Appeal against “rejection” of family report fails

Appeal against “rejection” of family report fails

Reeves & Grinter

THE APPEAL

12. Three issues are raised in the grounds of appeal. The first issue relates to his Honour’s treatment of the expert report.

The treatment of the expert’s opinion

13. The father contends that the trial judge gave insufficient reasons for “the rejection of” the expert’s evidence (Ground 1), gave inadequate weight to the evidence and recommendations of the expert (Ground 2), erred in concluding that the expert was “ambivalent” (Ground 3) and erred in drawing inferences from the expert’s evidence (Ground 4).
14. It is to be observed that the summary of argument and the grounds of appeal themselves have been drawn by the father, who acts for himself. The thrust of the first two grounds of appeal concerns the trial judge’s “rejection of the expert evidence”. His Honour did not reject the expert’s evidence, he declined to accept the expert’s recommendations.
15. Numerous authorities of the Full Court of this court make it plain that the ultimate decision is for the trial judge and it is a matter for the trial judge’s discretion as to what weight is to be given to expert evidence in the context of all the evidence to be considered (see for example Hall and Hall (1979) FLC 90-713; D & P [2006] FamCA 170; Gaffney & Gaffney [2012] FamCAFC 140; Gelbvieh & Senepol [2007] FamCA 476; Andrew & Delaine [2009] FamCAFC 182; Friscioni & Friscioni [2010] FamCAFC 108; Hannigan & Sorraw [2010] FamCAFC 257; Kennedy & Kennedy [2010] FamCAFC 195; Malak & Mairie [2010] FamCAFC 170; Salvati & Donato [2010] FamCAFC 263; Lindsay & Baker [2012] FamCAFC 189; Muldoon & Carlyle [2012] FamCAFC 135; (2012) FLC 93-513; Yates & Yates [2012] FamCAFC 138).
16. In Muldoon & Carlyle, the Full Court said at 86,576:
    104. It is not in doubt that the evidence of an expert, suitably qualified and based on an appropriate foundation, will carry substantial weight. Departure from it in such circumstances requires careful consideration; however the ultimate decision must be that of the trial judge…

(References omitted)

17. In Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 S.C. 34, Lord President Cooper said of an expert witness at 40:

…Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court … Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury.

(Citation omitted)

18. That principle has been endorsed and followed and is well accepted. As Heydon JA said in Makita (Australia) Pty Ltd v Sproules [2001] NSWCA 305; (2001) 52 NSWLR 705:
    64. The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material […] One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.

(Citations omitted)

