Tyler and Sullivan (ANCILLARY)

[2014] FamCA 179

FAMILY COURT OF AUSTRALIA

TYLER & SULLIVAN (ANCILLARY) [2014] FamCA 179

FAMILY LAW – PRACTICE AND PROCEDURE – where the provisions of s 69ZT(1) apply to all of the evidence in this case.
FAMILY LAW – ANCILLARY APPLICATIONS – Where the mother sought to exclude the expert report in its entirety prior to her giving oral evidence – where the mother said that the expert had no specialised knowledge - where the expert report contains relevant evidence that could affect the assessment of facts in issue in this case – where this application was dismissed – where the mother sought an interim application for unsupervised face to face time with the child – where that application was stood over not to be relisted unless final orders were not made within a reasonable period of time – where the mother objected to the release of documents for inspection on the basis the documents were subject to legal privilege – whether the mother had acted in a way inconsistent with the confidentiality which the privilege serves to protect – but in any event where that material was not admitted pursuant to s 135(c) Evidence Act or was otherwise given no weight –where the mother indicated she did not intend to cross examine the single expert in these proceedings but sought to adjourn the proceedings so that she might tender transcript of her cross examination of the single expert in another court – where that application was dismissed – where the fathers application pursuant to s 118 was withdrawn – rulings in relation to the tender of particular evidence.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)
Family Law Rules 2004 (Cth)

Carpenter v Lunn (2008) FamFAFC 128
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mann v Carnell (1999) 2001 CLR 1
Marsden & Winch [2013] FamCAFC 177
Noetel and Quealey (2005) FLC 93-230
Rice & Asplund [1979] FLC 90-725

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354

APPLICANT: Mr Tyler

RESPONDENT: Ms Sullivan

INDEPENDENT CHILDREN’S LAWYER: Mr Christaki

FILE NUMBER: SYC 889 of 2008

DATE DELIVERED: 26 March 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 9 – 16 December 2013;
18 December 2013; 17 February 2014;
19-21 February 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: KDB Holmes Solicitors

SOLICITOR FOR THE RESPONDENT: Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

Rulings were made during the course of the hearing in respect of which reasons were reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler 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 SYDNEY

FILE NUMBER: SYC 889 of 2008

Mr Tyler

Applicant

And

Ms Sullivan

Respondent

REASONS FOR JUDGMENT

ANCILLARY RULINGS

1. During the final hearing I made rulings on various interim applications and objections and reserved reasons in respect of some of those matters. I now provide those reasons.

THE APPLICATION OF THE RULES OF EVIDENCE

1. At the commencement of the final phase of the hearing the question arose as to whether the rules of evidence referred to in s 69ZT(1) of the Family Law Act 1975 (Cth) (“the Act”) should be excluded in respect of some issues in this case. Both the father and the Independent Children's Lawyer submitted that those rules of evidence should not be excluded and the provisions of s 69ZT(3) of the Act should apply to evidence relating to the following issues contained in the draft headings for affidavit evidence (exhibit 47) referred to in the procedural orders of 15 August 2013, namely:

   2.1 Risk of abuse of the child by the father

   2.1.1 Is there an unacceptable risk that the child has been sexually abused by his father?

   2.1.2 Is there an unacceptable risk that the father is involved in a paedophile ring? (there was discussion as to whether this issue should be reframed)

   2.1.3 Is there an unacceptable risk that the father has made death threats?

2. The mother opposed the court deciding to apply one or more of the provisions of a Division or a Part mentioned in s 69ZT(1) pursuant to the provisions of s 69ZT(3) in respect of these issues. Notwithstanding the fact that I had expressed a preliminary view that I was satisfied that in relation to those categories the circumstances of this case were exceptional having taken into account the importance of the evidence in the proceedings, the nature of the subject matters of the proceedings and the probative value of the evidence, after discussion, both the father and the Independent Children's Lawyer withdrew their application for the court to decide these issues applying the provisions of s 69ZT(3) of the Act. In those circumstances, given that neither parent nor the Independent Children's Lawyer sought that I do so, I exercised my discretion not to apply the provisions of s 69ZT(3) of the Act to those issues. The consequence of that was that the provisions of s 69ZT(1) apply to all of the evidence in this case.

3. It was explained to the parties that evidence that would have otherwise been inadmissible under the Evidence Act was to be given such weight (if any) as the court thought fit (pursuant to the provisions of s 69ZT(2)). In relation to the original answers given by E/Prof F to the mother’s questions, I provided an indication as to the weight I would place upon some of those answers.

4. Section 69ZT(1) of the Act of course does not remove all rules of evidence and rules (particularly s 56 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which excludes irrelevant material).Conclusions, assertions and submissions are not evidence. I explained to the mother on more than one occasion that a statement made by her in her evidence, that something was a fact, does not make it evidence of it being a fact. I made it clear that any such statement would be taken as a statement by the mother of her belief that a fact existed (but not proof that it did exist).

