Radev & Radev (No 2)
[2023] FedCFamC1F 131
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Radev & Radev (No 2) [2023] FedCFamC1F 131
File number: WOC 982 of 2019 Judgment of: CAMPTON J Date of judgment: 8 March 2023 Catchwords: FAMILY LAW – EXPERT EVIDENCE – Oral application by the maternal grandmother made on the first day of the trial to strike out the opinions of the single parenting expert witness – Where the maternal grandmother’s objection appears to be grounded from s 135 of the Evidence Act 1905 (Cth) – Where the maternal grandmother contends the single parenting expert witness’ opinion was founded on incorrect factual matters and assumptions – Court reluctant to reject a single expert opinion without having the opportunity to have that opinion and the factual matter and assumptions relied upon tested by way of cross-examination – Application dismissed. Legislation: Evidence Act 1905 (Cth) s 135 Cases cited: Bass & Bass (2008) FLC 93-366; [2008] FamCAFC 67
Radev & Radev & Ors [2019] FCCA 3750
Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 8 March 2023 Place: Sydney Counsel for the Applicant: Mr Haddock Solicitor for the Applicant: Bowral Legal The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Reeve Solicitor for the Second Respondent: Forshaw Lawyers Solicitor for the Independent Children’s Lawyer: Ms Norris, Legal Aid NSW ORDERS
WOC 982 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS J RADEV
Applicant
AND: MS A RADEV
First Respondent
MR BARWEGEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
8 March 2023
THE COURT ORDERS THAT:
1.The maternal grandmother have leave to make an oral application to strike out the opinions of the single parenting expert witness, Dr G.
2.The maternal grandmother’s oral application to strike out the opinions of the single parenting expert witness, Dr G, is dismissed.
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 Radev & Radev has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
In this matter, Ms A Radev (“the maternal grandmother”) makes an oral application on the first day of the trial for the striking out of the opinions of the single parenting expert witness, Dr G, contained in each of her family reports dated 29 October 2019 (“the first family report”) and 20 February 2023 (“the updating family report”).
The maternal grandmother’s Case Outline, being Exhibit 4 in the proceedings, records her objection, at least to the updating report, in the following terms:
… that on the weight of evidence before the court, and the recognition of flaws in the first report, as well as the use of highly subjective views, the [updating] report is likewise fundamentally flawed, and therefore the report should not be entered in as evidence and the conclusions and recommendations of [Dr G] should be given no weight…
(As per the original)
Although not articulated by the maternal grandmother, in the course of submissions she not did not contend bias on the part of Dr G, or that the opinions expressed by Dr G were outside her expertise. In my view, the reality of her objection was grounded upon the Court’s general discretion under s 135 of the Evidence Act 1905 (Cth) to refuse to admit evidence on the basis that its probative value is substantially outweighed by danger, or that the evidence might be unfairly prejudicial to a party, or that it is misleading or confusing or cause or result in an undue waste of time.
The submissions made articulately by the maternal grandmother commenced by identifying a number of paragraphs recorded in the reasons of Judge Altobelli (as he was then) in determining the interlocutory parenting arrangements for the children, X, born 2016 (“X”) and L, born 2018 (“L”), delivered on 20 December 2019 (see Radev & Radev & Ors [2019] FCCA 3750). She brought attention to the Court’s attention recognition by his Honour in those reasons of potential errors made by Dr G both as to the foundations underscoring the opinions expressed, and as to incorrectly recording statements allegedly made by the maternal grandmother.
Implicit in the submissions of the maternal grandmother was that there was an absence of “real evidence” available to ground the assumptions of fact made by Dr G. If I understood the submissions correctly, the maternal grandmother’s contention is that the recommendations and evaluations of Dr G are hence unreliable. It was submitted that in relation to the updating family report, flaws of a similar character continued and were repeated. It is the maternal grandmother’s contention that there are not less than 208 factual errors in the report in the event her evidence is accepted. She submits that in the updating report Dr G has incorrectly recorded statements made by both she and other potential witnesses in the proceedings.
It was submitted on behalf of the mother, supported by both the father and the Independent Children’s Lawyer (“the ICL”), that the objection and strike out application at this point is somewhat misconceived. It is well-known that it is not the single expert witness who will make findings of fact; that is a matter for the Court. In the event Dr G has incorrectly made assumptions or recorded incorrect factual matters grounding her opinion, those matters will go to the weight to be attached to her opinion. They are not matters, at this point in the trial, that underscore an objection to the receipt of the first and updating family reports of Dr G as a single expert witness into evidence.
It is important at this stage in the proceedings to keep in mind that each of the parties and the ICL will have the opportunity to challenge Dr G as to the foundations grounding her conclusions and opinions. It may well be after cross-examination is completed that her opinions attract very little weight. It may well be that the foundations for the opinion are supported after all of the evidence has concluded.
The Full Court in Bass & Bass (2008) FLC 93-366 set out the reluctance of the Court to reject a single expert opinion without having the opportunity to have that opinion and the factual matters and assumptions relied upon grounding that opinion tested by way of cross-examination, save and except in exceptional circumstances. No such exceptional circumstances have been identified here. Without determining the veracity of the maternal grandmother’s complaints, I am not satisfied, at this stage of the proceedings, that the first and updating family reports should be rejected at this point in the trial.
In the circumstances, the maternal grandmother’s application to strike out each single expert opinion is rejected and dismissed. The first family report will be marked as Exhibit 6, and the updating family report will be marked as Exhibit 7.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 9 March 2023
0