UDALL & OAKS

[2015] FamCA 657

FAMILY COURT OF AUSTRALIA

UDALL & OAKS [2015] FamCA 657

FAMILY LAW – EVIDENCE – Admissibility – whether reports of Dr B and Dr C be excluded from the proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Udall

RESPONDENT: Mr Oaks

INDEPENDENT CHILDREN’S LAWYER: Mr Layson

FILE NUMBER: PAC 134 of 2009

DATE DELIVERED: 28 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 28 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dart

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

COUNSEL FOR THE RESPONDENT: Ms Obradovic

SOLICITOR FOR THE RESPONDENT: Harb Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cairns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Layson of Sarah Bevan Family Lawyers

Orders

1. The report of Dr B is admitted in the proceedings.

2. The report of Dr C is admitted in the proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Udall & Oaks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 134  of 2009

Ms Udall

Applicant

And

Mr Oaks

Respondent

REASONS FOR JUDGMENT

1. This is an application to exclude the evidence of Dr B, a therapist who was engaged pursuant to Court Orders which were made by consent.  The form of therapy to be provided was family therapy by Dr B.

2. The issue of the family therapy and the success or otherwise of it, is fairly and squarely a fairly significant issue for determination in these proceedings.  As I understand it, the nature of the relationship between D and each of his parents is absolutely essential to these proceedings.

3. In my view, that report does fall under the definition of a treating report and it does fall as an exception to the Rules in relation to expert evidence.  In addition, when there were discussions at the directions hearing (which as I say is conducted by myself as a continuation of the Less Adversarial Trial), Dr B was put forward as a witness, no objection was made and she was not put forward as an expert witness and it was anticipated at all times that she would be giving evidence.

4. Also in my view, the issue of unfair prejudice does not arise in this matter in the way in which that section has been interpreted.  As far as an undue waste of time, it goes to a very central matter in these proceedings and if it takes some time for the cross-examination to occur, so be it.  I do not regard that as undue or a waste of time.  In terms of the capacity to obtain instructions on the affidavit, I note that it was e-filed on 3 July 2015 and today is 28 July and in my view there has been plenty of opportunity and for that reason Dr B’s report will not be excluded.

5. In terms of Dr C’s report, in my view, the way in which Dr C was informed can be a matter of cross-examination.  It is not unusual for experts, indeed it is very normal practice for experts, to consult other therapists who have been engaged with the family and it is quite common for them to be informed by way of telephone conversation.  Of course the father is not precluded under cross-examination from challenging the factual basis of information given by Dr B or any other person to Dr C and for that reason Dr C’s report also remains.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 July 2015.

Associate: 

Date:  12 August 2015