Toohey & Dantes (No 5)
[2023] FedCFamC1F 578
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Toohey & Dantes (No 5) [2023] FedCFamC1F 578
File number(s): SYC 6702 of 2019 Judgment of: ALTOBELLI J Date of judgment: 13 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where parties disagree on the proposed terms of reference to be provided to the single expert – The father seeks that the interview with the expert be recorded – The mother seeks that the mother and child in the father’s concurrent proceedings be interviewed – Letter of instruction to the single expert settled by the Court and annexed. Legislation: Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 1.04, 7.03, 7.04, 7.05 Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: Determined on the papers Place: In Chambers Solicitor for the Applicant: Santone Lawyers The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
SYC 6702 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TOOHEY
Applicant
AND: MR DANTES
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
13 july 2023
THE COURT ORDERS THAT:
1.The letter of instruction to the single expert, Dr U, be in the form annexed to these orders and marked “A”.
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
ALTOBELLI J:
INTRODUCTION
These brief reasons for judgment explain why the Court has made certain orders in terms of the proposed terms of reference to engage Dr U as the single joint expert in this matter.
BACKGROUND
The father in this case is 54 years old (“the father”), and the mother is 49 years old (“the mother”). The mother has a child from an earlier relationship, who is now 12 years old. The father has a child from an earlier relationship, who is 10 years old. The mother and the father have one child together, X, who was born in 2016 and is six years old (“the child”). The child lives with the mother and his step-sibling in Sydney. The father has limited communication or contact with his child from an earlier relationship, and they have not spent time together nor communicated with each other since October 2019. The child in the current proceedings lives with the mother and has not seen the father in person for three years. The current order for the father to spend time and communicate with the child is based on orders that were made by Judge Smith on 16 October 2019, and varied by Rees J on 17 December 2021. In summary, the orders provide that the father spend supervised time with the child, and that he communicate by telephone or videoconference software with the child twice per week. Both parents assert that the other is not complying with the order in relation to communication. No finding is possible about that issue in the present context.
There are concurrent proceedings in this Court between the father and the mother of his child from an earlier relationship and judgment is currently reserved on final orders. It is noted that the Court made the following orders and notations on day one of the final hearing in those proceedings:
THE COURT ORDERS THAT:
1. Judgment is reserved.
2.Leave be granted to the father’s legal representative to withdraw from the matter.
THE COURT NOTES THAT:
A. A Notice of Discontinuance was filed by the father at 7.08am today.
B.The father’s previous solicitor, engaged solely for the purposes of cross examination, informed the court today that he was contacted in the morning by the father who withdrew his instructions. His instructions, both in writing and verbally, were that he had filed a Notice of Discontinuance and that he was no longer instructed to act on his behalf.
The mother and the father commenced cohabitation in K Region of Sydney in late 2015 and separated on 13 February 2019. The present proceedings were commenced by the father on 4 October 2019 and have continued since then.
On 15 March 2023, specific orders were made in relation to the appointment of a single joint expert as follows:
3.The Independent Children’s Lawyer is to search for an appropriate single joint expert, and any correspondence regarding this issue must copy in all parties and my Associate.
4.The Applicant father and Respondent mother are restrained from communicating in any way with any proposed expert pursuant to the above order.
5.When the Independent Children’s Lawyer has formed a view about the most suitable expert, my Associate, with each party copied in, is to be provided with the proposed expert’s resume or curriculum vitae together with information about cost and delay.
6.Within seven days of receipt of the information in the above order, the Applicant father and Respondent mother are to submit written submissions about the suitability of the proposed expert.
When the matter came before the Court on 14 June 2023, there were no objections to Dr U being appointed as the single joint expert but there was disagreement as to what terms of reference and materials should be provided to the expert. Hence, orders were made as follows:
1. By consent between the Applicant mother and the Independent Children’s Lawyer and on the basis that the Respondent father does not object to the making of this order, [Dr U] is appointed as the single joint expert in this matter.
2. Proposed terms of reference together with any proposed conditions about materials to be provided to the single joint expert and submissions in support (maximum of 1,000 words) are to be provided to my Associate by no later than 4pm on 5 July 2023.
APPLICABLE LAW
Insofar as the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”) provide, single experts are appointed to “help to resolve a substantial issue in a proceeding” (r 7.03(1)). When considering whether to appoint a single expert, the Court may take into account the overarching purpose of the Rules, the necessity of evidence on a particular issue, the nature of the issue, whether the issue “falls within a substantially established area of knowledge” and whether it is necessary for the Court to have a range of opinion (r 7.04(2)). For the purposes of this case, it is worth reiterating the overarching purpose of the Rules as set out in r 1.04:
The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
It is in this context that the parties may confer for the purpose of preparing an agreed letter of instructions to the expert (r 7.05(e)(i)) and submit a draft letter of instructions for settling by the Court (r 7.05(e)(ii)).
