Vader & Dantes (No 2)
[2023] FedCFamC1F 148
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vader & Dantes (No 2) [2023] FedCFamC1F 148
File number(s): SYC 2265 of 2014 Judgment of: ALTOBELLI J Date of judgment: 15 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Father’s application to adduce additional expert evidence – Assessment of r 7.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where no orders have been made releasing any Court documents to the father’s expert – Where the father may be in breach of s 121 of the Family Law Act 1975 (Cth) – Father’s application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Mother’s application to restrain the father from filing further interim applications – Where the father has filed 11 Applications in a Proceeding and 20 Notices of Objection to Subpoena in these proceedings – Father restrained from filing any further interim applications and Notices of Objection to Subpoena.
Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) s 121
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Family Law Rules2004 (Cth) r 15.49(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 7.02, 7.08, 7.11(3)
Cases cited: Georgeson and Georgeson (1995) FLC 92-618; [1995] FamCA 62
Lambard & Lambard (No.4) [2021] FamCA 47
Macvean & Manton [2022] FedCFamC1F 376
Salmon and Ors & Salmon [2020] FamCAFC 134
Simonsen & Simonsen [2009] FamCA 698
Smyth and Smyth (No 2) [2022] FedCFamC1F 551
Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 27 January 2023 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent: Swaab Attorneys Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
SYC 2265 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DANTES
Applicant
AND: MS VADER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
15 March 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 9 December 2022 is dismissed.
2.The Applicant father is restrained by injunction, except with the leave of the Court granted by a Senior Judicial Registrar or Judge, from filing any Application in a Proceeding, any Notice of Objection to a Subpoena, or any interim orders sought in an Amended Application or Response pending the final hearing of this matter.
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 Vader & Dantes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders made by the Court in relation to two Applications in a Proceeding filed by Mr Dantes who is the respondent (“the father”) in the substantive parenting proceedings that are listed for final hearing on 8 May 2023. The first Application in a Proceeding was filed on 21 November 2022, and the second on 12 December 2022. The first application became redundant as it merely reflected an agreed alteration to a timetable for filing documents and submissions. For all practical purposes it will be treated as having been withdrawn and dismissed. The second application sought orders in relation to expert evidence and will be dismissed, for reasons set out below.
BACKGROUND
The substantive proceedings relate to a child named Y, who is currently ten years old (“Y”). Y lives with her mother (“the mother”), but has not spent time or communicated with the father since October 2019. The father is 54 years old and the mother is 49 years old. They commenced cohabitation in 2006, married in 2010, and separated in 2014. The mother commenced the first parenting proceedings in April 2014. This was settled by consent orders made on 8 December 2016 which provided for (in summary) the mother to have sole parental responsibility and the father to have increasing time, commencing with commercially supervised contact and culminating in alternate weekend contact from 2 June 2018. At the time that the consent orders were entered into the parties had reports from Dr B (“Dr B”) dated 30 January 2015 and 24 October 2016.
On 11 October 2019, the mother commenced the current proceedings and sought orders that Y spend no time with the father and interim protective orders, noting that a provisional ADVO had been issued in late 2019.
On 16 October 2019, orders were made by consent, the effect of which was to suspend all contact between the father and Y. In February 2020 orders were made for Dr B to prepare a further report. The father declined to participate in the report interviews. On 18 January 2021 the third report was produced.
THE COMPETING PROPOSALS
In his Application in a Proceeding filed on 9 December 2022, the father seeks the following orders: he be permitted to tender expert reports from Mr G (“Mr G”); Dr B and Mr G be made available for cross examination; the experts and the parties be ordered to attend a conference; and an order that the joint statement may be tendered as evidence of matters agreed on and to identify the issues on which evidence will be called.
The mother and Independent Children’s Lawyer seek that the father’s application be dismissed. The mother also seeks an order that no further interlocutory applications be filed by any party without leave of the Court being first obtained and that, in any event, any such applications be listed for determination at the final hearing.
The Court notes that if the father’s application under r 7.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) fails, then the remainder of his application fails.
APPLICABLE LAW
The present application is governed by Part 7.1 of the Rules. Even though the relevant rule for present purposes is r 7.08, r 7.02 sets out the purpose of this Part of the Rules as follows:
7.02 Purpose of Part 7.1
The purpose of this Part is as follows:
(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b)to restrict expert evidence to that which is necessary to resolve or determine a proceeding;
(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d)to avoid unnecessary costs arising from the appointment of more than one expert witness;
(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if that is necessary in the interests of justice.
