Ferro and Kopel (No 2) - [2016] FamCA 1124

FAMILY COURT OF AUSTRALIA

FERRO & KOPEL (NO 2)

[2016] FamCA 1124

FAMILY LAW – PRACTICE AND PROCEDURE – where appeal set aside final orders and directed rehearing of parenting case – where the successful appellant desires to use findings otherwise unchallenged of the trial judge – where the Full Court remitter does not order any restrictions on the retrial – where s 69ZX(3) is basis of application to rely on previous findings – application refused because of risk of injustice by fettering of discretion.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Bloomberg and Rod [2010] FamCAFC 112
Pateman v Higgin (1957) 97 CLR 521
Waterways Authority v FitzGibbon [2005] HCA 57; (2005) 79 ALJR 1816

APPLICANT:

Mr Ferro

RESPONDENT:

Ms Kopel

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

6467

2014

DATE DELIVERED:

23 December 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carter

SOLICITOR FOR THE APPLICANT:

Waterson Legal

COUNSEL FOR THE RESPONDENT:

Dr Ingleby

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the application in a case filed by the wife on 19 December 2016 be dismissed.
That the response of the husband filed 19 December 2016 be dismissed.
That each party have leave to file such affidavits as they are so advised.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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 Ferro & Kopel (No 2) 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 MELBOURNE

