When is expert opinion not expert or not admissible in parenting cases?
- The mother exhibited a letter dated 28 March 2017 addressed by Ms L to the parties’ respective lawyers. Regrettably, the mother’s affidavit did not disclose that the parties’ respective lawyers had addressed a joint letter of instructions dated 28 February 2017 to Ms L. The letter of instructions was tendered in evidence. The letter of instructions identified that the parties sought Ms L’s input and advice with respect to their current dispute in relation to the parenting arrangements for their child. The letter of instructions identified an agreed history of the matter and provided the parties respective proposals for ongoing spend time with the father. It appears from this letter that appointments were made for the parties to attend Ms L on various dates in early March 2017.
- While objection was made to Ms L’s letter being received in evidence. I took the view that it was necessary, in the circumstances, to rule on the objection in order that the application for interim relief could proceed: see Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 (19) (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
- By force of para 69ZT(1)(c) of the Family Law Act 1975 (Cth), inter alia Part 3.3 (Opinion) of the Evidence Act1995 (Cth) does not apply to child-related proceedings. Further, by sub-s 69ZT(2), the court is authorised to give such weight (if any) as it thinks fit to evidence admitted as consequence of a provision of the Evidence Act 1995 (Cth) not applying because of sub-s 69ZT(1). In addition, the court is authorised by sub-s 609ZT(3) to apply a prescribed division of the Evidence Act 1995 (Cth) where the circumstances may require.
- Ms Lane of counsel for the applicant father objected on two bases to Ms L’s letter being tendered in evidence.
- First, it was said that Ms L’s letter did not satisfy the principles stated in a Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (Makita). In that appeal, Heydon JA (as he then was) analysed in detail the conditions which controlled whether an opinion of an expert could be tendered in evidence. His Honour observed, amongst other things, that in assessing an expert’s opinion the court was entitled to ask whether it was intelligible, convincing and tested. In this case, it is unnecessary to examine the Makita principles in further detail.
- It is important to see the objection to the contents of Ms L’s letter in context. Ordinarily, opinion evidence may only be adduced by an expert: section 79(1) Evidence Act 1995 (Cth).
- Depending upon the view taken of the matter, Ms Lane’s first objection either derived, or lost, its force from the express caveat made by Ms L herself. From the outset the author was concerned to emphasise that her letter was not to be interpreted as a forensic family report. Ms L was quite entitled to place that caveat over the contents of her letter. In those circumstances, Ms L’s letter did not purport to provide, and could not be tendered as, an expert opinion.
- For the reason that Ms L’s letter did not bear the status of an expert opinion, the common law principles stated in Makita were not applicable to the determination of whether Ms L’s letter could be tendered in evidence. Further, as stated above Part 3.3 of the Evidence Act 1995 (Cth) does not apply to child related proceedings. On one view, the decision that the letter did not contain an expert opinion might be thought to support the further conclusion that the letter was otherwise irrelevant. In my view, the contents of that letter were not wholly irrelevant. Rather, they provided some narrative that informed the sequence of events which led to the present application.
- Secondly, tender of Ms L’s letter was opposed on the basis that s 131 of the Evidence Act 1995 (Cth) applied so as to preclude the adducing in evidence of the letter as being a communication which, relevantly, had been prepared in connection with an attempt to negotiate the settlement of a dispute: see sub-para 131(1)(b). In contrast with opinion evidence, para 69ZT(1)(c) of the Family Law Act 1975 (Cth), does not extend to remove the application of Part 3.10 (Privileges) of the Evidence Act 1995 (Cth) to child-related proceedings.
- I am prepared, for present purposes, to assume in favour of the applicant that Ms L’s letter was prima facieexcluded from being adduced in evidence by operation of para 131(1)(b) of the Evidence Act 1995 (Cth). It was in this context that I considered the failure to disclose the fact that the parties’ lawyers had signed and provided a joint letter of instructions to Ms L to be regrettable. This was because, notwithstanding that the parties had not retained the same lawyer, the fact of the joint letter of instructions might have supported an objection grounded on the basis of a joint privilege in Ms L’s letter which privilege had, quite clearly, not been waived by the father: cf s 124 Evidence Act 1995 (Cth); Morton v Bolinda Publishing Pty Limited [2017] FCA 187, at [65]-[66] (Burley J) citing Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601 at 608 (Sheller JA, Waddell JA agreeing); Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302 at [122], (Sifris J).
- Although sub-s 131(1) would operate to make Ms L’s letter inadmissible, that provision is subject to a number of exceptions. Relevantly, by para 131(2)(i), a communication which is otherwise inadmissible may be adduced in evidence where the communication affects the rights of a third party.
- In the present case, the third party whose rights may be affected is X.
- I concluded that the communication contained in Ms L’s letter fell within the exclusion created by para 131(2)(i) with the result that it was not rendered inadmissible by para 131(1)(b). I concluded that Ms L’s letter contains evidence which, if accepted, could rationally affect, (directly or indirectly), the assessment of the probability of the existence of a fact in issue in the proceeding. In the present case, the ultimate fact in issue on this interim application concerns what it is that is in the best interests of the child.
- Finally, I accept the submission by Mr Robinson for the respondent mother that Ms L’s letter may be tendered in evidence but should be accorded such weight as appropriate in all the circumstances: cf sub-paras 69ZT(2)-(4).
- Quite apart from the circumstance that Ms L disavowed her letter as bearing the character of an expert opinion, it should not be assumed that the tender of an expert opinion will in all circumstances be of determinative significance upon a matter put in issue by the parties. In Amaca Pty Ltd (Under New South Wales Administered Winding Up) v King [2011] VSCA 447 (Nettle, Ashley and Redlich JJA) undertook a detailed consideration of the topic ‘Trial by experts?’. Their Honours held that the court is not required to have competent or trustworthy expert opinion before being entitled to make an affirmative finding upon a disputed fact and that, to the contrary, “the tribunal of fact is authorised to decide, on all the evidence, that the plaintiff has established that fact as a matter of probability”: see also Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1997) 16 ALR 23, 25-26 (Barwick CJ); HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640, [47] (Gleeson CJ, McHugh, Gummow, Kirby and Hayden JJ); TCL Air-conditioner (Zhongsha) v Castel Electronics Pty Ltd (2014) FCAFC 83, [166] (Allsop CJ, Middleton and Foster JJ).
