SCVG & KLD

[2014] FamCA 898

FAMILY COURT OF AUSTRALIA

SCVG & KLD [2014] FamCA 898

FAMILY LAW – Case management.  Issue about availability and replacement of a single expert.  Concern expressed by a party that the witness may have had involvement with one party.

Family Law Act 1975 (Cth)

Fagenblat & Feingold Partners Proprietary Limited [2001] VSC 454

APPLICANT: Mr SCVG

RESPONDENT: Ms KLD

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: SYC 4380 of 2008

DATE DELIVERED: 15 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Dowd

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Macphillamy

SOLICITOR FOR THE RESPONDENT: Macphillamy’s

SOLICITOR FOR THE INDEPENDENT

 CHILDREN’S LAWYER:

Ms Yeend, Yeend & Associates

Orders

1. That the previous order for the appointment of Dr H and the requirement of the parties to attend upon him is discharged.

2. That pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties attend upon and at the direction of Dr E for the purposes of a psychiatric examination and if necessary, the preparation of a family report.

3. That Dr E may require any party to attend with, or bring in, a child whose interest may be affected by the proceedings.

4. That Dr E note the terms of reference relating to the previous order relating to the attendance on Dr H.

5. That the parties have general liberty to apply.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  SYC 4380 of 2008

Mr SCVG

Applicant

And

Ms KLD

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In this particular application, the matter is listed for trial shortly.  An order was made, not by me, for the appointment of a psychiatrist.  The terms of the appointment and examination were, apparently, agreed.  As a result of me having been asked to hear this trial, I have set the timetable and the expert that was proposed and, apparently, agreed, cannot meet the timetable.

2. This is a case, from what I have read, which has a limited issue and needs to be heard reasonably soon.  The dispute here is relatively simple.  The Independent Children’s Lawyer who has come on the record and who was not a party to the appointment of the previous expert, has now proffered another person who is available and the father agrees to that appointment but the mother has three grounds for resisting it.  Those three grounds are that at a hearing before the Deputy Chief Justice, a statement was made by counsel for the father that the father had seen the proposed expert.  That has been to some extent resolved by a statement that what was said was incorrect.  There is absolutely nothing that would indicate that the proposed witness, Dr E, has indeed had anything to do with the father.  To the extent that that is incorrect, it seems to me that it could always be tested in cross-examination or by a request of the witness to produce his notes and any other administrative records.

3. The second issue is that, to some extent, connected with the first, the father’s lawyers have sent a letter which has a reference indicating a preference for Dr E as a shadow expert.  Mr Dowd quite properly says today, that that may very well have been his terminology rather than it being correctly described.  Again, I think, that is connected with the first issue.

4. The third issue is that the material that I have ordered to be filed under the timetable, will not be filed prior to the expert commencing the consultation and examination and whilst I have made my position clear that I much prefer the expert to have the trial material, I do not think that is an insurmountable matter.

5. There is an issue therefore about whether the proposed expert is biased.  As Pagone J in the Supreme Court of Victoria said in Fagenblat & Feingold Partners Proprietary Limited [2001] VSC 454:

   A biased witness does not impugn the independence of the decision-maker nor, in fact, does it infect the impartiality of the Court.

   The opposing party is clearly at liberty to test whether there is any bias or corruption of the evidence and at that particular point, if the evidence is, indeed, corrupted by the bias, it becomes either inadmissible or, perhaps, by virtue of s 65G(8), of little weight.

6. I want to put on the record that I clearly understand there is a sense of apprehension, if not, grievance, on the part of the mother but in my view, that issue can not only be ameliorated by giving her the opportunity to test the evidence including, as I have said, in relation to the issue of partiality, but also if indeed the report is made available prior to the trial commencing then, the mother has an opportunity to seek her own shadow expert if she so desires. Whether she will be successful in that, obviously, depends on the material because of the nature of the Family Law Rules 2004.

7. Chapter 15.45 of the Family Law Rules provides that a Court can appoint an expert of this nature of its own initiative. It seems to me that whether this was initiated by the Court or by the parties is somewhat immaterial now because it was always understood that there was going to be this report. It seems to me, in the circumstances, that there is no harm done by the material that I have heard and to the extent that there is a problem, no doubt the mother will have an opportunity to test that evidence.

ORDERS DELIVERED

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 August 2014.

Associate: 

Date:  21 October 2014