Toohey & Dantes
[2021] FedCFamC1F 321
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Toohey & Dantes [2021] FedCFamC1F 321
File number(s): SYC 6702 of 2019 Judgment of: REES J Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Senior Judicial Registrar’s decision – Where orders were made suspending the father’s supervised time and communication with the child – Where the asserted ADVO breaches do not constitute a risk to the child – No escalation in the father’s behaviour – Orders for the
re-instatement of the father’s time and communication with the child – Where orders were made for family reports in related proceedings to be released to the single expert in these proceedings – Order discharged to avoid any influence by challenged and untested evidence.Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.22 Cases cited: Dasreef Pty Limited & Hawchar [2011] 243 CLR 588
Makita (Australia) Pty Ltd & Sprowles [2001] 52 NSWLR 705
Pownall v Conlan Management Pty Ltd (1995)12 WAR 370
Division: Division 1 First Instance Number of paragraphs: 98 Date of hearing: 14 December 2021 Place: Sydney Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Mr Lestal, Santone Lawyers Solicitor for the Independent Children's Lawyer: Ms Rutkowska, Ark Law Lawyers ORDERS
SYC 6702 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DANTES
Applicant
AND: MS TOOHEY
Respondent
ARK LAW LAWYERS
Independent Children's Lawyer
ORDER MADE BY:
REES J
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS:
1.That the orders of Senior Judicial Registrar Hayward made 2 June 2021 be set aside.
2.That, to facilitate the operation of the orders for supervised time between the father and the child X born … 2016, made on 16 October 2019, the father notify the mother and the Independent Children’s Lawyer of the contact details of contact services willing to provide supervision in Sydney and, if more than one service is available, the Independent Children’s Lawyer shall nominate the appropriate service.
3.That the father be permitted to provide a copy of these reasons and orders to any proposed supervision agency.
4.That in the event that the Independent Children’s Lawyer is of the view that no service is appropriate, then the matter may be re-listed before the Honourable Justice Schonell by arrangement with his Honour’s associate.
5.That each of the mother and the father comply with the intake processes of the selected supervision agency.
6.That the electronic communication specified in Order 8 made on 16 October 2019 shall commence in the week beginning 20 December 2021.
7.That the paternal grandparents are permitted to participate in one occasion of electronic contact each week.
8.That the letter of instruction to the single expert, Dr C, be in the form annexed to these orders and marked “A”.
9.That the Independent Children’s Lawyer have liberty to re-list the matter before the Honourable Justice Schonell for directions upon receipt of the report of Dr C, by arrangement with his Honour’s associate.
10.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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 the pseudonym Toohey & Dantes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
On 2 June 2021, a Senior Judicial Registrar made orders in proceedings between
Mr Dantes (“the father”) and Ms Toohey (“the mother”) as set out below:
1.Orders 5, 6, 7 and 8 of the interim parenting orders dated 16 October 2019 be suspended.
2. The father be and is hereby restrained from:
a.coming into contact in any way with the child X born … 2016 (“X”) or
b.attempting to approach, attend or contact X's preschool, day care, school or vacation care program and any extra-curricular activities which he attends from time to time
3.The mother be at liberty to provide a copy of these Orders to X’s preschool, day care, school and the NSW Police.
4.Leave is granted to the mother’s legal representatives and the Independent Children's Lawyer to access the file SYC2265/2014 in these proceedings.
5.Leave is granted to the mother’s legal representatives and the Independent Children's Lawyer to uplift the reports prepared by Dr B dated 30 January 2015, 24 October 2017 and 18 January 2021 in Proceedings No. SYC2265/2014 and to release them to the Chapter 15 Expert in these proceedings, Dr C.
6.Liberty is granted to the Independent Children’s Lawyer to re-list the matter before the Docket Registrar for ongoing case management after the release of the Expert Report.
The effect of those orders was to suspend supervised time between the father and the parties’ now five year old child (“X”) and to suspend electronic contact between them. Further, the orders permit the mother to provide to Dr C, the single expert in these proceedings, copies of three reports that were prepared by Dr B who is the single expert in proceedings between the father and his previous partner (“Ms Vader”) in relation to the child of that relationship.
By an Application in a Proceeding filed on 30 June 2021, the father seeks to review the decision of the Senior Judicial Registrar. Thus there are two issues to consider, firstly the parenting orders and secondly, the procedural orders relating to the expert reports.
The father’s application is opposed by the mother and the Independent Children’s Lawyer (“ICL”).
The application proceeds as a re-hearing of the mother’s Application in a Proceeding filed
12 March 2021 which was the application before the Senior Judicial Registrar.The father relies on his affidavit filed on 27 June 2021.
