SIMPSON & SIMPSON
[2019] FamCA 107
•14 February 2019
FAMILY COURT OF AUSTRALIA
| SIMPSON & SIMPSON | [2019] FamCA 107 |
| FAMILY LAW – PRACTICE AND PROCEDURE ‑ Leave – Where leave is granted for notifier to the Department of Department of Child Safety, Youth and Women to be identified. FAMILY LAW – EVIDENCE – leave granted for parties to adduce adversarial expert evidence. |
| Child Protection Act 1999 (Qld) s.186 Family Law Act 1975 (Cth) s. 69ZW Family Law Rules 2004 rr. 15.51, 15.69 |
| Richards & Morris (identification of notifier) [2014] FamCA 1027 Lively & Lively [2014] FamCA 578 Parkes & Parkes [2015] FamCA 1210 Cassuben & Cassuben and Anor [2018] FamCAFC 238 |
| APPLICANT: | Mr Simpson |
| RESPONDENT: | Ms Simpson |
| FILE NUMBER: | BRC | 4117 | of | 2014 |
| DATE DELIVERED: | 14 February 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 8 February 2018 |
REPRESENTATION
| SENIOR COUNSEL FOR THE APPLICANT: | Mr S Williams |
| SOLICITOR FOR THE APPLICANT: | Hirst & Co |
| COUNSEL FOR THE RESPONDENT: | Dr M Y |
| SOLICITOR FOR THE RESPONDENT: | Naughton & McCarthy |
| INDEPENDENT CHILDREN’S LAWYER: | Ms J Lilley, Legal Aid Queensland |
Orders
Family report writer
That the Independent Children’s Lawyer be granted leave to copy the subpoena material produced by the Department of Child Safety, Youth and Women and A School for the purpose of providing the documents to Mr F for consideration of Mr F prior to the release of the family report.
Disclosure
That by no later than 4.00pm on 25 February 2019, the husband provide the following documents to the wife’s solicitor by way of disclosure:
(a)bank statements for the National Australia Bank Qantas Plus Credit Card Number #44 for the period from 9 August 2018 to present date, if available;
(b)bank statements for the National Australia Bank Cash Maximiser Account Number #62 for the period from 1 June 2016 to 30 June 2016; and
(c)his individual taxation return and Notice of Assessment for the financial year ended 30 June 2018, when available.
That by no later than 4.00pm on 25 February 2019, the parties are each to exchange the following further documents by way of disclosure:
(a)the party’s most recent taxation return and assessment;
(b)bank statements for all bank accounts in which they have an interest (including by way of interest in an associated entity) for the period from the date last disclosed to the other party to the date of production;
(c)documents reflecting the current balances of their superannuation interests in the Simpson Superannuation Fund; and
(d)any document/s as requested to be disclosed by the other party, which is/are relevant to an issue in the proceedings and which is/are in the possession or control of that party.
That each party file a written Undertaking as to disclosure pursuant to Rule 13.15 of the Family Law Rules 2004 (“the Rules”) by 4.00pm on 1 March 2019.
Filing of documents
That the husband file and serve by no later than 4.00pm on 1 March 2019, the Affidavit/s of all single expert witnesses, attaching a copy of the report of the expert.
That the Independent Children’s Lawyer file and serve by no later than 4.00pm on 1 March 2019, the Affidavits of Mr F attaching a copy of his family report/s and any other witness Affidavits that the Independent Children’s Lawyer seeks to rely upon.
That the husband file and serve on the wife and the Independent Children’s Lawyer by no later than 4.00pm on 1 March 2019:
(a)any amended Initiating Application;
(b)one Affidavit setting out his evidence in chief;
(c)any Affidavit/s setting out the evidence of any professional or lay witness that he proposes to call at the trial;
(d)an updated Financial Statement; and
(e)a balance sheet which sets out his asserted assets, liabilities and financial resources of the parties.
That the wife file and serve on the husband and the Independent Children’s Lawyer, by no later than 4.00pm on 8 March 2019:
(a)any Amended Response to Initiating Application;
(b)one Affidavit setting out her evidence in chief;
(c)any Affidavit’s setting out the evidence of any professional or lay witness that she proposes to call at the trial;
(d)an updated Financial Statement; and
(e)a balance sheet which sets out her asserted assets, liabilities and financial resources of the parties.
