SIMSON & RADLEY

[2019] FamCA 447

FAMILY COURT OF AUSTRALIA

SIMSON & RADLEY [2019] FamCA 447

FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits – Where the mother seeks to rely on the report produced by a psychologist – Where the father was given leave to adduce separate evidence – Where the mother refuses to participate in a further assessment with a practitioner of the father’s choosing – Whether to strike out the affidavit containing the report – Whether the report is prejudicial or probative – Order.

Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 69ZN, 69ZQ, 69ZR, 69ZT, 69ZT(1), 69ZT(2)
Family Law Rules 2004 (Cth) divs 15.5.4, 15.5.5, 15.5.6; rr 15.41, 15.51(1), 15.54(1), 15.59(1), 15.59(2)

APPLICANT: Mr Simson

RESPONDENT: Ms Radley

FILE NUMBER: DNC 498 of 2016

DATE DELIVERED: 10 July 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Sydney

JUDGMENT OF: Berman J

HEARING DATE: 13 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tippett QC

SOLICITOR FOR THE APPLICANT: Maley Barristers & Solicitors

COUNSEL FOR THE RESPONDENT: Ms Farmer

SOLICITOR FOR THE RESPONDENT: Withnalls Lawyers

the court orders:

1. That the affidavit of Ms B filed 4 February 2019 be struck out.

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 Simson & Radley 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 ADELAIDE

FILE NUMBER: DNC 498 of 2016

Mr Simson

Applicant

And

Ms Radley

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Amended Initiating Application filed 28 September 2018 Ms Radley (“the mother”) seeks parenting orders in respect of X born in 2014 (“the child”).

2. The mother seeks orders summarised as follows:

   a)The parties have equal shared parental responsibility for the child;

   b)That the child live with the mother;

   c)That the mother be permitted to relocate the residence of the child from Darwin to the United Kingdom;

   d)That if permitted to relocate the child spend time with the father for up to fourteen (14) consecutive days on no more than two (2) occasions per annum in the United Kingdom and for a period of not less than five (5) weeks during each European summer holiday and two (2) weeks during each Christmas holiday;

   e)If not permitted to relocate then the child would spend significant and substantial time with the father.

3. By Amended Response filed 30 November 2018 Mr Simson (“the father”) opposes the child’s relocation to the United Kingdom and seeks that the child spend graduated time with the father increasing to equal time upon the child obtaining the age of six.

4. The proceedings are listed for hearing in Darwin in the August 2019 circuit.

5. The parties are represented and pursuant to trial direction orders, have each filed affidavits of evidence upon which they intend to rely.

Application in a case

1. On 17 May 2019 the father filed an application in a case seeking the following order:

   1.That leave for the applicant mother to rely upon the affidavit of Ms B filed 4 February 2019, be withdrawn.

2. The application is opposed by the mother.

3. To place the application in context, the trial direction orders are relevant.

4. On 4 March 2019 the following orders were made:

   3.Leave is given for the applicant mother to rely upon the affidavit of Ms B filed 4 February 2019;

   4.Leave is given to the respondent father to file and serve any further affidavits of evidence restricted to the issue of the applicant mother’s diagnosis of Post-Traumatic Stress Disorder and the impact on her ability to parent the subject child by 4.00 pm 12 July 2019.

5. On 1 May 2019 orders were made granting the parties and their solicitors leave to copy all medical documents produced pursuant to the subpoena to Ms B issued on 7 March 2019.

6. The father’s application was supported by an affidavit of his solicitor filed 17 May 2019.

7. The father seeks to present evidence from Dr C (psychiatrist) as to the mother’s intended assertion that she suffers from Post-Traumatic Stress Disorder (“PTSD”) and perhaps more relevantly, that it continues to impact upon her ability to appropriately parent the child.

8. Acting on advice from Dr C, the father’s solicitors sought the mother’s agreement that she would attend upon a psychiatric assessment to be undertaken by him.

9. By correspondence dated 16 April 2019 the mother’s solicitors advised that the mother did not agree to attending upon a psychiatric assessment and that in any event she would not be available by reason of her employment and the potential that further assessment may exacerbate her anxiety.

10. It was further argued that each of the parties had received the mother’s counselling notes with Ms B and as such, there should be sufficient information to enable the father to obtain a psychiatric opinion and to assist with the preparation of cross examination of Ms B.

11. Communication then passed between the solicitors and ultimately a stalemate was reached with communication from Dr C to the effect that he would not be able to provide a psychiatric opinion without being able to “question, observe and cross-reference documents with individuals”.

12. It is conceded by the father’s solicitors that the court does not have jurisdiction to require the mother to attend upon a psychiatric assessment as a stand-alone exercise.

13. It is not suggested by the father that the issue of a psychiatric assessment may be relevant as a condition to the parenting proposals of either of the parties.

14. In those circumstances the father considers that there is prejudice in the mother being permitted to present the evidence of Ms B in circumstances where the father is not permitted to explore and, if so advised, challenge the wife’s assertion that she suffers from PTSD which is likely to adversely impact upon her parenting of the child with the further consideration that if permitted to relocate the condition is likely ameliorated.

Evidence of Ms B

1. The evidence of Ms B is contained in her affidavit filed 4 February 2019. It is not controversial that Ms B is a registered psychologist of apparent considerable experience.

