WERNER & WERNER

[2012] FamCA 1082

FAMILY COURT OF AUSTRALIA

WERNER & WERNER [2012] FamCA 1082

FAMILY LAW – CHILDREN – MAGELLAN – whether the father is an unacceptable risk to the Children – Application in a Case – Single Expert Witness – Family Consultant – Child Dispute Services - Whether Family Report writer has qualifications in sexual abuse – Whether Magellan matters require Single expert report by a qualified specialist in sexual abuse – Application dismissed.

Evidence Act 1995 (Cth)
Evidence Act 1977 (Qld)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Werner

RESPONDENT: Ms Werner

INDEPENDENT CHILDREN’S LAWYER: Mr N Grainger

FILE NUMBER: BRC 7081 of 2011

DATE DELIVERED: 3 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 3 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Frizelle

SOLICITOR FOR THE APPLICANT: Freeman Lawyers

COUNSEL FOR THE RESPONDENT: Ms Merkin

SOLICITOR FOR THE RESPONDENT: George Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Richards

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. The Application in a Case filed on 23 November 2012 is dismissed.

2. The Respondent’s costs of and incidental to responding to this Application in a Case are reserved to the Trial Judge.

3. The Independent Children's Lawyer’s costs of and incidental to responding to this Application in a Case are reserved to the Trial Judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Werner & Werner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7081 of 2011

Mr Werner

Applicant

And

Ms Werner

Respondent

REASONS FOR JUDGMENT

1. Before me today for determination is an application in a case.  It is an application filed by the mother in substantive parenting proceedings between the mother and the father of two little girls. Such proceedings also have as a party an Independent Children’s Lawyer, namely Mr Nigel Grainger, a solicitor in the employ of the Legal Aid Office of Queensland. These parenting proceedings were commenced in the Federal Magistrates Court some time in 2011.

2. As I understand the situation, Purdon-Sully FM made orders on 18 October 2011 in the Federal Magistrates Court providing for the two girls, who are now eight years of age and five years of age, to spend supervised time with their father pending the determination of the competing parenting applications.  The nub of the case, as I understand it, seems to be allegations made by the mother that the father has sexually abused one or both of the girls in the past, and that he presents, therefore, as an unacceptable risk to them if they are to spend anything other than supervised time with him.

3. The mother seeks final orders for sole parental responsibility and no more than supervised contact between the two girls and their father.  The father, in contrast, denies any allegations of sexual abuse, denies that the girls are at an unacceptable risk in his care and seeks orders that they live with him and spend some days each fortnight with their mother, as well as some periods during school holidays.

4. It seems that not only does the father deny the allegations of sexual abuse, but he is apparently alleging that the mother is fabricating or has fabricated the allegations of sexual abuse and that same demonstrates that her attitude towards the responsibilities of parenting is such that the best interests of the children would be served by being taken from her principal care and placed in his principal care with the girls just spending some limited time with their mother.

5. Those matters highlight, of course, the difficulty and the complexity of this particular case. They demonstrate the apparent correctness of Purdon-Sully FM’s decision late last year to transfer the proceedings to this Court where, upon receipt into this Court’s list, the matter was designated a matter to be dealt with in the Magellan list.

6. Some orders were made on 31 October 2011 by Registrar Kane, who was then the registrar in charge of the Magellan list, with a view to preparing the matter for hearing.  Those orders included the preparation of a family report to assist the Court in its determination of the dispute.  The family consultant in the Court’s Child Dispute Services section of the Brisbane Registry, who was appointed to produce the family report was Ms D.

7. Ms D undertook interviews with the parents and the children and prepared a family report dated 13 December 2011, which was attached to an affidavit on 15 December 2011 filed in this Court.  Ms D’s family report is an 18 page report in which she sets out observations and statements of matters reported to her, and ultimately expresses quite a few opinions under the heading of ‘Evaluation’ at the end of that report.

8. The matter is listed for a hearing in this Court’s Magellan week that is currently underway.  It is listed as a reserve trial for this Wednesday, 5 December to proceed through to the 6th and the 7th if it gets on.  As I understand our listing system, it has been listed as a reserve trial now for some months.  As I indicated at the outset of the hearing this morning, as the Magellan list coordinating judge I am currently at this moment not optimistic that the matter will be in a position to commence on Wednesday morning because I am not optimistic that there will be a judge from this registry who has become available by 10 o’clock on Wednesday morning to commence the proceedings. However, such lack of optimism can, as experience has taught me, quickly prove to be baseless as matters are wont to change quite quickly in this Court’s list when  matters proceed before a number of judges.  At this point, I cannot say that a judge will not become available by 10.00 o’clock on Wednesday morning to hear this case.

