Symonds and Symonds

[2008] FamCA 858

FAMILY COURT OF AUSTRALIA

SYMONDS & SYMONDS [2008] FamCA 858

FAMILY LAW – PROCESS AND PROCEDURE – Applications (part-heard as to one application) to adduce evidence by experts other than single experts

Family Law Rules 2004 (Cth) Part 15.5

Louth v Diprose (1992) 175 CLR 62
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 461

APPLICANT: Ms Symonds

RESPONDENT: Mr Symonds

FILE NUMBER: MLF 2474 of 2005

DATE DELIVERED: 21 January 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 21 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A I Strum

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT: Ms S L Johns

SOLICITOR FOR THE RESPONDENT: Stephen Farmer & Associates

Orders

BY CONSENT IT IS ORDERED (AS BETWEEN THE HUSBAND, WIFE AND INDEPENDENT CHILDREN’S LAWYER) THAT:

1. The wife have leave to:

   (a)file the affidavit of Dr D sworn 21 November 2007; and

   (b)call Dr D by video link between Australia and France.

2. The husband have leave to file the affidavit of Mr L sworn 20 December 2007.

3. Liberty be reserved to each party to make objection to the admissibility of parts of the aforesaid affidavits filed by the other party.

4. The husband attend such therapeutic counsellor as nominated by the independent children’s lawyer and the child M attend upon the counsellor as directed by the counsellor and all counselling be non-reportable.

IT IS FURTHER ORDERED THAT:

1. The wife have leave to file and serve the affidavit of Dr Y sworn 15 November 2007.

2. Within 28 days the husband may request an examination of the wife by a suitably qualified expert at a date and time not inconvenient to the wife such examination to be at the expense of the husband.

3. I direct that a copy of any report of the psychiatrist’s assessment obtained by the husband pursuant to paragraph 6 hereof be provided to the wife’s solicitors within 7 days of receipt of that report by the husband or his solicitor.

4. The wife’s application in a case filed 21 December 2007 is otherwise dismissed.

5. The husband within 28 days deliver to the single expert witness, Mr M, the reports of Mr H and Mr A together with any questions to be addressed to the single expert witness in accordance with Rule 15.65 of the Family Law Rules 2004.

6. The husband file and serve an affidavit annexing the questions and answers within 7 days of receipt by him or his solicitor of the answers.

7. The wife have 28 days to file any affidavit by an appropriately qualified expert that she seeks to rely on in relation to the matters that are the subject of evidence set out in Mr L’s affidavit.

8. I otherwise adjourn the application in a case filed by the husband on 18 January 2008 to adduce the evidence of Mr H and Mr A to a date to be fixed following the receipt of the single expert witness’ answers.

9. I list the matter for trial commencing not before 14 July 2008 at 10.00am with an estimated duration of seven (7) days.

10. If the husband seeks to cross-examine Dr D on the basis of any document(s) (other than his affidavit) the husband is to either:

    (a)provide the document(s) to be cross-examined on to the wife’s solicitors at least 14 days before the date on which the trial is listed, in which case the wife is to ensure that the documents are made available to Dr D before he gives oral evidence and are in his possession when he gives oral evidence; or

    (b)request a listing of the matter for mention before Registrar Riddiford for consideration by him of an oral application for the wife to provide equipment to enable documents to be scanned in Australia and displayed in France during Dr D’s oral evidence by video link.