THE MOTHER’S APPLICATION TO EXCLUDE DR R’S REPORT IN ITS ENTIRETY PRIOR TO DR R GIVING ORAL EVIDENCE

1. The mother made an application to exclude the report from Dr R received by the court on 19 November 2013 and the addendum from Dr R received on 21 November 2013. The father and the Independent Children's Lawyer opposed the mother’s application. I dismissed the mother’s application and indicated that I would give reasons at a later time. I noted that the mother may still ask questions of Dr R (during her cross examination of Dr R) about her expertise and otherwise ask Dr R as to whether or not her opinion would be changed if any fact assumed or accepted by her, was not found to be a fact accepted by the court.

2. So far as I understood the mother’s submissions, they were based on the proposition that:

   7.1.The report failed to meet the form required by the Family Law Rules.

   7.2.There was no evidence in Dr R’s CV of expertise in child sexual abuse.

   7.3.There had been such an extensive reliance by Dr R on assumed facts that were demonstrably not facts so as to fundamentally undermine the opinions expressed by Dr R in a way which would lead the court to summarily reject Dr R’s report.

3. Weinberg and Dowsett JJ in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 referred to Heydon JA’s well known statement in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and said:

   ...it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence....

4. Notwithstanding s 79 of the Act does not apply, the ordinary learning in relation to the admissibility of expert evidence gives some guidance as to the weight to be given to the evidence (see the discussion of the Full Court in Carpenter v Lunn (2008) FamFAFC 128 at paragraphs 214 to 217; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 and Noetel and Quealey (2005) FLC 93-230).

5. Section 69ZT(1) of the Act applies in this case. This means that the provisions of s 76 (the opinion rule) and s 79 (exception to the opinion rule but based on specialised knowledge) do not apply. Common law rules of evidence also do not apply (s 69ZT(5)(a) of the Act).

6. That, however does not mean all opinion is relevant or of the same weight. Section 56(2) of the Evidence Act is not excluded. It is in the following terms:

   (2) Evidence that is not relevant in the proceedings is not admissible.

7. The definition of relevance is wide:

   55(1) The evidence that is relevant in a proceedings is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

8. On its face, Dr R’s report contains relevant evidence in that if her opinions and recommendations were accepted, they could clearly affect the assessment of facts in issue in these proceedings.

9. In relation to Dr R’s specialised knowledge, the mother said “there was no evidence in her CV of expertise in child sexual abuse” or that more generally Dr R’s specialised knowledge in that aspect of her field had not been demonstrated.

10. Dr R’s CV, amongst other things, sets out the following:

    ·In 1977 Dr R graduated from … University … with a MBBS (Bachelor of Medicine and a Bachelor of Surgery)

    ·Between 1985 and 1987 Dr R completed a full fellowship with the Royal Australian and New Zealand College of Psychiatrists

    ·Between 1985 and 1987 Dr R worked as a child psychiatry registrar in child and family psychiatry at RR Hospital

    ·In 1987 she was a fellow in child psychiatry at AC Children’s Unit, …

    ·In 1988 Dr R obtained a certificate in child and family psychiatry from the Royal Australian and New Zealand College of Psychiatrists.

    ·In 1988 Dr R was a Fellow in Child Psychiatry at XX Hospital for Children, ...

    ·Dr R commenced private practice in 1990 and has been part time staff specialist at various units associated with the management of troubled children

    ·Her clinical practice has been as a staff specialist at RR Hospital and ZZ Family Care Unit

    ·As a visiting medical officer locum at … and in private practice in supportive and exploratory psychotherapy in child and family psychiatry

    ·Dr R has in excess of two decades of experience in all of these areas. Her medico-legal experience as a forensic expert commenced when she first started doing expert reports for the Family Court in 1987. She has been an authorised clinician in the Children’s Court Clinic since 2001. She has also taught at a University and the Institute of Psychiatry and supervised trainee psychiatrists since 1989.

11. On 22 October 2012, I discharged an order appointing Associate Professor Q as the single expert, and appointed Dr R. In my Reasons for Judgment I said:

    14.Dr [R’s] qualifications are set out in exhibit 17. She is a psychiatrist with experience in child and family psychiatry. She has provided single expert evidence to this Court since 1987. The mother alleges in this case that the father suffers from a number of diagnosable psychiatric conditions. Similar allegations are made against the mother. Dr [R] is qualified to give me an opinion about those issues. There is also an issue as to whether or not there is an unacceptable risk that the father sexually abused [the child]. The determination of that issue will probably, in good part, turn upon factual findings I am asked to make.

    15.I am confident that Dr [R] is qualified to give any expert opinion that it is now possible to give about that issue. Dr [W] will also give evidence about that issue.  

