Tallant and Kelsey
[2016] FamCA 538
•10 June 2016
FAMILY COURT OF AUSTRALIA
| TALLANT & KELSEY | [2016] FamCA 538 |
| FAMILY LAW – EVIDENCE – Admissibility – Expert report. |
| Family Law Act 1975 (Cth) s 60CC, 69ZR, 69ZT. Family Law Rules 2004 (Cth) rr 15.44, 15.59. |
| Cameron & Walker (2010) FLC 93-445 Family Court of Australia and the Federal Circuit Court of Australia, Family Violence Best Practice Principles (edition 3.2, December 2015) |
| APPLICANT: | Ms Tallant |
| RESPONDENT: | Mr Kelsey |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Jarman |
| FILE NUMBER: | PAC | 3364 | of | 2013 |
| DATE DELIVERED: | 10 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 6 June 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Goodchild |
| SOLICITOR FOR THE APPLICANT: | Women's Legal Service NSW |
| COUNSEL FOR THE RESPONDENT: | Ms Snelling |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Beck |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
Orders
Leave is granted to the parties, their legal representatives and the Independent Children’s Lawyer to inspect documents from Suburb B Local Court held in the Registry.
The report of Mr R dated 29 June 2015 is admitted and Reasons for Judgment will be published in due course
On the application of the father, the matter is adjourned to 7 June 2016 at 10:00am for the purposes of the father obtaining a medical certificate in relation to his fitness to participate in these court proceedings tomorrow and the balance of the week and in relation to any disability and application for a case guardian, if that is to be sought.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tallant & Kelsey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3364 of 2013
| Ms Tallant |
Applicant
And
| Mr Kelsey |
Respondent
REASONS FOR JUDGMENT
Introduction
In an Application in a Case determined at the commencement of parenting proceedings, I dismissed an application to have the single expert report excluded from evidence in the proceedings. I admitted the report and indicated that I would publish reasons in due course. These are those Reasons.
Background
The mother who is 42 and the father who is 41 commenced a relationship in around 1999.
The parties began living together in 2001 or 2002 and had two daughters. The elder child, C, was born in 2002 and is 13 at the date of the proceedings. A second child D was born in 2011 and is almost five at the time of the proceedings.
The parents initially separated in March 2013 and final orders in relation to the future parenting of the children were made in Federal Circuit Court in December 2013. Under those orders, the parents equally shared parental responsibility for the children who lived between the parents in a shared care arrangement.
Notwithstanding their separation, the parties continued a sexual relationship until October 2014.
On 24 October 2014, the father spent time with the children for the last time. On the same day the mother alleges that D who was three made a complaint of sexual abuse to her mother by the father.
The joint investigation and response team[1] (“JIRT”) commenced an investigation into the alleged disclosure. The allegation was not substantiated and no further action was taken by police or the Department of Family and Community Services.
[1] The Joint Investigation and Response Team, made up of officers from police and Community Services which investigates allegations of serious child abuse.
The mother moved to a refuge at an undisclosed location with D a few days later and an Apprehended Domestic Violence Order (ADVO) was sought by police the following day.
The mother alleges that the father engaged in threatening behaviour during the following month, November 2014.
The mother commenced these proceedings in November 2014, seeking sole parental responsibility for the children and orders that they live with her and spend no time with their father, as well as orders with respect to the parties’ property.
The father filed a Response in February 2015 and an Amended Response in June 2015.
On 16 March 2015, orders were made for the appointment of Mr R, a forensic psychologist, as the Court’s single expert to prepare a report in relation to the parties and the children. The report was ordered to address a number of matters, essentially along the lines of the considerations set out in s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”). Pursuant to the order, the parties were to equally share the costs of the expert.
In June 2015, the parties and children were assessed by the expert and a report described as a “Family Report” dated 29 June 2015, was prepared and released on 6 July 2015.
The mother identifies as Aboriginal and her tribal affiliation is with the E people from F Town, Queensland.
The parents each say that the relationship between them was volatile and was characterised by at least verbal abuse and some instances of physical violence.