That the husband file and serve an Affidavit strictly in reply to the wife’s Affidavit filed 8 March 2018 by no later than 4.00pm on 15 March 2019.
That the parties are not permitted to read or rely upon any Affidavit/s save for those filed pursuant to Order 5 to 9 of these Orders.
That each party file and serve by no later than 4.00pm on 20 March 2019, a Case Outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology;
(c)a list of documents intended to be relied upon at trial;
(d)a list of witnesses to be cross-examined at trial; and
(e)a summary of argument including any authorities upon which the parties intend to rely.
Telephone evidence
That by no later than 4.00pm on 8 March 2019, the parties notify each other in writing of any witness whom it is proposed give evidence by telephone.
That the parties notify each other in writing as to whether or not they consent to the proposed witnesses giving evidence by telephone by no later than 4.00pm on 13 March 2019, and in the event that there is consent, that the parties be at liberty to submit a consent order with respect to electronic communication to the Court to be made in chambers.
That any applications for witnesses to give evidence by way of electronic communication be filed and served by no later than 15 March 2019.
Cross examination
That the parties notify each other in writing of the name or names of any witnesses they seek to call for cross-examination by no later than 4.00pm on 13 March 2019.
Objections to evidence
That the parties file and serve a list of objections to evidence, if any, by no later than 4.00pm on 20 March 2019.
That the parties file and serve a reply to objections to evidence no later than 4pm on 22 March 2019.
Costs notice
That by no later 4.00pm on 22 March 2019, the lawyer for each party must give the party a written notice pursuant to Rule 19.04 of the Rules setting out:
(a)the party’s actual costs, both paid and owing, up to and including the trial;
(b)any expenses paid or payable to an expert witness, or if those expenses are not known, an estimate of the expenses; and
(c)the source of the funds for the costs paid or to be paid.
That on the first day of the trial, each party’s lawyer must give to the Court and each other party a copy of the said notice given to the party.
Expert witnesses – costs
That the husband and wife shall pay equally the fees invoiced for trial preparation and witness fees, for all single expert witnesses and the witnesses relied on by the Independent Children’s Lawyer, including but not limited to Ms H and Ms M.
Dr N
That within fourteen (14) days of the date of these Orders the parties prepare a joint letter of instruction to Dr N, single expert:
(a)enclosing a copy of the report prepared by the father’s treating cardiologist, Dr O dated 19 December 2018; and
(b)requesting whether or not in Dr N’s view there is any need for an updated single expert report.
Expert witnesses – conference of experts
B Street, C Town
That pursuant to Rule 15.51 of the Rules, the wife have leave to rely on evidence of Mr P of Q Valuers as an expert in the proceedings in relation to the value of the real property at B Street, C Town.
That pursuant to Rule 15.69 of the Rules, there be a conference of expert witnesses, namely, Mr R of S Pty Ltd and Mr P of Q Valuers as follows:
(a)the conference occur at a time and place to be agreed between the experts;
(b)prior to the conference, the parties shall provide the experts with a copy of the document entitled “Experts’ Conferences – Guidelines for Expert Witnesses and those instructing them in the Family Court of Australia; and
(c)that at the conference, the experts must:
(i)identify the issues that are agreed and not agreed in relation to their respective valuations of the real property at B Street, C Town;
(ii)if practicable, reach agreement on any outstanding issue;
(iii)identify the reason for disagreement on any issue;
(iv)identify what action (if any) may be taken to resolve any outstanding issues; and
(v)prepare a joint statement specifying the matters mentioned in Order 23(c)(i) to 23(c)(iv) hereof and deliver a copy of the statement to each party.
That if the experts reach agreement on an issue the agreement does not bind the parties unless the parties expressly agree to be bound by it.
That the joint statement may be tendered at trial as evidence of matters agreed on and to identify the issues on which evidence will be called.
That the costs of the conference, including any fees charged by either expert, are to be borne by the wife.
