Walerand and Walerand
[2017] FamCA 411
•9 June 2017
FAMILY COURT OF AUSTRALIA
| WALERAND & WALERAND | [2017] FamCA 411 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Single expert – Where the father seeks to rely on another expert witness in a parenting matter – Where the single expert has already released a report – Where the single expert did not interview the children individually or observe them with each parent – Orders made for joint letter of instruction for single expert to provide updating report after further interviews have taken place. |
| Family Law Act 1975 (Cth) s 60CC Family Law Rules 2004 (Cth) rr 15.49, 15.52 |
| Bass & Bass (2008) FLC 93-366 Bowen & Williams [2015] FamCA 545 Gyselman and Gyselman (1992) FLC 92-279 |
| APPLICANT: | Mr Walerand |
| RESPONDENT: | Ms Walerand |
| INDEPENDENT CHILDREN’S LAWYER: FILE NUMBER: | Crawford Rya SYC | Ryan Lawyers 4651 of 2014 |
| DATE DELIVERED: | 9 June 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 2 May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton SC |
| SOLICITOR FOR THE APPLICANT: | Price & Company Solicitors & Attorneys |
| COUNSEL FOR THE RESPONDENT: | Mr Miller |
| SOLICITOR FOR THE RESPONDENT: | Fox & Staniland Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Crawford Ryan Lawyers Pty Ltd |
Orders
The parties and the Independent Children’s Lawyer are to confer for the purposes of preparing a joint letter of instruction to Dr B, the Single Expert, who has been appointed in the parenting proceedings, requesting that Dr B provide an updated report following:
(a)Dr B conducting further interviews with each of the parents attending separately upon him and, in each instance, the children being in attendance with that parent; and
(b)conducting further interviews with each of the children in the absence of the parents.
If, within fourteen (14) days of the date of these Orders, the parties and the Independent Children’s Lawyer have been unable to agree on the contents of the joint letter of instruction to Dr B, then upon the provision of seven (7) days’ notice to the other parties and to the Court, either party or the Independent Children’s Lawyer may request that the matter be re-listed for the purposes of settling the instructions which are to be provided to Dr B.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walerand & Walerand has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4651 of 2014
| Ms Walerand |
Applicant
And
| Mr Walerand |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are seeking final parenting and property orders pursuant to Parts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”). The proceedings have been listed for final hearing for five days commencing on 4 September 2017. This decision concerns the parenting aspect of the proceedings and, specifically, an application by the father for orders permitting him to rely upon an adversarial expert report and for orders permitting that adversarial expert to give evidence in the final proceedings.
The father’s application is made in the context where, by consent, the Court has previously appointed a single expert, Dr B, to provide a Chapter 15 report in respect to parenting matters. In accordance with those orders, Dr B has provided a report dated 8 February 2017.
The father seeks orders to permit him to rely upon a report of Dr C dated 24 April 2017, together with a further letter of Dr C dated 27 April 2017. The father also applies for orders permitting the father to adduce evidence from Dr C at final hearing. Dr C described his report as a “Shadow Expert Report” prepared at the request of the solicitors for the father.
The father’s application
By Application in a Case tendered as Exhibit “H1” in the proceedings, the father sought the following orders:
1. That, pursuant to Rule 15.52 of the Family Law Rules, leave be granted to the [father] to adduce and rely upon the opinion of [Dr C] dated 24 April 2017 and by way of further letter dated 27 April 2017, in these proceedings.
2. That, pursuant to Rule 15.69 of the Family Law Rules, a conference occur between [Dr B] and [Dr C] and the experts produce a memorandum as to the matters listed in Rule 15.69(3) by way of a joint statement.
In support of that application the father relied upon his affidavit filed 28 April 2017 and an affidavit of the father’s solicitor, Ms D, also filed 28 April 2017. The affidavit from Ms D attaches the report of Dr C dated 24 April 2017, a consequent letter sent by the solicitors for the father to Dr C dated 27 April 2017, and a reply to that letter from Dr C dated 27 April 2017.
Relevant rules
Chapter 15 of the Family Law Rules 2004 (Cth) (“the Rules”) sets out a detailed regime in respect to expert evidence. The following rules are of greatest relevance.