The mother relies on her affidavit sworn 12 March 2021 and an affidavit of Ms Vader sworn
12 March 2021. Ms Vader and the father have a child of a previous relationship, Y, who is aged eight years. Presently, all contact between the father and Y has been suspended since October 2019.The mother has a child of a previous relationship, Z who is aged 10 years.
There are proceedings on foot between the father and Ms Vader relating to Y and three reports have been prepared by Dr B as single expert in relation to those proceedings. The father participated in the preparation of the first of those reports but did not participate in the preparation of the third report. I am unsure of his participation in the preparation of the second report.
THE PARTIES’ APPLICATIONS
If the orders of the Senior Judicial Registrar are set aside, the father by his Application in a Proceeding filed 30 June 2021, seeks to re-instate contact with X, both in person and electronically. He seeks discovery of the complete and unedited Facebook correspondence between himself and the mother and electronic contact between X and his paternal grandparents.
Whilst the father, in his Application in a Proceeding, sought the discharge of the single expert,
Dr C, in his oral submissions it was clear that what he wanted was for the process of the preparation of the expert report to be progressed.The mother asked that all of the father’s applications be dismissed.
The position of the ICL was that, if the father could arrange appropriate supervision, the supervised time orders made on 16 October 2019 should proceed.
PARENTING
Before 2 June 2021, the operative orders governing the time that the father spent with X were the orders made in the Federal Circuit Court (“FCC”) as it then was, on 16 October 2019 which provided for the father and X to spend supervised time, initially at D Contact Service and then at the E Contact Service for two hours on alternate Saturdays and electronically on two occasions each week. The orders also restrained the father from attempting to contact the mother and from approaching within 500 metres of the child’s residence, day care centre and school.
There was no appeal against those orders.
Both parents sought to rely upon the transcript of the proceedings before the FCC. It does not appear that the reasons for judgment were taken out.
The evidence before me does not assist me to know what evidence was before the FCC when the orders were made but it is reasonable to assume that the mother put all of the available evidence relating to the father’s behaviour before the Court and that all of that evidence was considered by the judge who made the order for supervised time.
The father drew my attention to the following passage of the transcript:
HIS HONOUR: …The – I suppose what’s troubling me is you’re obviously under a lot of stress, and why wouldn’t you be. You’ve got two sets of proceedings going – very emotional stuff. But as you’ve indicated, in a time of very great stress, you seem to have, perhaps, not acted as carefully and thoughtfully as you might have. I mean, our ultimate goal is to, as far as possible, and the mother’s orders propose this, make sure that – and this is not really about you. It’s actually about your child.
[THE FATHER]: Exactly.
HIS HONOUR: Make sure that X can have a good relationship with you. And it’s really the issue before me today, and you understand that this is not deciding the case. All I’m being asked to do is say, “Let’s do something now” while people can get themselves together – we’ve now got a solicitor who may be going to act in this case as well – and get some evidence. You might want to go back and see your treaters and get something updated. But my obligation is, for the next three months, to say, “Well, what’s the safest thing?” And I have to ask myself this question. Given that you are under a lot of stress, and given that you’ve just had a – this panic attack, would it be – remember, I have to err on the side of being cautious to make sure that nothing happens to a three year old child. The test I have to ask myself is, “Well, would it be better to have him spend time with you in a supervision centre?” Not ideal, but do that for a few months at least while you get a chance to acclimatise yourself to what’s going on, talk to your psychologist, perhaps get some updated evidence. That’s really what’s being proposed to me.
[THE FATHER]: I understand that, your Honour. I understand the concepts in relation to identifying the risk, and mitigations, and unacceptable risk.
Transcript 16 October 2019, p.41 line 41 to p.42 line 11.
The father participated in an intake interview with D Contact Service on 5 November 2019.
The record of the interview notes:[The father] expressed he has an issue with authority, [the father] named his panic attack triggers to having his children taken away from him. [The father] said in the past he has run from authorities during a panic attack. Based on [the father’s] history provided, I have assessed [the father’s] prior behaviours to be a risk to X and a potential D Contact Service Supervisor. I believe contact would be best undertaken at a centre-based CCS.
D Contact Service refused to provide supervision.
The parties then completed the intake procedures with the E Contact Service who also refused to supervise contact between the father and X, citing “safety concerns during the intake process”. The evidence does not establish what those concerns were.
The mother then instructed her solicitor to make enquiries of F Contact Service but they refused to provide supervision, stating that the father had previously used their service to supervise time with Y but that he had not paid their fees.
