PICTON & PICTON

[2009] FamCA 867

FAMILY COURT OF AUSTRALIA

PICTON & PICTON [2009] FamCA 867

FAMILY LAW – EVIDENCE – Interim judgment – Whether the wife should be permitted under Rule 15.65 of the Family Law Rules to ask the single expert witness a list of questions – The questions asked put the expert to an unreasonable amount of work – The questions asked go beyond the purpose of clarifying the expert's opinion

FAMILY LAW – PROPERTY – Interim judgment – Competing applications for exclusive occupation of the former matrimonial home on an interim basis – The extent to which the husband has utilised the home since separation – Order allowing wife and children to reoccupy the former matrimonial home

Family Law Rules 2004, Rule 15.65

Family Law Act 1975 (Cth), s 114(1)

Johnson v Johnson (1997) FLC 92-764
Re W (Sex abuse: standard of proof) (2004) FLC 93-192

APPLICANT: Ms Picton

RESPONDENT: Mr Picton

INDEPENDENT CHILDREN’S LAWYER: Mr Mark Whelan

FILE NUMBER: SYC 523 of 2008

DATE DELIVERED: 11 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 2 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

Orders

1. Dr M not be required to answer the questions in the letter from the wife dated 6 August 2009, pursuant to the provisions of Rule 15.65 Family Law Rules.

2. Pending further order, within 14 days of the date of making these orders the wife shall be granted exclusive use and occupancy of the property situated at and known as N (“the N property”) and the husband vacate the N property. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 523 of 2008

MS PICTON

Applicant

And

MR PICTON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. There are two interlocutory matters that I have been asked to decide.  The first relates to whether or not an extensive list of questions can be asked of the single expert, Dr M, an adult, child and family psychiatrist who has prepared a report relating to parenting issues.

2. The other matter I have been asked to decide is who should have exclusive occupancy of the former matrimonial home at N pending the final resolution of the litigation between the parties relating to the alteration of their property interests.

DOCUMENTS READ

1. Both parties have provided a case outline document and have indicated in their respective documents the affidavits and documents relied upon by each of them.  I have read those documents.

WHETHER TO STRIKE OUT THE WIFE’S QUESTIONS TO THE SINGLE EXPERT

1. Dr M was appointed as a joint expert.  She has written a report dated 11 July 2009 which has been released to the parties.  Dr M’s report deals with matters which I will need to consider at a final hearing in relation to S, now aged 9, O who is aged 7 and E who is aged 6. 

2. Dr M’s report sets out the documents that were made available to her prior to the preparation of her report.  Dr M also conducted interviews with the mother, father, the maternal grandmother and the children (totalling approximately 7.5 hours).  Dr M addressed those matters that she was asked to address.

3. During the course of the preparation of her report, Dr M reviewed material contained in response to approximately 21 of the subpoenas issued in this matter.  On the face of her report, Dr M has opined that the husband has emerged from a serious depressive illness and that it would now be advantageous for the children to have unsupervised overnight time with him.  The wife does not accept Dr M’s opinion.

4. By way of a letter dated 6 August 2009 addressed to Dr M, the wife seeks to ask questions of Dr M, purportedly pursuant to rule 15.65 Family Law Rules 2004. This letter is Exhibit “BB” and was previously marked as Exhibit “B” on 11 August 2009.

5. On 11 August 2009 when the matter was before me, counsel for the husband categorised the letter as vexatious and outrageous and the Independent Children’s Lawyer, Mr Whelan, categorised the letter as oppressive in parts and in his view one that put Dr M to an unconscionable amount of work.  On that day the Independent Children’s Lawyer conceded that he had not yet been able to contact Dr M to discuss her attitude to the document.

