WARSOW & WARSOW
[2009] FamCA 1037
•29 October 2009
FAMILY COURT OF AUSTRALIA
| WARSOW & WARSOW | [2009] FamCA 1037 |
| FAMILY LAW – CHILDREN – expert evidence – application for appointment of single expert refused – in the alternative leave given pursuant to r15.49 to appointment another expert |
| Family Law Rules 2004 r 15.42, (e), r 15.45(1), (2), r 1.04, Pt 15.5 |
| Re: W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Gemmell & Gemmell [2009] FamCA 29 |
| APPLICANT: | Mr Warsow |
| RESPONDENT: | Ms Warsow |
| FILE NUMBER: | (P)NCC | 1857 | of | 2007 |
| DATE DELIVERED: | 29 October 2009 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATE: | 19 October 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr B Kelly |
| SOLICITOR FOR THE APPLICANT: | Emery Partners |
| COUNSEL FOR THE RESPONDENT: | Mr I Duane |
| SOLICITOR FOR THE RESPONDENT: | Mullane & Lindsay |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Mr A Scally |
Orders
That the father’s application to appoint Dr B as a single expert as contained in his application in a case filed 3 August 2009 is dismissed.
That the father has leave to file in his case an affidavit from Dr B which addresses:
(a)the cognitive capacity of children of the age of the child J,
(b)the contamination of evidence by young children by the use of leading questions; and
(c)the contamination of evidence of young children by the use of multiple interviews.
That the Director of Child Dispute Services at this Registry shall cause copies of the notes taken by Family Consultant C of her interviews with the child to be made available to the parties’ lawyers and Independent Children’s Lawyer.
The parties’ solicitors and the Independent Children’s Lawyer are restrained from providing copies of the notes produce pursuant to the above order to any person other than an expert appointed pursuant to the Family Law Rules 2004.
That the mother may call evidence from Ms G and Ms O.
In the event that either Ms G or Ms O fails or declines to provide an affidavit in chief the mother has leave to issue a subpoena to either or both of them to attend and also to call evidence in chief orally from such witness.
That within 21 days the mother serve upon the father’s solicitors and the Independent Children’s Lawyer a proof of the evidence in chief it is intended to adduce from Ms G and Ms O.
IT IS NOTED that publication of this judgment under the pseudonym Warsow & Warsow is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC1857 of 2008
| MR WARSOW |
Applicant
and
| MS WARSOW |
Respondent
and
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
By his application in a case filed on 3 August 2009, Mr Warsow (the father) applied for permission pursuant to r 15.45(1) of the Family Law Rules 2004 for an order appointing a psychologist, Dr B, as a single expert witness. This application is brought in the context of contested parenting proceedings.
The parties have one child, J, who will shortly be five years old. Within the context of ordering the child’s future living arrangements, an important if not pivotal issue is whether by being in the father’s presence the child would be exposed to an unacceptable risk of sexual abuse by him. As I understood the issues, Ms Warsow (the mother) contends that the father has sexually abused the child. Although at this stage the position is unclear the Court may be invited to make a positive finding to this effect.
Presently, pursuant to interim orders, the child spends supervised time with the father at a contact centre.
The father denies sexually abusing the child or that there is an unacceptable risk he may do so.
It is immediately apparent that the issues in this case are grave with an erroneous risk assessment or finding by the Court may result in either the child being exposed to a serious risk of abuse or wrongly deprived of a proper relationship with a parent. On either scenario an erroneous conclusion would potentially have catastrophic consequences for the child. These cases are always difficult. Absent eye witness corroboration, when very young children are involved the Court’s task is particularly onerous.
Because of the complex issues raised in the case an Independent Children’s Lawyer has been appointed to represent the child’s interests.
The parties and Independent Children’s Lawyer appointed Dr M as a single expert. Dr M is a child, family and adult psychiatrist. As well as necessary medical qualifications and training he holds positions in academia and professional psychiatric associations. Against this background and I infer, having satisfied themselves that Dr M possessed the necessary expertise, they agreed he would investigate and report upon the following matters:
a)A psychiatric assessment of the parties, with consideration to any mental health issues that may impinge upon the parent’s ability to care for the child.
b)The allegations of sexual abuse of the child;
c)The benefit to the child having a meaningful relationship with both parties;
d)Any child protection issues, including the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect of family violence and the parties ability to so protect the child.
e)Any views expressed by the child and any factors relevant to the weight to be given to those views.
f)The nature of the relationship (including an assessment of bonding and attachment) of the child with the parties and, if applicable, other persons (including any partners of the parties and relatives of the children).
g)The willingness and ability of the parties to facilitate and encourage a relationship between the child and the other party, together with the willingness and ability of the parties to protect the child from any parental conflict.
h)The likely effect on the child of any changes to her living arrangements.
i)The parenting capacity of the parties, including their capacity to provide for the needs (physical, emotional and intellectual) of the child, together with the capacity of the parties to prioritise the needs of the child above their own.
j)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the parties.
k)The attitude to the child and to the responsibilities of parenthood demonstrated by the parties.
l)Any other matter the single expert considers relevant.