11. I reserve the question of costs.

12. Pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Symonds & Symonds is approved pursuant to s 121(9)(g) of the Family Law Act 1975.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2474 of 2005

MS SYMONDS

Applicant

And

MR SYMONDS

Respondent

REASONS FOR JUDGMENT

1. I will not recite the history of this case which is awaiting a final hearing which is listed to commence not before 14 July 2008. In the wife’s amended application filed on 10 May 2006 the wife is seeking the setting aside of orders made by consent on 25 August 2005. In paragraph 12 of her amended application filed 10 May 2006, the wife sets out in subparagraph (a) that there has been a miscarriage of justice by reason of duress, and certain particulars are given.  In subparagraph (d) she asserts that there has been a miscarriage of justice by reason of any other circumstance, and then sets out certain particulars there.  Clearly the first ground is based on duress. The second ground overlaps with the duress ground in some of the matters put forward - reliance on receipt of funds from the husband, the absence of legal representation, the allegations of threats that if she did not sign the orders certain things would happen - these clearly fall within the category of duress and potentially also within the category of allegations of types of conduct that have been characterised as unconscionable by the law.

2. What I propose to refer to is the judgment of the High Court of Australia in Louth v Diprose (1992) 175 CLR 621, in particular at page 626 where Brennan J, as he then was, discussed the relevant law in relation to both undue influence and unconscionable conduct. His Honour referred to the decisions of Mason and Deane JJ in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 461, and at page 627 of the report of Louth v Diprose, referring to Amadio, held:

   Mason J distinguished unconscionable conduct from undue influence in these terms:

   In the latter the will of the innocent party is not independent and voluntary because it is overborne.  In the former, the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed, and of the other party unconscientiously taking advantage of that position.

   Deane J identified the difference in the nature of the two jurisdictions:

   Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party….Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.

3. Then further at page 628 the court referred to a judgment of Dixon J, as he then was, in Johnson v Buttress (1936) 56 CLR 113 at page 134:

   The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise, affecting the alienor's will or freedom of judgment in reference to such a matter.  The source of power may be found in no antecedent relation, but in a particular something, or in the deliberate contrivance of the party. (my emphasis) If this be so, facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act. But the parties may antecedently stand in a relation that gives to one an authority or influence over the other from the abuse of which it is proper that he should be protected.

4. I interpose that here the parties were husband and wife and it is not the law in Australia that that creates a presumption of undue influence: see Yerkey v Jones (1936-39) 63 CLR 649 at 675, per Dixon J. There may, however, as identified by Dixon J in Johnson v Buttress arise an opportunity that may exist or arise, of affecting the alienor's will or freedom of judgment in reference to such a matter.  It seems to me that the matters that have been pleaded in this case certainly call for an examination as discussed by Deane J in Amadio's case of the quality of the consent or assent of the weaker party.  If indeed it is established that at the time in this particular situation the wife was the weaker party and there is evidence on which that could be found, although I am not making that finding, then the quality of the consent given at the time could well involve her state of mind or state of mental health at the time.  In that context I consider an affidavit such as that provided by Dr Y would provide the court with relevant evidence. 

5. It cannot be said to be in any sense so prejudicial to the husband to admit that evidence that it should not be admitted because there are ways of meeting that evidence that are open to the husband, as I will shortly say.  In my view, however, the quality of the wife's consent as given may indeed have been influenced by factors that do call for consideration of expert evidence, and the affidavit of Dr D, who is to give evidence in the case and whose affidavit has already been filed, lends some weight to the view that there may have been circumstances giving rise to a diagnosable condition of the kind that Dr Y purports to diagnose retrospectively.  The fact that it is a retrospective diagnosis does not trouble me.  That frequently occurs in evidence in cases before this court where for example the behaviour of a parent appears to be out of keeping with the obligations and responsibilities of a mother towards a very young child at a particular time, but viewed in retrospect an expert can confidently say that that party appears to have been experiencing post-natal depression, and that is something that quite regularly occurs in this court in the context of issues other than the issues before this court in this case. It is just an example of how retrospective diagnoses may be made.

6. I have to say that I am quite satisfied that Dr Y's affidavit has the potential to assist the court in understanding the quality of the wife's consent.  I will therefore allow the wife to rely on Dr Y’s affidavit. It is in my view too late to appoint a single expert witness to deal with this issue and to do so could lead to a situation where the single expert’s report, when received at some time in the future, could give rise to an application to adduce expert witness contrary to the single expert witness's evidence. 