19. The point being that the expert’s opinion and consequential recommendations are to be seen in the context of the information given to the expert, the establishment of the assumptions made by the expert through the evidence, and against the evidence in the case as a whole.
20. The thrust of the father’s submissions misconceives both the metes and bounds of the expert’s evidence and the value or weight to be attributed to the report in the overall consideration of the case.
21. In the course of considering the expert’s evidence, the trial judge clearly indicated what were unsupported assertions, assertions which were subsequently clarified or modified by the expert, and assertions which were not consistent with other evidence. Finally, the trial judge formed the view from the oral evidence given by the expert at trial that he was “ambivalent” as to the merit of his suggested outcome.
22. As we have indicated, the expert said in his report that the child’s behaviour said to be characterised as ODD was “learned” and typically occurred where a parent was “disorganised” in how he or she copes with difficult behaviour, with the result being a “cycle” of difficult behaviours. Although there were means available to assist parents in dealing with this form of behaviour, none had been recommended to the mother. The expert said that the child’s ODD behaviour “largely arise[s] from his relationship with his mother” (at [151]). Further, the expert contended that some of the child’s problems that could be remedied resulted from the mother’s parenting of him. The expert was not confident that the mother was able to acquire the appropriate parenting skills to support the child nor supervise the child in any change to his medication regime.
23. As the trial judge noted, there was no cross examination of the mother about her asserted parenting inadequacies. Further, the expert did not, either in his report or his oral evidence, specify the basis for his conclusion that the mother did lack the requisite capacity (at [157] and [160]).
24. The expert further contended that the mother’s “pattern of parenting” may be construed as a “form of neglect” of the child’s needs. The trial judge notes that the expert offered no reasons as to why that construction may arise nor how it could in the light of the evidence of the mother’s engagement in the child’s health issues (at [164]).
25. In our view, his Honour was entitled to treat with some caution the expert’s opinions as to the mother’s apparent parenting deficits. The expert gave no illustration of the mother’s “disorganised” parenting style, did not apparently attempt to rationalise his conclusion with the material that he had read, nor did he expose his reasoning so as to allow the trial judge to form his view of the basis on which the expert’s opinion was formed.
26. Equally, the trial judge was hesitant to accept the expert’s opinion that the father was committed to the child, comparing that statement with his Honour’s findings about the father’s “lack of significant engagement” with the child in the past and the fact that the father provided the child with no regular financial support (at [158]).
27. Part of the foundation of his recommendation that the child live with the father was the expert’s opinion that the father’s household contained a “high degree of structure”. His Honour rejected that conclusion on the basis that there was no evidence to support it; rather, his Honour concluded that the father’s household was not so structured (at [187] and [188]).
28. The Independent Children’s Lawyer supported the father’s appeal and contended error in his Honour’s treatment of the expert evidence. As we understand the Independent Children’s Lawyer’s argument, it finds its genesis in [135] and [136] of the judgment.
29. His Honour said:
    135. It was conceded by Dr [E] that the child’s behaviours were indicative to him of an oppositional defiance disorder (ODD) with such a disorder typically happening with the primary carer who often are disorganised in the way they seek to cope with the behaviour leading to a bit of a cycle. Dr [E] acknowledged that there are therapeutic interventions that could assist the mother but expressed concern that the child’s behaviour was also impacting on his ability to “learn properly”.
    136. This last observation is at odds with what [Ms BB] concludes in that “the child fulfils the criteria for moderate – severe Specific Learning Disorder (DSM-5) with impairment in reading, mathematics and written expression… a disorder of biological origin… The child will require additional support and a modified learning program” (emphasis added). That support and modified learning program have been identified and implemented by the child’s present school.
30. The Independent Children’s Lawyer contended that his Honour erred in finding that Dr E’s view was “at odds” with that of Ms BB. We do not accept that submission. It is plain from his Honour’s reasons that where he perceived the opinions to be “at odds” with each other was not as to whether the child has ODD, but as to the genesis or cause of his learning disorder. Clearly, Ms BB considered the significant cause of the child’s learning difficulties to be the learning disorder. She did not, nor was she asked to, comment on whether the child had ODD too nor what, in her opinion, its impact might be on his overall difficulties.
31. However the thrust of the appeal so far as the Independent Children’s Lawyer was concerned was this:
    • Dr E said the child exhibited behaviour consistent with ODD;
    • The behaviours consistent with ODD were impacting on his learning;
    • The child’s behaviour arose from the mother’s disorganised parenting style;
    • In Dr E’s opinion, the father was better able to manage the child’s behaviour ;
    • Thus, to remove the child from the mother’s care will improve his behaviour and his learning capacity; and
    • The trial judge failed to analyse the evidence and conclude that it was in the child’s best interests that he live with the father.
32. However, it was conceded in argument that, but for the expert’s assertion that:
    • the child’s behaviours were affecting his learning; and
    • his behaviours arose from the mother’s parenting of him; and
    • to remove him from his mother’s care would cause an improvement of his behaviour and thus improve his learning capacity

there was no evidence to support the expert’s conclusion. Further, it was conceded that the expert gave no example or observation that supported his assertions.