12. The mother appealed the order appointing Dr R as single expert.

13. The Full Court (Coleman, Ainslie-Wallace and Murphy JJ)(“the first Full Court”) heard the mother’s appeal in relation to appointing Dr R on 20 March 2013. The Full Court dismissed the appeal. In their Reasons delivered 25 March 2013, their Honours said:

    39. It [sic] relevant to note that, while it may appear to be otherwise from some of the expressions used by the mother in her written submissions, as she clarified during the appeal hearing, the effect of the grounds challenging Dr [R’s] appointment was not that Dr [R] did not have the relevant experience to make the assessment for which she was appointed, but that there was no evidence before the trial judge on 22 October 2012 that she did.

    40.   The trial judge had Dr [R’s] curriculum vitae before him and on the basis of the information in that concluded that she was indeed qualified to conduct the assessment.

    41.   It could not be plainer that the mother does not agree with his Honour’s decision. 

    42.   However, it was a finding of fact well open to him on the evidence.  Indeed apart from the bare submission of the mother that Dr [R] did not have the appropriate expertise, she made no submission particularising why that was so.  Her submission was a mere statement of her position.

14. The mother sought special leave to appeal the Full Court’s decision to the High Court. She came back before me seeking a stay of the order that Dr R be appointed. That application was refused. The mother appealed the order refusing a stay.

15. On 21 August 2013, the Full Court (Bryant CJ, Ainslie-Wallace and Murphy JJ)(“the second Full Court”) heard the appeal in relation to refusing the mother’s stay application and delivered judgment on 5 September 2013. The second Full Court set out what the first Full Court set out at [39] and went on to say:

    46.Thus, the mother’s challenge to Dr [R’s] appointment was one of fact.  As the Full Court noted, the curriculum vitae of Dr [R] was before his Honour and, as the Full Court said at [42], his Honour’s finding that Dr [R] had the appropriate expertise was one open to him on the evidence before him.

    .....

    54.However, we observe that the continuation of the appointments and the preparation of a report by Dr [R] does not prevent the mother from challenging Dr [R’s] opinion on the basis of lack of expertise nor does it prevent the mother from, consistently with the Court rules (rule 15.49), applying to the trial judge for an order that she be permitted to rely on another expert opinion. …

    …..

    83. However, whether or not the mother’s contentions to be argued on special leave have merit, we do not propose to order a stay of his Honour’s orders.  That the orders are not stayed will not operate to frustrate or thwart the subject matter of the mother’s appeal.  As we have indicated, this is an appeal from an interlocutory order made in preparation of the matter for hearing. Once Dr [R] has presented her report, the mother is at liberty to seek an order that she be permitted to rely on a further expert report and is of course entitled to challenge Dr [R’s] report if she asserts it is defective, whether by reason of sufficient expertise or any other basis.

16. On 4 September 2013 special leave to appeal to the High Court was refused. In their Reasons delivered on 4 September 2013, Kiefel and Keane JJ said:

    2.    On 22 October 2012, the Family Court (Watts J) ordered the appointment of a single expert witness, Dr [R], to enquire into and report on matters relating to the child's welfare. These matters included an allegation made by the applicant that the first respondent had sexually abused the child. The order of Watts J was made after the expert previously appointed to the case advised the Court that she wished to withdraw. Watts J dismissed a request by the applicant that this expert be re-engaged. His Honour also dismissed the applicant's request that he appoint a different named expert, or split responsibility for writing the report between two experts. Watts J considered that he would be best assisted if one expert did the whole report. Dr [R] was a psychiatrist with experience in child and family psychiatry, while the expert suggested by the applicant had no relevant psychiatry experience. Watts J expressed confidence that Dr [R] would be qualified to give any expert opinion that it is possible to give in relation to the allegation of sexual abuse.

    3.    On 20 March 2013, the Full Court of the Family Court of Australia (Coleman, Ainslie-Wallace and Murphy JJ) dismissed an appeal from the decision of Watts J, with costs. In reasons delivered on 25 March 2013, their Honours held that the decision to appoint Dr [R] was open to Watts J on the evidence. Further, Watts J's decision to not re-engage the previous expert was unaffected by factual error, given that expert had made her wish to withdraw clear to the Court and the applicant had put no evidence that she was amenable to reconsideration. The thirteen grounds of appeal raised by the applicant were without merit.

17. At the time of making this application (prior to Dr R giving oral evidence), the mother had provided no new evidence that would form any basis for me to interfere with my earlier ruling. I had found that Dr R’s CV had demonstrated that she had an area of specialist knowledge. It arose from her qualification as a fellow of the Royal Australian and New Zealand College of Psychiatrists. Dr R had specifically specialised in child and family psychiatry. Her work in providing forensic reports to the Family Court, particularly in relation to cases involving allegations of child sexual abuse, is an aspect of her field of expertise that qualifies her to proffer an opinion on that topic. Dr R was requested by the court to offer her opinion as to whether or not there was an unacceptable risk that the father had sexually abused the child. I found that Dr R’s CV demonstrated that she had the training, study and expertise as a child and family psychiatrist and a forensic report writer to proffer opinions about those matters to which she was directed and which opinions would be wholly or substantially based on her expertise knowledge.

