Stennard & Stennard
[2021] FamCA 500
•9 July 2021
FAMILY COURT OF AUSTRALIA
Stennard & Stennard [2021] FamCA 500
File number(s): CAC 2501 of 2020 Judgment of: GILL J Date of judgment: 9 July 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits – Subpoenas – Whether leave should be given for filing of further affidavit material – Interaction between principles for admitting affidavits in reply and principles for conducting child-related proceedings – Leave given to file affidavit material strictly in reply – Scope of subpoena material to be provided to expert limited. Legislation: Family Law Act 1975 (Cth) s 69ZN
Family Law Rules 2004 (Cth) rr 1.04, 1.08, 9.05, 9.06, 9.07, 15.05, 15.42 and 15.46
Cases cited: ASIC v Adler [2001] NSWSC 1168
Czeb & Czeb [2010] FamCA 310
Number of paragraphs: 56 Date of hearing: 3 June 2021 Place: Canberra Counsel for the Applicant: Ms Tabbernor Solicitor for the Applicant: Farrar Gesini Dunn Solicitor for the Respondent: Dobinson Davey Clifford Simpson ORDERS
CAC 2501 of 2020 BETWEEN: MS STENNARD
Applicant
AND: MR STENNARD
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
9 JULY 2021
THE COURT ORDERS THAT:
1.Order 18(b) of the orders of 5 February 2021 is discharged.
2.The expert may be provided with such documents produced on subpoena as are agreed by the parties.
3.The Respondent is at liberty to rely upon and provide to the expert so much of his affidavit filed on 8 June 2021 in reply as is admitted in the proceedings in accordance with this judgment.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stennard & Stennard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
On 5 February 2021, I ordered the parties to provide the court expert, Dr B, with court documents filed in the proceedings, including the parties’ Applications, Affidavits, Responses, Notices of Risk, any material produced under subpoena and released to the parties and their legal representatives, court orders made to date, and any s 69W report. The parties were granted liberty to issue subpoenas necessary for the proper conduct and preparation of the matter.
The parties are now in dispute as to the documents to be sent to Dr B in two respects. Firstly, they dispute the extent of subpoenaed material to be sent to him. Whilst it might be thought that the terms of the 5 February order dealt with such, the parties have now caused 51 subpoenas to be issued, which have yielded in excess of 3500 pages of produced material, a result unanticipated on the making of the original orders.
On 3 June 2021, I ordered the parties to provide a schedule of persons subject to subpoena, detailing their identity and relationship to the parties.
They have been unable to agree on the scope of an extract of the subpoenaed material to be sent to the expert.
The second respect in which they are unable to agree relates to the filing of further affidavit material by the father in these proceedings, with such also to be provided to Dr B. The father has filed a further affidavit on 8 June 2021 annexing a number of documents produced on subpoena, and seeks that his affidavit and the annexed documents be read by the expert (and relied on by the father in interim proceedings). Permission to file and rely on this affidavit was the subject of an application in a case filed by the father on 24 May 2021. Permission was granted to the father on 3 June 2021 to file the affidavit. He was not then granted permission to either forward it to the expert, or to rely upon it in the proceedings. This further affidavit was then filed on 8 June 2021.
As a consequence, procedural issues that typically should not require the intervention of the court to resolve have required both an interim hearing, substantial evidential rulings and the preparation of this judgment. Although it is not necessary to determine at this stage, it is difficult to perceive how this mode of litigation and use of court processes and resources complies the responsibilities of parties and lawyers (set out in the Family Law Rules 2004 (Cth) (“the Rules”) at Rule 1.08) in achieving the main purpose of the Rules which 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.[1]
[1] Family Law Rules 2004 (Cth) r 1.04.
It is convenient to deal with this second aspect of the dispute first.
THE FATHER’S PROPOSED FURTHER AFFIDAVIT
This issue is controversial, given the filing history in this matter. The mother filed first on 6 November 2020, but although she sought final orders in relation to the children for them to live with her, and to relocate to Sydney, she sought no interim orders in respect of the children other than related to the appointment of an expert. Her affidavit material, spanning some 40 paragraphs, did not significantly address the child related matters, save for reciting care arrangements, differences in parenting approaches, views of the children, and particular characteristics of the children, such as diagnoses of ADHD, ASD and borderline ODD.