2. The gravamen of her evidence is contained in her annexed report dated 4 February 2019.

3. The mother initially consulted Ms B on 26 September 2018 following two consultations with Ms D (psychologist) in June and August 2018.

4. Ms B understood that her involvement was not therapeutically based but rather to provide an assessment in support of the mother seeking to relocate with the child to the United Kingdom.

5. The mother attended assessment sessions on 26 September 2018, 11 October 2018, 8 November 2018, 17 December 2018 and 1 February 2019.

6. Ms B considers that the application of two assessment tools indicate a diagnosis of PTSD and in the absence of any other incident in the mother’s personal history, she considers that the trauma is likely to be as a result of the interaction with the father during their cohabitation.

7. In summary Ms B considers that if the mother is permitted to relocate and is well supported then her mental health should recover significantly and her ability to parent X “should be improved”.

Discussion

1. The issue of the mother’s assertion that she has been diagnosed with PTSD is not new. It was foreshadowed by the father that he was likely to challenge the diagnosis and in particular the contention that if there is a diagnosis of PTSD it will likely reduce in its consequence and effect if the mother is permitted to relocate thereby reducing the opportunity for the mother to come in contact with the father.

2. The father has filed a notice of objection to the affidavit evidence of Ms B and argues that “simply cross examining Ms B will not suffice, and without the respondent being able to obtain his own expert opinion, it is prejudicial to his position”.

3. The proceedings are to be conducted pursuant to s 69ZN of the Family Law Act 1975 (‘the Act’). The section sets out the principles for conducting child related proceedings and the court must have regard to s 69ZN(1) which provides:

   The court must give effect to the principles in this section:

   (a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and

   (b)in making other decisions about the conduct of child-related proceedings.

4. Section 69ZQ provides the general duties that must be considered in giving effect to the principles in s 69ZN.

5. Section 69ZR enables the court to make a determination, a finding and/or make orders at any stage of the proceedings if the court considers that it would assist in the determination of the dispute between the parties.

6. The parties concede that the provisions of s 69ZT apply and accordingly the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) do not apply to child related proceedings in so far as they are expressed in s 69ZT(1).

7. It is an important consideration that s 69ZT(2) enables the court to give such weight to evidence that is admitted as a consequence of the provisions of the Evidence Act not applying because of sub-section (1).

8. The court is also given wide power direct and manage the court proceedings, in particular the manner in which evidence is to be presented.

9. The mother has instructed Ms B to provide an opinion as to a diagnosis of PTSD and how that impacts upon her future parenting of the child.

10. It is conceded that Ms B is not a single expert witness and that the mother consulted her for the purposes of assessment and not therapy. Accordingly the provisions of r 15.41 of the Family Law Rules 2004 (Cth) (“the Rules”) do not apply.

11. Rule 15.51(1) provides:

    A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.

12. In that regard leave has been given and the affidavit of Ms B has been filed.

13. The provisions of div 15.5.4 set out the requirements for instructions to an expert witness.

14. Rule 15.54(1) requires that:

    A party who instructs an expert witness to give an opinion for a case or an anticipated case must:

    (a)ensure the expert witness has a copy of the most recent version of, and has read, Divisions 15.5.4, 15.5.5 and 15.5.6 of these Rules; and

    (b)obtain a written report from the expert witness.

15. An expert witness has a duty to assist the court with matters so they are within the expert witness’s knowledge and capability.[1]

    [1]Family Law Rules 2004 (Cth) r 15.59(1).

16. Rule 15.59(2) provides:

    The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness.

17. A preliminary consideration of Ms B’s affidavit and report does not reveal that she has received a letter of instruction setting out the parameters and purpose of the assessment nor that she was referred to her obligation pursuant to Divisions 15.5.4, 15.5.5 and 15.5.6.

18. Section 69ZT does not exclude s 135 of the Evidence Act which provides:

    The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

    (a)be unfairly prejudicial to a party; or

    (b)be misleading or confusing; or

    (c)cause or result in undue waste of time.

19. I am satisfied that the father should be given an opportunity to present evidence that contradicts, challenges or places into context the evidence sought to be adduced from Ms B.

20. I am further satisfied that the father has taken all reasonable steps to obtain separate adversarial evidence but that the father’s expert psychiatrist does not consider that he would be able to present an informed opinion without being able to assess and question the mother.

21. The initial observation of the report of Ms B is that it is predicated upon the history provided by the mother. Whilst that would not be objectionable in circumstances where Ms B had been providing ongoing therapeutic assistance to the mother, it is an important consideration when Ms B has been promoted as an expert and has a higher duty to the court than to the mother.

22. It is likely that Ms B was not made aware of her obligations pursuant to the Rules and if she had she may have been reluctant to consider the assessment without considering the differing factors presented by each of the parties.

23. Whilst these matters may well go to weight, in circumstances where the mother seeks to present evidence of a diagnosis of PTSD and a conditional prognosis, her refusal to submit to a reasonable assessment by the father’s nominated expert is fundamentally unfair to the father and denies the court the ability to properly assess the importance of this aspect of the mother’s case.

24. I consider that the mother’s refusal to participate in a reasonable assessment promoted by the father renders the evidence of Ms B as prejudicial rather than probative.

25. Accordingly I propose to strike out the affidavit of Ms B filed 4 February 2019.

26. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 July 2019.

Associate: 

Date:  10 July 2019