Salt and Salt

[2018] FamCA 259

FAMILY COURT OF AUSTRALIA

SALT & SALT [2018] FamCA 259

FAMILY LAW – SINGLE EXPERT – application to adduce evidence from further expert – purpose of expert witness provisions-application of Rule 15.49 and the concept of “a substantial body of opinion contrary to any opinion given by the single expert witness” - significance of the issue in the proceedings 

Family Law Rules 2004 (Cth) rr 1.04, 15.42, 15.49

APPLICANT: Ms Salt

RESPONDENT: Mr Salt

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

FILE NUMBER: CAC 1754 of 2016

DATE DELIVERED: 26 April 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 5 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:
SOLICITOR FOR THE APPLICANT:	Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT:	Ms M Davis
SOLICITOR FOR THE RESPONDENT:	Infinity Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs J Lloyd

Orders

IT IS ORDERED THAT

1. The mother has leave to adduce expert evidence from Dr L.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1754 of 2016

Ms Salt

Applicant

And

Mr Salt

Respondent

REASONS FOR JUDGMENT

1. The context of the current Application in a Case is that it falls within parenting proceedings concerning the parties’ child H, now aged three and a half.  A primary issue in the case concerns whether or not the father presents as a risk of sexual abuse to H.  In relation to that issue the mother filed an Application in a Case on 16 February 2018 seeking leave to rely upon evidence from a psychiatrist, Dr L.  This application is made in a context where a Single Expert has already been appointed by the agreement of the parties, a psychologist, Professor M. 

2. Part 15.5 of the Rules sets out the provisions dealing with the reception of expert evidence.  Those Rules are subject to the overriding Rules contained at Chapter 1 which have as their main purpose:

   1.04     Main Purpose of Rules

   The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

3. Against that background the purpose of the expert evidence provisions are set out as:

   15.42  Purpose of Part 15.5

   The purpose of this Part is:

   (a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;

   (b)to restrict expert evidence to that which is necessary to resolve or determine a case;

   (c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;

   (d)to avoid unnecessary costs arising from the appointment of more than one expert witness; and

(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.

1. It may be seen that the purposes that lie at the heart of each of these provisions relate to the promotion of the interests of justice.  The Single Expert provisions which appear at division 15.5.2 of the Rules need to be read in light of the above purposes.  They demonstrate the intention to restrict expert evidence to what is necessary to resolve a case, and preference the use of a single Expert unless the interests of justice in the individual case demand otherwise. 

2. As noted above, here the parties agreed to the appointment of a single expert, the psychologist Professor M.  Of the matters addressed within his report, there was emphasis on whether the father poses a risk of sexual abuse to H.  The mother now seeks to adduce evidence from psychiatrist, Dr L on that issue, being the issue of a risk of sexual abuse posed by the father. 

3. In making the application the mother relies upon r 15.49:

   15.49  Appointing 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 that the contrary opinion is or may be necessary for determining the issue;

   (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.

4. The mother relies principally on subparagraph (a) with a fall back to subparagraph (c) as being available in this case to activate the discretion to allow the mother to adduce the evidence from Dr L. 

5. The application is opposed by both the father and the Independent Children’s Lawyer (ICL).  The reasons for opposition expressed by the ICL included that the opinion offered by Dr L was based on assumed, rather than accepted facts, and did not cater for alternate fact finding by the Court.  Further, the view expressed by Dr L was already the subject of an opinion expressed by Professor M as to risk, meaning that there was no requirement for a further expert.  Further, the ICL submitted that Dr L’s report did no more than to dispute Professor M’s report and in circumstances where he had neither viewed the relevant material (alleged child exploitation material currently held by the Australian Federal Police said to have been in the possession of the father previously) nor met nor interviewed the father.  These last matters, the ICL asserted, were fatal flaws to the reception of Dr L’s opinion. 

6. The father also emphasised the fact that Dr L had neither seen the material nor interviewed the father and also queried what gap in the material Dr L’s evidence might fill.

7. On the question posed by r 15.49(2)(a), whether there is a substantial body of opinion contrary to any opinion given by the Single Expert, it may be seen from the reports prepared by each that they followed different approaches. Professor M is a psychologist who, in general terms, in addition to assessing the father and the material, assessed the applicability of various psychological tests and the results of testing of the father. In contrast, Dr L was critical of the use of testing and relied heavily upon historical matters, including matters that did not seem to be controversial, such as the possession of the material. In his criticism of Professor M, Dr L did not make clear his expertise to assess the testing administered by, and used by, Professor M.

8. The different approaches involved a different intermediate conclusion in respect of the father. Dr L assessed that it was likely the father suffers from a paedophilic disorder as described by DSMV. Professor M did not think that the father met that criteria. It may be accepted that Dr L’s conclusion as to the father likely suffering from a paedophilic disorder, contrasted with Professor M’s assessment on that same matter, potentially qualifies this as a case falling in r 15.49(2)(a), given the different approach, methodology and expertise used by the psychiatrist. The different opinions, and different expertise relied upon to reach those opinions, means that Dr L’s opinion is sourced in “a substantial body of opinion (the field of psychiatry) contrary to any opinion (as to diagnosis of the father as the basis for the assessment of risk) given by the single expert witness.”

9. However, the question for whether or not to exercise the discretion still falls to consideration in the light of the purposes of the provisions. 

10. As to their final conclusions, the differences, if there are differences, are more nuanced than there intermediate conclusions as to paedophilic disorder.  Dr L in summary said that it was not possible to conclude that the father posed no risk to H if he was having unsupervised time with him.  Professor M said that he could not conclusively determine whether H would or would not be at risk in unsupervised time with the father.  It may be observed that Dr L and Professor M used different paths, based upon different sets of material and approaches to come to a similar ultimate qualitative assessment.  It is difficult to determine a significant difference between the opinions ultimately expressed by each as to risk. 

11. Despite this, there is value in the different approaches and intermediate conclusions as they may provide different bases on which conclusions may be accepted or rejected, and from which inferences may be drawn to determine issues related to unacceptable risk. The question of unacceptable risk is pivotal to the determination of the case. This supports the reception of the material by Dr L.

12. Against this, the common subject matter of risk, the Single Expert’s access to the father and to the material, in contrast to the lack of access by Dr L, the subtle differences in ultimate determination, and general commonality of expression of uncertainty as to risk, tell against the reception of the material.

13. The father also pointed to the failure of the mother to comply strictly with the disclosure requirements in failing to provide Dr L’s report in a timely manner.  This is a serious matter and could, in the appropriate circumstances constitute reason to refuse the leave that is sought here.  It does not have that effect in this instance given the time still to come before trial.

14. It should also be noted that whether or not Dr L’s evidence is received, the mother has the use of it to assist in testing Professor M. She bears the bulk of the expense related to Dr L, having commissioned his report.

15. The competing approaches or rationales for determining whether or not the father poses a risk “may” (as expressed at r 15.49(2)(a)) be necessary for determining that issue. Although the matter is finely balanced, as the issue is central to the resolution of the case, the conflicting rationales can be considered necessary to resolve the case. It is in the interests of justice that the evidence of Dr L be adduced for this reason. This consideration has prominence over the difference in the time taken for the trial (extending it by one witness) and the additional corresponding cost of that additional time.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 26 April 2018.

Associate: 

Date: 26 April 2018