9. On 15 October 2012, Ms D prepared a further family report effectively updating her earlier report, which was prepared nearly a year before.  Again, she interviewed the children and the parents and towards the end of her 14 page report provided a three page evaluation, including opinions, and ended her report with recommendations. 

10. Attached to both Ms D’s reports is a document headed Curriculum Vitae of Family Consultant.  That CV sets out Ms D’s tertiary qualifications and her relevant employment history.  Her tertiary qualifications include having been conferred a Bachelor of Social Work from an Australian university in November of 1998 and then having obtained some professional credits in a post qualifying award in social work through a university and a hospital in the United Kingdom in 2002.  There is no information setting out, though, what that actually included. 

11. Under the heading ‘Relevant Employment History’ Ms D sets out in brief what employment she has held since she graduated and had her Bachelor of Social Work conferred upon her in late 1998.  It appears that she began work in March 1999 with the L Youth Service in the south of Brisbane. She worked for some six months as a youth housing worker.  She then worked for another three months that year with another Youth Service in the Brisbane area  as a youth housing worker.

12. For six months thereafter from January 2000 to June 2000 she worked as a youth health worker with the L Youth Service, the same organisation that she had previously worked for.  She then travelled to the United Kingdom and spent three years working as a social worker in the London area.

13. She then returned to Queensland and obtained employment commencing in February 2004 with the Queensland Department of Child Safety as a Child Safety Officer.  She worked there for almost three and a half years from February 2004 until June 2007.  She then took up a position for almost a year in various roles with the Commission for Children, Young People and Child Guardian in Brisbane.  From April 2008 until now, nearly five years, she has been employed as a family consultant in this registry of the Family Court.

14. Under a heading ‘Other Relevant Professional Experience’ she sets out that she has written a review on an article that had been written by Brenda Clare in a publication called “Children Australia”, which she wrote in the Department of Child Safety’s magazine or journal in its … edition.  She also says she was a peer support officer during her employment at the Department of Child Safety, a field educator for a university School of Social Work and Applied Human Sciences in 2004 and 2005 and a field educator for a second University Field Education Program School of Social Work in 2005.  I would presume that means that she somehow mentored students or helped educate students in social work during her time at the Department of Child Safety. 

15. The application in a case that I am currently asked to decide was filed on 23 November 2012, a mere 10 days ago, after these two reports had been prepared and just prior to the listing for hearing, albeit as a reserve trial, of this matter.

16. The application in the case seeks the following orders:

    (1)That Dr M be appointed as a single expert witness pursuant to Family Law Rules 2004 (Cth), rule 15.45.

    (2)That the single expert witness (I presume the doctor who I have just referred to) prepare a report and provide an evaluation of the child abuse allegations.

    (3)That the single expert witness prepare the report and provide any expert opinions in relation to the primary and additional factors pursuant to the Family Law Act 1975 (Cth) s 60CC relative to the allegations of child sexual abuse.

    (4)That the single expert witness conduct interviews with the mother, the father, the children and any other party the Court deems fit in relation to the single expert  report.

    (5)That the costs of that single expert be paid equally between the parties.

    (6)That the single expert be given a copy of the Family Law Rules and any other order that the Court deems necessary.

17. In support of the application, the evidence that is relied upon by the applicant mother is principally an affidavit of her solicitor, Mr Roderick George.  In that, he deposes to the fact that he has obtained “specialist counsel advice”.  I do not understand what that actually means.  But he says he obtained advice regarding the “report writer’s specialised field and the Australian authorities in admissibility of expert opinions” and that, according to this advice, the CV of the current expert report writer (Ms D) does not reveal any specialisation relevant to the issues in contention in this case, namely, child sexual abuse.

18. It is effectively asserted throughout the rest of the affidavit that Dr M, whose CV is attached to the affidavit, is an expert and has specialised expertise in assessing child sexual abuse matters and that he would be a more preferable single expert for the Court to rely upon than Ms D.

19. The mother is represented by Ms Merkin of counsel, who has made submissions to the effect that Ms D has not demonstrated expertise in the assessment of child sexual abuse matters.

20. During counsel for the mother’s submissions, I confirmed with her that she does not seek an order from this Court today that excludes Ms D’s reports from being used as evidence in the proceedings.

