Costs sort against Expert

Costs sort against Expert for non-production

Canning & Hartigan and Anor [2016] FamCA 25 (28 January 2016)

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/25.html

1. The Applicant father seeks an order that Dr C pay his costs in the amount of $18,126.95 – being costs said to have been incurred as a result of Dr C’s alleged ongoing failure to comply with a number of Court orders requiring him to produce documents.

Applicable Principles

2. Section 117(2) of the Family Law Act 1975 (Cth) provides that if, in proceedings under the Act, the Court is of the opinion that there are circumstances which justify it in doing so, the Court may, subject to subsections (2A), (4), (4A) and (5) of the Act and the applicable Rules of Court make such order as to costs as it considers just. This power extends to making an order for costs as against a non-party^[1] such as Dr C, who provided a report for use in the substantive proceedings for parenting orders in relation to the parties’ child.

Brief summary of relevant chronology of events

3. Once Dr C’s first report was provided to the parties, the father’s solicitors sought clarification about a particular document said to have been relied upon by him in the formulation of his expressed conclusions and/or opinions.
4. This clarification was provided. An addendum report was also provided to the parties on or about 5 June 2014. The addendum report included the assertion that Dr C’s conclusions and recommendations were based on “other data besides what [he then] understood to have been allegations by [the mother]”.
5. That is, Dr C maintained his original opinion even after a significant change to the basis on which he had previously proceeded had been conveyed to him; he apparently did so because of his then asserted reliance on ‘other data’.
6. It is in respect of this ‘other data’ – namely, to identify it and obtain a copy of the source documents – that the Orders subsequently sought and obtained by the father’s legal representatives on his behalf were directed.
7. The following Orders were in fact made:
   1. on 26 June 2014: that, by 4.00pm on Monday, 7 July 2014 Dr C produce to the Independent Children’s Lawyer, for distribution to the other parties, a copy of the documents on which he has recorded the details of the results of the various psychometric and other testing undertaken of the parties by him; and
   2. on 19 November 2014: that by 4:00pm on Friday, 4 December, Dr C produce to the Independent Children’s Lawyer, for distribution to the other parties, a copy of all test results for any test administered to the father during the course of his involvement – a Notation was made to the effect that in the event that a further appearance is required, the parties’ ability to make application and submissions as to why Dr C should not personally bear the costs of such an appearance would be considered; and
   100. on 13 February 2015 (after the matter was relisted specifically to deal with the issue of Dr C’s asserted non-compliance with the Orders): that, by no later than 4.00pm on 16 February 2015, Dr C provide to the other parties a copy of his notes relating to all test results for any tests administered to the father during the course of his involvement – the costs of and incidental to this application for a further order against Dr C were reserved.
8. Dr C has indicated that he did not receive a copy of the Order made on 26 June 2014. There is no evidence that he was served with a copy of the same by the father’s legal representatives.
9. Dr C has indicated that he received a copy of the November 2014 Order on 1 December 2014. It appears he corresponded with the Independent Children’s Lawyer in early December 2014^[2], seeking clarification about the meaning of the phrase “test results”. He says – without contradiction from the Independent Children’s Lawyer – that he did not receive a reply to these requests. In a similar way, the father’s solicitor did not receive a response to the correspondence, requesting the matter be relisted given Dr C’s continued non-compliance with the orders, he directed to the Independent Children’s Lawyer on about 22 December 2014.
10. On 5 February 2015, the Independent Children’s Lawyer filed an affidavit to which he exhibited a statement by Dr C. This statement contains Dr C’s assertion that he was not trying to refuse any reasonable request or order from the Court and outlines his objections to producing further materials. Such objections as are relevant to a consideration of the application for costs, together with my assessment of them, are as follows:
    1. he was “mystified” as to what additional documents existed that he could copy without breaching copyright laws and the codes of ethics of the Psychology Board of Australia and the Australian Psychological Society and that would help the father’s treating psychologist: the assertions in respect of breaching copyright laws and the code of ethics in circumstances where he had been engaged by the Independent Children’s Lawyer to provide a forensic report for use in litigation is, in my view, completely without foundation and his assessment of whether the documents required by the order would be helpful to the father’s treating psychologist is irrelevant to his obligation to comply with a Court order; and
    2. as the father’s treating psychologist did not hold the appropriate endorsements for specialist practice, Dr C considered he would not be able to form reliable impressions by perusing the test materials: his assessment that, in essence, there was no utility in providing the test results as ordered, is irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and
    100. the Australian Psychological Society strongly cautioned against a psychologist who was not present during an assessment attempting to reinterpret test results only from the data collected: a matter irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and
    4. considerable additional information could be obtained by the psychologist implementing the test from observations as to the subject’s response to the test: a matter irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and
    5. if he (Dr C) had held concerns about the father’s understanding of the test when he administered it, he would have recorded any such doubts in his report but, as he held no such doubts, he made no such record: a matter irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and
    6. he assumed that the request was made on the advice of the father’s treating psychologist who “apparently believes there are test data documents from which he will gain more usable guidance in conducting his treatment of [the father]” – a matter irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and
    7. before copies of the data sheets used in the tests completed by the father were provided to his treating psychologist, it would be ‘reasonable’ for that person to have to justify the request by detailing the specific training he has undertaken: a matter irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents and a condition that it was not open to him to seek to impose; and
    8. Dr C believed that paragraphs 5.1-5.19 and 8.8-8.11 of his Report met the spirit of the order made on 19 November 2014: an asserted belief that is irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and
    9. he considered that the provision of the results of psychometric testing to Courts involved a complete description and explanation of the results – something which he had attempted to produce in his report: an asserted opinion irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and
    10. no increase in an understanding of the father’s results would be obtained by providing copies of the “copyright test data sheets themselves” nor would any further guidance as to treatment be obtained from the provision of those documents: an asserted opinion and matters irrelevant to a consideration of his obligation to comply with the Order requiring the production of the documents; and
    11. if he was still required to produce the copies, he sought an acknowledgement that he would be breaching Australian copyright law and the codes of ethics of the Psychological Society of Australia and the Psychology Board of Australia and, once this was received, he would “reluctantly but promptly comply”: matters irrelevant to a consideration of his obligation to comply with the existing Order requiring the production of the documents.
11. The Independent Children’s Lawyer advised the parties on 13 February 2015 that Dr C had been notified of his obligations under the Order made that day.
12. On 16 February 2015, documents produced by Dr C pursuant to this Order were released by the Independent Children’s Lawyer to the parties’ solicitors. Having perused them on 23 February 2015, the Applicant’s solicitor formed the view that production remained incomplete. He wrote that day to the Independent Children’s Lawyer in respect of the alleged non-compliance by Dr C and, on 26 February 2015, sought to be advised whether Dr C had produced further documents.
13. On 27 February 2015, the father’s solicitors asked that the Independent Children’s Lawyer relist the matter urgently to deal with the issue of Dr C’s asserted ongoing non-compliance with the February 2015 Order.
14. On 6 March 2015, Dr C produced further documents. Again, from the perspective of the Applicant’s solicitor, these documents did not complete those requested or required by Order.
15. On 12 March 2015, Dr C offered an explanation as to why he had not produced specific documents – particularly the SHQ-R comprehensive report or test. He indicated that he had not produced this document because it was “lengthy and complicated and hence difficult for non-psychologists to understand.” He suggested that the meaning of the term “results” in the Order was unclear and noted that, from his perspective, the terms did not encompass the test materials (including the test items or any other part of the psychological test kit) that he had administered to the father.
16. On about 16 March 2015, the father’s solicitors provided Dr C with a copy of court materials. They outlined that that they considered the test items – the questions asked and computer scoring diagnostic – fell within the term “test results” and they requested a copy of any printed SHQ-R comprehensive report.
17. The trial commenced on 18 March 2015. At that time, Dr C’s solicitor indicated that there was no printed copy of the computer based SHQ-R scoring system. A further Order was made in relation to the production by Dr C of further documents and, after this, Dr C produced these documents.

