Moyland & Shearer [2023] FedCFamC2F 1202  

The case of Moyland & Shearer [2023] FedCFamC2F 1202 pertains to an oral application made by the respondent mother, seeking to discharge a single expert witness, Dr B, based on an anonymised media article. The court dismissed the application due to lack of evidence, procedural irregularities, and failure to comply with court rules regarding filing affidavits. The court also criticized the attempt to link the expert witness with unnamed individuals in the media article. 

Facts:

The case at hand involves a dispute within the Family Court system. A central issue in this case revolves around an Affidavit, in which a mother (the respondent) seeks to discharge an expert known as Dr B from the proceedings. The basis for this application is an ABC media article that the mother believes refers to Dr B and calls into question her fitness to act as an expert in the case. The media article supposedly implicates Dr B in some form of misconduct, although the specifics are not clear from the provided text.

However, there's no concrete evidence linking Dr B to the article, nor any official complaint or procedural defect noted about Dr B’s role and reports in this specific case. Despite these facts, the mother's legal team has sought to use the ABC article as grounds for discharging Dr B from the proceedings.

The court has raised questions about when and how the ABC article came to light, and how it was connected to Dr B. These questions were posed by means of interrogatories (formal written questions requiring written answers), directed at the mother's legal representatives. The court ordered these interrogatories under section 176 of the Act.

Yet rather than providing direct answers to these interrogatories, the mother's legal team has challenged the court's orders, arguing among other things that there was insufficient time to formulate answers and that some of the questions were oppressive or unnecessary.

This ongoing dispute has resulted in delays and additional costs in the proceedings. While it is unclear what impact these issues will have on the ultimate outcome of the family law case itself, they highlight complexities around expert testimony, media influence, and procedural fairness within Australia's Family Court system.

Issue: The key legal issue is whether Dr B should be disqualified as an expert witness based on a media article that allegedly involves her. This matter is further complicated by other procedural issues such as interrogatories directed to the mother's lawyer and whether these are appropriate or oppressive.

Rules: The relevant rules in this situation would include legislation regarding expert witnesses and their role in court proceedings. In Australian law, this is typically governed by the Evidence Act 1995 (Cth), particularly sections 79-80 which deal with opinion evidence and the exception for experts. Other relevant rules may include court regulations regarding subpoenas and interrogatories.
The relevant rules and legislation include:

The Family Law Act 1975 (Cth), particularly s.176 which allows for interrogatories and discovery in family law proceedings.
The Family Law Rules 2004 (Cth), specifically r.8.05 which allows the Court to call any person as a witness in proceedings.
The principle of patient confidentiality, which potentially protects Dr B from claims arising from the ABC article.
Case law such as Dasreef v Hawchar regarding expert evidence.

Application: In applying these rules to the facts, it seems that there are significant concerns over whether the media article provides sufficient grounds for disqualifying Dr B as an expert witness. The evidence from this article appears to be largely circumstantial and does not conclusively prove any misconduct on Dr B's part. Furthermore, there are procedural issues concerning interrogatories directed at the mother's lawyer, with arguments being made about whether this approach is excessive or oppressive.

In applying these rules to the facts of the case, several key points arise:

As per s.176 of the Act and r.8.05 of the Rules, it appears that the Court has broad powers to make Orders and call witnesses, including using interrogatories as a form of cross-examination.
Based on principles such as patient confidentiality, it seems unclear whether any nexus can be drawn between the ABC article and Dr B's role in this case.  The Mother's refusal to answer interrogatories appears contrary to her obligations under Court Orders.

Analysis & Conclusion:

The judgement in the case of Moyland & Shearer was delivered by Judge W J Neville on 15 September 2023. The central issue in this case was an oral application made by the Mother, Ms Shearer, seeking to discharge the Single Expert Witness, Dr B. This application was based on a media article that alluded to professional misconduct by an unnamed expert in the field, which the Mother's counsel attempted to link to Dr B.

In dismissing this application, Judge Neville provided a range of reasons. Firstly, he noted that there was no formal written application or supporting evidence provided for this request - it was made orally and late into the trial proceedings. The only evidence presented was the media article, which did not provide any identifiable information about the persons involved or establish a clear connection with Dr B.

Secondly, Judge Neville highlighted that there had been no previous challenge or adverse claim made against Dr B's report or her professional conduct prior to this point. Furthermore, Dr B declined to answer questions related to the media article on grounds of confidentiality and legal obligations under section 121 of the Family Law Act 1975 (Cth).

Thirdly, Judge Neville criticised the lack of precision and attention to detail in presenting this application. He pointed out that no leave was sought for this oral application and it did not comply with Rule 2.01(4) requiring applications for interlocutory orders to be filed.

Finally, Judge Neville noted that while cases can evolve during trial proceedings, it is essential for procedural fairness and proper case management that parties know and are bound by the case they present at trial. In his view, accepting such an application would be contrary to these principles.

In conclusion, Judge Neville dismissed the Mother's oral application due to its lack of substantiating evidence, procedural irregularities and failure to demonstrate a clear connection between Dr B and the allegations made in the media article. Additionally, he reserved the issue of costs pending submissions from both parties.

Lesson Learned: This situation highlights the importance of robust evidence when making serious allegations such as professional misconduct against an expert witness. Relying on circumstantial evidence from media articles can lead to complex and potentially unnecessary legal disputes. Additionally, it underscores the need for careful consideration when using procedural tools like interrogatories, as misuse of these can lead to accusations of oppression or excessiveness.
Representation
Counsel for the Applicant Ms R Dart
Solicitor for the Applicant Robinson + McGuinness Family Law
Counsel for the Respondent Mr I Duane
Solicitor for the Respondent Farrar Gesini Dunn
Independent Children’s Lawyer Legal Aid ACT