The father, in his response filed 2 February 2021, was silent as to the final orders pursued in relation to the children (other than to oppose those sought by the mother), but pursued interim orders for equally shared parental responsibility, equally shared care, various restraints and for the appointment of an expert and the obtaining of material.
His affidavit material in response ranged widely across 248 paragraphs and approximately 50 pages of annexures. He covered the mother’s unilateral relocation with the children to Sydney, her return to Canberra, that he had been accused by the mother of theft, of her making false allegations including of sexual violence to the children, the mother’s violence to him and controlling behaviour of him, parenting arrangements, the mother’s physical and mental ailments, involvement of the children in the dispute by the mother, undermining of his relationship with the children by the mother, the children’s behaviour, needs and characteristics, the children’s diagnoses, the mother’s relationships with the children, the mother’s anger, the mother’s relationships with her family, and the father’s mental health, in addition to property matters.
Much was canvassed in the father’s affidavit material that had not been addressed or raised by the mother in her affidavit.
Accordingly the mother filed a further affidavit on 19 April 2021 to deal with what was now an interim dispute in relation to the children. This affidavit spanned 307 paragraphs, and approximately 230 pages of annexures. The mother also covered issues that had arisen since the filing of her previous affidavit, and following the filing of the father’s affidavit, styling her affidavit as responding to his.
The mother introduced allegations against the father of family violence, both generally and specifically expressed. The mother set out a history of her mental health and treatment, and addressed allegations made by the father regarding her mental health. She addressed the father’s mental health, her previous concerns about the children and possible abuse of the children by the father, and that she accepted the conclusions reached by the police and CYPS that the father posed no risk.
The mother also set out further circumstances in relation to the children, and their diagnoses, treatment, and answering allegations of involving the children in the dispute. The mother provided evidence in relation to her family and the circumstances of her proposed move to Sydney, along with matters pertaining to property.
Against this background the father seeks to rely upon the further affidavit filed 8 June 2021, comprising 143 paragraphs and identifying 42 annexures. He seeks that he be able to rely upon this further affidavit and also forward it to Dr B.
Consideration
It was identified to the parties that the Rules deal with the capacity of parties to file affidavits. Rule 15.05 provides that:
A party may file an affidavit without the leave of the court only if a provision of the rules or an order of the court allows the affidavit to be filed in that way.
Accordingly there is no general right to file affidavits. Rules 9.05 to 9.07 deal with the filing of affidavits in response to an application in a case (as initially filed by the father) and to affidavits filed in reply to such a response (as filed by the mother on 19 April 2021). Those rules relevantly provide as follows:
9.06 (1) A Respondent who files a Response to an Application in a Case must, at the same time, file an affidavit stating the facts relied upon in support of the Response to an Application in a Case
9.07 If:
(a) a respondent files a Response to an Application in a Case seeking orders in a cause of action other than a cause of action mentioned in the application in a Case; and
(b) the applicant opposes the orders sought in the Response to an Application in a Case;
The applicant may file an affidavit setting out the facts relied upon
No provision is made for the filing of a further affidavit such as filed by the father.
In Czeb & Czeb, Cohen J explained the reason for the rule:
The husband has made submissions to me in writing. I have read them, and, in my opinion, they confirm the very good sense that is contained in the rules to the extent that they do not allow affidavits in reply. The purpose is, essentially, to prevent people from filing affidavits in reply because they overcomplicate and extend the issues in relation to irrelevancies or matters which are insufficiently relevant. The need to reply can be dealt with at the hearing, and, in those circumstances, the Court can control the amount of material that is put before it, and, therefore, prevent undue prolixity in litigation. I am of the view that, in this particular instance, the Rules should be upheld, and that the husband should not be given leave to file an affidavit in reply.[2]
[2] Czeb & Czeb [2010] FamCA 310, [2].
Despite the absence of provision for the filing of further material, it was reasonably accepted for the mother that the father should be able to file affidavit material, provided that it was strictly in reply, in accordance with principles dealing with evidence in reply.
Such an approach would require the leave of the court, as it is not authorised by the Rules.
