Stringer & Nissen
[2023] FedCFamC2F 61
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stringer & Nissen [2023] FedCFamC2F 61
File number: SYC 1926 of 2019 Judgment of: JUDGE BECKHOUSE Date of judgment: 30 January 2023 Catchwords: FAMILY LAW – practice and procedure – discharge of single expert before completion of report – where supervised trainee alleged to have played active role in single expert interview process – whether single expert should be discharged due to involvement of a third party –whether single expert should seek consent of parties in relation to involvement of a third party – whether single expert should be discharged due to apprehended bias – application dismissed
FAMILY LAW – parenting – oral application by the father for parentage testing – application dismissed
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 7.1 Cases cited: Bass & Bass (2008) FLC 93-366
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123
Kernot & Matson [2008] FamCA 756
Nagel & Clay [2019] FamCA 406
Nepean & Treloar [2010] FamCA 781
Toma & Doyle [2022] FedCFamC1F 215
Division: Division 2 Family Law Number of paragraphs: 55 Date of hearing: 25 October 2022 Place: Sydney Counsel for the Applicant: Ms Cotter-Moroz Solicitor for the Applicant: John Hertz & Associates Solicitor for the Respondent: The Respondent appearing in person Solicitor for the Independent Children's Lawyer: Ms Barton of Legal Aid NSW Campbelltown Family Law ORDERS
SYC 1926 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS STRINGER
Applicant
AND: MR NISSEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
JUDGE BECKHOUSE
DATE OF ORDER:
30 jANUARY 2023
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Mother’s Application in a Proceeding filed 18 October 2022 seeking the discharge of Dr P is dismissed.
2.The Father’s oral application for paternity testing is dismissed.
3.The matter is listed for directions on 14 March 2023 at 9.30am via Microsoft Teams.
THE COURT NOTES THAT:
A.The Father appeared today and advised that he is intending to move to Queensland in the next few months and will most likely seek holiday time with the child in those circumstances.
B.The Independent Children’s Lawyer will discuss with the parties and Dr P the need for further interviews in relation to the change of circumstances.
C.On the next occasion (14 March 2023), the Court intends to make Orders to assist a final determination.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Stringer & Nissen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The Applicant mother Ms Stringer (hereinafter “the mother”) and the Respondent father Mr Nissen (hereinafter “the father”) are in dispute about parenting orders for their son, X born in 2014 (hereinafter “X”).
By an Application in a Proceeding dated 18 October 2022, the mother seeks orders for the discharge of the Single Expert Dr P (hereinafter “Dr P”).
The Application is opposed by the Independent Children’s Lawyer (hereinafter “ICL”) who is concerned about the impact on X of appointing a new Single Expert. She argues that the Single Expert Report should be completed without further delay. The father, who is self-represented, is ambivalent.
The father also asks that I make an order for paternity testing. He has filed no application or affidavit in support of this application. It is opposed by both the mother and the ICL.
These reasons explain why I have decided to:
(a)Dismiss the application to discharge Dr P; and
(b)Dismiss the father’s application for paternity testing.
THE APPLICATION TO DISCHARGE THE SINGLE EXPERT
Background
On 28 July 2021, Orders were made by Judge Monahan appointing Dr P as the Single Expert.
On 21 September 2021, the mother caused $6,600 to be paid, being her share of the preparation of Dr P’s Report.
On 22 March 2022, the mother received a letter from Dr P confirming interview arrangements.
The mother, her partner Mr E (hereinafter “Mr E”) and X attended at Dr P’s rooms on 29 March 2022 for the purposes of conducting interviews and observations necessary for the preparation of the Report.
The mother filed an Affidavit on 18 October 2022 wherein she raised concerns about matters that allegedly took place on 29 March 2022, namely that:
(a)Another person, who she now understands to be Ms Q (hereinafter “Ms Q”), accompanied Dr P. She was told that Ms Q ‘will be involved in the interviews.’ At no time was Ms Q’s role in the process explained to her, and at no time was she asked to consent to her involvement.
(b)The mother signed some forms although was not aware of what she was signing.
(c)Ms Q was present for the entirety of the interview with Dr P. The mother alleges that ‘on some occasions during my interview, Ms Q interrupted me and even interrupted Dr P when he was speaking.’ She also observed Ms Q to be the one mainly taking notes.
