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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Radev & Radev (No 2)

Details

AGLC: Radev & Radev (No 2) [2023] FedCFamC1F 131
Case: [2023] FedCFamC1F 131
Decision Date

CaseChat Overview and Summary

In the case of Radev & Radev (No 2), the Federal Circuit and Family Court of Australia addressed an oral application by the maternal grandmother to strike out the opinions of a single parenting expert witness, Dr G. The grandmother's objection to Dr G's expert opinions was based on alleged factual inaccuracies and incorrect assumptions within the expert's family reports dated 29 October 2019 and 20 February 2023. The primary legal issue before the court was whether the expert's opinions should be excluded from the evidence based on the grandmother's assertions under section 135 of the Evidence Act 1905 (Cth).

The court considered the grandmother's submissions, which referenced previous criticisms of Dr G's work by another judge, and noted that the grandmother did not argue that Dr G's opinions were outside her expertise or that there was any bias. The court recognised that the grandmother's objections were grounded in the discretionary power of the court to exclude evidence that might be misleading, confusing, or cause undue waste of time. However, the court highlighted that it was not inclined to reject a single expert's opinion without first allowing for the opportunity to test the opinion and its underlying factual matters through cross-examination. The Full Court's decision in Bass & Bass (2008) supported the view that such an approach should be taken, unless exceptional circumstances are present, which were not identified in this case.

Given the circumstances, Justice Campton dismissed the grandmother's application to strike out the expert's opinions. The court determined that the objections raised were matters that would be addressed during the cross-examination phase of the trial, and it was premature to exclude the expert's reports at this stage. The court's decision ensured that the expert's reports would be admitted as evidence and marked as Exhibits 6 and 7, respectively.

Orders