The expert
Prior to the determination of the application to exclude the expert report, I permitted some limited additional oral evidence to be given by the expert about the circumstances of the preparation of the report. The parties were given the opportunity but declined to cross-examine the expert at this stage.
The order for the appointment of the expert, Mr R was made with the consent of the parties and the Independent Children’s Lawyer. As the single expert was appointed with the consent of the parties, they must be taken to have agreed in accordance with the Family Law Rules 2004 (Cth)[2] (“the Rules”) that expert evidence may help to resolve a substantial issue in a case. The mother also nominated Mr R as her choice of expert witness so she also must be taken to have identified him as an expert.
[2] Family Law Rules 2004 (Cth) r 15.44.
The terms “expert” and “expert witness” are defined in the dictionary to the Rules as follows:
Expert – means an independent person who has relevant specialised knowledge, based on the person’s training, study or experience.
Expert Witness – means an expert who has been instructed to give or prepares independent evidence for the purpose of a case.
Mr R, the expert witness, sets out his experience and qualifications in a curriculum vitae including a list of publications which is attached to his report. He also gave oral evidence concerning his expertise under some short cross-examination that was permitted to occur prior to a consideration of the application to exclude his report. Mr R holds a Bachelor of Arts (Honours in Psychology) and a Master of Arts (Honours in Psychology). He has worked in various positions in the child protection systems in New South Wales, Queensland and the Northern Territory and tutored in Psychology at university. He has held various positions in Child Dispute Services in the Family Court in a number of Registries and nationally and has been a Forensic Psychologist in private practise. His career spans almost 40 years. He has published a number of publications relating to Family Court proceedings and in particular matters involving domestic violence and family violence and aboriginal families. As a result of his employment in the child protection systems and the Family Court, he has particular experience in matters relating to family violence.
The mother’s application
A number of alleged shortcomings in Mr R’s report have been raised by the mother and it is contended on her behalf that the report is inadmissible.
The main shortcomings or alleged defects identified by the mother are as follows:
·The expert failed to have regard to s 60CC(3)(h) of the Act (which requires the court to consider in the case of an Aboriginal child, the child’s right to enjoy her Aboriginal culture [including the right to enjoy that culture with other people who share that culture] and the likely impact any proposed parenting order will have on that right).
·The expert failed to consider the risk of abuse to the children should they have “unsupervised contact” with the father.
·The expert failed to assess, consider and properly evaluate the complexities of the circumstances regarding the allegations of family violence and the impact of that violence on the children.
·The expert failed to address, or only addressed superficially many of the matters that his report was to address as set out in the orders of 16 March 2015.
·The expert’s report does not comply with the Family Violence Best Practice Principles of the Family Court of Australia and the Federal Circuit Court of Australia (edition 3.2, December 2015).
·The expert’s report does not comply with the Australian Standards of Practice for Family Assessments and Reporting (February 2015) published by the Family Court of Australia and the Federal Circuit Court of Australia.
·The expert has improperly determined matters of credibility of the mother.
·The expert lacks the relevant experience in dealing with family violence and sexual abuse allegations. In this sense the expert lacks the “relevant specialised knowledge” based on his “training, study or experience” to express the opinion.
The last of the objections, that Mr R is not an expert or an expert witness in the sense that he does not have the relevant “specialised knowledge” based on his “training, study or experience” is a threshold issue, and is also connected to the expert witness’s duties and rights set out in Division 15.5.5 of the Rules.
It was not contended on behalf of the mother that the expert witness did not comply with his duties as set out in r 15.59. However, the mother contends that due to the witness’s alleged lack of specialised knowledge, his report is nothing more than “an opinion drawn from loosely considered factual matters”. This means, in effect that the expert has not complied with his duty to “give an objective and unbiased opinion that is independent and impartial on matters that are within the expert’s expert witness’s knowledge and capability”[3] (emphasis added).
[3] Family Law Rules 2004 (Cth) r 15.59(3)(a).