The application in this matter is for orders pursuant to r 15.52. That rule provides:
15.52 Application for permission for expert witness
(1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case.
Note 1: A party who files an Application in a Case must, at the same time, file an affidavit stating the facts relied on in support of the orders sought (see subrule 5.02(1)).
Note 2: The court may allow a party to make an oral application (see paragraph (h) in item 3 of Table 11.1 in rule 11.01).
(2) The affidavit filed with the application must state:
(a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness’s evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
(f) the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and
(g) whether there is any previous connection between the expert witness and the party.
(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:
(a) the purpose of this Part (see rule 15.42);
(b) the impact of the appointment of an expert witness on the costs of the case;
(c) the likelihood of the appointment expediting or delaying the case;
(d) the complexity of the issues in the case;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and
(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 case.
(4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.
Note: Despite an order under this rule, a party is not entitle (sic) to adduce evidence from an expert witness if the expert’s report has not been disclosed or a copy has not been given to the other party (see rule 15.58).
It was submitted by senior counsel for the father that, while the application was asserted to have been made under r 15.52, the Court’s power to grant the orders is, in fact, pursuant to r 15.49 which provides:
15.49 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 that the contrary opinion is or may be necessary for determining the issue;
(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.
Consideration
Operation of the relevant rules
There is an inconsistency in attempting to simultaneously rely upon both r 15.52 and r 15.49 because they are directed to two different situations.
Rule 15.52 applies in circumstances where a party wishes to call evidence from an expert in circumstances where, in respect to a particular issue, there is not already expert evidence before the Court concerning that issue.
On the other hand, r 15.49 applies in circumstances where there is already a single expert witness who will give evidence concerning an issue, and a party wishes to call another expert to give evidence regarding that particular issue.
Counsel for the mother argued, with some substance, that the father’s application was correctly framed as one falling within r 15.52 because it concerns an application to rely on the report of Dr C dated 24 April 2017 and the further letter dated 27 April 2017, both of which, it was submitted, focus upon the report of Dr B, rather than the subject matter of that report. That is, it was submitted, that the report and further letter of Dr C focus upon the methodology adopted by Dr B to arrive at his conclusions and recommendations rather than the matters that the Court should take into consideration in determining what orders should be made in the best interests of the children.
In response, senior counsel for the father argued that it is artificial and unnecessary to attempt to make such a distinction.
As will be explained, Dr C primarily focussed on the methodology adopted by Dr B. There are, however, parts of the Dr C’s report where he does provide his opinion in respect to matters concerning the best interests of the children. On that basis, I will accede to the request by senior counsel for the father to consider the father’s application pursuant to r 15.49. In addressing those matters set out in r 15.49(2) it is necessary to have regard to the Report and further letter and of Dr C.
The report and further letter of Dr C
In his letter dated 27 April 2017, Dr C summarises his conclusions as follows:
In relation to my conclusions in respect of [Dr B’s] opinions about the listed issues, overall I am of the view that in the areas upon which I comment critically, [Dr B’s] opinions do not achieve the purpose for which he was appointed by the Court, and the Court probably cannot be meaningfully assisted by the report.
In my view the primary reason for this is that [Dr B] has not seen the children as a group with each of the parents, nor conducted interviews with each of the children alone.
The areas upon which Dr C “comments critically” are set out in his report dated 24 April 2017. After an introduction, the report is structured in two parts. The first part of the report is prepared under the following subheadings:
a) Qualifications of the Expert
b) Methodology of the report
c) Structure of the report
d) Conclusions
The second part of the report addresses the opinions expressed by Dr B and is dealt with under the following subheadings which have been adopted from Dr B’s report:
1. Risk to the children
2. Children’s views
3. Relationships
4. Facilitation of the relationship with the other parent
5. Change of circumstances
6. Parenting capacity
7. Attitude to parenthood
8. The effect of family violence
9. Equal or substantial time option
10. Mental state of the parents
11. The mental health and special needs of the children
While those subheadings suggest that Dr C has addressed matters relevant to the Court’s consideration of the best interests of the children and, specifically, matters set out in s 60CC of the Act, a reading of the report reveals that, with limited exceptions, the focus of Dr C’ attention is again on the methodology adopted by Dr B and the conclusions he reaches as a result of adopting and applying that methodology. On several occasions, Dr C also speculates as to whether Dr B would have arrived at different conclusions had he adopted a different methodology.