21. As I understand the central point of Ms Merkin’s submissions, it is that this Court would be, in a case such as this involving serious allegations of sexual abuse and/or allegations of fabrication of sexual abuse allegations, greatly assisted by the expertise of Dr M who, Ms Merkin says, is an expert in child sexual abuse.  Notwithstanding the fact that the Court has two reports from the family consultant, Ms D, it is submitted Ms D does not have the expertise to assist the Court in respect of the specific child sexual abuse allegations.

22. Ms Merkin says that the application is one made pursuant to rule 15.45 of the Family Law Rules. That rule is headed ‘Order for Single Expert Witness’. It says:

    The Court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.

23. Rule 15.45 then sets out things for a Court to consider when considering whether to make an order for a single expert witness to be appointed. It says the main purpose of these rules has to be considered. It also says the Court is to consider whether expert evidence on a particular issue is necessary, the nature of the issue in dispute, whether the issues falls within a substantially established area of knowledge, and whether it is necessary for the Court to have a range of opinion.

24. Now, Rule 15.49 is included in the same part of the Family Law Rules. It is headed ‘Appointing Another Expert Witness’.  It says:

    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.

25. In this particular case, Ms D has already done two reports.  There is no doubt that she has the qualifications, training, study and experience that qualifies her as an expert witness to give evidence, including opinion evidence, to this Court in respect of parenting disputes.  She was appointed as a single expert witness and has prepared two reports and her reports certainly include discussion of, evaluation of and the expression of opinion about the sexual abuse allegations that are central to this parenting dispute.

26. Ms Merkin’s submission is that Ms D’s CV does not demonstrate that she has the requisite specialised knowledge based on training, study or experience to express opinions about the allegations or fabrication of sexual abuse allegations in this particular case.

27. I must say, with respect to Ms Merkin, that I cannot say, from a reading of Ms D’s CV, that I accept that submission.  I simply cannot be persuaded, having read Ms D’s CV, that she does not have specialised knowledge based on training, study or experience to give opinion evidence in respect of the sexual abuse allegations.

28. I do not know, from her CV, whether she has done any training or been involved in any further study or had experience in her work in respect of child sexual abuse matters.  However, I cannot say that she has not.  I am quite satisfied that in three and a half years of employment as a Child Safety Officer with the Department of Child Safety Queensland that she is likely to have come into contact with and dealt with the assessment of sexual abuse and allegations of fabrication of sexual abuse allegations on an extremely regular basis, that being amongst the daily work of a child protection officer, as far as my knowledge allows me to determine, in the employ of the Department of Child Safety.

29. I simply cannot accept the submission that she does not have the demonstrated expertise to deal with the issue of sexual abuse.  Therefore, I am of the view that there is already a single expert witness who has been appointed to prepare a report and give evidence in relation to the assessment of this family, including issues in respect of sexual abuse allegations. That is not to say that, through cross-examination, Ms Merkin might not be able to demonstrate that Ms D lacks expertise in the particular area in such a way that impacts upon the weight that the Court might give to the opinions expressed by Ms D in respect of this particular issue. However, that is a different thing from saying now that I am satisfied she has no expertise and that, therefore, another expert’s opinion is required.

30. Rule 15.49(2) gives the Court the discretion to allow the party to tender a report or adduce evidence from another expert witness, on the same issue, if it is satisfied in respect of one or more of three matters that are set out.  That is:

    a)There is a substantial volume 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 issues.

    b)That another expert witness knows of matters not known to the single expert witness that may be necessary for determining the issue.

    c)That there is another special reason for adducing evidence from another expert witness.

31. I am not satisfied on the evidence that is before me that there is a substantial body of opinion contrary to any opinion given by Ms D.  No evidence has actually been put before me, in admissible form, that establishes that there is a substantial body of opinion contrary to any opinion given by Ms D and that such contrary opinion is or may be necessary for determining the issue. I cannot accept or find that Rule 15.49(2)(a) applies.

32. Another thing for the Court to consider is whether another expert knows of matters not known to the single expert witness that may be necessary for determining the issue.  Again I am not satisfied that this proposed expert knows of matters not known to Ms D.  There is no report or statement by Dr M that he knows of things that Ms D was not aware of when she did her report and made her assessments and expressed her opinions or that any such things are necessary or might be necessary for determining the issue.  I am not satisfied that (b) applies.

33. As to Rule 15.49(2)(c), and in fairness to Ms Merkin’s submissions, I could say that her submission includes a submission that there is another special reason for adducing evidence from Dr M and that is that he has expertise that Ms D does not. 