The particular matters upon which the mother alleges the expert witness has limited knowledge relate to matters concerning family violence and sexual abuse. As I understand the argument advanced, the opinions expressed in the report themselves (for example at paragraphs 21 and 26 in relation to domestic violence) are evidence of the witness’s lack of expertise on this topic. I do not accept that the opinion itself demonstrates a lack of knowledge in circumstances where prima facie, the expert has the relevant specialised knowledge based on his training, study or experience as set out in his curriculum vitae. In my view the gravamen of the mother’s complaint is that Mr R makes some recommendations adverse to her case. In light of his tertiary qualifications and extensive experience, together with the fact that he was nominated by the mother as an appropriate expert and order for his appointment were made by consent, I am satisfied that Mr R is an expert or has not failed in his duties on this basis.
The mother also contends that the report is problematic as the author allegedly failed to have regard to s 60CC(3)(h). In my view, this is a matter of weight rather than a matter of admissibility. Indeed, the applicant’s own case outline describes this matter as one which gives rise to the issue of weight to be placed upon the opinions set out in the report.
Best Practice Principles
It was also submitted that the expert allegedly failed to comply with a number of the Family Violence Best Practice Principles. However, it is unclear how a failure to comply with these principles, if that occurred, could ground a submission that the report is thereby inadmissible. Initially, it was submitted on behalf of the mother that the Best Practice Principles should be treated in the same way as legislative requirements though ultimately that argument was withdrawn. In the introduction to the Best Practice Principles they are described as a voluntary source of assistance to judicial officers and legal practitioners, are not a fetter to a Court’s discretion (Cameron & Walker (2010) FLC 93-445) and “are not a substitute for evidence in individual cases”.
It is contended that the expert gave “no consideration” to the Principles. However, a close consideration of the argument in my view reveals that the mother disputes the manner in which the expert has approached the issue of the family violence allegations in this matter rather than that he has not considered the Standards with respect to expert reports.
The nub of this complaint, and many others, appears to be that the expert in forming his opinion as to the future parenting arrangements expresses opinions about family violence which are said to be critical of the mother and in particular relate to her credibility. However, the expert makes it clear that factual findings including issues of credibility of the mother are matters for the Court. For example, in paragraph 20, the expert refers to the credibility of the mother being an issue for the Court, and in paragraph 21 refers to the relationship existing between the parties following their separation as being a matter that “needs to be examined by the court”. In this regard he acknowledges that “the interpersonal dynamics of domestic violence relationships are often complex and difficult to comprehend”. In his final recommendations, the expert makes it clear in paragraph 81 that these are “subject to the court’s process of fact finding in the matter and its consideration of all the relevant evidence”.
Australian Standards of Practice for Family Assessments and Reporting
It is also submitted that the expert report does not comply with these Standards as set out in a published document which was developed by the Family Court of Australia, the Federal Circuit Court and the Family Court of Western Australia and in particular by the office of the Principal of Child Dispute Services.
The Court raised the question in the course of argument about whether these Standards applied to experts external to the court, such as Mr R or whether they applied only to family consultants. Having reminded myself of those Standards, it is clear that reports from experts are to be consistent with them.
The publication in its Forward states
The overarching aim of this publication is to provide information to the decision-makers, agencies and legal professionals involved in the cases, as to what constitutes good practice in family assessments and reporting. This publication attempts to outline a minimum standard of practise when conducting family assessments and preparing reports.
Under the section dealing with “formulating assessments/opinions and reporting” it is stated:
23 Family assessors should refrain from forming opinions or hypotheses about the parties, the children, relationships or the suitability of any parenting arrangements prior to assessing the family. It is essential that the assessor remain open and receptive to the parties’ perceptions, and to the issues that are important for the parties.
It is contended that it is apparent from a number of paragraphs in the report (19, 20, 21 and 26 in particular), that the expert formed an opinion or hypotheses on the basis of information he had read elsewhere including the reports of JIRT.
In those paragraphs the expert referred to the fact that JIRT had investigated the sexual abuse allegations against the father but found them to be unsubstantiated and also cast doubt on the credibility of the mother’s account of the child’s reported disclosure. These paragraphs also deal with the issue of the mother’s credibility generally, considering that the allegations against the father of sexual abuse, which are central to the mother’s parenting proposals are fabricated according to the father.
