Duclos and Duclos

[2018] FamCA 1088

FAMILY COURT OF AUSTRALIA

DUCLOS & DUCLOS [2018] FamCA 1088

FAMILY LAW – CHILDREN – Where the husband has taken objection to the whole of the family report based upon s 131(1)(a) of the Evidence Act 1995 (Cth) – Where part of one sentence is excluded based upon that objection – Where an application is made by the husband for the disqualification of the family report writer on the grounds of actual and/or apprehended bias – Where there is no actual or apprehended bias and the balance of the husband’s application is otherwise dismissed.

Evidence Act 1995 (Cth) ss 131, 134
Family Law Act 1975 (Cth) s 114

Ebner v The Official Trustee in Bankruptcy and Anor (2000) 176 ALR 644
Kernot & Matson [2008] FamCA 756
R and R [2003] FamCA 1180
Smits and Another v Roach and Others (2006) 227 CLR 423
Vakauta v Kelly (1989) 167 CLR 568

APPLICANT: Mr Duclos

RESPONDENT: Ms Duclos

FILE NUMBER: SYC 415 of 2015

DATE DELIVERED: 14 December 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 5 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge, SC

SOLICITOR FOR THE APPLICANT: Sexton Family Law

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

1. The words “but that they had not been able to agree about school fees” in [23] of the Family Report by Ms L dated 20 November 2018, be struck out.

2. The husband’s Application in a Case filed 4 December 2018 and oral applications made by the husband on 5 December 2018 be otherwise dismissed.

3. This matter be relisted for mention on 30 January 2019 at 9.15am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duclos & Duclos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 415  of 2015

Mr Duclos

Applicant

And

Ms Duclos

Respondent

REASONS FOR JUDGMENT

1. On 4 December 2018, the husband filed an Application in a Case which sought that the matter be listed on an urgent basis before myself at the procedural event that was scheduled for the following day. The purpose of that event was to again attempt to set the matter down for a final hearing.

2. The principal order sought by the husband in the Application in a Case was:

   1. That pursuant to Section 131(1)(a) of the Evidence Act 1995 the parties be restrained from adducing in evidence and relying upon the Family Report by [Ms L] dated 20 November 2018 (“the Family Report”).

   The husband also sought the urgent preparation of a new Family Report or Chapter 15 Report. The full text of the orders sought are set out in Schedule 1.

3. The family consultant had produced a report dated 20 November 2018 which had been forwarded to the parties on that day. The report was based on interviews and observations by the family consultant on 13 September 2018.

4. During discussions with senior counsel for the husband in relation to whether or not there is any power under s 131(1)(a) of the Evidence Act 1995 (Cth) (“the Evidence Act”) to make a restraining order, senior counsel for the husband suggested that the application might be amended so that the order was sought under s 114 of the Family Law Act 1975 (Cth) (“the Act”). Senior counsel for the husband’s submissions, however, continued to assert that ss 131 and 134 of the Evidence Act provided a basis upon which the whole of the report could be excluded from evidence. I inferred that the husband’s primary application was an evidentiary objection to the admissibility to the whole of the Family Report.  

5. In the alternative, I took from discussions with senior counsel for the husband that the husband also made an oral application that the family consultant be disqualified from being a witness in the case on the basis of being actually and/or apparently biased.

6. The respondent wife did not object to the matter being heard at short notice. The wife, in response, opposed the orders sought by the husband.

7. The husband in his case relied upon an affidavit by the husband sworn 3 December 2018 and filed 4 December 2018 and the whole of the family report by the family consultant dated 20 November 2018. Senior counsel for the husband made it clear that he was inviting me to read the husband’s affidavit and the family report, on the basis that doing so would not ground a subsequent application by the husband that I recuse myself from the substantive proceedings.

8. The wife indicated she only sought to rely upon the whole of the family report and upon order 18 as sought in the husband’s Amended Response to Initiating Application filed 8 June 2018.

Background

1. There are two children of the marriage, B born … 2007 (aged 11) and C born … 2009 (aged 9).

2. The parties are yet to resolve disputes in relation to parenting, property settlement, spousal maintenance and child support. One of the central issues in the parenting case is what time the children should spend with each parent and an issue in the child support application is whether or not the husband would have the ability to terminate his payment of the children’s private school fees in certain circumstances.