6. When the matter came back before me on 2 September 2009, the Independent Children’s Lawyer informed me that Dr M’s reaction was that it will “take her days” to answer the questions individually.  The Independent Children’s Lawyer inquired of Dr M as to whether or not it would be possible to answer the questions more globally.  Dr M said that she would think about that question.  The Independent Children’s Lawyer requested that Dr M provide something in writing.  Dr M indicated to the Independent Children’s Lawyer that she would but that document was not available for the hearing.  I was informed that Dr M was overseas and not back until 24 September 2009. 

7. The letter of 6 August 2009 is said to have been written pursuant to the provisions of rule 15.65 Family Law Rules. That rule is in the following terms:

   “Rule 15.65(2)  The questions must:

   (a) be in writing and be put only once;

   (b) be only for the purpose of clarifying the single expert witness’s report; and

   (c) not be vexatious or oppressive, or require the single expert witness to undertake an unreasonable amount of work to answer.”

8. The first question in the letter of 6 August 2009 commences with the following preamble:

   “Would any of the following matters, whether considered discretely or in their entirety, change your opinions and recommendations?”

9. The matters which Dr M has been asked to consider, either discretely or in their entirety, include 86 different items.  The vast majority of the questions ask Dr M to assume facts which I am told are not conceded by the husband.

10. It is the husband’s submission that the purpose of the rule is to enable questions to be asked of an expert that clarify her opinion as opposed to challenge her opinion.  The husband concedes that the questions in the document are legitimate questions to put to an expert in cross examination if the report is to be challenged, but ought not to be allowed pursuant to a rule which allows questions to “clarify” (that is, to make clear something that is not clear from the report). 

11. Dr M has reviewed a considerable volume of material.  I accept the submission by the Independent Children’s Lawyer and the husband that there would probably be a need for Dr M to substantially revisit that material in order to answer the questions.  The uncontested hearsay evidence I have through the Independent Children’s Lawyer is that Dr M estimates that it could take her “days of work” to complete the process.

12. The second question asked of Dr M (page 9 of the letter) sets out the wife’s proposal in relation to what time the husband should spend with the children.  It thereafter provides (in about 18 subparagraphs) the reasons why the wife makes the proposal that she does.  Dr M is asked whether or not the wife’s proposal complies with Dr M’s recommendation that the children and the husband have a meaningful relationship and the children spend substantial and significant time with the husband.  The husband submits that the question asked is not proper on its face.

13. Counsel for the wife submits that the questions posed to the single expert are a legitimate use of the court rules; are made in a bona fide attempt to reduce the issues at trial; and are intended to clarify whether there is a proper basis for strong recommendations made by Dr M.

14. It is the wife’s case that Dr M’s report contains assumptions made by her which the wife contends are based on incorrect or incomplete assertions by the husband and that rely heavily on a history provided by the husband only.  The wife asserts that in her interview with Dr M, she was not made aware of the husband’s contentions and consequently she was not afforded the opportunity to either challenge or provide answers to certain assertions that the husband had made or to clarify assumptions formed by Dr M based on the husband’s assertions and contentions.

15. Counsel for the wife submits that significant weight will be attached by the court to the opinions and recommendations contained in Dr M’s report.  It is submitted that natural justice and procedural fairness dictate that a party should be afforded the right to submit questions for the purposes of not only clarifying assumptions and conclusions in the report but also to be given the opportunity to place before the single expert contrary or additional assumptions for the purposes of clarifying the single expert’s report. 

16. The normal way that that would happen, as counsel for the husband points out, is for the single expert to be cross examined.  Although, in Division 12A matters, it is an option in many matters to call the single expert as the first witness, in cases where one party seriously challenges underlying factual assumptions made by the single expert, it would be usual to call the single expert at the conclusion of the evidence.  In that way, those matters that have emerged during the testing of factual matters at the trial can be put to the single expert and assumptions made by the single expert can be tested (see Johnson v Johnson (1997) FLC 92-764).

17. Counsel for the wife submits that to suggest that the appropriate manner of putting these questions to the expert is in cross examination is to firstly confuse the basis of the questions and secondly, risk prolonging the trial unnecessarily. 