Discussion

27. Having regard to the submissions made on behalf of both the father and Dr C and taking into account the matters set out above, I am not persuaded that the circumstances justify the making of an order that Dr C pay the father’s costs of and incidental to those occasions or appearances on which Orders were made requiring Dr C to produce documents.
28. In arriving at my decision to dismiss the father’s application, I note that at no time throughout the proceedings did a subpoena issue to Dr C in respect of any of the documents sought by the Applicant; further, it appears that most if not all communications with him proceeded via the Independent Children’s Lawyer rather than directly –something which I consider may well have done little to assist the process of illuminating the father’s request for further documentation and impressing upon Dr C the vital importance to the father’s case of the requests. Additionally, I take into account that the terminology of the Orders was arguably capable of the interpretations outlined above, a matter to which I accord particular significance given the legislative starting point prescribed by s 117(1) of the Act.
29. I wish to record, however, that I have arrived at the conclusion to dismiss the father’s application somewhat reluctantly given the absolute necessity in this jurisdiction, in which single expert witnesses are engaged to provide expert evidence to assist the Court in its determination of those parenting orders which are in a child’s best interests, that parents who challenge the accuracy or basis of an opinion adverse to them and their case are provided with access to allof the documents (howsoever described) relied upon by an expert in the formulation of their opinion.
30. As the Reasons for Judgment I delivered in support of my decision to exclude Dr C’s evidence make clear, any expert opinion is only as good as the premises upon which it rests and the analysis by which it is arrived at: any person professing expertise should obviously be capable of explaining both the premises relied upon and the analysis undertaken in the formulation of any opinion that person expresses.
31. My dismissal of the father’s application should not, therefore, be read as suggesting that those engaged as single expert witnesses or who provide expert opinion intended to assist the Court in its deliberations are empowered to exercise a discretion in determining whether documents sought by parties in respect of whom their opinion is proffered are relevant or useful or not. Such persons must always remember that their evidence – while often important and occasionally decisive – is but one piece of the evidence before the Court whose role it is to determine parenting orders, the nature of which can have extremely significant and long-lasting consequences for both parents and children.