The specific rules as to affidavits are to be read in conjunction with the main purpose of the Rules, set out at r 1.04:
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.
Allowing affidavit material in reply by the father forms a sensible approach, consistent with the main purpose of the Rules, given the complexity of the issues being pursued by the parties even on an interim basis. Such an approach would allow the evidence to properly meet both for the conduct of an interim hearing, but also in forming an adequate background for the preparation of the single expert report.
For the mother it was submitted that if the father was allowed to rely upon his further affidavit, beyond what is in reply, she would be required to file further material to answer such.
Although it is desirable to ensure that the cases of the parties adequately meet, it is even more highly desirable that, given the breadth of material sought to be relied upon by the parties, the proceedings not devolve into an endless cycle of filing of material and counter material addressing the same, or expanding the factual substratum. Allowing such a course would conflict with the main purpose of the rules.
In order to adequately regulate the material that should now be relied upon, it is appropriate to have resort to general principles that deal with reply.
In support of such an end, the parties filed schedules. The father’s schedule purported to identify the paragraphs in the mother’s affidavit that warranted reply, and to identify the paragraphs in his affidavit that are in reply.
The mother’s schedule purportedly identified whether the mother’s affidavit had raised a new issue in dispute, whether such warranted a reply, and whether the father’s affidavit was in fact in reply. Although the mother’s schedule at times dealt with more general objections, the directions for the filing of the schedules did not allow or envisage such a course. Other issues of admissibility will need to be dealt with at interim hearing.
The schedules have the desirable effect that they restrict the scope of the dispute. It may be taken that those paragraphs not identified by the father in his schedule as in reply will not be read.
Authorities
In applying authorities from other jurisdictions regarding issues such as the admission of material in reply, it is important to acknowledge both that such jurisdictions may operate under different rules and procedures to this court and further that, insofar as the proceedings involve child related matters, those other courts will not be governed by the principles that govern child related proceedings as set out in Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
However, the principles contained in Division 12A are far from the antithesis of well-developed procedural principles that drive at both the fair hearing of issues between parties, and the efficient hearing of such matters between parties.
The discretionary principles that govern cases in reply are one such example. Those principles acknowledge the procedural powers of the court in dealing flexibly with matters sought to be raised in reply, in a manner supportive of the proper determination of factual issues which in turn is supportive of, in this jurisdiction, discretionary determinations in the best interests of the children the subject of the dispute. The general principle avoids procedural unfairness and prevents an endless cycle of the filing of material.
The general principle in respect of civil proceedings, (albeit there in the context of a civil penalty case), was helpfully extracted by Santow J in ASIC v Adler.[3] His Honour emphasised that the rule is not a technical rule, but one based on fairness, and described its application in the following manner (references omitted):
The principles applicable in civil cases are conveniently stated in “Cross on Evidence” by D Byrne and J D Heydon, para [17720], which I quote below:
“In civil cases the law is somewhat different. The general rule is similar, namely, that evidence in reply must normally be confined to rebutting the defendant’s case rather than merely confirming that of the plaintiff: such evidence must be “strictly in reply”.[4]
[3] [2001] NSWSC 1168.
[4] Ibid [5].
It should be emphasised that decisions relating to permitting or restricting evidence given in reply are discretionary decisions, based primarily upon questions of fairness.
Accepting that child related proceedings (including interim child related proceedings) do not conform neatly with characterisations that flow from either criminal proceedings nor civil proceedings involving plaintiffs and defendants, child related proceedings still benefit from the application of principles that promote just determinations of the issues concerning the best interests of the child and the orderly and efficient conduct of proceedings. Relevantly, the principles for conducting child related proceedings at s 69ZN of the Act provide that:
(1) 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.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
While Principles 2 and 5 are the most readily conceptually engaged of the Principles in the current context, it should not be thought that permitting proceedings to collapse into an ongoing whirlpool of evidence contesting and amplifying the evidence in relation to the same or similar ground over and again is consistent with any of the other Principles. While Principle 5 is a caution against a mechanistic application of principles concerning a case in reply, it is not the rejection of principles such as those identified above regarding the evidence in reply and the splitting of cases. Rather, it provides caution and purpose in the application of such principles.