18. The wife says she seeks clarification at an early stage.  She does not want to incur additional costs of single experts attending court and being met with propositions that they may not be prepared for, where the evidence at trial has revealed a contrary fact or history. 

19. Counsel for the wife submits that the single expert can quite readily and in the comfort of a 21 day period, address the questions without the cost and confines inherent in cross examination. 

20. Whilst that might be true, it is also the case that the trial judge in the final stage of the hearing might not allow a single expert to be asked questions based upon the 86 propositions contained on pages 1 to 9 of the letter to Dr M.  The various “what if” scenarios put to Dr M are put on the basis that the evidence at trial might reveal a different set of facts or history to the one provided by the father to Dr M.  The wife’s submission is that the wife should not need to wait for Dr M’s cross examination to ascertain whether different facts or history would or could lead to different recommendations and that armed with the answers to questions, the wife can reconsider the recommendations of the single expert and discard a line of questioning that she would know beforehand would not be productive at the hearing.

21. This is very much a “chicken and egg” argument.  It is more likely in my view that if this matter goes to a final stage of determination, by the time Dr M gets into the witness box, there will be many factual matters asserted by the wife that are conceded to be, or otherwise found by the trial judge to be, irrelevant or of inconsequential weight. 

22. In addition, a trial judge, properly directing the proceedings pursuant to the provisions of Division 12A, would disallow any questioning of Dr M based on “facts” which were unsupported on the evidence given at the trial. 

23. The wife submits that the appointment of a single expert in children’s matters is “almost compulsory”.  That submission is accurate.  Parties are able to seek leave to call evidence from an adversarial expert, but this is usually only in circumstances where there is a dispute about methodology, literature relied upon or there is some special reason as to why an adversarial expert would be allowed to give evidence in a matter.  The dangers of an adversarial expert giving evidence when they have not had the advantage of seeing and interviewing the parents, the children and other relevant adults individually and in combination are referred to in Re W (Sex abuse: standard of proof) (2004) FLC 93-192.

24. The wife goes on to submit that the reason why single experts are appointed in children’s cases is to “reduce scarce court time by avoiding lengthy evaluations of competing experts and that that is a benefit to the efficient operation of the court”.  That in my view is not the main reason why single experts are appointed in children’s cases.  It has for a long time been true in children’s matters that multiple interviewing of children by different experts is to be avoided and consequently a single expert, either a family consultant or a Chapter 15 expert, is appointed by the court to carry out an assessment for the court.        

25. Counsel for the wife put to me that it was not my role to evaluate the questions.  It was put that that was Dr M’s role and I needed to know from Dr M how she evaluated the questions.  It was put that to allow otherwise was to bestow upon the court a level of expertise that it does not have.  I do not accept that submission.  An application has been made to the court for an assessment as to whether or not the questions should be struck out.  It is the court’s role to determine that question.  I have earlier recorded the statement made by the Independent Children’s Lawyer about his communication with Dr M. 

26. I also take into account the nature of some of the questions.  To pick just three examples:-

    29.1.At page 23, paragraph 3 of Dr M’s report, she records that on 4 June 2009:-

    “At the end of the time [E] demanded her drawings.  She became angry and teary.  [O] also agreed that he should have his drawings.  The children were difficult to contain and came marching back into the room, crying and angry.  I photocopied the drawings for them which seemed to partially satisfy them.  [S] did not push for a copy of his drawings but was pleased to receive the photocopies.  They all appeared tired”. 

    The mother asks the following question: “Would it change your opinions or recommendation if you did not provide photocopies of the children’s drawings at the appointment on Thursday 4 June 2009?”. 

    It is hard to see how the form of that question is appropriate. 

    29.2.At page 23, paragraph 6, Dr M records S saying in a very determined voice that he wanted to have some time with his Dad and that he definitely wanted overnight sleeps with his dad. 