The limited exceptions where Dr C has actually commented upon the subject matter of Dr B’s report, that is, those considerations that should be taken into account when determining the best interests of the children, are as follows:
· On page 7:
I agree that it appears that the weekend visits seem to have gone forward consistently, which suggests that the mother has been encouraging towards the visits. However the father’s allegations suggest that there also could be a much more damaging process of undermining his relationship with the children going on as well. This is not uncommon in high conflict cases. Indeed some parents can be quite determined to be seen to be holding to the letter of the orders for less than altruistic reasons, such as the property settlement.
…
I agree that the orders that the father is seeking, which are essentially that the children live with him and do not see the mother for the first six months, would raise issues. These include the views that the children are alleged to have expressed their father, what is likely to be a quite strong relationship with their mother, and their age and capacity to act independently, for instance running away to their mother’s home to the detriment of all concerned.
· On page 8:
The father’s allegation that the mother is not supporting his relationship with the children is potentially very serious. This is a matter which is quite common in high conflict cases and which typically is a strong predictor of a poor outcome in terms of the sustainability of the children’s relationship with the other parent.
…
I basically agree with [Dr B’s] opinion about the inadvisability of separating the children from either of the parents, although in my view his opinion that incremental increases in the children’s time with their father would be tolerated by them, may well be unduly optimistic.
…
[Dr B] is probably largely correct in relation to the mother’s parenting capacity although if he were to found that the mother was undermining the children’s relationship with their father, then this should have been recorded as a detrimental aspect of her parenting capacity.
…
I agree that the mother seems to have been very committed to the children’s education, extracurricular activities and general needs. It is also possible that [Dr B] is correct in his comments in relation to the father, but again in my view I think he would have had a firmer base for these conclusions had he obtained or composite history about each of the children and had been seen with the children.
· On page 9 Dr C agrees that the opinion of Dr B that family violence is not a material consideration in this matter is reasonable, and in relation to equal or substantial time states:
If the father’s allegations about the children’s behaviour are substantially correct, then it is likely that they also reflect problems in the parents’ capacity to implement such an arrangement and communicate with each other, particularly from the mother’s side.
Addressing the matters set out in r 15.49(2)
Paragraph (a) of r 15.49(2) requires the Court to consider whether there is a substantial body of opinion contrary to any opinion given by Dr B and whether that contrary opinion is or may be necessary for determining the issue.
The opinions expressed by Dr C are his own. Dr C does not refer to a “substantial body of opinion” or what that substantial body of opinion is. Accordingly, the father has failed to satisfy me that this consideration applies.
Paragraph (b) of r 15.49(2) requires the Court to consider whether another expert witness, in this case Dr C, knows of matters not known to the single expert witness, in this case Dr B, that may be necessary for determining the issue.
On page 3 of his report Dr C expresses the view that Dr B’s expertise as a child and family forensic psychiatrist “would be almost unique” within the professional range of experts who may be called upon to provide expert evidence in relation to assessing the mental health of the children and the parents, technical aspects of parenting, and the weight to attach to the children’s views. Dr C further expresses the view that Dr B’s qualifications “are certainly adequate to address at least in large part, all of the matters that he was asked to consider.”
In his report and further letter, Dr C does not suggest that he is possessed of knowledge of matters above and beyond the knowledge of Dr B. There is no other evidence before the Court that satisfies me that is the case. Accordingly, the father has failed to show that this consideration applies.
Paragraph (c) of r 15.49(2) requires the Court to consider whether there is “another special reason” for adducing evidence from another expert witness.
In Bowen & Williams [2015] FamCA 545 Tree J said:
20. There is no definition of “special reason” in the Rules. However some guidance can be obtained by the use of the word “another” in sub-rule (c), which necessarily casts attention upon (a) and (b), which as a matter of construction, therefore must be taken to be illustrations of special reasons. Sub-rule (a) is that there is a substantial body of contrary opinion, sub-rule (b) is that the other expert knows of matters not known to the single expert that may be necessary for determining the issue. Both of these point to something more being needed than merely the existence of a different or contrary opinion advanced by the other expert.