Rule 7.08 then provides:
7.08 Appointing another expert witness
(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2)The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and the contrary opinion is or may be necessary for determining the issue; or
(b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing evidence from another expert witness.
Rule 7.11(3) further provides:
(3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account the following:
(a) the purpose of this Part (see rule 7.02);
(b) the impact of the appointment of an expert witness on the costs of the proceeding
(c) the likelihood of the appointment expediting or delaying the proceeding;
(d) the complexity of the issues in the proceeding;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only;
(f)whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the proceeding.
There are statements in a number of cases pertinent to the issue before the Court, irrespective of whether the discussion is about valuation or expert evidence in a parenting case. In Salmon and Ors & Salmon [2020] FamCAFC 134 at [35], Kent J stated:
In my opinion, viewed in the context of s 97(3) of the Act, r 1.04 and the purpose of Part 15.5 expressed in r 15.42, the words “substantial body of opinion” in r 15.49(2) are to be given real meaning, as was the approach taken by the primary judge. The approach that the words have meaning of substance has been adopted, correctly in my view, in other decisions at first instance in this Court. The mere expression of an opinion as to value by another expert, no matter how substantially contrary it is to that of the single expert, does not in and of itself constitute “a substantial body of opinion” within the meaning of the rule. If such a contrary opinion is founded upon identified and accepted methodology recognised within the field, or some identified and recognised field of expertise different to that founding the single expert opinion, then the requirement of “a substantial body of opinion” will be fulfilled. As the Full Court observed in Chick and Chick, an expert witness may refer to textbooks and other published material to support his or her material without being forced to call the author for cross-examination. It is to be considered as one of the bases upon which the expert has formed his or her opinion.
(footnotes omitted)
It should be noted that his Honour refers to a previous iteration of an identical rule. A similar statement was made by Berman J in Macvean & Manton [2022] FedCFamC1F 376 at [24].
The father also relied on r 7.08(2)(c), which poses the question – is there a special reason for adducing evidence from the proposed expert? In Simonsen & Simonsen [2009] FamCA 698 at [12], Murphy J referred to the decision of the Full Court in Bass & Bass (2008) FLC 93-366 and said:
The general thrust of the Rules has been referred to by the Full Court in Bass & Bass (2008) FLC 93-366. As the court in that case made clear, the adducing of evidence from an additional expert, is not something which ought occur in the usual course, or simply by application made by a party. In simple terms, the word “special” as used in rule 15.49 has real meaning.
That issue was further considered by McClelland DCJ in Lambard & Lambard (No.4) [2021] FamCA 47 at [14]. Having set out the equivalent provisions in the former Family Law Rules2004 (Cth), his Honour said:
It is necessary to pay attention to the actual words used in 15.49(2)(c) being that “there is another special reason”. I have not been referred to any definition of “special reason”, however, I construe the word “special” as requiring a reason which is more than “the ordinary”: see Gyselman and Gyselman (1992) FLC 92-279 at 79,064.
The Court raised with the father the issue of cross-examining Dr B as an alternative to the granting of leave to adduce further expert evidence. In this regard, in Georgeson and Georgeson (1995) FLC 92-618 the Full Court stated at 82,218–82,219:
Expert evidence may be adduced as to the proper method to be adopted, in the circumstances of a particular case, to assist the Court in forming an independent judgment on the issue of valuation by the application of the appropriate principles. Whilst an expert may thus suggest an approach as being appropriate in a particular case, before accepting it, the Court must come to its own conclusions as to whether that approach is appropriate in the circumstances.
Ultimately, therefore, it is for the Court to determine the relevance and weight to be given to expert evidence. The father acknowledged that the various expert reports that were available to him could assist him with cross-examination even though his preference was for leave to be granted in relation to further expert evidence.
The question of the additional cost to the parties of the Court permitting further expert evidence was a part of both the mother and Independent Children’s Lawyer’s case opposing the granting of leave. Kent J observed in Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521 at [26]:
In any case where a single expert has been appointed, allowing another party to tender evidence from another expert on the same issues creates an imbalance. That is, only one party may have what may be described as an adversarial expert, whilst the other party has only the evidence of the single expert who has acted within the constraints, in terms of instructions, as provided for in the Rules. The further possibility is the other party seeking to have their own expert to redress that perceived imbalance, undermining the original purpose of appointing a single expert; that is, to avoid a “battle of the experts”.