3. I accept that on its face, [18] of the husband’s Amended Response to the Initiating Application filed by him on 8 June 2018 does not contain a guarantee that the children would be able to continue at D School and his payment of ongoing school fees was conditional upon him continuing to earn the nominated level of income.

4. Both parties agree that the family consultant accurately recorded in her report the positions of each of the parties as to what time the children should spend with each of them. The wife seeks by way of final orders that the current parenting arrangements continue. The current orders are that the children spend nine nights per fortnight with the wife and five nights per fortnight with the husband. The husband seeks that the children spend equal time with each parent (see [19] and [20] of the family consultant’s report).

5. Settlement negotiations on all issues took place between the parties from 26 July 2018 up to shortly before the interviews took place for the family report on 13 September 2018.

6. On that day, the parties, the maternal grandmother and the children attended the family consultant to facilitate the preparation of a report. As between the parties, the husband’s uncontested evidence is that during her interview with the husband, the family consultant said the following words to him:

   As you are aware I’ve already spoken with [the wife]. [The wife] told me that the two of you are extremely close to settling and that as part of the settlement you’ve already accepted her proposal in relation to parenting which is that the boys are with you for 5 days a fortnight and the only real issue remaining is in relation to the payment of school fees which [the wife] says you still have a problem with and that you also want a carve out from payment of those school fees if you earn under $250,000.

7. The husband says he then excused himself from the interview and obtained legal advice. He says that when he returned to the interview with the family consultant he said words to the effect, “Again, I’m really sorry to do this but because of legal privilege issues I’m not able to respond to the question you asked”.

8. As discussed during submissions, it is not clear what question the husband asserts he was asked by the family consultant but I infer the husband assumed that the family consultant was seeking some response from him to what she had reported the wife had said to her.

9. Senior counsel for the husband argued that ss 131(1) and 134 of the Evidence Act required that the whole of the family consultant’s report be excluded from evidence on the basis that the whole of the report was infected by the fact that the wife had said those words to the family consultant. Senior counsel for the husband submitted that “the test is whether his Honour is satisfied that the report writer has had regard to confidential communications and in our submission, they don’t need to be specified as to what they are.” Senior counsel for the husband submitted that the public policy consideration behind s 131 of the Evidence Act is that people should be allowed to explore a resolution of proceedings without being inhibited by the risk that such negotiations would influence the outcome of primary issues. The husband asserts that is what has happened in the current case. Whilst I accept that that is the public policy behind s 131(1)(a) of the Evidence Act, that subsection has to be applied by interpreting its clear words.

10. Section 131(1)(a) of the Evidence Act provides:

    (1)  Evidence is not to be adduced of:

    (a)  a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute;

11. Section 134 of the Evidence Act provides, “Evidence that, because of this Part, must not be adduced or given in a proceeding is not admissible in the proceeding.”

12. The husband seeks to rely upon the following parts of the family report  as the basis for the argument that in some way the family consultant was giving evidence of communication about settlement negotiations:

    21. It is also noted that the parents are still resolving property and financial issue and, specifically, they have had an ongoing disagreement about who should be responsible for paying the children’s future school fees.

    23. ….[the wife] said that she and [the husband] had nearly reached an agreement through mediation, just before the Family Report interviews, but that they had not been able to agree about school fees.

    33. … [the wife] said she has wanted the security of knowing that the children can continue at their current school. She believes that it is also stressful for the boys to know that their father does not want them to continue attending a private school.

    41.[The husband] was unhappy about the fact that [the wife] had discussed their attempts at reaching settlement with the Family Consultant, which had continued up until just before the day of Family Report interviews. He considered that some privileged information had been conveyed and did not want to discuss the terms he had wanted to set regarding school fees. [The husband] said that he saw nothing wrong with the children changing to a public school, if necessary, and indicated that he had never been as committed as [the wife] is to the boys attending a private school.

    42.[The husband] does not believe that his position on school fees is inconsistent for (sic) him to continue to take the children overseas three to four times per year. He said that he considers his holidays with the children to be an important part of their development and education, as well as schooling.

    73.The financial issues, especially the issue of school fees, are considered beyond the scope of this Family Report. However, it is generally considered beneficial for children to have continuity in their school and education and it would likely be a disadvantage to [the children] if they are obliged to change schools, without any pressing reasons to do so. [The husband’s] reasoning did not seem to take account of the potential disruption of changing schools, and the social, as well as educational demands this change can entail.

