken by an expert in forming their expert opinion and preparing a report.

9. However, the mother’s Application is not directed to the admissibility of an existing expert report or to a current process being undertaken by an expert. Her argument really raises a question of expert witness competence, specifically, because of an apprehension of bias, she put in issue the competence of Dr H to be appointed to prepare a further expert report about the risk of alleged sexual abuse of the child. 

10. Counsel for the mother referred to the decision of Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 (“Fagenblat”), at [8] where he said that the possibility that a witness of fact or expert opinion may be biased does not infect the impartiality of the Court, except possibly where “the expert is appointed by the Court or where the role or function of the expert is more than that of a giver of evidence... In such a case the role or function of the expert may perhaps come to be incorporated into that of the decision maker”. The Full Court of this Court cited this passage in Bass & Bass [2008] FamCAFC 67; (2008) FLC 93-366 at 82,487-8 but, as Tree J pointed out in Thompson & Platt [2016] FamCA 1116 (“Thompson”) at [24], the Full Court did not necessarily endorse the argument that a court can or should discharge a family report writer for actual or ostensible bias. It is also relevant to note that Pagone J in Fagenblat was considering the position of an expert report which had been produced, not whether a particular witness should be appointed by the court as a single expert.

11. The decision of Pagone J in Fagenblat was taken on appeal and the mother relied also upon the judgment in the Victorian Court of Appeal in FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 (“FGT Custodians”). Ormiston JA (with whom Chernov and Eames JJA agreed) gave the principal judgment. The question under consideration was one of competence of an expert valuer, namely, whether by training or experience he was qualified to give expert evidence, and then whether because of breach of the rules of apprehended bias, the expert should be disqualified from giving evidence. These are in truth the questions the mother poses about Dr H.

12. Ormiston JA noted at [12] that there is no principle of common law which would “exclude as incompetent the evidence of a person otherwise qualified to give expert testimony but who is said to be affected by interest or bias”. The mother pointed out that Ormiston JA did observe that the principles of apprehended bias do not apply to expert witnesses “save, arguably, where an expert is appointed as an "court expert" or the like” (at [19]) and experts do not decide cases “except in those rare cases where an expert is appointed a "court expert" or an assessor or referee and their reports remain unchallenged” (at [27]), apparently agreeing with Pagone J at first instance. This is true, but, as I read the decision, Ormiston JA there appears to be referring to experts whose role is similar to that of an assessor or referee and whose reports remained unchallenged. If so, this is materially different from the role of family report writers in this Court. As I observed in Nagel at [149], a single expert, even one who produces a family report, appointed by this Court, becomes no more than a giver of evidence, and judges routinely decline to accept or follow some or all of an expert’s evidence, depending on the circumstances of the case.

13. More importantly for present purposes, Ormiston JA held that expert evidence was not, and had never been, excluded, or expert witnesses disqualified, by reason of an interest in the nature of perceived bias, although as a matter of common sense it was desirable that an expert witness be seen to be independent (at [29] to [30]). The decision of Ormiston JA in FGT Custodians is strong authority from an intermediate appellate court. Although not binding upon me, it is persuasive.

14. In Nagel, I pointed out that as a matter of principle there was reason to conclude the rules of apprehended bias should not apply to witnesses, expert or lay, at all, referring, inter alia, to comments of Tree J in Thompson (see [143] to [150]). I reached the view that in this Court the weight of authority seemed to favour an application of the principles of apprehended bias to the reports of family consultants. I also assumed, specifically without deciding, it is open to apply those rules to the process conducted by an expert report writer (at [161]). My view was limited to an acceptance that it is generally desirable for a single expert, appointed under Rule 15.44 by the Court, “to conduct, and be seen to conduct, his or her process of forming an opinion, generally in compliance with sub-rule 15.59(3), and in an even handed manner, ideally by hearing from all relevant parties, if they co-operate, and receiving their material consensually” (at [156]). This is consistent with the “common sense” approach referred to by Ormiston JA.

1. But it is a somewhat different question whether a witness should be disqualified from being appointed, or from remaining, as a single expert in this Court because of an apprehension of bias nursed by one party. In McGrath v McGrath [2012] NSWSC 578 (“McGrath”), Pembroke J was faced with the question whether the court should interfere with the process conducted by an expert valuer on the ground of apprehended bias, a question similar to that raised in Nagel. Pembroke J came to the view that apprehended bias in respect of expert witnesses, or a person who was not in the position of a judge, was not available in point of principle: “Too high an insistence on independent experts being required to avoid even an impression of partiality would not be in the interests of justice. It might…encourage unwarranted challenges and unnecessary litigation by those too readily prone to suspicion and paranoia” (at [21], [39]).

2. The experts in Fagenblat and McGrath were appointed to value commercial interests. There may be a question whether expert family report writers in parenting disputes in this Court should be placed in a category separate from expert witnesses in different jurisdictions and where the dispute is of a commercial or financial nature. The parties in this matter agitated no such question, there was no authority drawn to my attention to support such a proposition, and I express no view. Having said that, I accept the dicta of Pembroke J in McGrath stand as an apt caution in relation to any expert witness, including family report writers.