T Street, Suburb U
That pursuant to Rule 15.51 of the Rules, the husband have leave to rely on evidence of Mr V of W Associates as an expert in the proceedings in relation to the value of the real property at T Street, Suburb U.
That pursuant to Rule 15.69 of the Rules, there be a conference of expert witnesses, namely, Mr X of S Pty Ltd and Mr V of W Associates as follows:
(a)the conference occur at a time and place to be agreed between the experts;
(b)prior to the conference, the parties shall provide the experts with a copy of the document entitled “Experts’ Conferences – Guidelines for Expert Witnesses and those instructing them in the Family Court of Australia; and
(c)that at the conference, the experts must:
(i)identify the issues that are agreed and not agreed in relation to their respective valuations of the real property at B Street, C Town;
(ii)if practicable, reach agreement on any outstanding issue;
(iii)identify the reason for disagreement on any issue;
(iv)identify what action (if any) may be taken to resolve any outstanding issues; and
(v)prepare a joint statement specifying the matters mentioned in Order 28(c)(i) to 28(c)(iv) hereof and deliver a copy of the statement to each party.
That if the experts reach agreement on an issue the agreement does not bind the parties unless the parties expressly agree to be bound by it.
That the joint statement may be tendered at trial as evidence of matters agreed on and to identify the issues on which evidence will be called.
That the costs of the conference, including any fees charged by either expert, are to be borne by the husband.
Cardiologist report
That the husband have leave to file an Affidavit of his treating cardiologist, Dr O, annexing a report of that witness.
Leave to identify notifier
That pursuant to section 186 of the Child Protection Act 1999, the parties have leave to identify in these proceedings the notifier with respect to the following notifications made to the … Regional Intake Service - the Department of Child Safety, Youth, and Women (“the Department”) which are referred to in the documents produced pursuant to subpoena to the Court by the Department on 20 July 2018:
(a)the notifications on 19 June 2018;
(b)the notification on 21 June 2018;
(c)the notification on 22 June 2018;
(d)the notification on 24 July 2018; and
(e)the notification on 26 July 2018,
including by adducing evidence of the identity of the notifier and/or evidence from which the identity of the notify could be deduced.
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 Simpson & Simpson 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 BRISBANE |
FILE NUMBER: BRC 4117 of 2014
| Mr Simpson |
Applicant
And
| Ms Simpson |
Respondent
REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
Introduction
A hearing in this matter, set to commence on 25 March 2019, concerns both parenting and property issues. On 8 February 2019, three discrete issues arose for determination which, once determined, will allow trial directions, now broadly agreed, to be pronounced. I deal with these issues as follows, and note the assistance of both the written and oral submissions from Senior Counsel for the husband Mr Williams; Counsel for the wife Dr Y and the Independent Children’s Lawyer Ms Lilley.
Disclosure of notifier
The father seeks, by Application in a Case filed 1 February 2019, an order that:
…pursuant to section 186 of the Child Protection Act 1999, the parties have leave to identify in these proceedings the notifier with respect to the following notifications made to the … Regional Intake Service – the Department of Child Safety, Youth, and Women (“the Department”), which are referred to in the subpoena produced to the Court by the Department on 20 July 2018:
a) the notifications on 19 June 2018;
b) the notification on 21 June 2018;
c) the notification on 22 June 2018;
d) the notification on 24 July 2018; and
e) the notification on 26 July 2018
including by adducing evidence of the identity of the notifier and/or evidence from which the identity of the notify [sic] could be deduced.
It is accepted that, pursuant to section 186 of the Child Protection Act 1999 (Qld), statutory protection from identification is afforded to persons who notify the Department of Child Safety, Youth and Women (“the Department”) of a concern about a child. Some classes of persons have mandatory reporting obligations. After notification is made, the way the Department chooses to investigate any such concerns is a matter for the Department.
Documents produced under subpoena by the Department identify that notifications were made as set out in the orders sought, but the identity of the notifier is redacted. In this matter, however, it appears that, as a result of a subpoena directed to A School, the notifier was inadvertently revealed. The notifier has subsequently informed the Court, by email, via their solicitors, in a letter dated 5 February 2019, that:
…the Notifier does not agree to evidence being given of the Notifier’s identity.
See Exhibit 1.