33. In particular, his Honour found:
    188. Yet there is no evidence that the father’s household has a “high degree of structure”. Indeed Dr [E] later described the father’s “structure” as holiday time and an artificial situation. The father is a lodger in his elderly grandmother’s home, is self-employed, has little income, will need to place the child in before and after school care, will need to rely on his mother who lives some hours’ drive from Sydney in times of emergency, and has it appears little availability during work hours by reason of his occupation to attend school on short notice or to attend necessary medical interventions mid-week.
34. The trial judge also found that the expert conceded that the father “may well be subjected to the same testing behaviours that have confronted the mother for years” and that a change of residence would be a “big test” (at [166]). The trial judge observed a concession made by the expert that “the child had ‘a very rich life’ with the mother … which is best for him” (at [167]).
35. His Honour noted:
    168. Notwithstanding the need to maintain a substantial relationship with the mother (and his brother) the change of residence proposed was conceded by Dr [E] would be a “pretty significant emasculation of the relationship with the primary carer”, and the relationship with his elder brother being yet another issue to consider…
36. His Honour observed:
    172. Dr [E] expressed a concern that a comprehensive educational assessment had been lacking to date, “that’s why I had it done”. Yet the child’s school has been intensively engaged with the child.
37. In our view, there was ample evidence that his Honour assessed the expert’s evidence against other evidence before him and legitimately rejected the expert’s evidence where it was not supported with other evidence.
38. Further, given the way in which the expert articulated his ultimate recommendation, his Honour’s conclusion that the expert appeared to be ambivalent as to its merits was entirely open to him (at [166] and [191] to [193]).
39. Even if there had been evidence which supported each of the expert’s assertions, that does not dictate the result. The issue for his Honour was to determine what was in the child’s best interests and, in this case, that determination required a far wider view. For example his Honour found:
    • The mother had been the child’s primary carer since his birth and he was well settled with her and his sibling who visits during university holidays;
    • The mother had been significantly involved in seeking and implementing treatment and assistance for the child since his birth;
    • The father, by contrast, has not had significant involvement in the child’s treatment and therapy until relatively recently in the child’s life;
    • The child has made significant progress in his present school thanks, in part, to the assistance he has gleaned from the teachers there and the programs implemented with the mother’s assistance;
    • The child is settled and happy at school;
    • The father’s proposals for the child’s care were untested and not certain, for example the school at which the child would be enrolled and whether at that school there could be a replication of the structures and support in place at his present school;
    • The father has had only holiday and weekend time with the child and the trial judge rejected the assertion that his was a more structured household than that of the mother;
    • The father has a superficial understanding of the child’s difficulties and a naïve insight into his problems and their cause;
    • The expert conceded that to remove the child from his mother’s household would cause a disruption to his relationship with the mother and would unsettle the child.
40. We reject the submission of the Independent Children’s Lawyer that his Honour erred in his consideration of the expert’s opinion.

The expert’s recommendation

41. The trial judge found that the child’s present living circumstances are settled (at [129]) and that the child’s behaviour had improved over the last 18 months (at [111]), which was the evidence of the mother and the child’s school (at [147]). The expert too agreed that the child had made good progress at school and had commenced in mainstream school classes (at [167]).
42. The trial judge said:
    171. In looking at the child’s present circumstances in [H Town], the best situation for the child in Dr [E’s] view was for the mother to have the capacity to manage his behaviour, for the child to be less medicated and for the father to be closer to him where his present school is doing a reasonably good job.
43. His Honour concluded that overall, the expert’s opinion that there should be a change of residence was attended by some ambivalence. His Honour quoted the expert’s oral evidence at [191]:

I was sort of worried about this countervailing kinds of things [sic], I suggested that perhaps, in a sense, a final disposition could be delayed until we just saw how dad went at it. And I think I suggested if the parents could agree to it, a change – to a change, and he stayed – I think at that point I suggested 18 months or something like that – with his dad, and then at the end of that time, if the parties wished it, there could be a final hearing then…