It is also contended that the expert did not comply with paragraph 25 of the Standards which provides:
Family assessors should refrain from reading the evaluations of similar professionals who have assessed the same family in a family assessment prior to formulating their own evaluation.
There is no evidence to suggest that the expert read the evaluation of a “similar professional” who “assessed the same family in a family assessment” at any time. Members of JIRT are not “similar professionals”, nor do they assess the family in a family assessment.
Reference is also made to Standard 26 which provides “family assessors must make reasonable efforts to obtain sufficient information from the parties, documents or collateral sources to assess the level and nature of risks to the welfare of the children and to provide assessments of risk”. It is contended that the expert has failed completely to provide an assessment of risk. In my view, the expert has clearly identified the nature of risks to the welfare of the children. He identifies under the heading “Issues in Dispute and Issues Identified During Assessment”, that this “difficult and complex matter” involves allegations of sexual and physical abuse, exposure to family violence and ongoing conflict between the parents. He also identifies the father’s “struggl[e] with mental health issues” associated with depression and anxiety.
So far as the level of risk is concerned, the expert outlines the investigation of the sexual abuse allegation and conclusions of JIRT. With respect to exposure to domestic and family violence, the expert identifies that the mother alleges that the father has “perpetrated serious violence against her including incidents of choking and injuries suffered from such assaults”. In this context, the credibility of the mother is an issue which relates to the level of risk. Another consideration is to the level of risk is the nature of the parents’ relationship following separation and the children’s exposure to ongoing violence and conflict between the parents.
Another issue of risk identified and assessed by the expert relates to the parenting capacity of the father. In particular the expert makes an assessment about the risks associated with the father’s inappropriate use of physical discipline and allegations relating to his use of cannabis while the children are in his care. His recommendation of the restoration of the children’s relationship with their father also considers supervision “in a setting that is structured and safe”. The expert also recommends that the father complete an approved parenting program to gain an understanding of non-violent and less authoritarian parenting strategies.
Having considered each of these matters, the expert concludes in paragraph 80
It should be acknowledged that the above opinion is predicated on the assumption that there is no identifiable or unacceptable risk posed to the children in spending unsupervised time with the father. From my interviews and observations of the parents and children, I am of the view, that the risks described by the mother in relation to the children spending time with the father are unsupported by the enquiries I have made in interviewing the parents and children and from a review of documents that have been provided to the court. In the event that further significant evidence is presented to the court that is contrary to the writer’s views in relation to the risk posed to the children, then the opinions and recommendations contained in this report would be subjected to review.
In these circumstances I am not satisfied that the complaints are made out that the expert failed to comply with Standards 23, 25 and 26.
It is also complained that the expert has not complied with Standard 28 which provides that “family assessors should only express opinions in areas where they are competent to do so, based on adequate knowledge, skill, experience and qualifications.”
For the reasons given earlier I am of the view that the expert has the competence based on adequate knowledge, skill, experience and qualifications to express the opinions he does. It is always open of course for the expertise and knowledge of the witness to be further tested upon under cross-examination.
Standard 35 deals with cultural issues and provides that a family assessment in which one or more party identifies as aboriginal should contain certain matters “as a minimum standard”. The standard then sets out a range of matters including a description of the indigenous background of the party, an indication of whether the child has current and active involvement with any extended indigenous family and the extent to which this is an issue that the court needs to consider in determining the matter, an assessment of the capacity of both parents to foster a positive sense of indigenous cultural identity and other matters.
The expert’s report contains no reference to any of the matters set out in that Standard even though the expert was aware that the mother identifies as aboriginal. In his brief oral evidence prior to a determination of this application the expert said that he did not regard this issue as one of particular significance having regard to the other significant matters in dispute.
It may be argued by the mother that the report is deficient in this regard, but it is not explained how this non-compliance with this Standard should result in the document being inadmissible.