    The wife asks Dr M whether or not her opinions or recommendations would change if S had rehearsed his answers with the father and the paternal grandmother prior to the appointment with Dr M.  A question in that form (without proper evidence that that had in fact happened) is in my view not appropriate and underlines the reason why an interrogation of an expert in the way proposed by the wife is inappropriate.  If a similar question was asked in court, it would be disallowed (unless proper foundation had been laid).  Counsel might be invited to reframe the question in a way that would be more appropriate.  It is not unusual for experts to be asked questions in cross examination about their opinion as to whether or not any coaching had taken place. 

    29.3.At page 26, paragraph 6, the paternal grandmother expresses the view to Dr M that the father’s deterioration had been caused by a cocktail of drugs. The wife asks Dr M whether or not her opinions and recommendations would change if she knew that the wife did not believe that a cocktail of drugs caused the husband’s deterioration.  It is difficult to conceive how the opinions and recommendations of Dr M would change in favour of the mother’s view by her knowing that the mother held that view.

27. I picked the above three examples (fairly randomly) to demonstrate the problems with some of the questions that have been asked.  I do not intend to analyse each individual question.  The above examples are sufficient to highlight the problems inherent in the process that the wife has attempted to undertake.  It is not appropriate for me to recast the wife’s document. 

Conclusions in relation to the questions

1. I have carefully re-read Exhibit BB and Dr M’s report. I have concluded that in this case the questions posed to Dr M in the letter of 6 August 2009 substantially exceed the scope envisaged by Rule 15.65 Family Law Rules. The purpose of the proposed questions goes well beyond seeking to clarify the single expert witness’s report. I have concluded that the purpose is in effect to take a deposition in writing from Dr M of evidence that she might otherwise give in response to questions in cross examination during the hearing, if those questions were allowed in the hearing at the time when Dr M gave her evidence. Also, in the circumstances of this case I have concluded that it would be asking Dr M to do an unreasonable amount of work to answer the questions that have been asked.

2. Accordingly I conclude that the letter of 6 August 2009 has not been written in accordance with Rule 15.65 Family Law Rules and the letter does not have to be answered by Dr M.

EXCLUSIVE OCCUPANCY

1. The wife wishes to have the exclusive occupancy of the former matrimonial home at N.  She filed an Application in a Case on 11 August 2009 seeking that outcome. 

2. At separation the wife moved out of that property with the children.  The wife alleges that shortly thereafter, the husband also moved.  The wife alleges that the husband moved to his mother’s unit in the city. 

3. Initially the wife and children lived at a friend’s home for a short period (six weeks or so).  The wife then obtained rented accommodation at C.  The lease on the C property was initially for twelve months, and a further twelve month lease was granted.  The wife says the lease expires on 28 September 2009 and on 29 July 2009 she received a notice of termination from the Real Estate agent requiring her to vacate the rental property by 27 September 2009. 

4. The husband has been providing funds for the wife’s rental costs without any order to do so.  He says he will continue to provide that assistance. 

5. Shortly after the separation on 5 September 2007, the wife, through her lawyers, requested occupancy of the home but that was not something to which the husband was prepared to consent at that time.  A similar request was made again on 13 July 2009 (at a time before the release of Dr M’s report). 

6. The wife alleged in her affidavit sworn 10 August 2009 that the matrimonial home was in fact vacant. 

7. A property at W is registered in the sole name of the husband.  The current value of that property is approximately $2,800,000.  That property is rented to a tenant.  The wife asserts that it might be that the husband can occupy that property. 

8. The W property is currently on the market for sale.  The husband says given that the husband’s mother advanced half the funds, there is an agreement between he and his mother, now, for that sale to happen. 

9. The husband says that the lease at W property is up in April 2009.  One option would be for the husband to ask the tenant to leave and to move into that property, but I am unclear as to whether or not there would be any agreement from his mother for that to happen, nor am I clear as to exactly how the borrowing of $1,500,000 from the Macquarie Bank would be funded without receiving $10,000 per month by way of rental. 