Section 186 of the Child Protection Act 1999 (Qld) provides as follows:
186 Confidentiality of notifiers of harm or risk of harm
(1) This section applies if a person (the notifier) notifies the chief executive or an authorised officer, police officer, doctor or nurse that the notifier suspects—
(a) a child has been, is being or is likely to be, harmed; or
(b) an unborn child may be at risk of harm after he or she is born.
(2) The person who receives the notification, or a person who becomes aware of the identity of the notifier, must not disclose the identity of the notifier to another person unless the disclosure is made—
(a) in the course of performing functions under this Act or a child welfare law or interstate law of another State to another person performing functions under this Act or a child welfare law or interstate law of another State; or
(b) under the Child Protection (International Measures) Act 2003, part 6; or
(c) to the ombudsman conducting an investigation under the Ombudsman Act 2001; or
(e) for the performance by the chief executive (adoptions) of his or her functions under the Adoption Act 2009; or
(f) by way of evidence given in a legal proceeding under subsections (3) and (4); or
(g) to the litigation director for the purposes of the director performing a function under the Director of Child Protection Litigation Act 2016.
Maximum penalty - 40 penalty units.
(3) Subject to subsection (4) —
(a) evidence of the identity of the notifier or from which the identity of the notifier could be deduced must not be given in a proceeding before a court or tribunal without leave of the court or tribunal; and
(b) unless leave is granted, a party or witness in the proceeding—
(i) must not be asked, and, if asked, can not be required to answer, any question that can not be answered without disclosing the identity of, or leading to the identification of, the notifier; and
(ii) must not be asked to produce, and, if asked, can not be required to produce, any document that identifies, or may lead to the identification of, the notifier.
(4)The court or tribunal must not grant leave unless—
(a) it is satisfied—
(i) the evidence is of critical importance in the proceeding; and
(ii) there is compelling reason in the public interest for disclosure; or
(b) the notifier agrees to the evidence being given in the proceeding.
(5) In deciding whether to grant leave, the court or tribunal must take into account—
(a) the possible effects of disclosure on the safety or wellbeing of the notifier and the notifier’s family; and
(b) the public interest in maintaining confidentiality of notifiers.
(6) As far as practicable, an application for leave must be heard in a way that protects the identity of the notifier pending a decision on the application.
Accordingly, in this case, where the notifier does not consent, leave is required for the name of the identifier to be disclosed in evidence and, from submissions made, also the source of information or basis for any notification is capable of being adduced.
A fulsome examination of the principles for leave and the interrelationship with s.69ZW of the Family Law Act 1975 is helpfully (and, with respect, correctly) provided in the decision of Tree J in Richards & Morris (identification of notifier) [2014] FamCA 1027. In considering whether leave should be granted, I regard it as relevant that the identity of the notifier is already known, albeit inadvertently, as was the case in Richards & Morris (supra) (see paragraph 31). However, even that fact does not absolve the Court’s obligation, under subsection (3), to consider whether leave should be granted, applying the test prescribed by subsection (4).
I have come to the conclusion that leave should be given because:
a)it is likely the mother will be cross-examined about her discussions with the notifier, and, absent leave being given, this potentially critically important evidence (going to considerations set out in s.66CC(2)(b) and section66(3) of the Family Law Act 1975 ) will not be available;
b)the proper administration of justice requires, where possible, the Court to determine the issues on the complete facts, and as the paramount consideration of the children’s best interests is, I accept, a subset of the broader public interest criteria; and
c)The subpoena to the children’s school already identifies, apparently, some discussion between the mother and the school, and being able to cross-examine both teaching staff and the mother on such discussions is likely to be important in determining the children’s best interests. In this respect, I acknowledge the submission of Dr Y to the effect that involving the school and/or teachers in this highly conflictual parenting dispute is not ideal, but if they have evidence touching upon the children’s best interests, it should be before the Court, in my view. I have no reason to infer, by being called to testify, if in fact that is the case, the teachers would treat the children any differently than they do now.
For these reasons, I find leave should be granted, and will make the order as sought.