WRITTEN SUBMISSIONS BEFORE THE COURT
In support of his case, the father relies on written submissions filed on 5 July 2023.
In support of her case, the mother relies on an affidavit filed on 5 July 2023 and written submissions dated 5 July 2023.
COMPETING CONTENTIONS
In his written submissions filed on 5 July 2023 the father makes the following points at paragraph 15:
Proposed Orders of appointment:
•An agreed joint letter of appointment should be drafted:
•With terms of engagement that:
•Permits the parties to attend the Expert process in person with adequate interview time to cover all content
•Requires the Expert to interview all nominated witnesses
•Prohibits any content, witnesses, documents, order, reports or affidavits from SYC[…/…]
•Documents are to be submitted to the Expert by the parties, not the ICL
•The interviews are required to be recorded and recordings of the interviews made available for admission into evidence by both parties
•Applicant Mother to pay all costs for the engagement of the Expert along with costs for either party to cross examine the Expert at the final hearing
The father submits that the expert should not have access to the concurrent proceedings, which he discontinued for reasons that he identifies in his submissions.
The father further submits that all interviews with the expert should be recorded because of what he contends to be the history of false statements made by the mother. He further contends that a recording of the interviews would also capture false statements that may have influenced the expert even when they are not included in the report itself.
In the mother’s submissions she attaches a draft letter of instructions. These are reproduced in the first schedule to these reasons. A number of matters are apparent from this document. The mother proposes that the mother (Ms Vader) and the child (Y) in the concurrent proceedings be interviewed. The purpose of this is to inform the expert of the father’s alleged behaviour in the other litigation. On the same basis, the expert should be provided with the Court’s judgment in the concurrent proceedings.
DISCUSSION
It is unfortunate that neither party actually submitted terms of reference which could assist the Court to finalise this order without further reference to the parties.
Clearly there are contentious issues which the Court will rule on.
The report interviews are not to be recorded in any way by the parties or by anyone else. This would be intrusive for all parties, and particularly for the children who are interviewed. The views of the expert have not been ascertained as to whether he would even countenance recording, and in the absence of his consent the Court would not countenance even the suggestion of recording. The father’s contention that it should be recorded seems to be based on concerns about lack of transparency and accountability of the report process. All participants in the report process are free to take notes during the same. The transparency and accountability of both the report and the process which led up to it is achieved through cross‑examination of the expert.
It is not the role of this Court to prescribe how long an expert spends in interview with the parents and other persons to be interviewed. One would have thought that, in any event, it is the quality of the information conveyed and insight gleaned during interview that is important, rather than the length of any interview that conveyed the information and facilitated the insight.
The father would like an order that requires the expert to interview all nominated witnesses. The Court will not make such an order. The parties may well suggest to the expert who should, relevantly, be interviewed, and for what reason, but ultimately the expert decides by reference to the parameters of his brief including, for example, the financial retainer. The Court’s experience is that parties generally have a very broad view about what their dispute is about and who may relevantly give evidence in relation to it. The Court’s experience, however, is that the relevant evidence is actually much narrower. The Court also has a duty to consider the public interest in managing the application of both public and private resources in litigation.
The Court agrees that the concurrent proceedings are not directly relevant to the report that needs to be undertaken by the expert. Justice Rees previously made a similar ruling. Nothing has changed. The Court would prefer that the expert forms a view about this matter untainted by any concurrent proceedings. The Court accepts that in cross-examination of the expert it may become relevant to put certain matters to him arising out of the concurrent proceedings. The relevance of any such assertion or question will be determined at the time.
The father proposes, and the mother’s draft letter of instructions accepts, that each party and the Independent Children’s Lawyer will provide the relevant documents to the expert.
The father proposes, and the mother seems to accept, that she will pay the costs of the report in the first instance. In the order made 14 June 2023 the Court has noted that she reserves the right to seek an order for costs at the final hearing. The mother should note that the Court has interpreted the offer as covering the cost of the expert giving evidence at the hearing.
DECISION
The mother’s draft letter of instructions will be amended to reflect the Court’s findings above.
The settled draft will be schedule two in these reasons for judgment and annexed to the orders and marked “A”.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 13 July 2023
SCHEDULE ONE
ANNEXURE A
[DATE]
Dr U
V Psychology
W Street
Suburb AA NSW
By email only: …@...Dear Dr U,
RE: Ms Toohey & Mr Dantes, SYC6702/2019
Pursuant to Court Orders dated 14 June 2023, you have been appointed to prepare a single expert report in this matter. We enclose a copy of the orders for your appointment.
The Applicant mother is Ms Toohey, represented by Santone Lawyers. The self-represented Respondent father is Mr Dantes and the Independent Children’s Lawyer is Ms Katarzyna Rutkowska.