(d)Ms Q was actively involved in the interview process and interviewed X in Dr P’ absence.
(e)Dr P and/or Ms Q made comments during the process that would give rise to an apprehension of bias.
(f)Ms Q and Dr P appeared to be trying to mediate between the positions taken by the parties.
On 4 April 2022, the legal representative for the mother wrote to the ICL raising the mother’s concerns about the interview process.
On 2 May 2022, the ICL wrote to Dr P in relation to the presence of Ms Q during the interview process. Dr P replied as follows:
…I am an approved supervisor for the Australian Psychological Society’s (APS) College of Clinical Psychologists and the College of Forensic Psychologists, and I also hold appointment with many NSW universities to supervise both interns and registrars. It has been my routine for more than 25 years (where possible) to always have an intern or registrar present in my assessments, in part to ensure the next generation of court clinicians have the opportunity of quality mentorship that I had in my early years.
That said, I can indicate that I had the opportunity to supervise [Ms Q’s] registrar program to become a Fellow of the APS College of Forensic Psychologists. Since that time she has continued to work with me as a junior clinician, observing my assessments and I readily invite her to ask an occasional question or make a brief comment. [Ms Q] is now progressing in her career to the point of starting to take on single expert – limited issues assessments, and I am currently supervising her accreditation as an FDR Practitioner.
I can confirm I introduced [Ms Q] to the parties at the commencement of their respective interviews, and as part of that, indicated that our centre is a teaching facility and that [Ms Q] is completing the latter stages of her credentialling [sic] under my supervision.
The mother does not dispute Ms Q’s qualifications. However, she says that she was not aware of the matters set out by Dr P until after she had broached her concerns with the ICL.
On 29 August 2022, the mother’s concerns about the interview process were first raised with the Court. She was directed to file and serve an Application in a Proceeding and supporting Affidavit if she sought the discharge of the Single Expert. She did so on 18 October 2022.
The Application proceeded to interim hearing on 25 October 2022.
At the hearing, some issues about the process required clarification. The ICL undertook to contact Dr P and follow up these issues in writing. She did so, and in November 2022 confirmed that:
(a)Dr P has read and received the brief of documents, and met with the parties, their respective partners and X;
(b)Dr P has not written his Report because he is waiting for the mother to complete three online assessments; and
(c)There is some money outstanding to Dr P from each party.
As a result of this correspondence, the ICL was also provided with the consent forms signed by the parties at the time of the interviews. The forms indicate that the parties consented to participating in a psychological assessment. They also consented to the sharing of information collected by Dr P during the assessment in limited circumstances. The forms do not make reference to Ms Q, and specifically, do not seek the parties’ consent to her involvement in the interview process.
The Law
Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (hereinafter “the Rules”) makes express provision for most aspects of single expert evidence and the report produced by the single expert.
Division 7.1.5 sets out the duties of expert witnesses, including their duties to:
(a)Assist the Court with matters that are within the expert witness’ knowledge and capability (rule 7.18(1) of the Rules); and
(b)Give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’ knowledge and capability (rule 7.18(3)(a) of the Rules).
If the single expert fails to comply with Part 7.1 of the Rules, the Court may take any of the actions listed in rule 7.23 of the Rules. This extends to refusing to allow the expert report to be relied on (rule 7.23(b) of the Rules).
In Toma & Doyle [2022] FedCFamC1F 215 (hereinafter “Toma & Doyle”), Wilson J considered in detail the operation of Part 7, observing at [18] that ‘[n]owhere is there any provision for discharging a single expert.’ Whilst acknowledging this may be a justiciable controversy, I observe that Toma & Doyle arose out of a different factual scenario. The issue here is whether the parties should do all acts and things necessary to allow Dr P to complete his Report or whether there is another option. Unless the Court determines to discharge Dr P as the Single Expert Toma & Doyle is not relevant to the considerations here.
Discussion
Due to the allegations of bias raised by the mother, should Dr P be discharged before completing his Report?