Leave to adduce adversarial evidence as to property valuations
The husband seeks leave to adduce adversarial expert evidence in relation to the value of the property at T Street, Suburb U. The wife seeks leave to adduce adversarial expert evidence in relation to the value of the property at B Street, C Town.
The process by which leave must be sought, pursuant to Rule 15.51 of the Family Law Rules 2004 (“the Rules”), is clear in the Rules. Although each application will be dealt with separately, both parties agree that if leave is given, the single expert and the adversarial expert should be ordered to confer, pursuant to Rule 15.69 of the Rules.
In respect of this matter, I was referred to decisions of Watts J in Lively & Lively [2014] FamCA 578, and Thornton J in Parkes & Parkes [2015] FamCA 1210; and I have also considered the analysis undertaken by the Full Court in Cassuben & Cassuben and Anor [2018] FamCAFC 238, and in particular paragraph 72, where the Full Court says that:
72. The overriding purpose of the Rules is to ensure that, if practicable and without compromising the interests of justice, any necessary expert evidence should be given by a single expert (r 15.42(c)), though a party may apply for permission to adduce evidence from an adversarial expert if it is necessary in the interests of justice (rr 15.42(e), 15.51).”
And:
“Of course, the application of those rules is always liable to be waived if the Court considers it appropriate (r 1.12).
Applying these principles in the framework of the Rules, I make the following determination.
The Suburb U property
The husband, who seeks leave, contends that:
a)by consent, on 22 February 2018, it was ordered that S Pty Ltd be appointed to prepare a report as to the real property valuations; and
b)a report in respect of the single expert’s valuation for the Suburb U property, opining a value of $2,750,000, was received on 17 July 2018.
By 6 August 2018, the husband had engaged a different expert, Mr V, to review the report, and Mr V’s report issued on 6 August 2018. In his report, Mr V opines a valuation of $2,270,000 and offers a different view of some of the criteria relied upon by the single expert.
As the husband seeks to retain the property on a final basis, a difference in valuation of $480,000 is “not insignificant”. In my view, the affidavit of the husband filed 1 February 2019 provides evidence which satisfies the exercise of discretion to give leave to adduce adversarial evidence in the interests of justice. I will so order, noting as well that the parties have sensibly organised, if this order were made, for the experts to confer.
C Town property
The wife, who seeks leave, contends that:
a)Mr R of S Pty Ltd, pursuant to the Order of 22 February 2018, produced a valuation report as at 21 June 2018 opining an “as is” valuation of $12,500,000;
b)the wife instructed her solicitors on 25 January 2019 to cause Mr P of Q Valuers to prepare a valuation. No explanation is offered as to why the wife took over seven months to instruct her solicitors to secure a separate valuation;
c)the wife’s instructions were to value the property on its current title and also on the basis that the property be subdivided. The report dated 30 January 2019 by Mr P offers a different opinion to the “as is” valuation of the single expert, namely:
i)an “as is” assessment of $13,500,000, and
ii)an “as if complete” assessment of the two separate allotments of $15,000,000. Furthermore, a difference of opinion appears to exist between the single expert and Mr P as to whether the current use (of one lot) is the “highest and best use”.
The wife’s affidavit filed 6 February 2019 in support of the amended Application in a Case was filed outside the time limit set by the Court in my earlier order. This is one reason why the husband says leave should not be granted.
Mr Williams SC, for the husband, whilst acknowledging that the parties have contingently arranged for these experts to confer, also says the husband will be disadvantaged by adversarial evidence of this nature and on a different basis being adduced so late in the proceedings and where no attempt was made by the wife to bring to the attention of the single expert in a timely way the alternate basis for valuation. He says this is another basis for refusing leave.
The C Town property seems to represent the major asset in the pool. A difference in possible valuation of $2.5 million is “not insignificant”. To the extent that it is required, I would relieve the wife of strict compliance with the Rules, as I have formed the view that in the interests of justice the wife should be granted leave to adduce adversarial evidence. I will so order as well as requiring those experts to confer.
The parties have, including the Independent Children’s Lawyer, sensibly, it seems, reached agreement as to further directions for discovery and trial directions and I will incorporate those agreed directions in one set of orders that I pronounce today.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 14 February 2019.
Associate:
Date: 1 March 2019
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