Biggs & Biggs 2014 FamCA 1033

The case involved children who lived with their father and spent supervised contact with their mother.  Both the children and father saw separate treating psychologists.  A single expert witness had reviewed extensive material and had spoken to both treating psychologists.  The father wanted to introduce all confidential notes from the files of the treating psychologists, but the mother objected to some parts of the material being admitted, and the ICL wanted to admit only some material.  There was a question of whether an ICL is able to admit some material without the Court’s permission.

The father wanted the children’s psychologist to answer questions about the ultimate issue including the need for the mother’s time with the children to be supervised.

The judge noted that the children’s psychologist had not interviewed the mother.

The judge noted the dangers of allowing any treating professional to express an opinion about any issue including what orders the Court should make in a case,and that this had long been recognised in Re W and W: Abuse allegations; expert evidence [2001] FamCA 216; (2001) FLC 93-085.

The judge ruled that expert evidence should be restricted to significant issues that were in dispute.  The judge interpreted the scope of an expert to include making recommendations about treatment but not to include recommendations about what a particular therapist might think more generally about issues in a case or what orders should be made.

The judge did not give permission for expert evidence to be admitted unless it met criteria of being: the result of an examination, investigation or observation; or a description of treatment carried out or recommended (treatment report); or a reason for carrying out or recommending future treatment and the consequences of that treatment, including prognosis of treatment.

The judge noted that a single expert witness can be asked to comment about opinions that might be expressed by another expert even when an opinion of another expert has not been admitted in evidence.