QAB & ICY

[2006] FamCA 587

[2006] FamCA 587

JFQABISY

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 18 of 2006
File No. NCM 261 of 2005

IN THE MATTER OF:

QAB

Appellant/Mother

- and -

ICY

Respondent/Father

EX TEMPORE REASONS FOR JUDGMENT

BEFORE:  JUSTICE I R COLEMAN
HEARD:  16^th day of June 2006
JUDGMENT:  16^th day of June 2006

APPEARANCES:                 QAB, the appellant mother, appeared on her own behalf.

No appearance by or on behalf of the respondent father.

Ms Denise Clark, Solicitor (DX 12622 Charlestown) appeared on behalf of the children.

Name of Appeal  QAB & ISY

Appeal Number  EA 18 of 2006

Date of Appeal Hearing                   16^th day of June 2006

Date of Judgment  16^th day of June 2006

Bench  Coleman J

Catchwords:   Appeal against orders of Federal Magistrate providing for an updated family report.

Appellant’s contention that events subsequent to the family report necessitated the “introduction of further expert witnesses” unsuccessful – Complaint provides no basis to refrain from updating family report – Matters raised only relevant, if at all, to issues of weight given to report writer’s evidence at trial.

Appellant’s contention that children were “distressed” by report writer and “refused to participate” in another report unsuccessful – Nothing to prevent children expressing such views to report writer – Children’s representative did not seek to advocate this ground on the hearing of the appeal.

Appellant’s application to adduce further evidence unsuccessful – Does not satisfy requirement set out in CDJ v VAJ (1998) 197 CLR 172.

Appeal dismissed.

1. This is an appeal against an order, being Order 8, made by a learned Federal Magistrate sitting in Newcastle on 24 January this year.  On that day, in circumstances which he detailed in his reasons for judgment, his Honour made a series of orders in relation to two children of the parties to this appeal.  Those children were then aged 10 years and very close to 8 years of age. 

2. The orders included contact orders, which broadly speaking could be said to have to a limited extent ameliorated, in the father's favour, the strictures of previous orders for contact.  No part of this appeal relates to any order for contact made by the learned Federal Magistrate, or indeed any other of the various orders with respect to the parties' children which were made on 24 January 2006. 

3. The order which gives rise to the appeal, Order 8, provided that:

   … an updated family report be prepared in this matter and request that Dr C assess the progress of the contact between 25 January 2006 and the date of the family report;

4. From that order the mother, who represents herself, has appealed.  As the order relates to children, notwithstanding that it is an interlocutory order, leave is not required.  The law which governs the appeal is not in doubt, and does not require re-stating for the purpose of this appeal.  The decision of the High Court in House v The King (1936) 55 CLR 499 is the most directly relevant authority for the present purposes. By virtue of the mother's application to adduce further evidence the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172 is also relevant.

BACKGROUND

1. Some brief background to the appeal is warranted. The learned Federal Magistrate in the course of his reasons for judgment in relation to matters which form no part of this appeal, noted:

   There is a family report prepared in this matter by Dr C and she has made quite specific recommendations.  That report is to be challenged at the final hearing by the mother.  Interim hearings are truncated proceedings.  The Court should not proceed to make findings of fact where there is dispute as to those facts until the Court has the benefit of assessing all of the contested evidence.

2. Statements of fact and law, the accuracy of which cannot be doubted, were then recorded by his Honour.

3. Turning then to address the issue of whether there ought to be a further report by Dr C, as he concluded there should be, his Honour recorded in a series of paragraphs, clearly and unequivocally, the reasoning process which led him to conclude that the mother's request should be denied, and that Dr C should be requested to provide an updated family report.

4. Before referring to his Honour's reasons for judgment in that context it is perhaps relevant to refer briefly to Dr C's report and to the qualifications of Dr C to write such report.  Dr C, a registered psychologist, holding a doctorate of some 30 years standing, two Masters degrees and an Honours Bachelor degree in what appear to be relevant disciplines for the purpose of preparing an admissible report, has an impressive curriculum vitae and array of current professional memberships.

5. Dr C interviewed a number of relevant people on a number of occasions, principally on 21 November 2005.  Without referring to the report and noting that none of this discussion relates to the weight appropriate to be given to the report but simply to its admissibility, whatever the accuracy, which remains to be tested, of Dr C's methodology, reasoning process and conclusions, on a Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 basis, the report appears not only to be admissible but capable of being received and relied upon by the ultimate trier of fact as expert opinion evidence in accordance with the provisions of the Evidence Act 1995 (Cth).

10.  Reference has been made to weight and, as will be seen, it is critical albeit no doubt difficult for an unrepresented litigant, who cannot be expected to approach these matters with total objectivity, to appreciate the difference between admissibility of evidence and the weight appropriate to be given to it.

11.  Dr C was appointed by a Federal Magistrate in March 2005 to prepare a report and as already noted at least twice, whatever the weight ultimately to be given to that report, the report appears to have addressed the terms of reference which gave rise to its creation.