    74.It is unfortunate that [the children] have been subject to uncertainty (real or perceived) regarding their living circumstances and schooling. This assessment indicated that the current arrangements may be sufficient, but that a resolution that involves an increase of one day with [the husband] may also be an acceptable arrangement.

13. The family report otherwise contains a range of information relevant to various s 60CC(2) and (3) considerations of the Act arising from interviews with the parents, the children and the maternal grandmother and observations of the children with each of their parents.

14. Nowhere in the family consultant’s report is there any statement of the words the wife used to the family consultant. To that extent, there is no evidence of the terms of the communication between the wife and the family consultant contained in the family report. The only part of these passages quoted above that might be categorised as the family consultant giving a description about what she had been told about settlement negotiations are the words “but that they had not been able to agree about school fees” in [23] of the Family Report. So far as the general objection of the husband extends to those words, that objection should be upheld and those words will be struck out of the report. Sections 131(1) and 134 of the Evidence Act is not attracted by the family consultant reporting that the parties had negotiated and “nearly reached an agreement”.

15. Otherwise, I accept the submission by the lawyer for the wife that there is no evidence in the family consultant’s report that should be excluded under ss 131(1) or 134 of the Evidence Act and that those sections do not provide a basis for excluding the whole of the report which otherwise contains a large amount of relevant information. Accordingly, the objection based on ss 131(1) and 134 of the Evidence Act is otherwise overruled.

Section 135 of the Evidence Act

1. Early in submissions, senior counsel for the husband referred to s 135 of the Evidence Act but subsequently, made no submission in relation to that section of the Evidence Act.

Application that the family consultant be disqualified from giving evidence in the case

Legal principles

1. Any application to disqualify or remove a family consultant should be based on similar principles to those which guide the court in considering the applications for a judge to be disqualified (R and R [2003] FamCA 1180; Kernot & Matson [2008] FamCA 756).

2. In Ebner v The Official Trustee in Bankruptcy and Anor (2000) 176 ALR 644 at page 647 the High Court said that a judge should disqualify himself or herself “....if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question a judge is to decide”.

Actual bias

1. During the hearing, senior counsel for the husband, on direct instructions from the husband, made an application for the disqualification of the family consultant based upon the assertion that the family consultant was actually biased. Senior counsel for the husband during submissions did not develop any cogent argument to support a finding that the family consultant was actually biased.

Apparent bias

1. Senior counsel for the husband said that it was obvious that the husband would not have any confidence in the objectivity of the family consultant given that the family consultant had received the information from the wife which is set out above. That, however, is not the test. The test is what a fair minded lay observer might reasonably apprehend.

2. Senior counsel for the husband made reference to [21], [23] and [33] of the family report (as outlined above), and submitted that the only possible source of that information was from the wife disclosing privileged communication. I do not accept that submission. The wife was entitled to express the belief that she had about the husband’s attitude to the children’s schooling.

3. It is not at all apparent that the family consultant’s comments and opinions in relation to the respective attitudes of each parent to the children being able to continue long term in their current schooling arose or was in any way influenced by what the wife said to her as set out at [14] above. As reported in the last sentence of [41] and the whole of [42], the husband set out clearly to the family consultant what his position was in relation to the children’s schooling and school fees. That is the obvious context in which the family consultant expressed the opinion she did in relation to the issue of the benefit to the children to have continuity in their school and education and the comment by the family consultant in the last sentence in [73] about the husband’s attitude to that issue. It also forms the basis of the comment by the family consultant in the first sentence of [74] of her report.

Delay

1. In Ebner, the plurality of the High Court referred to a waiver as a counter balancing consideration to a normal circumstance where a judge might be expected to disqualify himself or herself.  At [6] and also [21], the court explicitly referred to the stage at which the objection is raised as being a matter that needs to be taken into account.

2. In Vakauta v Kelly (1989) 167 CLR 568, Dawson J said at 579:

   In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it.

3. The decision of Vakauta was affirmed by the High Court in Smits and Another v Roach and Others (2006) 227 CLR 423 where the majority (Gleeson CJ, Heydon and Crennan JJ) stated at 439:

   It has been held in this Court, on a number of occasions, that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result. The general principle is not in contest …

4. Kirby J separately stated at [466]:

   However, it is now settled law in this Court that where a litigant, aware of circumstances providing a ground for objection on the basis of disqualification, fails to object promptly, that litigant will be taken to have waived the objection and cannot later rely on it.

