Pieters & Westmore (No 2)

[2023] FedCFamC2F 701

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Pieters & Westmore (No 2) [2023] FedCFamC2F 701

File number(s):

DGC 2398 of 2022

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

5 June 2023

Catchwords:

FAMILY LAW – objection to party relying on a child’s said to be treating psychologist’s affidavit – relevance of evidence – compliance with the rules of this court in relation to single expert witnesses – whether to exclude the evidence in exercise of discretion – finding that the evidence is relevant.   

Legislation:

Evidence Act 1995 (Cth) ss 55, 56 135, 136, 138

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.01, 7.08

Cases cited:

Simmons & Simmons (2023) FLC ¶94-137; [2023] FedCFamC1A 44

Division:

Division 2 Family Law

Number of paragraphs:

23

Date of hearing:

5 June 2023

Place:

Melbourne

Counsel for the Applicant:

Ms Elleray

Solicitor for the Applicant:

Pentana Stanton Lawyers

Senior Counsel for the Respondent:

Ms Mallett

Solicitor for the Respondent:

Resolve Conflict Lawyers

Counsel for the Independent Children's Lawyer:

Ms Morkos

Solicitor for the Independent Children's Lawyer:

Taft Lawyers

ORDERS

DGC 2398 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR PIETERS

Applicant

AND:

MS WESTMORE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE O'SHANNESSY
DATE OF ORDER:	5 JUNE 2023

No orders made. 

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pieters & Westmore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled reasons of a judgment delivered ex tempore on the morning of the first day of final hearing.  These reasons were delivered orally.  These settled reasons have been corrected from the transcript to correct grammatical errors and to add citations, legislative provisions and parts of a precedent case referred to.  An attempt has been made to make the orally delivered reasons easier to read.  The substance is unchanged. 

2. These reasons relate to admissibility of an affidavit of Dr G, said to be a treating psychologist of the child of these proceedings, pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) and the Evidence Act 1995 (Cth) (‘the Evidence Act’).

3. The Father is a disability support pensioner of 59 years of age and has, for significant periods of time, been the primary care of the child, X, who is now 10 years of age.  The Mother is a professional and is 42 years of age.  The parents now live hours apart, one living near Melbourne and the other living in a regional city. 

4. The parties have been involved in litigation concerning X’s living arrangements over most of her life.  There have been a number of reports produced over the court of this litigation, including:

   1         Child Impact Report of Dr B, 03-10-2022

   2         Family Report of Ms C, 09-04-2021

   3         Family Report of Ms D, 09-09-2020

   4         Child Inclusive Conference Report of Ms D, 12-12-2019

   5         Family Report of Ms E, 31-01-2019

   6         Section 11F Report, 04-09-2018

   7         Family Report of Ms F, 06-12-2017

   8         Section 67Z Response, 14-10-2022

   9         Section 69ZW Report, 11-05-2023

5. The last final orders in the matter were made in 2021, which provided for the child to live with the Father and spend time on a regular basis with the Mother, at a time when the Mother lived nearby or roughly 20 minutes away or so from where the Father lived. 

6. In the middle of 2022, the child was in the Mother's care, pursuant to Court orders, and did not return to the Father's care, as provided in the existing Court orders.  It is alleged by the Mother that the child had told her that she was fearful of returning to the Father’s care because of a time when the Father physically assaulted the child and that this followed police involvement.  It is unnecessary that I detail that allegation any further.  The Mother contacted police and at least spoke to child protection.

7. The Mother engaged or retained a psychologist, Dr G, in Western Australia, she says, for the purpose of counselling the child in the context of what she says the child had told her.  As a result of the Mother’s engagement of the psychologist, Dr G saw the child on 18 July 2022 and thereafter. 

8. The Rules deal with expert evidence and include rules 7.01 and 7.08. Those provisions are as follows:

   7.01     Application of Part 7.1

   (1)       This Part (other than rule 7.14) 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 proceeding or anticipated proceeding, being evidence:

   (i)about that expert’s involvement with a party, child or subject matter of a proceeding; 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 proceeding for a purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceeding, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;

   (d)evidence from a family consultant employed or engaged by the Federal Circuit and Family Court or the Family Court of a State.

   Example:An example of evidence excluded from the requirements of this Part (other than rule 7.14) is evidence from a treating doctor or a teacher in relation to the doctor’s or teacher’s involvement with a party or child.

   …

   …

   7.08Appointing another expert witness

   (1)If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.

   (2)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:

   (a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and 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.

9. Dr G has sworn three affidavits in these proceedings and those affidavits were prepared by the Mother’s solicitors and the Mother’s outline of case indicated reliance on all three affidavits.  The first of those affidavits, filed 9 August 2022, deals with Dr G’s qualifications and some detailed observations of that first session on 18 July 2022.  Subsequently, in November, Dr G swore another affidavit and took issue with the observations of the single expert witness, Dr B, who had prepared a report the previous October.  On the face of Dr G’s November and May affidavits, Dr G takes issue with the conclusions of Dr B.  In particular, she takes issue as to the weight to be given to the child’s statements about whether she should live with the Father, should see the Father or is fearful of her father. 