12.  It should also not be forgotten that whatever the outcome of this appeal, Dr C would be able to be and no doubt would be a witness in the proceedings whether called by the Court, or as would be more probable given the status of the report, the children's representative.

13.  Focusing though for the moment on the learned Federal Magistrate's reasons in relation to the updating of Dr C's report rather than the appointment of another expert report writer, his Honour recorded correctly at paragraph 32 the terms of reference of the proposed updating of Dr C's report.  His Honour also referred, accurately there is no doubt, to the request made by counsel then appearing for the mother that another report writer prepare that update “as the mother is concerned that Dr C has not prepared her report appropriately and may very well be biased”.  His Honour recorded accurately at paragraph34 that “whilst this was a procedural issue, it fell squarely to be considered in the context of children's best interests”.

14.  His Honour noted that “[i]t cannot be said to be in any child's best interest to be seen by a number of different experts.  Sometimes though that is necessary”.

15.  His Honour observed that it was necessary:

… when issues of psychiatric illness become obvious during the course of the conduct of a family report or events have occurred in a case and the social worker or psychologist preparing the report is not qualified to make appropriate recommendations or diagnoses.

16.  This picks up a theme in the further evidence sought to be relied upon by the appellant in this appeal.

17.  The Court noted on the evidence as it then was that none of those matters had arisen on the evidence to which the Court was then referred and that if the Court were:

… to accede to the mother's request then no doubt a number of other respondents or applicants who find themselves aggrieved by the views of a family report writer will bring similar applications.

18.  His Honour's reference to “aggrieved” could be perhaps translated as “dissatisfied by”, “unhappy with” or something of that nature. 

19.  As the authorities in relation to disqualification of judges make clear, and in particular those in recent years of the High Court confirm, the fact that a litigant does not perceive that his or her position will find favour, or in the case of the report writer here has found favour, is not a basis for disqualification.

20.  His Honour concluded by saying:

The process of an adversarial hearing gives parties an opportunity to contest the evidence of experts who prepare reports, and the mother will not lose that opportunity.  She may of course bring a fresh application for another expert, although that is not an invitation to do so, as that will no doubt be a difficult application for her to meet.  However, in all of the circumstances I am not persuaded that it is appropriate to change the wording of the request for an updated report in this matter, and it will stand.

GROUNDS OF APPEAL

21.  In her comprehensive Outline of Argument, the appellant raises four categories of challenge to the decision of the learned Federal Magistrate.  The first of those, dealing with them in the order in which the appellant has raised those matters, is that “recent events have occurred which necessitate the introduction of further expert witnesses”.

22.  With great respect to the appellant, that by its very wording is clearly a matter which relates to further evidence which she can rely upon, assuming it to be admissible, before the learned Federal Magistrate at the hearing of the proceedings scheduled to commence on 27 July.  The fact that the evidence of Dr C itself, or of events subsequent to Dr C's report, may “necessitate the introduction of further expert witnesses” does not by logic or law provide a basis for finding that the learned Federal Magistrate erred in declining to refrain from updating Dr C's report.

23.  In the paragraphs which follow under the heading "Recent events which have occurred", the appellant raises a number of complaints about the content of Dr C's report.  As the Court has endeavoured, with no great success it perceives, to explain to the appellant, there is a world of difference at the appellant level at least between the weight appropriate to be given to the evidence of a witness at trial and a decision by an appellate Court to interfere with the decision of a trial Judge, or Federal Magistrate in this case, to in effect allow that evidence to be before the Court and be before the Court in the most potentially useful form.

24.  Nothing appearing in paragraphs 3 or 4 of the appellant's outline provides a foundation for appellant intervention. 

25.  In paragraph 5 the appellant noted the question of balancing “Expediency of the Court process”.  Relevant in that context is that Dr C, whatever the weight appropriate to be given to her opinions proves to be, has under the auspices of an order of the Federal Magistrates Court prepared an expert report.  The efficacy of that report is a matter of public as well as private interest.

26.  With great respect to the appellant, the logic underpinning her complaints is hard to follow.  If there is substance in the evidence of the appellant as to events subsequent to the preparation of the report then those matters should be made known to Dr C and Dr C then ought deal with those in whatever is the appropriate professional way. The appellant can then cross-examine at trial in relation to those matters and, to the extent that anything in Dr C's treatment of those matters is found wanting, the weight appropriate to be given to Dr C's evidence would be impacted accordingly.

27.  With great respect to the appellant, the proposition of the learned Federal Magistrate to which she refers in paragraph 6 cannot be seriously doubted.  With all due respect to her, the appellant's challenge to the learned Federal Magistrate's decision though perhaps subtly and more genuinely presented than the Court views it, is in reality little more than an attempt to secure a report from somebody else on the basis that that person's report may be more favourable to the appellant's cause.