18. Dr R has provided a report which sets out facts observed by her in 11 interviews and observations over six days. She interviewed the father alone on three occasions; she interviewed the mother alone on three occasions; she interviewed the child alone on three occasions; she interviewed the child in the presence of his father and she interviewed the child in the presence of this mother. Dr R’s report contains admissible proof of Dr R’s observations during those interviews.

19. Dr R has assumed or accepted facts as a result of statements made to her during those interviews with the parents and with the child. She has also assumed and accepted facts as a result of other sources of information which she has identified. Firstly, Dr R had numerous documents which she had been provided by the Independent Children's Lawyer (now Exhibit 95). Dr R also states that she had telephone contact with:

i)	YY CAMHS :	-    Dr KS, child and family psychiatrist -    Mr GD, the child’s treating psychologist
ii)	H Public School:	-    Ms JM, Year 3 teacher -    Ms BL, school counsellor
iii)	AC School :	-    Ms SK, Principal
iv)	AC Family Services :	-    Mr KB, therapist -    Ms KT, psychologist, caseworker
v)	Mr CT :	-    The father’s treating psychologist

1. The principles discussed in Makita and in Redbull are ones that envisage an expert taking observations and assumed or accepted facts (where assumed facts are controversial they need to be proven at trial) and by a process of reasoning express an opinion which is wholly or substantially based on training, study and expertise arising from specialised knowledge.

1. I have had regard to the mother’s critique of Dr R’s report. That document will be the subject of further examination at the hearing. Without testing assertions in it made by the mother, the mother has yet to demonstrate that Dr R has fundamentally failed to carry out her task to an extent that would make Dr R’s report and the opinions in her report irrelevant or of such little weight that the report should otherwise be ignored and untested.

2. As the majority in Redbull said, the various qualities described by Heydon JA are matters that go to the determining of weight to be given to the evidence rather than whether or not the evidence is received.

3. For these reasons I dismissed the mother’s application to exclude Dr R’s report and addendum.

FATHER’S VICTIM IMPACT STATEMENT

1. The father sought to tender in evidence a copy of his victim impact statement that was prepared for the purposes of the mother’s sentencing hearing in the District Court. The mother objected to him doing so. I did not allow the tender but I granted leave to the father to give oral evidence of part of the matters referred to in that document which related to the issue of his parenting capacity (an issue not specifically highlighted in the list of issues to which the affidavits in the final hearing were directed). That evidence supplemented evidence that was otherwise admitted, being two medical reports in respect of the father from Dr CP dated 29 April 2010 (tab 12, Independent Children's Lawyer tender bundle, Exhibit 57) and report by Associate Professor GZ dated 27 April 2010 (tab 13, Independent Children's Lawyer tender bundler, Exhibit 57).

PARAGRAPH 14 OF MOTHER’S AFFIDAVIT OF 23.12.13

1. On 17 February 2014 I struck out paragraph 14 of the mother’s affidavit filed 23 December 2013 and in so far as paragraph 14 of the mother’s affidavit can be taken as an application for leave to make an oral application or alternatively a written application, I dismissed either or both those applications.

2. This paragraph seemed to be an application for leave to make an oral application that myself, the lawyer for the husband, the Independent Children's Lawyer and counsel for the Independent Children's Lawyer to provide evidence from their respective general practitioners of any known mental illness and any medication taken to treat that mental illness. The paragraph annexes the first page of the full day Hansard transcript “conduct of Magistrate Brian Maloney” who had been diagnosed with bipolar II. The mother referred to her perception of the threatening and bullying nature of the Family Court proceedings and lack of focus of all, apart from herself, on the essential facts. She also referred to alleged statistical averages of mental illness in the legal profession.

3. There is no power to make the orders sought in relation to members of the legal profession at the bar table and further, there is no relevant admissible evidence in paragraph 14 of the mother’s affidavit On its face, paragraph 14 of the mother’s affidavit of 23 December 2013 is scandalous and pursuant to rule 15.13(1)(a), that material is struck out of the mother’s affidavit.

MOTHER’S INTERIM APPLICATION FOR UNSUPERVISED FACE TO FACE TIME WITH THE CHILD

1. On Monday 17 February 2013 I stood over generally the mother’s application for an interim order for unsupervised face to face time with the child with the intention that it would be otiose in the event that final orders were made as soon as practical after the conclusion of the final hearing. At the time I gave the following ex tempore reasons:

   33.1.During the final stage of the hearing which commenced on 9 December, I gave the mother leave to make an interim application in a case for face to face time with [the child] on an interim basis.