The father asserts that the mother undermined the intake process by making false or unsustainable allegations about his alleged behaviour. That is not an issue that can be resolved in the limited scope of these proceedings.
The father did what the judge in the FCC suggested and provided a report from his own treating psychologist, Ms G, dated 30 January 2020. The father had been referred to Ms G following the making of the October 2019 orders and first saw her on 31 October 2019. The father had seen Ms G 11 times by the date of the preparation of the report.
Ms G reported that the father presented as anxious and low in mood and that he reported experiencing panic attacks when under extreme stress. Ms G reported:
[The father] stated that [his relationship with the mother] was a supportive relationship to start with, however with time he started feeling abused by his partner and decided to separate in 2019. Consequently his access to X and Z was restricted.
[The father] once again became extremely anxious and was asking to see his son. Police were called. [The father] fled and was eventually restrained and sedated. He was hospitalised and released the same day. As a result, his access to his daughter, Y has been denied.Under the heading “Psychological Formulation”, Ms G reported:
[The father] presents with a generally resilient, however sensitive personality structure, which can become vulnerable when confronted with extreme loss and/or threat. This manifests in intense feelings of anxiety, agitation or panic attacks.
Under the heading “Treatment”, Ms G reported:
[The father] has engaged very well in psychological therapy. He was initially very anxious and concerned about the impact of any information being provided being misunderstood or used against him in legal proceedings. Given that [the father] has spent the last six years trying to establish [a] close, consistent and meaningful relationship with his daughter, Y, this was absolutely understandable…
Ms G concluded:
[The father] presents with a generally resilient, however sensitive personality structure, which can become vulnerable when confronted with extreme loss and/or threat.
This manifests in intense feelings of anxiety, agitation or panic attacks. In the past, he had reacted strongly to the perceived threat of loosing his children. It appears that despite experiencing periods of intense anxiety, he was eventually able to calm himself down and approach this challenging matter in a very intellectual manner. It also seems that [the father] has benefited from insights developed in his therapy with Dr H.
He presents as accepting of his separation from Ms Vader and mindful of what constitutes emotional abuse.I do not believe that the father meets the criteria for a Personality Disorder.
The aforementioned vulnerabilities do not suggest that [the father] is dangerous or mentally unstable. He would, however, benefit from ongoing psychological support to address his difficulties and to develop strategies necessary to regulate emotions effectively in the time of potential crisis.[The father] has engaged well in his therapy and appears to be committed to continue his psychological treatment. I believe that Acceptance and Commitment Therapy as well as Dialectical Behaviour Therapy skills would be very appropriate therapeutic approaches.
I would strongly recommend re-establishing of [the father’s] access to his daughter, Y and son, X. Despite ongoing stress that he has been under, especially in the last year, he does appear to be coping well with his current circumstances.
[The father] has taken positive steps to rebuild his psychological resilience. I have no doubt that [the father] is a loving and carrying father, who has a strong sense of commitment and responsibility when it comes to his children.
(As per the original)
The father has not spent time with X since October 2019 and there was no application made by either party or the ICL to vary the orders or seek alternate supervision.
On behalf of the mother it was submitted that re-instatement of the supervised time was not appropriate because of an alleged escalation in the father’s behaviour. I do not accept that submission.
The mother relies on three matters to support that submission:
·On 15 February 2021, the father went to Y’s school and spoke to Y in the playground and gave her a present. Y’s mother deposed that Y was upset after the visit. That visit was contrary to the terms of an order made, also on 16 October 2019, which restrained the father from coming into contact with Y and from approaching or attending at Y’s school. The father has been charged with a breach of an Apprehended Violence Order (“ADVO”) in relation to that event and is defending those charges which have not yet been determined.
·On 24 June 2021, the father rode his bicycle through the car park near X’s
pre-school. It is not alleged that the father stopped in the car park. The mother tendered a COPS entry in relation to that incident. The police assert that the father was within
200 metres of the centre. The father has been charged with a breach of an
Apprehended Violence Order (“ADVO”) in relation to that event and is defending those charges which have not yet been determined.·Electronic communication between the father and X which the mother asserts to have been inappropriate.
Dealing firstly with the two incidents on 15 February 2021 and 24 June 2021, whilst I accept that the father may have breached both orders made pursuant to the Family Law Act 1975 (Cth) and an ADVO on each occasion, I do not accept that the asserted breaches are of such a serious nature as to constitute a risk to X. Neither do I accept that those incidents are indicative of any escalation in the father’s behaviour, noting that before the orders of 16 October 2019 were made, there was a significant episode involving the father with police and ambulance officers and resulting in his being hospitalised as is reported by Ms G.