44. Dr E continued and said that he thought that there was a “likelihood that this would turn out to be a good – a better option…”.
45. As we have said, his Honour did not order a change of residence.
46. As he was entitled to do, the trial judge considered the expert’s opinion against the evidence before him, rejecting parts of the opinion where it was unexplained, unillustrated and unsupported. Further, his Honour contrasted the expert’s opinion with the other evidence in the case.
47. Further, given the way in which the expert articulated his ultimate recommendation, his Honour’s conclusion that it was ambivalently expressed was entirely open to him.
48. Finally, it was argued that there was no basis for the trial judge’s conclusion that any change of the child’s residence would lead to disruptive behaviour of the child (at [56]).
49. It seems that the thrust of this contention is not that a change will lead to disruptive behaviour, but that the expert believed that the father would be able to deal with the behaviour when it arose.
50. First, there can be no doubting the correctness of his Honour’s conclusion expressed at [56] given the evidence of the expert as set out in [163] and [166].
51. True it is that the expert thought that with professional guidance, the father had the capacity to manage the child’s behaviour, but that is not to the point. His Honour found, as he was entitled, that to change the child’s residence from that of his primary carer to the father would cause behavioural difficulties.
52. It is to be recalled that this court has often reflected on the misapprehension as to the weight and effect of an expert report.
53. In Valdez & Frazier [2016] FamCAFC 54, the Full Court said at [87]:

The father’s approach in these appeals also seems to overlook the fact that there is ample authority for the proposition that a trial judge is not bound to accept or act upon expert evidence whether sourced to a single expert such as Dr [B] or based upon articles or studies in the field of social science (see Simmons and Anor & Kingsley (2014) FLC 93-581 and [Limbo v Little (1989) 98 FLR 421; Eastman v Somes & Anor (No 2)(1992) 107 FLR 86; and R v Chairman of General Sessions at Hamilton; Ex Parte Atterby [1959] VicRp 101; [1959] VR 800]).

54. No error has been demonstrated in his Honour’s approach to the expert’s opinion and Grounds 1 to 4 are not made out.

The trial judge’s findings on the evidence

55. The second issue raised on appeal concerns the trial judge’s treatment of the evidence. The father contends that the trial judge drew inferences not based on the evidence (Ground 5) and that he gave inadequate weight to the father’s evidence of his engagement in the child’s education and health issues (Ground 6).
56. As to the drawing of inferences from the evidence, the father points to [67] where the trial judge said:
    67. Regrettably the Centre at [C Town] in mid-2014 informed the mother that it was unable to continue support in the context of ongoing family law proceedings (Exh N). It is to be inferred that this was as a result of the father not providing his consent.
57. Exhibit N does not, on its face, appear to support his Honour’s inference that the Centre’s refusal to continue to support the family was because of anything the father did.
58. It is claimed there is no support in the evidence for that conclusion. We would have to concede that it is not entirely clear how his Honour drew this inference. However, it did not form the basis of any decision his Honour made and accordingly has no materiality to the ultimate outcome.
59. Further, the trial judge’s conclusion at [257] is challenged. His Honour said:
    257. The mother’s role in the past with the child and her engagement with health and education issues is set out in detail above. It is to be inferred that should the child remain with her she will continue to remain so engaged albeit under the agreed guidance of Dr [D] in Sydney. Dr [D], it is to be inferred, may also assist her in seeking guidance as to coping methods for the child’s behavioural aberrations if considered necessary.
60. It is argued that this conclusion could “not possibly be drawn by the trial judge”. As his Honour indicated, the basis for that conclusion rested in his findings as to the steps the mother has taken over the years to assist the child with his behavioural and schooling issues. The judgment is replete with references to interventions sought and the mother’s compliance with suggested assistance. It was a conclusion well open on the evidence.
61. It is also contended that the trial judge gave insufficient weight to the father’s evidence of his involvement in the child’s behavioural and health issues.
62. The bar to successful appellate challenge to a trial judge’s assessment of the weight or importance of evidence is a high one indeed. In Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 Stephen J held at 519 – 520:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.

