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…
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- AGLC
- Vader & Dantes (No 2) [2023] FedCFamC1F 148
- Case
- [2023] FedCFamC1F 148
- Decision Date
CaseChat Overview and Summary
The case of Vader & Dantes (No 2) involved an application by the father, Mr Dantes, seeking to tender expert evidence in ongoing parenting proceedings concerning his daughter, Y. The matter was before the Court, which had to determine whether Mr Dantes should be permitted to adduce expert evidence from Mr G, in addition to the existing single joint expert, Dr B. The mother, along with the Independent Children’s Lawyer, opposed the application. The Court had to weigh the father's concerns about the proceedings against the principles of efficient case management and the need to avoid unnecessary delay and expense.
The legal issues before the Court centered on the discretion granted under r 7.08(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which allows the Court to permit a party to tender a report or adduce evidence from another expert witness. The Court had to consider whether the father’s application met the criteria set out in r 7.08(2), specifically whether the evidence was necessary to resolve an issue genuinely in dispute, and whether there was a special reason justifying the appointment of another expert. The Court also had to balance the potential benefits of the father’s application against the principles of case management, including the need to narrow issues genuinely in dispute and avoid unnecessary delay and expense.
The Court found that the father’s application did not meet the criteria for permitting the adducing of evidence from another expert. It found that the father had not demonstrated that Mr G's report constituted a substantial body of opinion contrary to that of Dr B. The Court also noted that Mr G's report was based on information that was not provided to Dr B, and that the father had not explained how this additional information would be beneficial. Furthermore, the Court was concerned that granting the father's application would add to the length and cost of the final hearing without providing any measurable benefit. The Court concluded that the application should be dismissed.
The Court's decision was grounded in the principles of efficient case management and the need to avoid unnecessary delay and expense. It emphasised the importance of narrowing issues genuinely in dispute and engaging a single expert where appropriate. The Court also highlighted the potential for additional expert evidence to increase the length and cost of the final hearing without providing any measurable benefit. As a result, the Court dismissed the father’s application, finding that it did not meet the criteria set out in r 7.08(2) of the Rules.
The legal issues before the Court centered on the discretion granted under r 7.08(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which allows the Court to permit a party to tender a report or adduce evidence from another expert witness. The Court had to consider whether the father’s application met the criteria set out in r 7.08(2), specifically whether the evidence was necessary to resolve an issue genuinely in dispute, and whether there was a special reason justifying the appointment of another expert. The Court also had to balance the potential benefits of the father’s application against the principles of case management, including the need to narrow issues genuinely in dispute and avoid unnecessary delay and expense.
The Court found that the father’s application did not meet the criteria for permitting the adducing of evidence from another expert. It found that the father had not demonstrated that Mr G's report constituted a substantial body of opinion contrary to that of Dr B. The Court also noted that Mr G's report was based on information that was not provided to Dr B, and that the father had not explained how this additional information would be beneficial. Furthermore, the Court was concerned that granting the father's application would add to the length and cost of the final hearing without providing any measurable benefit. The Court concluded that the application should be dismissed.
The Court's decision was grounded in the principles of efficient case management and the need to avoid unnecessary delay and expense. It emphasised the importance of narrowing issues genuinely in dispute and engaging a single expert where appropriate. The Court also highlighted the potential for additional expert evidence to increase the length and cost of the final hearing without providing any measurable benefit. As a result, the Court dismissed the father’s application, finding that it did not meet the criteria set out in r 7.08(2) of the Rules.
Orders
Orders of the court
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Background
Background to the litigation
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
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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”).
Ratio Decidendi
Legal Principle Established
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