   33.2.When the proceedings were before me in December 2013, I indicated that I would consider dealing with that application once Dr [R’s] evidence had concluded. That evidence was scheduled for the second week of the final stage of the hearing (that is the week commencing 16.12.13). I was mindful that the mother wished to see [the child] to give him Christmas presents and that she wished to have an interim order for face to face time in circumstances where she asserted that it may be some months prior to the result of the final hearing becoming available. The mother did not appear on 17 or 18 December. On 18 December the matter was further adjourned for completion commencing today. In her affidavit filed 23 December 2013 the mother said that “on 17 December I delivered my son’s Christmas present to his school as I saw no other opportunity to provide my son with a Christmas present”. The mother’s application for interim orders was formally adjourned to 10am this morning.

   33.3.My intention is to conclude the evidence in this matter and hear submissions during this week. I will attempt to deliver reasons for judgment and make final orders as soon as possible after that time. In those circumstances, the application for interim orders is stood over generally and may only be restored to the list in the event that I am unable to fulfil that commitment.

RULING IN RELATION TO PRODUCTION OF MATERIAL BY DR WM

1. In the course of the mother’s criminal proceedings, an arrangement was made with the lawyer that the mother had at that time, for her to be interviewed by a psychiatrist and for a report to be prepared. That interview or those interviews took place and the psychiatrist prepared a draft report.

2. On 18 December 2013 I made the following order:

   6. I request the Independent Children's Lawyer request Emeritus Professor [F] to provide to the court copies of all communications in writing to and from herself and the mother and herself and the father.

3. E/Prof F produced a bundle of emails (Exhibit 97), including an email sent by the mother on 28 October 2011 in the following terms:

   [E/Prof F],

   I have bad news. The trial [the criminal trial] has been delayed until next year 16 April.

   These are the recent events:

   I was to have an assessment by a criminal psychiatrist. I did that. The criminal psychiatrist ([Dr WM]) said he could write a strong report and said that he did not think I had any mental illness.

   My barrister did not agree to show me the draft, but finally I got to see it. It was a repeat of [Dr W’s] report - those key allegations that [Dr W] chose to promote - repeatedly again.

   I asked why he had been given [Dr W] report when it was 'fudged' and not even part of the criminal trial.

   I was yelled at - yes yelled at - by my own barrister stating that it [part of Dr [W’s] report] had been submitted as part of the bail hearing - with my knowledge. So I wrote to the Supreme Court to get evidence of what was submitted.

   Suddenly the story changed. Oh no, it was handed to [Dr WM] by mistake.

   [Dr WM] is stating that the child must be assessed. However what he has written is that if they can find no sign of abuse, then the mother is suffering from an underlying psychiatric condition - delusional.

   My legal team refuse to provide [Dr WM] with my critique showing the pitfalls in [Dr W’s] report. They also refuse to give him the objective evidence from day care centres showing that [the child] was showing signs of trauma before we left Australia.

   I also just received the school report from the [Country XX] school (the one that turned us in). Prior to giving me the report the director said she would have to inform 'the father's lawyer'

   At the time I was there I saw the hand written report on [the child]: the … test was in [the Country XX language], [the child] was prasied [sic] and given an A for maths and B for language (he got a D in … language but they said because he was just learning [the language] they would upgrade that to an A/B). They praised me as a mother and said I had taught him well and [the child] was well behaved and integrated in their classes.

   They sent me a report just now rating him as an E in all subjects and repeating the content of the [H] Public School report - stating that [the child] was kicking teachers, students, throwing sticks etc. This has been forwarded to me from the school director.

   So if someone can tell me how my own legal team and a school director can be pursuaded [sic] to act like this, I would really like to know.

   [The Mother]

   [emphasis added]

4. It can be seen from the above communication that the mother informed E/Prof F that she had had an assessment by Dr WM, a criminal psychiatrist, and she informed E/Prof F the effect of what he told her during those interviews. The mother then goes on to disclose to E/Prof F the substance of his diagnosis, although as I mention below, her summary was inaccurate.

5. As a result of discovering that the mother had been seen by another psychiatrist in 2011, the Independent Children's Lawyer sought leave to issue a subpoena to Dr WM, which leave was granted. His draft report and file notes of interviews of the mother were produced by him to the court.

6. The issue arose as to whether or not they should be released to the Independent Children's Lawyer and the father for inspection.

7. The mother objected to the release of the documents for inspection on the basis that the documents were the subject of legal privilege.

8. The communication between the mother and Dr WM in the interviews prior to the preparation of the draft report were confidential communications between the mother and Dr WM. Further, the draft report was a confidential document prepared by Dr WM. Both the communications made and the document prepared were for the dominate purpose of the mother being provided with professional legal services relating to an Australian proceeding.

9. The mother claimed legal privilege in respect of both Dr WM’s notes of the interviews and in respect of the draft report.

10. In the first instance the issue arises as to whether or not the mother has acted in a way which is inconsistent with the confidentiality which the privilege serves to protect (Mann v Carnell (1999) 2001 CLR 1).

11. The mother initially submitted that E/Prof F was her expert in the District Court, and in these proceedings, and she could consequently show her whatever she liked without losing privilege.