34. I was taken to his Curriculum Vitae and, as impressive as it is, and with absolutely the utmost respect to Dr M and without any suggestion that I doubt that he has expertise to deal with sexual abuse allegations or allegations of fabricated sexual abuse, I see nothing in his CV, in the matters I was taken to, that persuades me that he is such an expert in respect of sexual abuse allegations that his opinion evidence and assessment is somehow crucial or necessary to be provided to this Court in this case to assist the Court in determining the matters at hand.

35. I was taken to s 69ZT of the Family Law Act 1975 (Cth) and I was handed a decision that was handed down recently by my colleague, Murphy J, in a matter that he decided and delivered judgment in on 29 November 2012, just last week. The matter in which he delivered judgment in was a case involving sexual abuse allegations, where Ms Merkin, the same barrister who appears for the mother in this application today, appeared in the trial. I was taken to some passages where some similar issues were apparently argued before his Honour and determined by him. I note particularly, and say at the outset, that I have no reason to disagree with his Honour’s statement of the law in respect of the application of sections 69ZT in parenting proceedings.

36. Section 69ZT says that rules of evidence do not apply unless the Court otherwise decides. Section 69ZT(1), which is an integral part of Division 12A of Part 7 of the Family Law Act 1975 (Cth), says that in parenting proceedings such as this, the provisions of the Evidence Act 1995 (Cth) do not apply, and it refers to particular provisions, including the provisions going to expert evidence. In my view, Murphy J rightly states that in child-related proceedings, pursuant to s 69ZT(1), the Court can determine to allow opinion evidence of an expert like Ms D into evidence, even if it might be shown that it would otherwise offend s 76 of the Evidence Act, and not be able to otherwise be admitted pursuant to s 79 of the Evidence Act.

37. His Honour also indicated, rightly, I respectfully accept, that it is ultimately then a matter of weight to be apportioned to the opinion, even if it might not have otherwise been admissible pursuant to the provisions of the Evidence Act, had they applied. Ms Merkin, in reference to that section, says that this is a case where discretion pursuant to s 69ZT(3) ought to apply, or ought to be brought to bear, in such a way as to determine that because of the seriousness of the allegations involved, the exclusion of the provisions of the Evidence Act otherwise provided for under subsection (1) of s 69ZT should not apply, and that the Evidence Act provisions should apply. She submitted that authority of the Full Court is supportive of the view that in cases where the allegations are very serious, the exclusionary provisions of s 69ZT should not necessarily apply, and that the Evidence Act provisions ought to be rigorously applied.

1. Further, after having made that submission, Ms Merkin submitted that it was a relevant matter at this point because although she does not now contend that the Court should make an order excluding Ms D’s opinions she says that she might very well do so at the start of the trial, and if they are excluded there would be no other opinion before the Court, hence the need to obtain the opinion of another expert, in the form of Dr M.

2. In determining that point, I refer back to the fact that I cannot say, at this point, without having heard more from Ms D, particularly under cross-examination, where her expertise to provide opinion on the area is challenged, that I necessarily accept that she does not have the appropriate expertise.  I do not use, as a basis for determining the application that Dr M’s opinion is necessarily required, any findings that Ms D’s opinions are not going to meet the rigorous tests of the Evidence Act, even if the discretion available to the Court under s 69ZT(3) is exercised in favour of maintaining the effectiveness of the provisions of the Evidence Act.

3. It may be that the trial judge in this particular case, whether it be me or one of my colleagues, is quite satisfied to hear the proceedings, applying s 69ZT(1) and the exclusionary provisions contained within that subsection, so that the provisions of the Evidence Act do not apply. That is a matter for the judge who hears the case, and I am not, at this point, able to say that I would, or am, persuaded that the case is such that s 69ZT(1) should be overridden, pursuant to the discretion available to the Court in s 69ZT(3). I am not in a position to say at this point that the sections of the Evidence Act should be applied.  I am not in a position to say that Ms D’s opinion evidence would be excluded. I am not in a position to say that the Court would be left without relevant opinion evidence and that therefore the opinion of Dr M is necessary to fill a void that will be otherwise present.

4. Having stated that I am not at all persuaded that Dr M is a person who has such expertise where Ms D is a person who does not, and having regard to other matters such as the submissions of counsel for the father that the appointment of Dr M is opposed because the father has some concerns about the perceived independence of Dr M in the circumstances, and the fact that these two little girls have been subjected to many interviews, not only with Ms D in the course of preparing two reports, but also Departmental officers and Police Service officers charged with the responsibility of investigating and assessing child sexual abuse allegations, and that the matter is listed for trial in only two days time, I am ultimately not persuaded in favour of the application brought by the mother this morning that Dr M should be appointed as a single expert.  I dismiss the application.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 December 2012.

Associate: 

Date:  19 December 2012