Wife Opposes Appointment of Single Expert Witness

Fabina & Manalo (No 3) [2021] FCCA 1524 (5 July 2021)

In dispute is where the Court should have the benefit of social science evidence.  The Husband filed an interlocutory application for appointment of single expert witness pursuant to Rule 15.45 of the Family Law Rules 2004.  The Wife, on the other hand, seeks a family report pursuant to section 62G of the Family Law Act 197 (Cth).

Facts:

On 26 February 2021, the matter came before the Court for Call-Over.  The matter has been on foot now for two years.  The Court made trial directions and listed the matter for a Compliance Check date on 3 December 2021.  The Applicant Husband seeks the appointment of Dr D as a single expert witness pursuant to Rule 15.45, that he pay the costs at first instance, with the Respondent Mother to be responsible for one half of the costs, and that the Respondent Mother pay her contribution as part of any property settlement. 

The Respondent Wife seeks the referral of the matter for a family report pursuant to section 62G of the Act, that the Applicant pay the costs of Ms Manalo’s attendance at the interviews, and where the Court appoints Dr D as the single expert witness, that the Applicant be solely responsible for all the fees associated.  The orders sought by each party were flagged at the Call-Over as being divergent, and as far as the Court is advised by the parties, the parenting matter will proceed to final hearing.

Issues: 

I. Whether the Court should have the benefit of social science evidence from a single expert witness or from a family consultant.

II. Whether the Respondent should be required to contribute to the costs of such a single expert witness.

Applicable law:

Family Law Act 1975(Cth), s 62G. - sets out that a family consultant may be directed by a Court to prepare a report on “such matters relevant to the proceedings as the court thinks desirable”.

Analysis:

Had the Court made an order pursuant to section 62G at the Call-Over, I would not have been able to set the matter on its pathway for final hearing, in circumstances where the parties would be awaiting the receipt of the family report before finalising their respective trial positions.  Such order would cause an inappropriate and, crucially, unnecessary delay on the final resolution of this matter.  The single expert witness’ report contemplated by the Applicant would not cause the same prejudice as to time that a family report would.  It is unlikely that the time the single expert witness would take between the interviews and the preparation of the report would take anywhere near July 2022 (as would be the case with a family report).

The Applicant’s application is conditional on the Respondent paying for half of the report on final property orders being made.  He states that he will pay for the full costs of the report, “but the Respondent Mother shall be responsible for one half of the said fees to be paid as part of the final settlement or such earlier times as circumstances may determine”.  The Applicant asserts that the Respondent has not raised any “persuasive evidence” supporting her assertion of financial hardship.

Conclusion:

The Court concluded that the delay caused by referring the matter for a family report is less desirable than the desirability of any social science evidence that a family report may provide the Court.  The Court did not find that the Respondent had persuasively set out circumstances that would justify the Court making orders for the Applicant to bear the sole costs of a single expert’s report.  The Respondent’s application for orders 2, 3, and 4 in her Response to Application in a Case is dismissed.  The Court ordered that Dr D clinical psychologist of E Street, Suburb F (expert) be appointed as a single expert witness in the proceedings.  She should be provided with the Terms of Reference annexed to the orders and marked with the letter “A” upon her appointment.  The Applicant Father will be responsible for the payment of the expert’s fees at first instance.  The Respondent Mother shall be responsible for payment of one half of the single expert witness’ fees.  The Respondent Mother should make herself and the child available for an interview by the expert.  Each party is to provide to the expert, and to the other party, a short minute of the final order sought with respect to the parenting matters.