12. The mother however agreed that at the time that she wrote the email to E/Prof F in October 2011, E/Prof F was a Crown witness in her criminal trial and it was not until 2012 that she became the mother’s expert. Further, she conceded that E/Prof F is not a psychiatrist and Dr WM’s draft report has nothing to do with the expertise which the mother wishes E/Prof F to provide in these proceedings. On the other hand, the mother claimed that she had been seeking E/Prof F’s advice in a confidential manner because she “was giving me support, counselling and expertise in the criminal proceedings”.

13. E/Prof F had been an active participant throughout these proceedings which commenced in 2008. She expressed an opinion to the mother about a conversation that the mother had with Dr W at the end of March 2008.

14. Notwithstanding E/Prof F’s previous involvement with the mother, it is unclear to me what the relationship was in October 2011.

15. I am less than confident that I know about all communication that took place between E/Prof F and the mother.

16. On the evidence that I do have, I am not satisfied that E/Prof F was giving support and counselling to the mother in October 2011. She was certainly not an expert in the mother’s criminal proceedings at that point.

17. Looking at the email of 28 October 2011, it does not on its face seek support, counselling or advice. I have no evidence that E/Prof F responded to this email (although E/Prof F has not produced a complete set of the email exchanges).

18. On balance, I am of the view that the confidential nature of the communication between Dr WM and the mother and the confidentiality of Dr WM’s draft report has been lost by the mother inconsistently disclosing to E/Prof F in October 2011 what was in those documents. As a result, I ruled that Dr WM’s notes and the draft report could be inspected by the Independent Children's Lawyer and the father’s lawyer.

19. Following inspection, I drew the mother’s attention to the actual conclusion that Dr WM had reached in his draft report, being somewhat different to that which she had set out in her email to E/Prof F. The mother sought to correct what she had told E/Prof F about Dr WM’s opinion. So, rather than stating “if they can find no sign of abuse, then the mother is suffering from an underlying psychiatric condition – delusional.”, it is to be read “if they can find no sign of abuse, then there will need to be a reconsideration of whether the mother is suffering from an underlying psychiatric condition – delusional”.

20. The Independent Children's Lawyer and the father sought to tender Dr WM’s draft report. The mother maintained her objection to the tender but indicated that if the report was admitted, she intended to make an application to call Dr WM for cross examination and to prepare a critique in respect of his report, as she had done with Dr R and Dr W.

21. I did not allow the draft report to be admitted into evidence as I ruled pursuant to s 135(c) Evidence Act, that the probative value of what was sought to be tendered by the Independent Children's Lawyer and the father was substantially outweighed by the danger that the evidence might cause or result in undue waste of time.

22. If I am wrong in relation to the ruling in respect of loss of privilege, nothing turns on that error as the material from Dr WM was not admitted for other reasons and I do not intend to place any weight on the email between the mother and E/Prof F of 28 October 2011.

THE MOTHER’S ADJOURNMENT APPLICATION ON MONDAY 17.2.2014 AND BEFORE LUNCH ON 19.2.14

1. I first set out the background to the mother’s application.

2. Dr R’s report was mailed to the mother on 19 November and Dr R’s addendum was emailed to the mother on 21 November.

3. On 21 November 2013 the mother emailed E/Prof F, in part, in relation to Dr R’s report, saying:

   “yes, I’ve read the report twice today and its absolute rubbish. I will write up an analysis of it but won’t provide it to the Family Court until I have cross examined her on it – that should be interesting given how [Dr W] came unstuck.”

4. On 28 November 2013, E/Prof F in an email to the mother, provided a suggestion as to the use of material in the cross examination of Dr R.

5. The mother prepared a 34 page critique on the report which was tendered on 9 December (Exhibit 56).

6. On 11 December 2013 I granted the mother leave to make an oral application to exclude Dr R’s report and addendum.

7. On 12 December 2013 I dismissed that application for reasons explained above.

8. Dr R was due to give evidence and be cross examined by the mother on 18 December 2013.

9. The mother failed to appear at the hearing on 17 and 18 December 2013

10. On 18 December, inter alia, I made the following directions:

    The Independent Children's Lawyer is to contact Dr [R] to ascertain when she would be available to give evidence in the week commencing 17 February 2014 and advise my associate, as soon as is possible, about her availability.

11. The orders were emailed to the mother on 18 December 2013. It is agreed that the Independent Children's Lawyer complied with my direction and sent an email to my associate with copies to the parents partly in the following terms:

    Dear Associate,

    I refer to the Orders made by Justice Watts yesterday.

    I advise that Dr [R] has confirmed that she will be available to give evidence in these proceedings on Wednesday the 19^th of February 2014 at 10.00am.

12. It was agreed during the hearing that by 19 December 2013 the mother knew Dr R was to give evidence on 19 February 2014.