The mother deposes that Dr P and Ms Q made comments during the interview process that made her feel uncomfortable. For example, she alleges that:
(a)In response to her comment that ‘Mr Nissen now wants a paternity test so why we are here [sic],’ Ms Q said ‘(h)urt people, hurt people.’ The mother understood this comment to mean that Mr Nissen was entitled to seek a paternity test because she had hurt Mr Nissen by moving.
(b)Dr P made comments that indicated he blamed her for moving to Sydney. For example, Dr P told the mother that she ‘created this reality for X by unilaterally moving’ and that because she has family in Town A, ‘any judge could order you back there as you created this.’
(c)Dr P and Ms Q made comments that put the mother in a position of risk. For example, the mother alleges that in response to her discussing her fear towards the father due to family violence and his drinking, Dr P told her that she ‘should give Mr Nissen more’ and must get over her fear of Mr Nissen. The mother deposes that Ms Q also told her that ‘Mr Nissen has changed’ as ‘(h)e no longer drinks alcohol and has moved on with Ms R.’
Mr E also alleges that Dr P and Ms Q made comments that made him feel very uncomfortable. For example, he deposes that:
(a)Both Dr P and Ms Q told him that he should persuade the mother ‘to give Mr Nissen more.’ Towards the end of the interview, Ms Q allegedly asked Mr E whether he will persuade the mother, which made him feel pressured to respond in a certain manner.
(b)In disclosing to Dr P that the mother fears Mr Nissen, Dr P replied ‘Ms Stringer just has to get over that.’
The mother argues that in making the above comments, Dr P breached his duty to give an objective and unbiased opinion that is also independent and impartial (rule 7.18(3)(a) of the Rules).
The principles relevant to the discharge of a single expert are summarised in the decision of Bass & Bass (2008) FLC 93-366 (hereinafter “Bass”). Relevantly, there the Full Court observed at [50]:
…the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings…Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial Judge. It is not particularly unusual, in our combined experience, for trial Judges not to accept, or to only give limited weight to, the opinion of a single expert in a children’s case.
By the time of final hearing, the Single Expert Report will have been written. This will allow the parties to determine whether the Report, in their view, contains objective, unbiased and impartial opinion. The parties may wish to confer with Dr P in accordance with the procedure laid out in rule 7.25 of the Rules. Rule 7.26 then allows the mother, as well as the father; to seek further clarification of matters contained in the Report should they wish to do so.
At final hearing, the evidence of Dr P, the mother and Mr E can be tested through cross-examination. It may then be accepted, rejected or given only limited weight.
Therefore, in response to the allegations of bias raised by the mother, I am not satisfied that Dr P should be discharged before these processes have been exhausted and his evidence has been tested under cross-examination.
Due to third party involvement in the interview process, should Dr P be discharged before completing his Report?
The mother and Mr E allege that Ms Q was an active participant in the interview process. They depose that Ms Q asked questions, took notes, made comments (sometimes interrupting the interviewee or Dr P), and explained and interpreted Dr P’s comments.
In correspondence with the ICL, Dr P appeared to concede that Ms Q was encouraged to ask questions and make brief comments, but said that her involvement in the interviews took place under his supervision.
Mr E also deposes that over the course of the day, he saw Ms Q alone with X. He observed that Dr P was not present and that Ms Q was taking notes.
If true, this is a concern, because Ms Q could possibly have made observations of X that inform the views expressed in the Report. But Mr E’s evidence on these allegations needs to be tested.
The ICL agrees that the parties were not informed beforehand that Ms Q would be present during their interviews. She argues that Dr P is a very experienced Single Expert who provides reports regularly in parenting matters before this Court and it is unknown whether the involvement of Ms Q has caused any prejudice to either parent’s case, but that even if it has, this can be tested at final hearing.
The mother complains that the Report of Dr P will be tainted by the views of Ms Q. This, she argues, means that Dr P’s appointment falls foul of common law principles and Chapter 7 of the Rules. In particular, the mother argues that:
(a)Dr P was appointed because the issues in dispute fell within his established area of knowledge, but it is unclear whether the same can be said for Ms Q’s knowledge and capability.
(b)Dr P has a duty to assist the Court with matters that are within his knowledge. If some of the interviews took place without him being present, and someone else took notes, he cannot attest to those matters being within his knowledge.