28.  That overlooks the reality that Dr C's report, to use the colloquial, would not go away.  The appellant’s proposition does, as the learned Federal Magistrate recorded, expose the children to the interview process starting afresh in circumstances where nothing to which this Court has been referred suggests either that there was anything wrong with the original process or, to the extent that the process is stressful, that repeating it with a new expert would not also be.

29.  The other matters referred to in paragraph 6 of the appellant's submissions provide, as CDJ v VAJ makes clear, rather more support for the learned Federal Magistrate's conclusion than for the appellant's challenge to such conclusion.  On her own evidence, the appellant contemplates the prospect of adducing further evidence from witnesses with whom the children have had contact subsequent to the interviews with Dr C.  Dr H, with whom it might be inferred, there will be further consultations, is such a potential witness.

30.  None of that is said critically of the appellant.  If that evidence is admissible and relevant to the welfare of the children, then the appellant ought to present it at trial but, with respect to her, it reinforces rather than undermines the logic of the learned Federal Magistrate's conclusions about Dr C’s continuing involvement in the case.

31.  The second broad category of challenge is that “The children were distressed by the report writer and have refused to participate in another report by the same writer”.

32.  The appellant's affidavit of further evidence in paragraphs 13 and 14 provide what is said to be the foundation for that complaint.  A number of observations are relevant.  The first and most obvious is that children of 10 years of age do not rule the world.  The second is that there is nothing to prevent the child from expressing her views to Dr C and, if the appellant is correct in her beliefs, so doing would be likely to produce a response in Dr C's updated report.

33.  With great respect to the appellant, to simply produce what appears in paragraphs 13 and 14 and seek to dictate to a Court, which in substance is what this is tantamount to, is, to use the colloquial, "not on".

34.  Dr C's expertise is such that the child, on the appellant's evidence, ought to be able to communicate her views freely.  Indeed she does not seem to have been circumspect in what appears at paragraphs 13 and 14.

35.  Of significance is the fact that these children are themselves represented.  Of greater significance is that their representative, counsel of experience and competence, has sought not to advocate the cause referred to in paragraphs 7 and 8 of the appellant's submissions.  That is a matter which is not without significance.  It is inconceivable if the separate representative considered that the matters referred to in paragraphs 13 and 14 of the further evidence should enliven this Court's interest pursuant to CDJ v VAJ that submissions to that effect would not have been made.  They have not been and that absence of submissions is both understandable and significant.

36.  Reference has earlier been made to the misconception under which the appellant appears to labour, as to the “weight” appropriate to be given to Dr C's evidence after that evidence is tested at trial and whether or not Dr C should update that evidence in the light of events subsequent to the report of December 2005.  As noted earlier, the reluctance to update the report is somewhat selective given that the mother wants to adduce further evidence of the very sorts of matters which Dr C ought to have the opportunity to update and would at trial in any event become aware of before the trial proceeds.

37.  The Court does not propose dealing in any detailed way with the contents of paragraphs 9, 10, 11, 12 and 13.  They do, with respect, perpetuate the misconception that the weight of evidence yet to be tested ought be prejudged by this Appeal Court in the complete absence of any cross-examination of the expert witness in question.  This Court cannot do that.  The authorities make clear that attempting to do so forms no part of its functions.

38.  Similar observations apply to paragraph 14 which is headed “There is a demonstrable bias on the part of the report writer”.

39.  As the authorities in relation to judicial disqualification make clear, there is a fundamental distinction between a perception that an adverse result is likely or, in the case of the report in this appeal, that the report is unhelpful, and a perception that there is an element of pre judgment, or an absence of an unprejudiced or impartial mind when the task of writing the report is commenced.

40.  If Dr C is guilty of the matters of which the appellant complains, as the learned Federal Magistrate clearly understood in paragraph 36 of his reasons for judgment, that will emerge in the course of the adversarial proceedings and the operation of common law in that regard.

41.  The further evidence does not satisfy the requirement of CDJ v VAJ.  What has happened since the learned Federal Magistrate’s decision does not demonstrate that the decision was wrong. It simply demonstrates that there may have been further events which if the evidence were accepted at trial, would cause Dr C to revisit the opinions expressed in the report of 12 December 2005, or to the extent that Dr C did not do so, cause the weight appropriate to be given to those expressions of expert opinion to be diminished.

42.  The further evidence is in much the same category as further evidence on appeals after final orders in the sense that if it is anything, it is evidence to be adduced at a further hearing.  The appellant in this case has not yet been to trial and thus does not face any impediments to the receipt of the evidence provided that the evidence is itself admissible.

43.  Applying the decision of the High Court in House v King, it has not been established that the learned Federal Magistrate erred in this case in a way which would entitle the appellant to succeed with her appeal.  His Honour could have gone the other way, to use the colloquial.  He chose not to.  That was a course well open to him in the exercise of his discretion on the evidence.  His Honour exercised his discretion judicially.  He provided cogent and more than adequate reasons for his decision.  Nothing to which the appellant has referred the Court establishes an entitlement to success on appeal. The appeal will accordingly be dismissed.

I certify that the preceding
43 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 10/07/06