13. On 13 February 2014 the mother forwarded an email to my associate in the following terms (Exhibit 103):

    Dear Associate,

    Please inform Justice Watts that I will not be seeking to cross examine Dr [W] further. I will rely on my response to facts in his report (to be filed Monday 17 Feb 2014) and the cross examination from the District Court.

    I will not be cross examining Dr [R] in the Family Court but seek to rely on cross examination of Dr [R] from the District Court. This is for a number of reasons, the immediate problem - I am currently working on submissions for the Family Court and I am unable to prepare cross examination in time. I have had extensive work over the Christmas period for both family and district courts. I will cross examine Dr [R] once only and will be prepared in time for that to take place in the District Court on 28 Feb 2014.

    Yours sincerely

    [Ms Sullivan]

14. A response was provided to her on 13 February in the following terms:

    Dear Ms [Sullivan],

    His Honour has asked me to provide you with the following response:

    Dr [R] is scheduled to be available for cross examination at 10am on 19 February.  If you indicate next Monday that it is not your intention to cross examine Dr [R] in these proceedings, then you should not assume that the hearing will be extended to enable the receipt of evidence of any other cross examination you might carry out in the District Court.  

15. On Monday 17 February 2014 I raised with the mother the contents of the email which she had sent on 13 February 2014. The mother indicated that it was her position that she was going to cross examine Dr R once and that that was going to be in the District Court. She indicated that she would then seek to use that evidence in this hearing. She also said that she had been unable to prepare in time because of the extent of the material from Dr R (which she said was unsigned and unwitnessed). The mother further asserted that “I have not had a minute to prepare a large cross examination for – what’s her name – Dr [R]”. The course proposed by the mother was opposed by both the father and the Independent Children's Lawyer. I indicated to the mother that Dr R was a court appointed witness. Both the lawyer for the father and the Independent Children's Lawyer submitted and I agree that as the trial judge in this case, it was very important for me to be able to observe Dr R give evidence so that an assessment could be made as to whether the answers she gave to questions were unsatisfactory or not. After discussions, I indicated that I expected Dr R would give oral evidence and answer questions about the new material from E/Prof F and any other questions that the lawyer for the father and the Independent Children's Lawyer wished to ask.

16. The proceedings on Monday 17 February 2014 concluded by me making it as plain as I could to the mother that she had an opportunity to ask Dr R questions on Wednesday 19 February 2014 and that she could either take that opportunity or not.

17. Dr R gave evidence on 19 February 2014. She answered questions asked by myself, counsel for the Independent Children's Lawyer and the lawyer for the father. I then gave the mother an opportunity to ask Dr R questions. When the mother indicated that she could not prepare questions for this day, “You’ve given me no time”, I adjourned to enable the mother to look at Exhibit 56 (the 34 page critique the mother had prepared in relation to Dr R’s report). The mother indicated that she now had a 76 page document but she was only prepared to cross examine Dr R once. I asked the mother whether or not she wanted to make an application to adjourn the hearing and she indicated that she did. At that point, I misunderstood the mother’s intention. Given that on 17 February 2014 I had already indicated to the mother that I required that she cross examine Dr R before me, I thought the mother’s application for an adjournment was so that she could cross examine Dr R in the District Court and then have the matter come back for her to cross examination of Dr R before me.

18. I was also somewhat misled by the thrust of the mother’s submissions which related to her assertion that she had not had sufficient time to prepare her cross examination of Dr R.

19. Given the history that I have already outlined, I do not accept that the mother did not have an adequate opportunity to prepare the questions that she wanted to ask Dr R. I concede that there were some difficulties in Dr R dealing with the recordings that the mother had only produced to the court on 18 February 2014 but Dr R had been able to review them and give oral evidence about them. That difficulty was entirely of the mother’s own making, given that she had withheld those recordings. I do not accept that the mother could not have prioritised her preparation so that she was in a position to cross examine Dr R. I also took into account Dr R’s Recommendation 4, namely an end to litigation involving the child, which Dr R said was highly important to the child’s wellbeing, his general health and progression in life. Also of relevance, is the fact that the father was employing his own lawyer for a continuation of the proceedings and the mother was not incurring any costs in that regard. Of what I know of the mother’s financial circumstances, that situation could not be easily remedied by a cost order.

1. Accordingly I dismissed the mother’s application for an adjournment (an application which I had assumed was made on the basis that she would cross examine Dr R before me at a later stage).

2. When I explained to Dr R that she was no longer required, the mother indicated that I had misunderstood the nature of her application.

3. The basis of the mother’s application for an adjournment was the same as she had indicated in the email that she had sent on 13 February 2014, namely, that it was her position that she did not intend to cross examine Dr R before me.

4. To avoid the possibility of any confusion, I granted the mother leave to make an oral application that these proceedings be adjourned until after the mother finished her cross examination of Dr R in the District Court on the basis that the mother intended to then tender a transcript of her cross examination of Dr R in the District Court in these proceedings. That application was opposed by the father and the Independent Children's Lawyer.