(footnotes omitted)
This Court agrees with the comments made by Strum J in Smyth and Smyth (No 2) [2022] FedCFamC1F 551 that the three bases specified in r 7.08(2) should be considered both jointly and severally. Moreover his Honour said at [38] that the Court should:
…take into account the core principle 8(d) in paragraph [3.13] of the Family Law Case Management Central Practice Direction, namely, that issues in a case are to be narrowed to those genuinely in dispute and, in particular, that when appropriate a single expert should be engaged (as has been the case here) to assist the parties and the Court to resolve disputes. That will not be in any way furthered by the appointment of an adversarial expert, in addition to the single expert.
(As per the original)
EVIDENCE
In support of his case, the father relied on the following documents:
(a)Application in a Proceeding filed 9 December 2022;
(b)His affidavit filed 9 December 2022; and
(c)Case outline filed 20 January 2023.
In support of her case, the mother relied on the following documents:
(a)Response to an Application in a Proceeding filed 13 January 2023;
(b)Her affidavit filed 13 January 2023;
(c)Single Expert Report prepared by Dr B dated 30 January 2015 (“the first report”);
(d)Single Expert Report prepared by Dr B dated 24 October 2016 (“the second report”);
(e)Single Expert Report prepared by Dr B dated 18 January 2021 (“the third report”); and
(f)Case outline filed 20 January 2023.
In support of their case, the Independent Children’s Lawyer relied on the following documents:
(a)Case outline filed 20 January 2023.
DISCUSSION
With respect to the father, who was representing himself but is undoubtedly an intelligent and articulate man, the depth of his enmity towards both the evidence of the current single joint expert, and the expert personally, is clearly apparent. He may have allowed his emotion to distract himself from the legal principles that needed to be addressed. The Court understands his concern about the intensity of these proceedings from his perspective, and how hard it must be for him not to spend time or communicate with his daughter.
The father consented to the appointment of Dr B and, indeed, chose him at a time when he was legally represented. When the second report was prepared, the father opposed it, but the Court ruled against him and there was no appeal against that order. The father had the opportunity to participate in the interviews for the third report, but declined.
The father seeks to rely on a report dated 4 January 2015 prepared by Mr G. He is not on affidavit. The letter of instruction to Mr G is not before the Court. Thus, the Court is uncertain as to the purpose of the report. The documents provided to him are listed at paragraph 3 of his report, but the father is unable to confirm to the Court that the same information was provided to Mr G as to Dr B. It is self-evident from the report that only the father was interviewed.
One of the distinctive features between Mr G’s report and the existing single joint expert reports is that the former undertook psychometric testing in the form of the Minnesota Multiphasic Personality Inventory-2 Restructured Format. Somewhat curiously, despite the warning emanating from the algorithmically generated interpretive report that raised concerns “…about the possible impact of over-reporting on the validity of this protocol”, Mr G did “…not regard this putative qualification as being of any import in this matter.” The Court understood this to be related to impression management in the form of, for example, exaggeration. If this is the case, this somewhat weakens one of the features of Mr G’s report that purports to differentiate it from that of the single expert, because he did not rely on it. This creates the impression, therefore, that both experts relied on the material that was placed before them, their observations (limited in the case of Mr G) and experience.
Mr G’s report is, for the most part, a critique of the one report that had been prepared by the single joint expert as at that time. This critique has no greater capacity to assist the Court than would an effective cross-examination of the single expert covering the same subject matter. The critique may well be in response to the letter of instruction, otherwise it is hard to see why Mr G would critique the existing single expert report.
From the Court’s perspective, an important issue is whether the father breached s 121 of the Family Law Act 1975 (Cth) (“the Act”) by providing the first report by Dr B to Mr G. When asked whether this had been permitted by Court order, the father explained that he thought it was but could not point specifically to the date of the order. Senior counsel for the mother indicated on instructions that there was no such order. The Court’s review of its orders made after the release of the first single expert report confirms this. Section 121(1) of the Act states that a person who disseminates to a section of the public any account of any part of the proceedings which identifies a party to the proceedings commits an offence. There is no doubt that the single export report constitutes an account of any part of the proceedings, and that Mr G is a section of the public. Section 121(9) of the Act provides for a number of exemptions to the application of the provision. None of those seem applicable on the present facts. The penalty prescribed for breach of s 121 is conviction by imprisonment for a period not exceeding one year. On the order releasing the report there is a reference to s 121 of the Act and a warning.
It is important to recognise that r 7.08(2) grants the Court discretion to allow a party to tender a report or adduce evidence from another expert witness. For present purposes, any possible breach under s 121 of the Act is no more than a relevant discretionary factor.