7. My view is that it is desirable, given the state of the case at this moment, to avoid that possibility, but to afford the husband the opportunity to meet the evidence of Dr Y, other than merely by cross-examination. He should have the opportunity to have the wife examined by a medical expert appropriately qualified in the field of psychiatry of his choosing.  That will be achieved by an order that allows him within 28 days to request the attendance of the wife upon a particular expert at a day and time not unreasonably inconvenient to the wife having regard to her occupation, and to require her to attend if so requested. That will be my resolution of that issue.  I will allow Dr Y's affidavit to be relied on by the wife, however, I will afford the husband the opportunity within 28 days to request an examination by a suitably qualified expert.

8. That then deals with that part of the application. In the context of the application by the husband to adduce expert evidence from two additional experts as to the valuation of the business interests of the parties at or about the date of the consent orders. I do not propose to rule on that at this stage. In my view, the appropriate course is to allow the husband to put these reports and any questions concerning them and the single expert witnesses’ report to the single expert witness, Mr M. I will direct that the husband have 28 days within which to deliver to the single expert witness the reports of Mr H and Mr A together with any questions to be addressed to the single expert witness in accordance with rule 15.65. I will direct that the questions be responded to in accordance with rule 15.66. That requires the single expert to state any objection that he might have to answering any particular question. I will otherwise adjourn the application by the husband to adduce additional expert evidence on those issues to a date to be fixed following the receipt of the single expert's answers.

9. I am foreshadowing those orders but not making them in precise terms at this moment.  I will settle these orders in chambers and will reserve liberty to apply if either party believes that I have gone beyond what I said I would do, or have not made an order that is foreshadowed in these reasons.

10. I will make it clear that any request by the husband made in accordance with paragraph 7 of this judgment is to be made within 28 days to attend an appointment but the appointment does not have to be within the 28 days.  I will set a date for the filing of an affidavit by, say, the end of April, that is three and a half months from now.  I will fix a time bearing in mind that if the husband obtained a report that was significantly different from the report of Dr Y, there would then be the usual directions made for the experts to confer and report, and so I want to allow time for that to happen. I would probably ask the registrar to deal with those directions.  I consider that the end of April is a reasonable time frame.

11. Ms Johns’ objections notwithstanding, I will direct that any report so obtained by the husband be made available to the wife. My primary concern is to ensure that the trial proceeds as expeditiously as possible, and while one forensic advantage that the husband might seek to have would be that he could have a report that was pretty much at one with Dr Y, but not disclose it and still cross-examine Dr Y quite legitimately as to any, if you like, weaknesses of approach on his report, and that could extend the trial unnecessarily and I am of the view that it is preferable to make that report available so that at least if there is extensive cross-examination of witnesses that arises out of that report, it at least does not include matters that were conceded, or on which the same opinion was expressed by the witness that was selected by the husband.  I will therefore require the husband to make a copy available and, as Mr Strum has said, that could expose him to an application at the end of the day but it might not.

12. I will reserve costs and certify for counsel.  The expert simply has to give the answers to the questions to the parties, but there is no obligation for anyone to file and serve those, but I would want those filed and served, Ms Johns, as soon as they were received, so that I would then know that I should fix a time to resume the hearing of the current application that you have before the court.  I will include a direction that the husband file and serve the single expert witness answers within, say, seven days of receiving them, that is file and serve an affidavit annexing the single expert witness’ answers.  The matter will be listed for trial on 14 July 2008 with an estimated duration of seven days and you do of course have liberty to apply, so if there was such a need you would contact either Registrar Riddiford or my associate. Registrar Riddiford is now assisting me with the management of this case and will deal with any applications that seem appropriate for him to deal with, so I will just leave it on the basis that it is clearly understood that liberty to apply exists.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate: …

Date:  13 March 2008