10. Since separation, the wife has been the primary carer of the children and there is an ongoing dispute between the parties as to whether or not the husband can have overnight time.  That dispute is due to be heard on an interim basis later in this month.  It is the wife’s position that the children should not spend time with their father on an overnight basis unsupervised due to his mental health issues.  That view is at odds with the opinion of Dr M as expressed in her most recent report.  As is clear from the earlier part of this judgment, the wife wishes to ask Dr M extensive questions and test whether or not Dr M has relied upon any factual underpinnings that are inaccurate and would be of such significance as would move Dr M’s opinion.  That will be a matter for the final hearing.  

1. Given there has been a supervision order in place in relation to the husband’s time with the children and that that supervision is conducted by his mother, it is natural that the children have spent time with their father at their grandmother’s unit.   None of that time has yet been on an overnight basis.  The wife gave evidence that it was usual when she dropped the children off at the N property that the husband and his mother would be parked out the front waiting and the wife would observe that they did not go inside the N home.  The husband asserts that one reason he did not park in the driveway of the N property was because the wife had a practice of parking her car behind him and preventing him going out with the children to any prearranged activity. 

2. The wife gives evidence that the children always communicate with the husband on his mobile and the husband has never asked the children to ring him on the telephone number at N. The husband explains his wish to use a mobile telephone as one based on his desire to be always available to take calls from the children.

3. There are a number of documents that the wife has referred to in evidence that contain the husband’s address at his mother’s city unit.  They include school mailing lists, a security company for the former matrimonial home, various credit card statements and draft legal documents.  A mail redirection of the husband (Exhibit “A”) dated 21 September 2007 requests that the husband’s mail be redirected from N to his mother’s address.  At paragraph 24 of his affidavit, the husband gives an explanation as to why he redirected his mail to his mother’s address shortly after the time of the separation. 

4. A report by Dr L dated 5 November 2008 records at page 2 that “he (the father) is currently cared for by his mother”. 

5. A report written by Dr D dated 4 January 2008 records “he (the father) is now living with his mother, having been expelled from his home and has limited access to his children under very strict conditions which he and his mother are finding trying”. 

6. Records from the RTA were produced, together with a summary I have been asked to use as an aide memoir and a printout of the RTA toll codes.  It is clear that the husband makes frequent trips across the Harbour Bridge and many seem to coincide with times that the husband is having with the children.

7. The wife also refers to Dr M’s report at page 9 where there is a reference to the husband barely being able to get the children home on Tuesday and Thursday afternoons “because of the traffic”.  At page 11, Dr M records the following history taken from the husband at the time of the interviews:

   “At present he is living between the [N] family home and his mother’s place in [the city].  [The wife] and the children are renting at [C].  [The hsuband] offered the house to [the wife] in their first mediation meeting with [Ms B].”. 

8. The wife has put on evidence from two neighbours, Ms H and Mr W. Ms H is a stay at home mum who lives next door to the N property.  She has observed that no garbage bins have been put out on Monday nights for garbage collection since late 2007 except on two or three occasions.  On each of those occasions, the bin has not been taken back in until three or four days later.  Advertising junk mail has not been regularly cleared from the letterbox and has stayed in the letterbox for up to a week. She has heard the garage door once or twice a week.  That normally coincides with a pick up of the children at the property.  On some occasions on weekends the husband and his mother have remained at the property for a few hours with the children and have swum in the swimming pool.  Other than that, Ms H gives evidence that the property has been substantially unoccupied for a period of almost two years. 

9. Mr W lives across the road.  He has a clear view of the electronic gate and driveway of the N property.  Since January 2008, when he moved back to Australia, he says there has been very little activity at the Pictons’ home, observing that it is dark at nights.  He says that on at least three occasions the alarm on the house has been activated and has remained on for an hour without anybody deactivating it.  He observed that activity at the household recommenced in August 2009 and that since mid August a number of cars have been parked in the driveway and that the internal and external lights have been on at the home in the two weeks prior to him swearing his affidavit on 28 August 2009.