Conclusion
In this case, where there is no provision in the Rules for the filing of further material by the father, and yet there is a reasonable acceptance that he ought to be able to reply to further matters raised by the mother, permission ought to be given for him to rely upon his further affidavit, but not in a manner that effectively splits his case and then requires of the mother a further reply. A reply will ensure that the parties’ cases meet for the purposes of the upcoming interim hearing, and for the factual issues, and contests, to be sufficiently identified to the single expert.
Accordingly, the father’s evidence should be generally restricted to evidence properly in reply.
The following table sets out individual rulings on the admissibility of the contested paragraphs of the affidavit based on whether such are in reply. The balance of the affidavit will be struck out.
Paragraph Ruling 10 Admitted as in reply, ancillary objection to be dealt with at hearing 11 First three sentences admitted as in reply 14 Admitted as in reply 17 First three sentences admitted as in reply 18 Not admitted 19 Not admitted 20 Admitted by agreement 21 Admitted by agreement 22 Not admitted, matter previously raised in father's affidavit at [136] 23 Not admitted, matter previously raised in father's affidavit at [136] 24 – 25 Agreed and admitted 26 – 28 Admitted as in reply to the issue of financial control 29 Admitted in response to specific allegation contained at [56] of the mother's affidavit 30 First sentence admitted by consent, balance not admitted as not reply to the issue identified 31 Not admitted as matter previously dealt with at [61] of the father's earlier affidavit 32 First sentence admitted as reply, balance not in reply and not admitted 33 Admitted as in reply to specific allegations 34 – 35 Admitted as in reply 36 Admitted as in reply to allegation at [65] and the father failing to control X when X is in the father's care. This was not a matter dealt with in the father's affidavit at paragraphs [101], [102] and [108] as asserted by the mother 38 – 39 Admitted by agreement 40 Not admitted as matters dealt with by the father in his affidavit at [112] and following. 41 – 42 Not admitted as not in reply 45 Not admitted is not in reply matter dealt with previously in the father's affidavit at [123] 46 Not admitted as not in reply dealt with in the father's previous affidavit at [124] 48 – 55 Admitted as reply 56 Not admitted as not reply 57 Admitted as reply 58 – 61 Not admitted as not reply 62 – 66 Admitted as reply 67 Not admitted as not reply 68 Admitted as reply 70 Not admitted as dealt with in the father's affidavit a [217] and following paragraphs 71 Admitted as reply 72 Not admitted as dealt with in the father's affidavit at [219] 73 – 74 Admitted as reply 75 Not admitted as not reply 76 Admitted by agreement as reply 77 Not admitted as not reply 78 – 79 Admitted as reply 80 Not admitted as already dealt with in the father's affidavit at [39] and following 81 Not admitted is not reply and dealt with in the father's previous affidavit at [39] and following 82 – 84 Admitted as reply 85 Not admitted as not reply 86 Admitted as reply 88 Not admitted as not reply as the matter was dealt with by the father in his initial affidavit at [164] and [165] 90 Admitted as reply 91 Admitted by consent 93 The first sentence is admitted, the balance is not admitted as not in reply 94 Not admitted as matter previously dealt with by the father in his affidavit material at [177] 95 Not admitted as these issues were raised by the mother in her original affidavit 96 Admitted by agreement 97 – 99 Admitted as in reply 100 Admitted by agreement 101 Admitted as in reply 102 Not admitted, the subject matter having been dealt with by the father at [81] of his previous affidavit 103 – 104 Admitted as in reply 105 Dealt with in respect of [10] 106 Admitted as in reply 107 – 109 Admitted by agreement 111 Not admitted as not in reply 112 Not admitted as the father has already dealt with that in his affidavit [138] and following 113 - 114 Admitted as in reply 116 Not admitted as not in reply 117 & 119 Admitted as in reply 123 Admitted by agreement 126 – 127 Not admitted as is not in reply 128 Admitted by agreement 129 - 143 Admitted as in reply
PROVISION OF MATERIAL TO THE SINGLE EXPERT
The remaining issue to be dealt with concerns the provision of material to the single expert. As identified above, it was not plain that such a significant amount of material would be garnered from the issue of the subpoenas.
