Perton and Hungerford

[2017] FamCA 687

FAMILY COURT OF AUSTRALIA

PERTON & HUNGERFORD [2017] FamCA 687

FAMILY LAW – PRACTICE AND PROCEDURE – AFFIDAVITS – attendance at family therapy

Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) s 43
Family Law Rules 2004 (Cth) rr 15.41, 15.51, 15.52, 15.62, 15.63, 15.64

Carpenter & Lunn (2008) FLC 93-377
Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305;(2001) 52 NSWLR 705
Noetel & Quealey [2005] FamCA 677;(2005) FLC 93-230
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

APPLICANT: Mr Perton

RESPONDENT: Ms Hungerford

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: SYC 4058 of 2014

DATE DELIVERED: 21 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 21 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:	Ms Clifford
SOLICITOR FOR THE RESPONDENT:	Hamish Cumming Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tran

SOLICITOR FOR THE INDEPENDENT CHILDRENR’S LAWYER: Legal Aid New South Wales

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The mother is granted leave to rely upon the affidavit of Mr B filed 16 February 2017 and the affidavit of Mr C filed 14 February 2017.

2. The report of Mr B dated 6 February 2017 is tendered into evidence as Exhibit “ICL3” in the proceedings.

3. The parents do all acts and things necessary to attend upon D Group for the purpose of family therapy.  For the purpose of this Order:

   (a)       Within 7 days of the date of these Orders, each parent shall contact D Group to make an appointment with Ms E “family therapist” or such other family therapist as nominated by agreement between the parties in writing or failing agreement, nominated by Ms E at that service.

   (b)       The Independent Children’s Lawyer is to provide to Ms E the two reports of Dr F dated 20 April 20154 and 9 March 2016 prepared in this matter, and the report of Mr C which is Annexure “M” to the father’s affidavit filed 2 February 2017.

   (c)       Each of the parents shall attend upon the family therapist at such times and at such places as he/she may direct for the purposes of individual and/or family therapy and shall ensure that any other person in their household attends as directed also.

   (d)       The mother shall facilitate G’s attendance upon the family therapist, if directed to do so, at such times and at such places as the family therapist may direct for the purposes of individual and/or family therapy.

   (e)       Each party will do all things necessary to comply with reasonable recommendations made by the family therapist.

   (f)        In relation to the cost of the family therapy:

   (i)The parties are to pay their own costs of attendances upon the therapist and any cost of any joint session be paid equally.

   (ii)Such costs are to be paid directly to therapist upon receipt of any invoice issued.

   (g)       The family therapy referred to in Order 3 is to be confidential and non-reportable, save that the Independent Children’s Lawyer may, from time to time, have discussions with the therapist as to the progress of therapy; attendance by each of the parties and G and any recommendations made by the therapist and each party’s compliance with those recommendations. The Independent Children’s Lawyer may request a letter from the therapist limited to those issues.

   (h)       The parents shall follow recommendations or directions made by the therapist as to the attendance of the parties to any parenting program or other program.

4. The final paragraph of Order 6 of the Orders made on 15 March 2016 be varied as follows:

   …such order to continue until a reasonable period of time after the parties commence attending family therapy in accordance with Order 3 of the Orders made on 21 February 2017.

5. The hearing dates of 30, 31 October 2017 and 1, 2 and 3 November 2017 are reserved for final hearing of this matter.

6. The matter is listed for mention only before me at 9.30 am on 15 June 2017 to ascertain the progress of the matter.

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 Perton & Hungerford 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 4058 of 2014

Mr Perton

Applicant

And

Ms Hungerford

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The father, Mr Perton, has filed an Application in a Case dated 31 January 2017 seeking interim orders for the parties’ child, G born in 2013, to spend time with him pending the final hearing of this matter. Unfortunately the child suffers severe autism. The father’s application has been brought on urgently as a result of the fact that the father has not seen the child since interim orders were made on 30 July 2014. 

2. In opposing the father’s application, the mother has sought an order, pursuant to rule 15.51 of the Family Law Rules 2004 (“the Rules”), giving her permission to rely on reports of Mr C and Mr B in this interim hearing. The child suffers from autism and both Mr C and Mr B have provided treatment and therapy to the child in respect to that condition.

3. Mr C is the treating psychologist for the child and has filed an affidavit on 14 February 2017 attaching a copy of his report dated 12 February 2017. Mr B is the treating therapist for the child and has filed an affidavit on 16 February 2017 attaching a copy of his report dated 13 February 2017. In addition to relying upon those two reports, the mother seeks to rely on a report of Mr B, dated 6 February 2017, which is attached as annexure E to the mother’s affidavit sworn 14 February 2017 (“the reports”). 