The mother relies on conversations between the father and X during their electronic communication. The mother asserts that the father has said things to X which are inappropriate. She does not assert that X was in any way affected by the father’s words and she does not, significantly, give evidence that X was upset or distressed by them or by the calls with his father, other than to say, at paragraph 50 of her affidavit “I am very concerned about [the father’s] conduct during the video calls and the detrimental impact that his behaviour has had and will continue to have on X”. I will set out the mother’s evidence about these conversations in full, noting that in each instance, the words complained of form part of a much longer conversation between the father and X.
On 11 November 2019, the father asked X “Did you have a nice time in the park with M?” which the mother asserts is a reference to the father being at the playground the previous day watching her and X and thus contravening the ADVO made on 5 October 2019.
On 14 November 2014, the father said to X “I’ll see you next weekend” despite there being no supervised time arranged for that weekend.
On 18 November 2019, the father said to X “I want to see you but it’s up to Mama”.
On 21 November 2019, the father said to X “If you want to see Daddy, ask Mama”.
On 2 December 2019, the father said to X “I’ll talk to Z on the video calls soon”.
On 3 February 2020, the father said to X “…have you seen Y?”
On 28 May 2020, the father said to X, “…when was the last time you saw Y?”
In July 2020, the mother asserts that the father said “in a nasty voice” to X “Well someone’s been on a spending spree”.
On 27 July 2020, the father said to X “There are lots of things Daddy should be doing with you…”
In 2020, the father said, “…you should be spending your birthday with Daddy and Nan and Pops and [cousins]”.
On … 2020, X’s birthday, the father said “we should be spending the day with you…”
On 6 August 2020, the father said to X “I’ll be back in Sydney soon. We can play with [Y]”.
On 27 August 2020, the father said to X “I spoke to [Y] this week. She says not to forget her”.
On 10 September 2020, the father said to X “You’ll see Y soon”.
On 17 September 2020, the father said to X “I am getting closer and closer to coming to Sydney and seeing you”.
On 21 September 2020, the father said to X “Would you like me to come and watch you play in the playground at Kindy?”
On 11 October 2020, the father said to X “When the borders are open, I will come and play with you”.
On 22 October 2020, the father said to X “Would you like to play hide and seek with Daddy and Y and Z? We can do that soon”.
On 26 October 2020, the father said to X “I’m coming to see you, what should we do?”
On 5 November 2020, the father said to X “What do you want to do when I see you next? Do you want to go to the beach or the playground?”
On 9 November 2020, the father said to X “I’ll see you at Christmas”.
On 16 November 2020, the father said to X “We should be going to Location J, we should be going to the beach”.
On 30 November 2020, the father said to X “I’d like to spend Christmas with you but it’s up to Mummy. Next year, I’ll spend more time with you and your brother and sister like old times… [w]e don’t need to take these calls in the study all the time. Next time we can be in the lounge room”.
On 3 December 2020 the father said to X “I’ll see you at Christmas”.
On 10 December 2020 the father said to X “Would you like to spend Christmas on the farm with Daddy? Ask Mummy if it’s ok as you didn’t spend last year with me… I’m sending Christmas presents to you and Z and you have to make Mummy promise to give them to you”.
On 21 December 2020, the father said to X “How is Daddy going to get Christmas presents to you…?”
On 18 January 2021, the father said to X “I’m coming to Sydney soon and we’ll see each other and your sister too and it’ll be back to normal. Do you want Daddy to visit you at Kindy? I’ll see you at day care”.
On 25 January 2021, the father said to X “I’ll be doing everything I can to see you after this week. How long has it been since you saw Y?”
On 28 January 2021, the father said to X “I’m bringing your presents to Sydney”.
On 4 February 2021, the father said to X “Poppy and I are heading north soon... [w]e’d love to see you, ask Mummy. Would you like me to bring you the presents?”
On 8 February 2021, the father said to X “I’m going to get the presents to you”.
On 23 February 2021, the father said to X “Y misses you and we’re all going to get together soon”.
In all, the mother makes reference to 32 comments by the father in a total of 156 conversations between the father and X.
Further, she relies upon the fact that, on one occasion, the father did not call X because he had another commitment which, she submits, is evidence of his failing to prioritise his relationship with X over the other commitment. I reject that submission.
In submissions, the father said that he had remained hopeful that supervised contact could be re-instated and thus each time he spoke to X he hoped they would be spending time together soon.
I do not consider that the father’s comments to X, as reported, and presumably recorded, by the mother, were sufficient to justify her unilateral cessation of the electronic communication which had been the subject of specific orders made by the court.