The father seeks that extracts of the subpoenaed material totalling 332 pages be provided to the expert. The 332 pages form extracts from 15 subpoenas that total approximately 1000 pages. The mother suggests a different approach, being that the expert be provided with a list of the subpoenaed material to identify what he may be assisted by.
Here there is a significant volume of material. The parties have each supplied a schedule identifying who has been the subject of a subpoena, who the material relates to (the father, the mother, X or Y) and the general context (eg hospital records, police records). Where the case apparently involves issues relating to the mental health of the parties and the particular needs of the children it cannot be thought that the objects of the subpoenas are irrelevant. However, their degree of importance to the task to be undertaken by the single expert, and to the proceedings cannot be identified without closer analysis.
Often an issue such as this is able to be best resolved by agreement, particularly where, as here, the parties are represented by experienced legal practitioners. The parties are those who best understand the issues in the case and who should be in a position to identify which documents are most helpful to an expert. However that solution has not, as yet, proven workable as these parties remain in strong disagreement about the scope of material to be provided.
It is instructive to examine the Rules at Part 15.5 as they deal with the regime for the appointment and use of single experts. Relevantly the purpose of the Part is contained at r 15.42, which is in the following terms:
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.
It may be observed that the purpose focuses on confining matters to only “a significant issue in dispute” and to restrict the expert evidence “to that which is necessary to resolve or determine a case”.
Rule 15.46 identifies that the Court may make orders in relation to the conduct of a case involving a single expert. Such orders are identified to include settling instructions for the single expert, or directing the parties to confer re such instructions.
In this case the expert will have available to him the affidavits filed by the parties, as identified above, for the interim proceedings. Some material produced on subpoena is annexed to those. The issue that remains is as to what other material should be provided.
It should be acknowledged that in the pursuit of expert evidence that is adapted to the issues of an individual case, there may be benefit to a single expert, depending upon the terms of the engagement, having access to portions of material produced on subpoena.
However, the provision of subpoenaed material that has not, at least, been carefully mutually filtered by the parties as to the issues in the case, calls upon the expert to speculate as to what may be considered significant or uncontentious in the case, with the attendant risks that the expert will either miss what is of importance because it is buried within the volume of material, or may identify as important that which neither party considers material to the case. Such an approach, particularly where there is an extensive volume of material, does not comply with the object of the Rules to confine to the significant or necessary.
The provision of contentious subpoenaed material also contains pitfalls. When considering what, if any subpoenaed material should be sent to the single expert, it should be remembered that the central function of such an expert is the application of expertise. That expertise will be often be applied in a context of contested underlying factual matters. While the expert may offer an opinion predicated on particular views as to what the underlying facts actually are, the usefulness of such views is contingent upon what the court concludes the underlying facts to be. The expert does not act as a proxy for the court in determining underlying factual disputes. Such role always remains in the province of the court.
Hence while the expert may derive assistance from subpoenaed material in identifying factual issues relevant to the application of the expertise, the expert is not tasked with resolving conclusively what those underlying facts are.
Where the contested facts are material, their differential significance may be unpacked in cross examination of the expert at final hearing. This will then equip the court to assess the opinions offered in the light of the factual findings reached by the court.
Where adequate refinement of the subpoenaed material cannot be achieved by the parties, the process of cross examination of the expert on the basis of the court’s potential acceptance of material remains available, and provides a mechanism for the properly focussed production of material to the expert.
Against this the father complained that the delay in placing subpoenaed material before the expert until the trial undermines the potential usefulness of the expert at an interim stage, as whatever opinion is offered will be offered without reference to the subpoenaed material. However, where the opinion is potentially to be offered on the basis of contentious subpoenaed material that will ultimately require a factual determination by the court, such advantage as identified by the husband is somewhat illusory.
Conclusion
In this case, given the volume of material, the order for the provision of all subpoenaed material to the expert should be discharged, due to the matters identified above.
Given the issues identified above in relation to the provision of contentious material, in the absence of agreement between the parties, no subpoenaed material should be produced to the expert other than what is related to the affidavits that they have permission to provide to him. As the parties are aware of what is contained in the subpoenaed material, the parties will be in a position, following the release of the report, to consider those aspects of the subpoenaed material that should be brought to bear either in support of, or detracting from the opinions proffered in the expert’s report.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 9 July 2021
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