10. It is the husband’s sworn evidence that since 2007 he has spent approximately three nights per week and four days on average at the N property and that from 19 August 2009 he has been living full time at the N property.  The evidence about frequency of occupation prior to 19 August 2009 cannot be tested in the confines of these interim proceedings.  The objective, untested and seemingly independent evidence points in the other direction.

11. The husband says that on occasions he stays at his mother’s home, for example when he has an early morning appointment in the city or early morning sport, given that the wife insists that the husband’s mother be present when the husband takes the children to sport.

12. Counsel for the wife makes a Jones & Dunkel submission in respect of the fact that the husband has not filed any affidavit from his own mother. 

13. Given the assets the parties have to divide up, it is not beyond reasonable prospect that the wife would be able to retain the N property as part of some possible alteration of property interests.

14. I find that the house certainly has not been fully utilised by the husband since separation in August 2007. 

15. In his initial application to the court (his reply of 7 November 2008) the husband at that stage sought an order that the N property be sold. The husband amended his application on 25 August 2009 and now seeks an order that he be able to retain the N property as part of the overall alteration of property interests pursuant to s 79 Family Law Act. 

16. It is not a matter of contention that the wife originally wanted the N property sold but then subsequently refused to proceed with the sale.

17. The wife herself has sought the N property as part of the overall adjustment of property since she filed an amended Response on 30 July 2008. 

18. The wife submits that, on the balance of convenience, an order should be made in her favour for the occupancy of the N property. 

19. I have no doubt that both parties may assume that whoever succeeds in obtaining occupancy of the former matrimonial home on an interim basis will have the inside running in retaining it when a settlement of property is adjusted.  That assumption should not be made. 

20. The husband sees the application by the wife as a tactical one, attributing to the wife as one of her motives an attempt to make that much more difficult a decision on an interim basis in relation to overnight time of the children with their father.  Dr M’s report was released to the parties on 20 July 2009.  The wife received Notice of Termination of her current lease shortly after on 29 July 2009.  I am unable to attribute to the wife the tactic asserted by the husband.  The wife filed her exclusive occupation application on 11 August 2009.

21. It is the husband’s proposal that the wife and the children find alternate rental accommodation and that the cost of that accommodation would be funded from the husband’s resources.  The husband has gone to the trouble of making some inquiries about rental properties that might be available to the wife and has undertaken to fund that rent from capital if insufficient income is available.

22. The husband wishes to have the N property as a base which would enable the children to relax in his care.  The husband concedes that on occasions he spends time with the children and his mother at his mother’s unit.  The husband’s desire is that N property be retained by him in the property settlement and that he in the interim have N property available to him to have the children there overnight.  The husband is of the view that that would make any order for overnight time an easier transition for the children. 

Conclusion in relation to occupancy

1. I am required under s 114(1) Family Law Act to make an order that I consider is proper. 

2. The wife’s application is that she and the three children move back into the matrimonial home.  It is a home that the children know.

3. The husband’s application is that he be able to continue to reside there and that it provide a base for the children to have overnight time with him should that order be made either on an interim or final basis. 

4. In the event that the wife and children reoccupy the N property, the husband will no longer need to fund the wife’s current rental accommodation, and would be able to use those funds to obtain alternate accommodation for himself and the children (if an interim order is made for them to stay with him).

5. Even on the husband’s own case, the husband has only permanently re-established himself in the N property after the wife has made an application for occupancy.

6. The wife’s application for occupancy is based on the fact that she will no longer be able to continue to reside in the property that she has been living in with the children for the last two years.

7. I consider it proper for the wife to be able to reoccupy the matrimonial home with the children pending further order. 

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  11.9.2009