63. It was undisputed, as his Honour found, that after October 2010 (the date of separation on the mother’s evidence), the father saw the child at Christmas in 2010 (at [26]), on three occasions in 2011 (at [27]), in January 2012 and in March 2012 (at [29]). From May 2012 onwards the child spent periods of time with the father, including a two week period in June 2012.
64. During this time the father was living and working in Perth.
65. Against these periods of time spent between the child and the father, is his Honour’s recounting of the history of the child’s diagnosis, his behavioural problems and special needs and the steps taken by the mother to address them and engage with various health professionals (at [36] –[67]).
66. His Honour’s conclusion at [49] that the father “appears to have had little or no engagement in the child’s educational and medical needs” in that period compared with that of the mother, was entirely open to him.
67. These challenges are not made out.

Section 60CC considerations

68. Finally, it was contended by the father that the trial judge failed to give proper consideration to the matters referred to in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) (Ground 8).
69. The thrust of the submission is that the trial judge failed to find in favour of a change of residence of the child to live with the father, and the particulars of the ground in effect argue that the evidence in the case supported such a change. It is a challenge to the trial judge’s assessment of the evidence before him and faces the same hurdle to which we have just referred.
70. For example, under the rubric of s 60CC(3)(b), the nature of the relationship of the child with each of the child’s parents, the father contends; “the single experts [sic] evidence which was not successfully challenged, was that the child had an anxious, insecure attachment to the mother”.
71. Not only was this assertion by the expert challenged successfully, his Honour rejecting it at [153] and [181], the expert resiled considerably from his initial assertion in his oral evidence.
72. His Honour notes the expert’s view at [153]:
    153. Dr [E] acknowledged the child’s close relationship with the mother as his primary carer but had reservations as “there is also quite an anxious, if not disorganised, quality to their attachment”. This based on one limited interview unsupported by observations from any other source save perhaps for the father’s subjective comments.
73. His Honour returned to the expert’s view that the child’s attachment to the mother was anxious and noted the expert’s oral evidence, in which he said that he did not see any behaviour consistent with the child having anxiety about leaving his mother when he interviewed the child. He then commented that it was often the handover at which problems arise and referred to the conduct of children who refuse to go to school. His Honour concluded that there was no evidence that the child has “any such anxieties” and noted that he travels on his own by bus to school each day (at [181]).
74. In the absence of any factual basis to support the expert’s bald assertion about the nature of the child’s relationship with the mother and his oral evidence, his Honour’s conclusion to reject that view was one to which he was well entitled to come.
75. As we have said, in reality the issues raised under this ground are challenges to the trial judge’s assessment of the evidence, the weight apportioned to it and, essentially, the father’s complaint that he was unsuccessful in persuading the court to change the residence of the child.
76. Nothing in the submissions persuades us that his Honour erred in his consideration of the evidence as a whole, nor in how he applied it to the legislative considerations.
77. Thus, the appeal will fail.

COSTS

78. For the mother it was argued that if the appeal failed, the father should be ordered to pay her costs of and associated with the appeal. The mother is in receipt of a grant of Legal Aid and her legal expenses fixed in the sum of $4,160. The father opposes the making of the order, arguing that he pays for the cost of the child’s travel to spend time with him and for some of the child’s medical expenses, which are a significant financial burden.
79. The issue of costs on an appeal is governed by s 117 of the Act. In this case we are of the view that it is appropriate to order costs because the father’s appeal has been wholly unsuccessful. We further take into account the father’s financial circumstances, in that he is self-employed and estimates his gross income for the financial year ended 30 June 2016 was $80,000.
80. We will thus order the father to pay the mother’s costs of the appeal of $4,160.