10. Objection was raised by counsel for the ICL and counsel for the Father, seeking to prevent the Mother relying on Dr G’s affidavits on the basis they were inadmissible. Then senior counsel for the Mother indicated that it was only Dr G’s affidavit of 9 August 2022 that was now relied upon and was relied upon pursuant to rule 7.01(1)(a)(i), (ii) and (iii) of the Rules, or what are commonly or colloquially known as the, “treating doctor provisions.” Senior counsel did not concede that Dr G would not have opinions that would be a substantial body of opinion contrary to the single expert or knows of matters that may be necessary for determining the issue, what are colloquially known as the, “competing expert provisions of rule 7.08(1) and (2).” It is clear that the Mother now relies upon Dr G solely as a treater, pursuant to rules 7.01(1)(a)(i) to (iii).

11. The Father's case, as supported by the Independent Children’s Lawyer (‘ICL’), is that Dr G’s evidence has been obtained in breach of the applicable rules.  It was argued that Dr G’s evidence is inherently unreliable and so unreliable as to make it not relevant due to:

    ·Dr G continuing to see the child after an injunction restraining her from doing (although that injunction had been stayed);

    ·Her position of having not spoken to the Father;

    ·Dr G not having access to all of the collateral information that an expert should have; and

    ·Impliedly, it is said that a treater should take all of that into account. 

12. The Father submitted that Dr G, in substance, was a mere “barracker” of the Mother’s case. 

13. Further and alternatively, after I sought some clarification, it was also put by counsel for the Father that if Dr G’s affidavit is relevant, that evidence should be excluded or limited in the exercise of my discretion pursuant to section 135 and/or 136 of the Evidence Act, which read:

    135      General discretion to exclude evidence

    The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

    (a)       be unfairly prejudicial to a party; or

    (b)       be misleading or confusing; or

    (c)       cause or result in undue waste of time.

    136      General discretion to limit use of evidence

    The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

    (a)       be unfairly prejudicial to a party; or

    (b)       be misleading or confusing.

14. Counsel for the Father made it clear that the submission did not go to the point of saying that the evidence was improperly or illegally obtained, pursuant to section 138 of the Evidence Act.

15. The ICL, in short submissions, supported the Father’s position of seeking to exclude that evidence on the basis of, essentially, the manner in which the evidence was obtained.  It was common ground that, at the time of the initial consultation, the parents had an order for equal shared parental responsibility and Dr G had been engaged without consulting the Father (with whom the child had been living) prior to the Mother not returning the child to the Father’s care. 

16. It is unnecessary that I further elaborate on the submissions as to why the evidence was admissible, advanced by senior counsel for the Mother.  I take into account and recite the following part of the authority of Simmons & Simmons (2023) FLC 94-137; [2023] FedCFamC1A 44 (‘Simmons’):

    64. While acknowledging that the report of Ms R was relevant evidence that should have been admitted in the proceedings, counsel for the ICL submitted that her Honour’s failure to do so did not constitute an appellable error because the admission of that evidence would not have changed the outcome of the proceedings. That is, with respect however, not the test. As was made clear in Britt and Britt at [31], in applying ss 56 and 57 of the Evidence Act, “evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value”.

    …

    68. Firstly, the admission of a treating therapist’s report, addressing questions in the nature of those asked by the ICL of Ms R, is specifically contemplated by r 7.01 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”).

    69. Secondly and most significantly, as made clear by the High Court in IMM v The Queen (2016) 257 CLR 300 at [38], the reference in s 56 of the Evidence Act to the potential “rational” effect of the evidence “does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact”.

17. I accept the accuracy and common sense of the Full Court in Simmons.  The reliability of the evidence, if relevant, is not to be assessed on submissions before the relevant evidence has been heard. 

18. Sections 55 and 56 of the Evidence Act are as follows:

    55       Relevant evidence

    (1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

    (2)In particular, evidence is not taken to be irrelevant only because it relates only to:

    (a)  the credibility of a witness; or

    (b)  the admissibility of other evidence; or

    (c)  a failure to adduce evidence.

    56Relevant evidence to be admissible

    (1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

    (2)Evidence that is not relevant in the proceeding is not admissible.

19. Dealing with the provisions of section 55 of the Evidence Act, I find that Dr G’s evidence could rationally affect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. The facts in issue in the proceeding are :

    ·the genuineness or extent to which it is the child's own wishes that are expressed or the extent to which those wishes are influenced by her mother;  and

    ·whether or not the events the child has stated to Dr G and, it would appear, the department, in fact, occurred. 

20. Hence, I find that the evidence is relevant. 

21. I am not satisfied that it is appropriate in all the circumstances to exercise my discretion pursuant to sections 135 or 136 because I am not satisfied that the evidence is unfairly prejudicial to a party or misleading or confusing or will cause or result in an undue waste of time. 

22. Further, I take into account that this is an inquiry into the best interests of 10 year old, X. 

23. Those are my reasons.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       8 June 2023