5. The mother gave a number of reasons for that which included:

   79.1.Her assertion that I was in a professional working relationship with Dr R (an assertion which I reject);

   79.2.That she receives transcripts in the District Court which allows her to go home and read the transcripts and prepare for further cross examination of Dr R on the following day;

   79.3.That the District Court have “more appropriate standards” to manage appropriate cross examination;

   79.4.It would give the mother another eight days to prepare her cross examination.

6. I make the following observations in the substantive Reasons for Judgment delivered concurrently with these reasons:

   I took the mother’s use of the words “professional relationship” to mean that Dr [R] has been appointed regularly as a forensic expert (almost always upon the application of an Independent Children's Lawyer or a party) to provide an independent report to the court pursuant to Chapter 15 Family Law Rules in complex parenting cases, a significant number of which (as mentioned more than 20 per cent in Dr [R’s] estimation) involving allegations of child sexual abuse. The provisions in relation to expert evidence in Chapter 15 Family Law Rules are aimed at safeguarding and promoting the independence of a single agreed or court appointed expert. There is no “professional” relationship between the expert and the court. Dr [R] does owe a duty to the court as clearly described in Chapter 15 Family Law Rules, to act professionally.

7. The mother’s reference to her treatment in the District Court only underscored the submission made against her, which I accept, that this application is primarily about the mother seeking a forensic advantage.

8. It was clear to me the mother thought there would be a forensic advantage to her for me not to have any control over her cross examination of Dr R. The proceedings in the District Court are between the Crown and the mother. I am not even aware as to whether or not the District Court has been appraised of all of the material upon which Dr R has based her opinions. It is important for me to be able to make a proper assessment as to what is in the child’s best interests to see Dr R tested by the mother if the mother chose to do so before me.

9. The mother is a more than competent advocate in her own cause. Exhibit 56 was prepared in a relatively short space of time. She has discussed Dr R’s report last year with at least E/Prof F. I reject the mother’s assertion that she has had insufficient time to prepare to ask questions of Dr R. I dismissed the mother’s application for an adjournment to enable the mother to tender in these proceedings a transcript of her cross examination of Dr R in her criminal proceedings.

FATHER’S APPLICTION PURSUANT TO s 118 OF THE ACT

1. Until final submissions, the father maintained an application that an order be made that the mother require leave to file any further application for parenting orders. During the final stage of the hearing, the father’s lawyer’s attention was drawn to the Full Court’s decision in Marsden & Winch [2013] FamCAFC 177. During final submissions the father’s application was withdrawn.

2. The mother inquired as to whether, given that is the father’s position, the current order requiring the mother to seek leave to bring interim applications would be discharged. I intend to discharge all previous parenting orders and the current interim order pursuant to s 118(c) of the Act. Whilst the mother will now be free to file and serve new applications without leave, she will need to be mindful of what has been said in these reasons and the principles flowing from Rice & Asplund [1979] FLC 90-725 and the cases that have subsequently considered the threshold requirements required for reinstituting proceedings after final orders have been made. I note in passing that s 118(c) will have no application to any future proceedings, but rather Part XIB of the Act will be applicable.

Weight given to certain parts of answers provided by E/Prof F

1. Part of E/Prof F’s evidence consisted of written answers to the list of questions the mother was granted leave to ask E/Prof F. When dealing with those answers, I gave some indication to the parties and the Independent Children's Lawyer as to the parts of that information upon which I would place little weight given the issues that had been developed in preparation for the final stage of the hearing and during the final stage of the hearing.

Tenders made by the mother after the conclusion of the evidence which were admitted as to relevance on a provisional basis

1. A number of documents were tendered by the mother in final submissions to which objection were taken. I admitted those documents provisionally as to their relevance. None of the documents contained information which was of any significant weight to any issue that I have to decide in the particular facts of this case. I do not exclude any of it from evidence but those documents are of little weight when considered as part of the totality of the evidence in this case.

The exclusion of E/Prof F’s 20^th book or extracts from it

1. During final submissions, the mother sought to tender either the whole of or part of the 20^th book published by E/Prof F which had the title according to the mother “…”. By that point the evidence had concluded. There had been a specific application in December 2013 which dealt with the areas in respect of which E/Prof  F could give evidence. Considerable latitude was given to E/Prof F when, during her oral evidence, she expressed opinions in relation to the four recordings that the mother had not disclosed to the court until the day after E/Prof F gave her evidence. The mother also asked questions in the re-examination of E/Prof  F without significant interference. It was inappropriate, in those circumstances, for the mother to be permitted, over objection, to introduce further opinions expressed by E/Prof F that the court had not yet seen and were not available to the court at the time E/Prof F was being asked questions. In those circumstances, the tender by the mother of E/Prof F’s 20^th book or parts of it were rejected.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 26 March 2014

Associate: 

Date:  26.3.2014