DECISION
As the Court could not be taken to any specific order which authorised the father to provide a copy of the expert report to Mr G, this is a strong discretionary factor contra-indicating the granting of permission for the purposes of Part 7 of the Rules.
The inherent utility and benefit of granting leave to the father, as well as any benefit to the Court, is very much minimised by the fact that there were two later expert reports not in existence at the time of Mr G’s report. The absence of letters of instruction, and the uncertainty about whether there was a correspondence between the materials placed before both experts, also raise doubts about utility and benefit. The observations made by Mr G in relation to the father are over eight years old. The forensic value of these observations is thus limited. The disadvantage to the father is mitigated by the fact that he can still cross-examine the single expert using the matters identified in Mr G’s report.
The Court is not satisfied that Mr G’s report constitutes a substantial body of opinion contrary to the opinion given by the existing expert. Mr G merely expresses another opinion and, with respect, purports to do so without the benefit of the observations made by the existing expert, as well as the material before him. For example, it is apparent from Dr B’s reports that he had a range of subpoenaed material from which to draw, and it is equally apparent that Mr G did not.
The Court is not satisfied that Mr G knows of matters not known to the single expert that may be necessary for determining the issue. Indeed, the inference is that he had less information, not more, and to the extent that he administered psychometric testing, it is far from clear that he relied on this, so it does not constitute a differentiating factor.
The Court is not satisfied that there is another special reason for adducing evidence from another expert witness. The concerns raised by the father in relation to the past proceedings, and the current proceedings to date, do not constitute a special reason.
The Court is satisfied that the granting of permission is likely to add to both the length and the cost of the final hearing and deliver no measurable benefit either to the father, or to the Court.
The application should be dismissed.
OTHER MATTERS
On 30 September 2022, the father was granted leave to pursue his present application in the following terms:
3.Within 42 days of the date of these orders, the Respondent is to file and serve an Application in a Proceeding and supporting affidavit outlining his application as to expert evidence on which he seeks to rely, his application seeking to remove Ms Rutkowska as the Independent Children’s Lawyer and his application that the provisions of the Evidence Act 1995 (Cth) apply to these proceedings (“the applications”).
In effect, he was granted leave to raise three issues: an application to remove the Independent Children’s Lawyer; an application for the provisions of the Evidence Act 1995 (Cth) to apply to the proceedings; and an application in relation to expert evidence. He only pursued the latter but foreshadowed in the material he filed, and during submissions, that he intended to make a separate application in relation to the Independent Children’s Lawyer, indeed describing this as “absolutely critical”.
During submissions it became apparent to the father that despite his intention to commission Mr G to prepare a more recent, and arguably more extensive, relevant and useful report, he had not done so and was thus not in a position to include this prospective report in his present application. He foreshadowed a further application in this regard.
In her material, as well as in previous applications, the mother sought an order that no further applications be filed by any party without the leave of the Court being first obtained and that, in any event, any such applications be listed for determination at the final hearing.
The father has had ample opportunity to make an application in relation to the Independent Children’s Lawyer, but has failed to do so even when explicitly granted leave in this regard. None of the matters that he refers to in his material, or that he referred to in submissions, adequately explain why the application was not brought either before the orders made 30 September 2022, or thereafter.
The father’s contention in submissions that any such application will not delay the final hearing regrettably seems to create the impression that he believes that this Court has ample capacity to list, hear and determine his applications. The father is but one litigant in this Court, and the Court must consider the interests of all litigants, and not just one.
Rule 1.04 describes that the overarching purpose of the Rules, consistent with s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and effectively as possible. Parties to proceedings must conduct proceedings in a way that is consistent with the overarching purpose. The father has not acted consistently with the overarching purpose.
The Court file indicates that the father has filed 11 Applications in a Case, or Applications in a Proceeding in this matter since it commenced in 2014. Doing the best the Court can, eight of these have been dismissed. The father filed 19 separate Notices of Objection to Subpoena to date, all of which have been dismissed.
In the circumstances, a restraint in terms of that proposed by the mother will be made. Any further applications would potentially delay the final hearing in this long running matter.
Any costs application arising out of the determination of the present application is to be dealt with in chambers by way of written submissions. Directions will be made if sought.
ORDERS
The Application in a Proceeding filed 9 December 2022 is dismissed.
The father cannot, except with the leave of the Court granted by a Senior Judicial Registrar or Judge, file any Application in a Proceeding, any Notice of Objection to a Subpoena, or any interim orders sought in an Amended Application or Response, pending the final hearing of this matter.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 15 March 2023
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