In his report dated 7 April 2009, concerning the allegations of sexual abuse, Dr M’s opinion is probably most clearly stated at par 107. Dr M there said:
If it was held by the Court that the mother’s statements regarding [the child’s] disclosures and behaviours were factual, it is my view that it is probable that [the child] had been sexually abused by her father. This was strongly supported by her clear statements to the family consultant and myself. [The child] had provided details to the family consultant in a manner which was seen to be consistent and reliable. During the course of my interview, [the child] was less reliable, asserting that she had not seen her father since residing with him. She initially denied that she had seen him at the [Children’s Contact] Centre. She initially stated that she had been unaware that she was to attend the assessment, before correcting herself and acknowledging that she had been told this by her mother. Numerous other inconsistent statements were identified. This was age appropriate, yet raised concerns regarding the veracity of her statements.
By letter dated 31 July 2009, albeit out of time, the father’s solicitors asked Dr M questions in relation to his report. The questions focused upon the sexual abuse issue and included the matters in relation to which the father now proposes further expert evidence is adduced. By letter dated 1 September 2009 Dr M answered the father’s questions. At this stage the submissions did not identify any suggested deficiency in his reply.
In his application in a case the father proposed that another single expert prepare a report in relation to the following issues:
a)The cognitive capacity of children of the age of the child J.
b)The contamination of evidence of young children by the use of leading questions.
c)The contamination of evidence of young children by the use of multiple interviews.
It appears to be common ground that having regards to the age of the child these are matters upon which the Court would benefit if expert evidence was adduced. Summarised counsel for the mother and the Independent Children’s Lawyer in effect submitted that Dr M has adequately addressed these topics and that further evidence is unnecessary.
As I understood the submission made by counsel for the father, the area of expertise required for exploration of these issues is that of a psychologist and is not within the expertise of a child and family psychiatrist, no matter how well qualified the later may be. Thus even if Dr M purported to give evidence on the matters under consideration this was beyond his expertise. According to the submission there is thus no expert evidence on this point before the Court. In support of this contention, and by way of example, counsel for the father referred me to research work and publications undertaken by S. Ceci & M. Bruck. I agree with counsel that their work in relation to children’s memories and suggestibility is well known. The gravamen of the submission was that as Ceci & Bruck are psychologists it follows that issues relating to the cognitive development of children J’s age and suggestibility of young children’s memory falls within the domain of psychology and not psychiatry. This submission is flawed. It does not follow that if I accept that an appropriately qualified psychologist or clinical psychologist has the necessary expertise to express an admissible opinion on these matters it must follow that this expertise is exclusively the domain of psychologists. In forming this view I am bolstered by the absence of support for the proposition in Dr B’s affidavit.
In my experience the types of matters which the father seeks to introduce are matters upon which experts with qualifications akin to those held by Dr M routinely express opinions. As I said earlier at least by implication, indeed it could be argued explicitly, the parties and Independent Children’s Lawyer invited Dr M to consider these issues when he was asked to investigate and explore the sexual abuse allegations, point (b) on the letter of instruction and, the child’s views and maturity point (e). It follows that they represented to each other and the Court that they were agreed he had the necessary expertise to address these issues.
Counsel for the father submitted that the Court would be concerned that Dr M, even if the Court was satisfied these matters came within his expertise, had nonetheless failed to consider the ramifications which arise from the child’s age, that she was either repeatedly questioned or these matters appeared with abnormal frequency in her conversation, that she had been questioned using leading questions, and other matters going to the issue of contamination of her memory and alleged disclosures. In response counsel for the mother submitted that a reading of Dr M’s report as a whole demonstrated that he was alive to each of these matters and, albeit adopting language different to that used by counsel for the father, had considered these factors in reaching his conclusion. I accept counsel for the mother’s submission that on the face of Dr M’s report this appears to be correct. Whether he did so adequately is an issue for the final hearing.
The relevant rule for the appointment of a single expert is r 15.45(2). This rule is to the effect, that when the Court is considering an application for the appointment of a single expert, the Court may take the following matters into account:
(a)the main purpose of these Rules (see r 1.04) and the purpose of this Part (see r 15.42);
(b)whether the expert evidence on a particular issue is necessary;
(c)the nature of the issue in dispute;
(d)whether the issue falls within a substantially established area of knowledge; and
(e)whether it is necessary for the court to have a range of opinion.