FILE NUMBER: MLC 6467 of 2014

Mr Ferro

Applicant

And

Ms Kopel

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On 14 October 2016, the Full Court of this Court set aside final parenting orders made in May 2016 concerning the child J who is now aged seven years. The Court directed the matter be reheard. That hearing is to take place before me in March 2017.
The immediate issue is a ruling on whether or not, and if so, to what extent, the wife can rely upon findings made by the trial judge in May 2016. In November 2016, I allocated a hearing date for interlocutory disputes and each party was to file whatever documents they so desired to indicate what orders required a determination. In addition, each party was to set out their respective proposals for final parenting orders. That was done and each party made submissions on the hearing.
In the substantive parenting proceedings, the wife seeks to maintain the orders previously made that were overturned. Relevantly, the husband seeks orders for equal time with the child on a rotating basis of five days/five days/two days/two days. He also seeks half of the relevant holidays. It is the wife’s position that the child should live with her and in Israel.
For the purposes of these reasons, it is unnecessary for me to explain more about the background.
In the immediate application before me, the wife seeks orders that the husband and the Independent Children’s Lawyer:
Specify which if any of the findings [which are then detailed from the transcript of the previous trial] are challenged…and if so, the basis for the challenge.
Clarify if they seek that any other findings from the first trial be adopted…pursuant to s 69ZX(3)(b) of the Family Law Act 1975.
By his response, the husband seeks a dismissal of the wife’s application which, in effect, means that no previous findings should be used and the trial proceed de novo. Such a position would obviously not preclude the previous transcript being used for the purposes of cross-examination. Additionally, it was also conceded by all parties that evidence subsequent to the conclusion of the trial in February 2016 could be led.
The Independent Children’s Lawyer has reservations about the wife’s position and seeks to support the husband’s position on the leading of the evidence because, it is submitted, the exercise will be lengthy and expensive.
The starting point is what the Full Court said about the remitter. Indeed no orders were made directing how the trial should proceed.
Ryan J at [17] said that she “struggled” to perceive how a “circumscribed” hearing would properly enable the incoming trial judge to settle on a suite of orders which promoted the best interests of the child.
Thackray J at [22 et seq] discussed the question of the limitation on any remitter. His Honour noted at [30] that a new judge would not be bound by any findings made by the trial judge. His Honour went on to say that the parties were entitled to lay down the boundaries of the dispute even factoring in the obligations of a trial judge arising under Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). His Honour agreed with Ryan J that no fetter should be placed on the new trial judge. Strickland J agreed with Ryan J without further comment.
At [37] Thackray J referred to s 69ZX(3) of the Act and said:
That provision allows a trial judge to receive into evidence the transcript in other proceedings before the court; draw any conclusions of fact from that transcript that he or she thinks proper; and adopt any finding, decision or judgment made in those proceedings. (my emphasis)
Thus, there were no apparent restrictions imposed by the Full Court but that does not mean I cannot do so.
Section 69ZX(3) is a discretionary provision and in this case, it is not so much the evidence in the transcript that is the focus but rather the findings made by the previous trial judge.
Counsel for the husband in resisting the wife’s application submitted that the words “any other proceedings” in s 69ZX(3) must mean proceedings other than these proceedings. There is some support for that conclusion because in the explanatory memorandum (at paragraph 30) relating to s 69ZX(3), the following is found:
This amendment implements Recommendation 5 of the Family Law Council’s December 2014 report…which found that such a provision could provide a court with the flexibility to draw on relevant evidence adduced in other proceedings in other courts to inform decision-making in the best interests of the child…
Whilst that may have been the intention, my view is that the literal reading of the section does not permit such a conclusion. A court could not be expected to exclude an earlier hearing in the same case when the whole purpose of the provision is to save costs, time and the stress of the litigation particularly having regard to the mandatory requirements of s 69ZN(4), (6) and (7) and s 69ZQ(1).
Importantly, the provision (s69ZX(3)) is discretionary. That said, consideration should be given to the use to which some factual findings could be made because of s 69ZN and s 69ZQ.
In Bloomberg and Rod [2010] FamCAFC 112 (May, Boland and Strickland JJ) an appeal was heard from Murphy J where his Honour had applied s 69ZX(3) and used previous courts’ findings as the Full Court described it:
Where historical issues were mirrored in current issues.
The Full Court noted that his Honour considered the findings he relied upon were “consistent with the exercise” before him. No criticism appears to have been made by the Full Court of those statements.
In Bloomberg, Murphy J described the language of s 69ZX(3) as “permissive and unrestrained”.
Findings of fact come in various forms. They can be findings as to credit but they can also be simply findings as to incidents that have occurred. However, as is apparent from what follows, they can also be findings in the form of an assessment of a party’s overall position or intention. Past authorities generally relate to cases where appeal courts have imposed restrictions on a remitter because injustice would be done by rehearing the whole case again. For example, in a personal injuries claim, a finding of liability followed by an assessment of damages is often seen as two different and discrete questions. An appeal court can assess the appropriateness of a retrial being limited to the assessment of damages where the outcome after a finding of liability is inexplicable (see Pateman v Higgin (1957) 97 CLR 521).
As Gleeson CJ (with the agreement of McHugh and Gummow JJ) said in Waterways Authority v FitzGibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [20] in a retrial, the evidence will not necessarily be the same as the evidence in the first trial and indeed, it could be significantly different. Whilst that case was very different to this parenting dispute, the caution suggested is the same. If there is fresh evidence, it may alter the course of the previous evidence. In a retrial, as Ryan J considered, a judge should be in a position to make a fresh appreciation of the whole of the relevant evidence.
It is important in this case to note that there were several grounds of appeal raised by the wife but the unusual feature was that the Full Court decided that the main error of the trial judge in misrepresenting the wife’s proposal justified the setting aside of the orders and a rehearing. Accordingly, it did not need to deal with the rest of the grounds of appeal. To a large extent therefore there is an hiatus because it might be said that some of the findings were not challenged by the husband.
Counsel for the wife diligently set out 32 findings from the original trial and sought the order that the husband and the Independent Children’s Lawyer specify which of those findings are to be challenged. Of the 32 findings, there are distinctions in the categories of the nature I earlier mentioned. For example at paragraph 96 of the judgment, the trial judge said:
Paragraph 56 of the family report is an accurate reflection of the husband’s view of the parties’ respective abilities to parent the child.
That was an assessment by the trial judge of the husband’s view based on demeanour, written and oral evidence and credibility. However, it may have changed. Cynicism suggests that a litigant might alter a view as a result of reading that finding but that would not preclude cross-examination on the issue to determine why. It is also an assessment of whether the trial judge thought that what the family report writer had written reflected what the husband really thought about his ability and that of the wife to parent the child. How that finding might rationally affect other findings of fact about parenting of the child or indeed assessments of each of the parties having regard to the best interest principles reflected in s 60CC of the Act, is hard to know. To use it as a starting point seems to me to carry risks.
The best interests principles will still apply in the rehearing and to commence with an assumption that the husband does hold the view about the parties’ respective abilities as was described by the family consultant seems to me to have little to do with which of two proposals best meets the needs of the child. The first trial judge obviously thought it did but I am not sure why.
The husband’s proposal is that the child remain in Australia and that the parties share her time equally. There was no doubt a reason why the trial judge made that particular finding but without some in-depth analysis of the way the case was conducted, and a comprehensive understanding of his Honour’s reasons, it is difficult for me to know its relevance.
Other examples in the list seem directed to credibility but I should be cautious about simply adopting what another judge has found. In respect of credit, if the objective includes saving time and cost for the parties, it is difficult to know who much will be saved.
A number of the findings referred to in the comprehensive list are statements by the trial judge about the husband’s views. For example, at [134] the trial judge found that the husband continued to hold his long-standing position that the child was more strongly attached to him rather than the wife. I do not know precisely how that assessment came about and accordingly, I am reluctant to say that it is even relevant for the purposes of s 55 of the Evidence Act 1995 (Cth).
The common thread in many of the findings is a criticism of the husband because of his parenting skills compared to those of the wife. That is different to a conclusion about which, whilst there may be some controversy, the underpinning evidence was clear. For example, at [163] and [164], the trial judge found of the wife’s proposed living arrangements (about which the husband apparently did not respond) that:
It would be reasonably practicable for the child to reintegrate easily into Israeli society, culture and education.
As the husband had not responded, it is hard to see how he can now say that issue is controversial whether or not the transcript or the judgment is received in evidence. If it was not controversial then, why would it be now?
Another example is at [289] where his Honour said:
The child contradicted the husband’s evidence that she now sleeps in her own bed in his home and that her use of the dummy is limited.
That quote is a finding that goes to the credibility of the husband. His Honour seemed to be saying that he did not accept the husband’s version because of what the child said. That is a finding against the husband. Such findings if accepted by me as a starting point would potentially fetter discretion because credit could then be used to show that any controversial evidence that the husband put before the court should be rejected. It is difficult to use credit findings as accepted facts in a retrial because they may colour all other matters.
Counsel for the Independent Children’s Lawyer observed that it was simply too difficult and may indeed, extend the trial and its complexity, rather than simply hearing the matter again. There is some sense in that because, with the benefit of hindsight, cross-examination may very well be now limited when specific factual issues have been canvassed at length and found not to be controversial at all. Again, I do not have the benefit of having read the whole judgment of the previous trial judge nor the advantage of comprehensive submissions about what various statements of the trial judge meant because of the limited nature of the hearing time I had available.
In my view, there is some sense in what counsel for the Independent Children’s Lawyer says. Trying to partition findings may complicate matters. I consider that justice might be better served by having the whole matter heard again. That way, my views will not only not be fettered by other findings but it will also mean it will be easier to have an open mind on the whole subject.
On that basis, I refuse the wife’s application.
Other matters of a timetable nature and procedures were sensibly sorted out between counsel. Each party has the permission of the court to file updated material and a formal timetable is not necessary but I shall make an order giving them leave to file what they need to do.

I certify that the preceding Thirty Two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 December 2016.

Associate:

Date: 23 December 2016