21. The word “special” is relevantly defined in the Oxford English Dictionary as “unusual, out of the ordinary…”
The approach of Tree J is consistent with the decision of the Full Court in Gyselman and Gyselman (1992) FLC 92-279. In that case, the Full Court considered the phrase “in the special circumstances of the case” as referred to in s 117(2) of the Child Support (Assessment) Act 1989 (Cth). The Full Court said, in that respect, that “special circumstances” were “facts peculiar to the particular case which set it out from other cases”.[1]
[1] Gyselman and Gyselman (1992) FLC 92-279 at 79,065 referring to Kay J in Savery and Savery (1990) FLC 92-131 at 77,897.
It is appropriate, in my view to take a similar approach in construing the phrase “special reason” in r 15.49(2)(c).
The special reason identified by the father, which he says justifies the Court making an order appointing Dr C as another expert witness, is submitted to be the fact that the Court cannot be meaningfully assisted by the report of Dr B. This, it was contended, is primarily because Dr B has not seen the children as a group with each of the parents nor conducted interviews with each of the children alone.
The father is certainly entitled to cross examine Dr B in respect to these matters and to make such submissions as he considers to be appropriate in respect to the alleged deficiencies in Dr B’s report. However, the fact that Dr C, in preparing a shadow expert report, has criticised the methodology adopted by Dr B does not in my view constitute a special reason justifying an order enabling the father to rely on the reports of Dr C or to call him as an adversarial witness.
Further, those limited instances where Dr C provides an opinion in respect to those matters the Court is required to consider pursuant to s 60CC of the Act, are not of such significance that they establish special circumstances.
Another relevant matter to the exercise of my discretion is the fact that Dr C’ report does not alleviate the concerns raised by the father regarding Dr B’s failure to see the children as a group with the parents or conduct interviews with each of the children alone. Indeed, Dr C’s report suffers from the same flaws that he identifies in respect to Dr B’s report. The orders sought by the father do not address the father’s concerns that the Court is without an expert’s opinion informed by interviews with the children individually and observations of the children with each parent.
In that context, it is appropriate to note that there are other mechanisms in the rules for clarifying matters contained in an experts report. In Bass & Bass (2008) FLC 93-366 at 82,487, the Full Court said:
First, Division 15.5.6 of Part 15.5 provides a procedure for clarifying matters contained in a report prepared by a single expertwitness. It was confirmed before us that that procedure had not so far been employed in this case. While we acknowledge that procedure may only be of limited assistance to the father given the nature of his complaints, we are nevertheless, of the opinion that that procedure ought to have been attempted before the application was made to Steele J, or to this Court.
Senior counsel for the father submitted that there would be no utility in seeking clarification from Dr B in respect to the matters referred to in his report. This, it was submitted, was because Dr B adopted a fundamentally flawed methodology. It was further submitted that there would be no utility in seeking such clarification because the parties are seeking parenting orders that are diametrically opposed.
The fact that the parties are seeking opposing orders does not justify disregarding the mechanisms that are available in the Rules to seek clarification of matters contained in an experts report. In the circumstances of this case, it is appropriate that I act in accordance with the guidance provided by the Full Court in Bass & Bass (supra). Accordingly, in the context of the concerns raised by the father, I propose making orders facilitating the preparation of an updated report by Dr B after he has conducted further interviews with the parents and the children.
In that context, I note that the Independent Children’s Lawyer (“the ICL”) also expressed concern that Dr B had not seen the children as a group with each of the parents, nor conducted interviews with each of the children alone. The ICL submitted, however, that before considering the father’s application to appoint another expert witness, steps should be taken to arrange for further interviews to take place with Dr B.
I respectfully agree with the proposal by the ICL and will make orders providing for the parties to confer for the purposes of preparing a further letter of instruction for Dr B to provide an updated report after those interviews have taken place.
In those circumstances, I will dismiss the father’s application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 9 June 2017.
Associate:
Date: 9 June 2017
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