There is one child of the relationship, X (born 2016, 6 years old). The mother has a child from a previous relationship, Z (born 2011, 12 years old). The father has a child from a previous relationship, Y (born 2013, 10 years old).
There have recently been family law proceedings between the father and Ms Vader, Y’s mother (“the related proceedings”). The father has filed a Notice of Discontinuance and the matter has proceeded on an undefended basis. Judgement has/not been delivered.
We request that you meet the parties, X and Z and Ms V for the purpose of preparing this report.
The mother will pay the costs of your report in the first instance, pursuant to Court Orders dated 14 June 2023.
The parties will provide you with a copy of the material they have individually filed in these proceedings. The Independent Children’s Lawyer will provide you with a copy of the subpoenaed documents produced to the Court and a copy of the Court Orders and Judgement made in the Related Proceedings.
Duty to the Court
We draw your attention to the requirements of Division 7.1.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the FCFCOA Rules”) and the Central Practice Direction which set out the duties and rights of expert witnesses in family law proceedings. In this regard, we enclose a copy of Division 7.1.5 of the FCFCOA Rules and the Central Practice Direction for your information.
Your report
Your report must comply with the FCFCOA Rules and Central Practice Direction which states that:
1. An expert’s report must:
(a) be addressed to the court and the party or parties instructing the expert witness; and
(b) have attached to it a summary of the instructions given to the expert witness and a list of any documents relied on in preparing the report; and
(c) be verified by an affidavit of the expert witness.
Your report must be in a written form and a copy of the written report must be provided to the Court making reference to the proceedings number SYC6702/2019.
Yours faithfully,
Independent Children’s Lawyer
SCHEDULE TWO
“A”
[DATE]
Dr U
V Psychology
W Street
Suburb AA NSW
By email only: …@...Dear Dr U,
RE: Ms Toohey & Mr Dantes, SYC6702/2019
Pursuant to Court orders dated 14 June 2023, you have been appointed to prepare a single expert report in this matter. We enclose a copy of the orders for your appointment.
The Applicant mother is Ms Toohey, represented by Santone Lawyers. The self-represented Respondent father is Mr Dantes and the Independent Children’s Lawyer is Ms Katarzyna Rutkowska.
There is one child of the relationship, X (born 2016, 6 years old). The mother has a child from a previous relationship, Z (born 2011, 12 years old). The father has a child from a previous relationship, Y (born 2013, 10 years old).
We request that you meet the parents in this case, the child X, and such other persons as you reasonably consider to be relevant to your assessment. The parents may request you to interview certain persons, but the decision to do so is yours alone, based on your experience and expert assessment.
The mother will pay the costs of your report in the first instance, pursuant to Court orders dated 14 June 2023.
The parties will provide you with a copy of the material they have individually filed in these proceedings. The Independent Children’s Lawyer will provide you with a copy of the subpoenaed documents produced to the Court.
Duty to the Court
We draw your attention to the requirements of Division 7.1.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the FCFCOA Rules”) and the Central Practice Direction which set out the duties and rights of expert witnesses in family law proceedings. In this regard, we enclose a copy of Division 7.1.5 of the FCFCOA Rules and the Central Practice Direction for your information.
Your report
Your report must comply with the FCFCOA Rules and Central Practice Direction which states that:
1. An expert’s report must:
(a) be addressed to the court and the party or parties instructing the expert witness; and
(b) have attached to it a summary of the instructions given to the expert witness and a list of any documents relied on in preparing the report; and
(c) be verified by an affidavit of the expert witness.
Your report must be in a written form and a copy of the written report must be provided to the Court making reference to the proceedings number SYC6702/2019.
The specific terms of reference for your report are to consider the following matters:
1. The benefit to X (born 2016) (“the child”) of having a meaningful relationship with both of his parents.
2. Whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and, if so, the effect on the child.
3. Any family violence as defined in s 4AB of the Family Law Act 1975 (Cth) involving the child or a member of the child's family.
4. The nature of the relationship between the child and each of his parents and any other relevant persons.
5. The capacity of:
i. each of the child's parents; and
ii. any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
6. The extent to which each parent has taken, or failed to take, the opportunity:
i. to participate in making decisions about major long-term issues in relation to the child;
ii. to spend time with the child; and
iii. to communicate with the child.
7. The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
8. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other person (including any grandparent or other relative of the chid) with whom the child has been living.
9. The maturity, sex, lifestyle and background of the child (including lifestyle, culture and traditions) of the child and of either of the child's parents and any other characteristics of the child that may be relevant.
10. The practical difficulty and expense of the child spending time with and communicating with each parent (if any), and whether that difficulty or expense will substantially affect each child's right to maintain personal relations and direct contact with both parents on a regular basis.
11. The live with and spend time with arrangements that the Single Expert recommends would operate in the best interests of the child.
12. Any other fact or circumstance that the Single Expert considers relevant.
Yours faithfully,
Independent Children’s Lawyer
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