(c)Dr P is required to confirm that the opinions he expresses are independent and impartial. By involving Ms Q in the manner in which he did, Dr P may not be expressing an independent opinion, but one arising from their joint observations and collusion.
(d)Dr P was appointed as the Single Expert with the parties’ approval and consent, not Ms Q. Nor was Ms Q’s actual involvement in the interview and report writing process explained to the mother. She was not asked to consent to Ms Q’s presence and involvement. She was not given the opportunity to speak to her legal representative about Dr P’s presence either. She felt uncomfortable with the presence of Ms Q.
(e)She found the interview process confusing. She did not know whom to look at and was surprised that Dr P deferred to Ms Q to explain things. As a result, she argues that the involvement of Ms Q in the interview process was procedurally unfair. She says that Ms Q’s presence compromises the interview process and the interests of justice contrary to rule 7.02(c) of the Rules.
The ICL argues that there are alternative ways to remedy any actual or perceived deficiencies in the process. In order to determine whether these issues should give rise to Dr P’s discharge, it is necessary to understand how these difficulties might be cured.
It was observed by the Full Court in the matter of Bass that the application to discharge the expert had been made prematurely. The same could be said in this instance. Dr P is yet to write his Report. With the consent of all parties, the ICL might invite Dr P to outline Ms Q’s involvement in the interview process and her qualifications in his Report. Even if he was not invited to do so, rule 7.22(1)(b) of the Rules specifically requires him to include a statement about his methodology and rule 7.22(2)(e) requires him to detail the qualifications and experience of another person who participated in the process. This may address the mother’s concerns about Ms Q’s knowledge and capability. But even if it does not do so, as was observed by Watts J in Kernot & Matson [2008] FamCA 756 at [32]:
Opinions formed in the process of interviewing children are by their very nature subjective. That, however, is not a basis for rejecting, out of hand, the opinion if given by a person with the requisite specialist knowledge (see Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 at [83]).
Once the Report has been released, the parties will have the opportunity to confer with Dr P and seek further clarification of matters contained in the Report prior to the final hearing. As outlined earlier, clarification of the Expert’s evidence may be sought pursuant to rule 7.25 which allows for a conference with the Expert and rule 7.26 which makes provision for questions to be asked of the Expert. I have already reached a similar conclusion about how the Court should proceed with the mother’s allegations of bias. The processes set out in the Rules should first be exhausted.
If the processes of conferral provided in the rules do not satisfy the mother, the next remedy would lie in cross-examination. And finally, as a last resort, there might be a situation where a new single expert could be appointed. In Bass, the Full Court observed that whilst presenting disadvantages to all involved, it remains open to the trial judge to adjourn the trial for the purpose of obtaining another expert report.
Rule 7.08 allows the appointment of another expert witness with the Court’s permission. If Ms Q prepared a report, say for example at the request of the ICL, it could be read in conjunction with Dr P’s Report. However, some difficulties may arise with this. Firstly, Ms Q is working under the supervision of Dr P. There may be issues that fall outside her expertise. Given Dr P’s role as mentor, supervisor and employer of Ms Q, she may also lack independence. Furthermore, as indicated by Counsel for the mother, the Court may find it difficult to unravel what was said to Ms Q, what she observed and how this ultimately influenced Dr P’s Report. I therefore accept that this is not an optimal solution as it would likely lead to further complexities and cost.
The mother does not advocate for Ms Q to be called to give evidence. She says that from her observations, the roles of Dr P and Ms Q were so intertwined that they cannot be separated and therefore it is preferable to appoint a new expert now to avoid the risk of the entire body of evidence being rejected at a later time and further delays then being occasioned. Without the Report, in my view, this argument is premature. It assumes for one thing that the mother’s evidence on the interview process is accepted. It also assumes that the whole of the Report would be rejected at a later date.
The mother contends that there is a line of authority[1] that would support the discharge of Dr P. Whilst acknowledging that most of those authorities were reluctant to interfere before the trial, she relies on the decision of Harper J in Nagel & Clay [2019] FamCA 406 as an example of the Court interfering prior to the finalisation of a report. However, the facts from that case can be differentiated from the difficulty here. In that case, a Family Report had been prepared in 2016. The mother was seeking to impugn its accuracy and the manner in which the Report had been prepared. It was conceded that the Family Report was three years old and the process would have to be completed again, including interviews with the children the subject of those proceedings. The trial judge therefore concluded that, on balance, it was in those children’s best interests that a new expert be appointed.