The final alleged non-compliance with Standards is a contention that the family assessor failed to make a formal notification to the appropriate child protection authority upon being informed by the father that he physically disciplined the children. This Standard requires a family assessor to make such formal notification where the assessor “has reasonable grounds for suspecting that a child has been, or is at risk of being ill-treated, abused, seriously neglected or exposed to psychologically harmful behaviour”. This Standard reinforces that family assessors are mandatory reporters. It is to be noted however, that where a child protection authority has previously been provided with the same information about the alleged abuse or neglect, it is not necessary for the assessor to provide that information again. The expert notes in his report that he had access to the Notice of Abuse filed by the mother which in turn refers to many paragraphs in an affidavit filed in earlier proceedings. It is unknown whether that affidavit includes matters of inappropriate physical discipline. It is also unclear whether the family assessor had reasonable grounds for suspecting that the abuse was of such a magnitude that formal notification was required. Given the expert’s particular experience in the child protection system, I cannot conclude on the material available to me, and in the absence of cross-examination as to this issue, that the expert failed to comply with this Standard.
Independent Children’s Lawyer’s position
Counsel for the Independent Children’s Lawyer submitted that a number of potential problems with the expert’s report have been identified by the mother, each of which may be the subject of cross-examination.
The Independent Children’s Lawyer submits that there appears to be one instance of a failure to comply with the standards for family assessments and reporting and the associated absence of a reference to the consideration set out in s 60CC(3)(h) dealing with aboriginal cultural matters. However, an explanation for these omissions may also be provided under cross-examination.
The Independent Children’s Lawyer and father oppose the mother’s application and submit that as the expert has the requisite experience and knowledge on the face of his curriculum vitae, his report ought to be admitted and the matters raised by the mother be considered as a matter of weight.
Discussion and conclusion
The proceedings under consideration are child-related proceedings, conducted under Division 12A of Part VII of the Act.
Division 12A contains principles for conducting child-related proceedings. Principle 5 provides that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form as possible.
Pursuant to s 69ZR of the Act, the Court may at any time make a finding of fact, determine a matter or make an order in relation to an issue arising out of the proceedings if the Court is of the view that it may assist in the determination of the dispute between the parties. Rather than admit the expert report and have the expert cross-examined, the mother seeks to have the expert report excluded from the evidence at the outset. This section gives the Court that power.
Pursuant to s 69ZT provisions of the Evidence Act 1995 (Cth) including the opinion rule and its exceptions do not apply to these proceedings. Neither of the parties seek a directions that the rules of evidence are to apply under s 69ZT(3) and in any event I am not of the view that the circumstances in this matter are exceptional.
The parties agreed that a single expert witness be appointed to help resolve a substantial issue in the case and consented to Mr R being appointed as that expert. The mother specifically nominated Mr R as the expert in this matter.
Although submissions made on behalf of the mother refer to a number of alleged defects or shortcomings in the witness’s report, it is not explained how this leads to the inadmissibility of the report in the context of child related proceedings.
Clearly the matters upon which the expert expresses an opinion are relevant and relate to the children’s best interests and Mr R appears on the basis of his curriculum vitae to be appropriately qualified to express that opinion. It must have been accepted by all parties that he has the appropriate expertise in order for them to consent to his appointment as the expert witness. It was not submitted by the mother that the expert witness failed in his duties to the Court set out in the Rules, although I gave consideration to some of the submissions by reference to those Rules.
For the reasons given, I am not satisfied on the material available to me that the expert failed to adopt the family violence Best Practice Principles when preparing his report and complied with all of the Standards except one. It may be that following cross-examination the expert is able explain his non-compliance with this standard. Alternatively, he may not provide an adequate explanation which may affect the weight to be given to his report in relation to the particular issue of aboriginality and aboriginal culture in this matter. Other alleged defects may also form the basis for submissions in relation to weight following cross-examination.
Having regard to each of these matters, I am not of the view that any alleged defects render the report inadmissible and for these reasons it is admitted in the proceedings.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 June 2016.
Legal Associate:
Date: 10 June 2016
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