WARSOW & WARSOW - [2009] FamCA 1037

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WARSOW & WARSOW

Details

AGLC: WARSOW & WARSOW [2009] FamCA 1037
Case: [2009] FamCA 1037
Decision Date: 29 October 2009

CaseChat Overview and Summary

In the matter of *Warsow & Warsow*, Justice Ryan of the Family Court of Australia considered an application by the father concerning expert evidence in proceedings involving the parties' child, J. The dispute centred on the admissibility and nature of expert evidence, particularly regarding the cognitive capacity of children and the potential contamination of their evidence.

The court was required to determine whether to dismiss the father's application to appoint a second single expert witness, Dr B, given that a single expert, Dr M, had already been appointed. Additionally, the court had to consider whether, in the interests of justice and consistent with the Family Law Rules 2004, the father should be granted leave to adduce evidence from another expert, Dr B, as part of his case. The court also addressed the mother's ability to call evidence from Ms G and Ms O, and the procedure for serving and adducing such evidence.

Justice Ryan dismissed the father's application to appoint Dr B as a single expert, reasoning that the rules contemplate only one single expert on any given issue, and Dr M had already been appointed. However, the court granted the father leave to file an affidavit from Dr B addressing specific topics: the cognitive capacity of children of J's age, the contamination of young children's evidence through leading questions, and the impact of multiple interviews on such evidence. The court found that Dr B possessed prima facie relevant qualifications and expertise on these matters, satisfying the requirements of the rules for adducing evidence from another expert. The court also made orders regarding the disclosure of interview notes taken by a Family Consultant and permitted the mother to call evidence from Ms G and Ms O, with provisions for the service of their evidence.

Orders

Orders of the court

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

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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