4. The mother’s application is made in the context of Dr F having been appointed as the single expert to provide a report concerning parenting matters in these proceedings.

5. Part 15 of the Rules deals with procedures to obtain expert reports and the admissibility of those reports. Rule 15.51 is contained within part 15 of the Rules and provides:

   Permission for expert's reports and evidence

   (1)  A party must apply for the court's permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.

(2)  An independent children's lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court's permission.

1. Pursuant to rule 15.51(2), the Independent Children’s Lawyer has sought leave to rely upon the report of Mr B dated 6 February 2017. I grant that leave.

2. The mother initially argued that she is entitled to rely upon the reports because they are reports from treating professionals and are therefore not captured by Part 15 of the Rules. In that respect, rule 15.41 relevantly provides:

   Application of Part 15.5

   (1)  This Part (other than rule 15.55) does not apply to any of the following:

   (a)  evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:

   (i)  the results of an examination, investigation or observation made;

   (ii)  a description of any treatment carried out or recommended;

   (iii)  expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;

   (b)  evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:

   (i)  about that expert's involvement with a party, child or subject matter of a case; and

(ii)  describing the reasons for the expert's involvement and the results of that involvement;

(c)  evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert's association, involvement or contact with that party, child or subject matter;

(d) evidence from family consultant employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).

Example:    An example of evidence excluded from the requirements of this Part (other than rule 15.55) is evidence from a treating doctor or a teacher in relation to the doctor's or teacher's involvement with a party or child.

1. Accordingly, it is necessary to determine whether those reports fall within the exception set out in rule 15.41. In my view, in responding to questions from the mother’s solicitors, the reports go beyond the permissible subject matter set out in rule 15.41(1). This is because the reports express opinions in respect to the outcome of potential orders that may be made in the proceedings. 

2. As a result of that finding, the mother has made an application for permission to rely upon the affidavits of Mr C and Mr B pursuant to rule 15.52 of the Rules. That rule deals with tendering a report from an expert who is other than a single expert in circumstances where a single expert has been appointed by the Court. As noted, Dr F has been appointed as the single expert in these proceedings. Rule 15.52 relevantly provides:

   Application for permission for expert witness

   (1)  A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case.

   Note 1:  A party who files an Application in a Case must, at the same time, file an affidavit stating the facts relied on in support of the orders sought (see subrule 5.02(1)).

   Note 2: The court may allow a party to make an oral application (see paragraph (h) in item 3 of Table 11.1 in rule 11.01).

   (2)  The affidavit filed with the application must state:

   (a)  whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;

   (b)  the name of the expert witness;

   (c)  the issue about which the expert witness's evidence is to be given;

   (d)  the reason the expert evidence is necessary in relation to that issue;

   (e)  the field in which the expert witness is expert;

   (f)  the expert witness's training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and

   (g)  whether there is any previous connection between the expert witness and the party.

   (3)  When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:

   (a)  the purpose of this Part (see rule 15.42);

   (b)  the impact of the appointment of an expert witness on the costs of the case;

   (c)  the likelihood of the appointment expediting or delaying the case;

   (d)  the complexity of the issues in the case;

   (e)  whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and

   (f)  whether the expert witness has specialised knowledge, based on the person's training, study or experience:

   (i)  relevant to the issue on which evidence is to be given; and

   (ii)  appropriate to the value, complexity and importance of the case.

   (4)  If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.

   Note: Despite an order under this rule, a party is not entitle to adduce evidence from an expert witness if the expert's report has not been disclosed or a copy has not been given to the other party (see rule 15.58).

3. In terms of rule 15.52(3)(a), which relates to the purpose of the Part and the purpose of the Part 15 as set out in rule 15.42, senior counsel for the father referred the Court to the Explanatory Statement to Statutory Rules 2003 No 375 which described the purpose of the Rules regarding expert reports. The relevant extract from the Explanatory Statement is as follows:

   One of the strategies employed in these new rules to overcome the identified problems of partisanship, lack of clarity of evidence and excessive cost is to encourage parties to consider at an early stage whether expert evidence is necessary and if so whether that evidence can be given by a single expert witness.

4. Reference was also made to the purpose of Part 15 of the Rules as reflected in specific Rules including rule 15.62(2). That rule requires experts, whose reports are to be relied upon, to provide an affidavit stating the following:

   I have made all the inquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report.

   I believe that the facts within my knowledge that have been stated in this report are true.

   The opinions I have expressed in this report are independent and impartial.

   I have read and understand Divisions 15.5.4, 15.5.5 and 15.5.6 of the Family Law Rules 2004 and have used my best endeavours to comply with them.