3. The mother argued Dr H’s views will “likely colour his process and opinion” so as to undermine the utility and reliability of any report he produces. Thus it would be desirable to avoid any possibility that Dr H may produce a report which is infected by bias, and the risk that further delay and expense may be occasioned by the need to obtain a report from another expert if Dr H’s report is challenged, potentially exposing the child to further interviews.

4. I do not accept these arguments. I have already concluded that Dr H’s expertise is not impugned for any reason advanced by the mother. I am also not persuaded that his competence as an expert witness is compromised by apprehended bias so as to disqualify him from preparing a further report in these proceedings concerning allegations of sexual abuse by the father. The decision in FGT Custodians is authority that he should not, as a matter of principle, be disqualified by reason of any apprehension of bias. Further, neither party argues that Dr H has not so far successfully discharged the duty prescribed in sub-rule 15.59(3)(a) of the Rules. This supports a conclusion that he is capable of continuing to do so. Beyond that, in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 the High Court held the test of apprehended bias requires an articulation of the logical connection between the proceedings and the feared deviation from the course of deciding the case on its merits. General expressions of view, given by Dr H and entirely unconnected with the current proceedings, are not capable of raising a connection with, or a reasonable apprehension of bias or partiality in relation to, the allegations of sexual abuse in the present matter. Challenges to the competence of an otherwise properly qualified expert are not to be encouraged because one party is suspicious of what they think the ultimate opinion of an expert might be, before any opinion is expressed (see also Nagel at [161]).

5. Apart from questions of competence, the mother argues there can be two single experts, because the issue of risk of sexual abuse is a discrete one, while acknowledging any report about those allegations would have overlap with the general discretionary considerations under s 60CC of the Family Law Act 1975 (Cth).

6. My rejection of the mother’s arguments seeking to disqualify Dr H leaves the Court with two possible qualified experts. There is a residual question whether Ms P should be appointed in relation to allegations of sexual abuse, even though Dr H is not ruled out for any lack of expertise or apprehension of bias. As already pointed out, the parties agree there should be further expert evidence about this.

7. The mother argues her preferred expert, Ms P is a clinical psychologist with over 20 years’ experience in treating children and adults. Ms P utilises formal risk assessment tools when “there are concerns about child sexual & physical abuse”. These tools are “likely to add confidence to the assessment process given that the assessment does not only rely on clinical interviews and impressions”. Ms P is also undertaking a PHD investigating the quality of single expert reports in Family Law. Consequently, the mother argued the Court and the parties could have a high degree of confidence in the expertise and skill of Ms P.

8. I accept that Ms P’s expertise and qualifications are relevant. She has expertise in relation to allegations of sexual abuse. As the mother points out the father does not take issue with her qualifications. However, no basis has been put forward to conclude that her expertise or experience is somehow superior to that of Dr H in this regard. Dr H is a qualified psychiatrist. The mother simply argues that the Court should appoint the expert with whom neither party takes issue, who becomes Ms P because of the mother’s attitude to Dr H.

9. The father, according to his evidence, does not find Dr H particularly supportive of his position. Nonetheless he argues that since Dr H has a long association with the matter and more importantly the child, he is more appropriate to prepare an expert report on the allegations of sexual abuse.

10. I am not persuaded that Ms P should be appointed as another single expert. It is not enough to justify appointing an additional or fresh expert that one party takes issue with an existing expert, particularly where there is not yet any expert report to take issue with. Even where a report has been issued, parties to litigation in this Court regularly dislike or disagree with some or all of the opinions of single experts without this justifying the appointment of another expert.

11. More importantly, if Ms P was appointed as another single expert, in my view, there would be a real risk that her expert opinions could come into conflict at some point with those of Dr H. The mother’s arguments seem to leave out of account the necessity for an updating family report. The second report of Dr H was dated December 2018, and will likely be more than two years old when this matter reaches a final hearing. There is no realistic prospect that a further family report can be avoided. It is artificial to suggest Ms P can express a discrete view about the risks of sexual abuse by the father without considering other aspects of his presentation, as well as the mother’s presentation, relevant to their parenting capacity, the meaningful relationship with the child and questions of unacceptable risk. These could potentially include examination of the mother’s capacity to promote the father’s relationship with the child as well as further examination of the father’s mental health. The likely consequence of the mother’s arguments, if accepted, would require Ms P to express views on matters about which Dr H has already expressed views, and would express updated views in an updated report.

12. Dr H’s knowledge of the proceedings, and the child’s familiarity with him, militate in favour of Dr H remaining as the sole single expert, and to provide a further updated family report. Aside from allegations of sexual abuse, there is no good reason why Ms P should be appointed to undertake any further family report in place of Dr H, and, as already pointed out, there are good reasons why Dr H should be retained for this purpose. Since Dr H is competent to opine about allegations of sexual abuse and questions of risk, I am satisfied that he should remain the single expert and Ms P should not be introduced as a further expert.

13. I will dismiss paragraphs 2 and 3 of the mother’s Amended Application in a Case filed on 30 January 2020 to appoint Ms P as a single expert. I will direct the parties and the Independent Children’s Lawyer to prepare a proposed agreed form of order to engage Dr H to prepare a further updated family report which takes account of the allegations of the child. Directions can be made when the matter is next before the Court regarding the balance of the issues for determination arising out of the competing interim applications.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 1 September 2020.

Associate: 

Date:  1 September 2020