The purpose of Pt 15.5 (expert evidence) is contained in r 15.42. This rule is to the following effect:
(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 case;
(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; and
(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 necessary in the interests of justice. [my emphasis]
Reference in r 15(45(2) to necessity, when considered in the context of Dr M’s report and letter dated 1 September 2009 leads me to conclude that additional evidence of the type the father would seek to adduce from a psychologist appointed as a single expert would not be appropriate. Self evidently there can be but one single expert and on these issues the parties appointed Dr M. Whether at the conclusion of the case his evidence withstands challenge is an entirely different matter. Thus the father’s application to appoint another single expert will be dismissed.
This outcome raises the question of whether consistent with r 15.42(e) it is in the interests of justice that pursuant to r 15.49 the father is granted permission to adduce evidence from another expert as part of his case.
Rule 15.49 is set out below:
(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
It is the father’s alternative proposal that he be given leave to adduce evidence from Dr B, who is a clinical and forensic psychologist, and whose curriculum vitae identifies that he is the Director of the Australian Institute of Forensic Psychology. Attached to Dr B’s affidavit sworn 15 October 2009 is a list of publications and presentations given by him. These titles suggest that the matters at issue are subjects upon which Dr B asserts both relevant qualifications and specific expertise. On the face of Dr B’s documents he has satisfied the Court that prima facie he fulfils the requirements in the rules to demonstrate relevant expertise on the matters at issue.
Counsel for the father informed the Court that Dr B would complete his investigation by reviewing relevant affidavits and records of interview and, if it possible he would also confer with the parties. He does not seek to interview the child. As I understood the submission, the purpose of the parties’ involvement would be to assist him to interpret how the parties interpreted the child’s responses. The mother does not wish to be involved in further investigations. On balance I am not persuaded that I should order her to confer with Dr B. Her responses are available to Dr B in the various affidavits and records of interviews to which he will be granted access.
The Court was informed that Dr B would complete his work in approximately four to six weeks. This matter is listed for final hearing next year and granting the father leave to tender a report from Dr B will not interfere with the case being concluded in the time allocated.
In Re: W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O’Ryan J (with whom Kay J agreed on this point) commented upon the risks involved in giving weight to expert evidence, in that case from a psychiatrist, who had not seen the parties nor the children but had reviewed the material. To some extent those comments may ultimately apply to Dr B’s evidence. However, an obvious point of distinction will be the extent to which Dr B would ensure he address the matter raised in the application in a case and does not stray into the arena in a matter in which the expert in Re: W Abuse Allegations was found to have done.
Although counsel for the father made submissions to the contrary he failed to establish matters which would have attracted favourable findings pursuant to r 15(49)(2)(a) and (b). However r 15(49)(2)(c) gives the Court a wide discretion. In Gemmell & Gemmell [2009] FamCA 29, a property settlement case, I discussed r 15.64(b). That rule enables a party to convene a conference with a single expert witness prior to the hearing for the purpose of clarifying the single expert’s report. This includes, as the note to sub-rule 1(4) reveals, enabling arrangements for a conference which includes the attendance of another expert. That step has not been taken, presumably because the father hoped to persuade the Court to appoint another single expert. While such an omission may have been fatal in a property settlement case, in a case concerning children it seems to me there will be cases where the evidence should be garnered and disclosed and then a conference of experts convened. Ultimately, that is the approach I propose to adopt in this case.
I am satisfied that the gravity of the issues raised in this case combined with the features to which I have already made reference, brings it into a special category of case sufficient to make it appropriate that, pursuant to r 15.49 the father is granted permission to adduce evidence of the type referred to in his application in a case from Dr B. This exercise will be completed at the father’s expense. Following services of Dr B’s report, it will be necessary to consider whether Dr B and Dr M should confer.
Other ancillary matters
The mother seeks leave to issue subpoena to two women, in relation to whom it is said the father behaved in a sexually inappropriate manner when they were children. Although counsel for the father submitted these witnesses’ evidence was irrelevant, I agree with counsel for the mother that potentially this evidence could be influential. If the witnesses refuse to provide an affidavit, then the father must be provided with a proof of evidence.
As is apparent from Dr M’s report, the family consultant says the child made a disclosure of sexual abuse by the father to her. Counsel to the father sought access to the family consultant’s notes of her interviews with the child. These notes are not privileged and with all parties agreement, I am satisfied it is appropriate to order the family consultant to make the notes available forthwith.
For these reasons I make the orders identified at the beginning of this judgment.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 29 October 2009