That communication will resume.
The father gave evidence that he has been able to find an alternate supervising agency which is prepared to supervise his contact with X.
The ICL supports the re-instatement of supervised time if the father can arrange appropriate supervision.
The orders will provide for supervised time, subject to the ICL’s being satisfied that the supervision proposed by the father is appropriate.
The orders will also provide for the father to give a copy of these reasons to any proposed supervision agency.
ELECTRONIC CONTACT WITH THE PATERNAL GRANDPARENTS
The father seeks an order that X have contact with his paternal grandparents electronically twice each week. I infer that X has had no contact with his grandparents since at least
October 2019.No submissions were addressed to this issue by the mother or the ICL.
I am not aware of any criticism directed to the behaviour of the paternal grandparents or either of them in relation to X.
The orders I will make will provide for the father to have electronic contact with X twice each week in accordance with Order 8 made on 16 October 2019. It would be overwhelming for X also to have contact with his grandparents twice each week and the focus at the present time must be on the re-building of the relationship between X and his father. However, there could be no objection to the participation of the paternal grandparents in some of the calls and the orders will provide that they can participate in one of the father’s calls each week.
EXPERT REPORTS
Dr B has prepared three reports in relation to the proceedings between the father and Ms Vader.
The mother sought leave to provide those reports to Dr C who has been appointed as the single expert in these proceedings and leave to use the reports of Dr B in these proceedings.
Strictly, any application in respect of Dr B’s reports should have been made before the judge with the carriage of that matter but that is not the only reason for dismissing the wife’s application.
Dr B’s reports will be the subject of vigorous challenge by the father in the proceedings for which the reports were prepared. They are, as yet, untested evidence.
Expert evidence, such as that which will be given by Dr C as the single expert in these proceedings, is a synthesis of the professional knowledge and expertise of the expert and provable facts and assumptions.
There is an extensive body of evidence dealing with matters which may and may not be taken into account by an expert to form the basis of the expert’s opinion.
In Pownall v Conlan Management Pty Ltd (1995)12 WAR 370 Anderson J stated:
In order for the opinion to be admissible in evidence, it is necessary that the assumptions made about such matters be satisfactorily proved by admissible evidence…
That statement was cited with approval by Heydon JA in Makita (Australia) Pty Ltd & Sprowles [2001] 52 NSWLR 705 where his Honour stated:
64.The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.
…
85.In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR 414, on
“a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise” (at [41]).The High Court, in Dasreef Pty Limited & Hawchar [2011] 243 CLR 588 stated:
37.It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that “the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded”.
(Footnotes omitted)
Rule 7.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) addresses the requirements set out in those decisions, relevantly, as follows:
7.22 Contents of expert’s report
(1) An expert’s report must:
(a) state the reasons for the expert witness’s conclusions; and
(b)include a statement about the methodology used in the production of the report; and
(c)include the material referred to in subrule (2) in support of the expert witness’s conclusions.
(2)For the purposes of paragraph (1)(c), an export’s report must include the following in support of the expert witness’s conclusions:
(a) the expert witness’s qualifications;
(b) the literature or other material used in making the report;
(c)the relevant facts, matters and assumptions on which the opinions in the report are based;
(d) a statement about the facts in the report that are within the expert witness’s knowledge;
(e)details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person’s qualifications and experience;
(f) if there is a range of opinion on the matters dealt with in the report—a summary of the range of opinion and the basis for the expert witness’s opinion;
(g) a summary of the conclusions reached;
…
An expert’s opinion can be legitimately challenged on the basis that the expert took into account irrelevant matters or is based on assumptions which are not made out.
In these proceedings, arguably, Dr B’s opinions and assessments may fall within the category of matters which are not “relevant facts, matters and assumptions”.
It would be unfortunate if, in these proceedings, the evidence of the single expert were given less weight because the trial judge ruled that she had relied upon unproven facts, that is, the opinions and conclusions of Dr B.
I note that Dr C has not yet been instructed and therefore it is clear that Dr C has not indicated that she would be assisted by Dr B’s reports.
It would be preferable that Dr C should be left free to consider the matters which the parents and the ICL place before her in these proceedings without the possibility of influence from challenged and untested evidence.
Those orders will be discharged.
INSTRUCTIONS TO DR C
The parties have not been able to agree on the form of instructions to Dr C.
The ICL has provided a draft letter to which the father has objections. The father was invited to provide his objections in writing to my associate on the basis that I would then settle the letter.
That course was acceptable to both the parties and the ICL.
The settled draft will be annexed to the orders and marked “A”.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 17 December 2021
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