5. The husband was told about the communication of which he now complains on 13 September 2018. The husband filed his application on 4 December 2018, having received the family report on 20 November 2018. Senior counsel for the husband was asked to make submissions in respect of the issue of delay.

6. Senior counsel for the husband submitted that it was only upon the release of the report, that the husband became aware that the issues which he raises now were going to be of significance in the report writer’s recommendations.

7. The lawyer for the wife pointed out that during a procedural event in this matter on 17 October 2018, the husband asserted that the final hearing dates that had been tentatively listed for three days to commence on 4 December 2018 should be maintained. Ultimately, given the lack of compliance with procedural directions, the tentative listing for the hearing of the matter commencing 4 December 2018 was not confirmed and the final hearing did not commence at that time. Importantly, at this event, the husband who now asserts he was aggrieved by the information relayed to him by the family consultant on 13 September 2018, said nothing about it. It was only after the family report was received and the husband read the whole of the report, including the report writer’s recommendations, that he chose to raise the issue. The husband who is a lawyer did not raise the issue when he had a clear opportunity to do so and did not act without delay.

Conclusion in respect of apparent bias

1. The husband has failed to demonstrate that a fair minded lay observer might reasonably apprehend that the family consultant did not bring an impartial mind to the preparation of her report. Further, the husband’s application based on apprehended bias otherwise fails because of his delay in bringing it. The application relying upon apparent bias will be dismissed.

Other consequential orders

1. All of the other orders sought by the husband in his Application in a Case were based upon contentions which I have not accepted. Those applications will be, accordingly, dismissed.

Other procedural issues

1. During the procedural event, the parties indicated that order 2.9 made 17 October 2018 had not been complied with by either party. No adequate explanation was offered by either party as to why that order had not been complied with. The wife asserted that the husband had failed to comply with order 2.4. The husband seemed to agree with that proposition but only on the basis that he had consented to an order to produce documents that were not in existence at the date he had consented to produce them.

2. I indicated that upon the delivery of these reasons a further date would be set for a procedural event for the purposes of once again attempting to list this matter for a final hearing. That procedural listing will be on 30 January 2019 at 9.15am.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 14 December 2018.

Associate: 

Date:  14.12.18

SCHEDULE 1

Orders sought by the husband in his Application in a Case filed 4.12.18

1. That pursuant to Section 131(1)(a) of the Evidence Act 1995 the parties be restrained from adducing in evidence and relying upon the Family Report by Ms L dated 20 November 2018 (“the Family Report”).

2. That the Family Report be placed in a sealed envelope which is not to be opened except by order of the Court.

3. As a matter of urgency, a further report be prepared by a Family Consultant nominated by the manager, Child Dispute Section, Sydney Registry pursuant to 62G of the Family Law Act and that the report writer is asked to address any matters that the report writer considers relevant under s 60CC(2), (2A) and (3) of the Act.

4. In the alternative to order 3 above, that a single expert be appointed (“Single Expert”) pursuant to Part 15.5 Division 15.5.2 of the Family Law Rules 2004, to provide the Court with a report in respect of what future parenting arrangements should be made for the children B and C s, and in particular that the Single Expert have regard to any consideration that is relevant as set out in section 60CC(2), (2A) and (3) of the Family Law Act 1975.

5. That the mother and the father share equally the costs of the Single Expert and that the father meet the costs in the first instance.

6. That the father’s solicitor provide to the Single Expert a copy of the below documents:

   a.Child Responsive Program Memorandum dated 17 September 2015;

   b.Further Amended Initiating Application filed by the mother on 18 June 2018;

   c.Amended Response to Initiating Application filed by the father on 8 June 2018;

   d.Affidavit of the father filed 23 November 2018;

   e.Affidavit of Ms M filed 26 November 2018;

   f.Affidavit of the mother filed 26 November 2018;

   g.Affidavit of Ms N filed 26 November 2018;

   h.Affidavit of Ms O filed 26 November 2018;

   i.Affidavit of Ms J filed 27 November 2018; and

   j.Such other material as is agreed between the parties.

7. That leave be granted to serve this Application at short notice.

8. That the matter be listed on an urgent basis and if possible be listed in the first instance if possible before His Honour Justice Watts at 9am on 5 December 2018, or on an alternative date if convenient to the Court.