   I have complied with the requirements of the following professional codes of conduct or protocol, being [state the name of the code or protocol].

   I understand my duty to the court and I have complied with it and will continue to do so.

5. Reference was also made rule to 15.63 which is expressed in mandatory terms and sets out what must be contained in an expert’s report. In summary, those matters are:

   ·the reasons for the expert witness's conclusions;

   ·details about the methodology used in the production of the report; and

   ·the expert witness's qualifications;

   ·reference to the literature or other material used in making the report;

   ·identification of  the relevant facts, matters and assumptions on which the opinions in the report are based;

   ·identification of the facts in the report that are within the expert witness's knowledge;

   ·details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person's qualifications and experience;

   ·if there is a range of opinion on the matters dealt with in the report--a summary of the range of opinion and the basis for the expert witness's opinion;

   ·a summary of the conclusions reached;

   ·if necessary a disclosure that:

   (A) a particular question or issue falls outside the expert witness's expertise;

   (B) the report may be incomplete or inaccurate without some qualification and the details of any qualification; or

   (C) the expert witness's opinion is not a concluded opinion because further research or data is required or because of any other reason.

6. Senior counsel for the father objects to the reports because he contends that they do not comply with these requirements. I accept that the reports do not comply with many of these requirements.

7. However, I am also required to have regard to the other matters set out in rule 15.52(3). Of those considerations, the most relevant is paragraph (d) which requires the Court to have regard to “the complexity of the issues in the case”. This case involves very complex issues regarding the nature of the child’s condition and how it impacts upon his relationships with the outside world. This includes, most relevantly, his relationship with his father.

8. Paragraph (e) of Rule 15.52(3) is also relevant. As noted, that provision requires the Court to consider “whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only”. It would certainly have been desirable for the evidence provided by Mr C and Mr B, which is in the nature of the answers to the questions asked by the solicitor for the mother, to have been provided by Dr F. Dr F has provided two reports in these proceedings. He has consulted with Mr C and Mr B for the purpose of preparing those reports.

9. I also note that senior counsel for the father opposed the admission of the reports pursuant to section 135 of the Evidence Act 1995 (Cth), which, broadly speaking, permits a court to reject the tender of evidence if it will be unfairly prejudicial to a party. In considering that submission, I have had regard to the valid concerns expressed by senior counsel for the father in respect to the structure and content of the reports. This includes that the reports do not adequately address those matters identified by Haydon JA in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (“Makita”) at paragraph 85 as being required in an expert’s report. This includes, by way of summary, that an expert should not only set out the facts on which the expert’s opinions are based and identify those facts, but the reasoning process leading to the formation of the opinion must be exposed so as to demonstrate that the opinion is based on particular specialised knowledge.

10. However, the Full Court of the Federal Court has held that many of the matters referred to by Heydon JA in Makita “involve questions of degree, requiring the exercise of judgment” and in trials by judge alone they should commonly be regarded as going to matters of weight rather than admissibility.[1]

    [1] See Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [16] and [87]; see also Carpenter & Lunn (2008) FLC 93-377; Noetel & Quealey [2005] FamCA 677; (2005) FLC 93-230.

11. Counsel for the mother contended that, in circumstances where this matter has been brought on urgently, there has been no opportunity for Dr F to provide an updated report, nor was he available to give evidence in these proceedings. The mother also argues that, in terms of rule 15.52(3)(f), issues regarding the child’s diagnosis and treatment are beyond the expertise of Dr F.

12. Also of relevance is section 43 of the Family Law Act 1975 (Cth) (“the Act”) which requires the Court to have regard to the welfare of the child. In that context, the issues at stake in these proceedings, concerning how and in what circumstances the father is brought back into child’s life, are particularly complex. The evidence before the Court, including that which is attached to the father’s affidavit, indicate there are risks to the child if the introduction of a regime for him to spend time with his father occurs in circumstances that are too dramatic, and are not according to a plan developed with the assistance of experts.

13. In summary, I accept that the reports are, in large part, not in conformity with the requirement of the Rules including, in particular, rule 15.62. I further accept that, in large part, the reports fail to address matters identified in Makita to which I have referred. However, rule 15.64 provides that non-conformity with the Rules is not fatal to the admissibility of an expert’s report. Specifically, rule 15.64 provides that the Court may “allow the report to be relied on but take the non-compliance into account when considering the weight to be given to the expert witness's evidence”.

14. I propose to take that course of action in this case. Admitting the reports into evidence, but noting that the evidence is subject to weight, also addresses the concern raised by senior counsel regarding prejudice in terms of section 135 of the Evidence Act 1995 (Cth).

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 21 February 2017.

Associate: 

Date:  7 September 2017.