[1] See Kernot & Matson [2008] FamCA 756; Nepean & Treloar [2010] FamCA 781; Bass & Bass (2008) FLC 93-366.
These proceedings have been on foot since 2019 and X has already met with a Court Child Expert who prepared a Family Report in March 2020. It is generally accepted that an expert meeting with a child is a process that should be ordered cautiously (see Bass at [51]). To terminate the report writing process now would add a fourth expert into this lengthy litigation history.
As the ICL also emphasised, any concerns about the report writing process must be balanced with what outcome is in X’s best interests. This is a high conflict matter. The mother’s reaction to the events on the day of the interview would tend to suggest that she is highly sensitive about the report writing process and the engagement that X has with professionals as part of the Court process.
The ICL is appropriately concerned about the impact on X if the Report was to be abandoned at this time. To discharge Dr P now and appoint a new single expert would likely result in significant delay, as well as expense. The father and his current wife not only paid their share of Dr P’s Report but also travelled a significant distance and incurred accommodation costs that are unlikely to be recovered.
Returning to the issue of procedural fairness, the test to apply is whether a fair minded, lay observer might reasonably apprehend that Dr P might not bring an impartial and unprejudiced mind to issues before him. Dr P is a well-known and well-regarded Expert. Indeed, such is his standing as an Expert that his professional body approves him to supervise psychologists in training. He uses his centre as a teaching facility. I appreciate that his failure to notify the mother in writing and in advance about Ms Q’s presence may have caught the mother by surprise. I also accept that she might have found Ms Q’s role confusing. However, I cannot understand how a fair minded, lay observer would reasonably conclude, in those circumstances, that Dr P would not himself bring an impartial mind to the process.
Conclusion
An application to discharge a single expert should not be made readily. I have concluded that the mother’s application to discharge the Single Expert Dr P is premature. She may bring before the Court valid concerns about the process. However, the ordinary course of action for challenging an expert report is via the processes provided for in the Rules and then through cross-examination at trial, and there is no reason to depart from that process here.
I do not criticise the mother for putting her concerns about the process before the Court. Nor am I critical of Dr P for the important role he is playing to ensure a continuity of experts in the family law system. The Application before the Court might have been unnecessary had Dr P sought the mother’s consent in writing to Ms Q’s presence, and clarified the role she was playing in advance of the interviews. That said, until the Report is challenged in the manner already outlined, that omission should not result in the process being abandoned.
This case has been before this Court for over three and a half years and should be prioritised for a final hearing. I intend to allocate hearing dates today for this reason.
Given my determination, it is unnecessary to answer the question of whether Dr P should be asked to repay any monies already paid to him by the parties.
THE APPLICATION FOR PATERNITY TESTING
Background
These proceedings have been before the Court since 2019. At no time during the course of the various Court events, in any of the Affidavit material filed by the father, or in the Family Report by Ms S dated 16 March 2020 has the issue of X’s paternity been raised.
On 29 August 2022, the father raised the issue orally. He was directed to file any material he sought to rely upon, but did not do so.
The facts appear to be these:
(a)The parties commenced a relationship in about 2013. They married in 2014 and separated on 14 February 2015.
(b)X was born in 2014. At this time, the parties were in an intact marriage and were living together.
(c)The father is named as X’s father on his birth certificate.
(d)These proceedings commenced on 27 March 2019 with the mother filing an Initiating Application.
Discussion
X is now 8 years old and identifies Mr Nissen as his father. The ICL does not support X being subjected to a paternity test when there is no evidence to support the claim that Mr Nissen is not X’s father.
I need to be satisfied that it is in X’s best interests for such a test procedure to be carried out. I am concerned about the impact on X’s psychological wellbeing should he be subjected to a paternity test, and should the reasons for such testing be explained to X.
Conclusion
Accordingly, I decline the father’s oral application for paternity testing to be undertaken.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 30 January 2023
5
0