Grier & Grier

[2021] FCCA 804

FEDERAL CIRCUIT COURT OF AUSTRALIA

Grier & Grier [2021] FCCA 804

File number(s):	BRC 11873 of 2018
Judgment of:	JUDGE PURDON-SULLY
Date of judgment:	17 March 2021
Catchwords:	FAMILY LAW – Children – who is to prepare a family report – apprehended bias – trial directions.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	4
Date of last submission/s:	1 March 2021
Date of hearing:	25 February 2021
Place:	Brisbane
Counsel for the Applicant:	Ms Minnery
Solicitor for the Applicant:	Wilsons The Family Lawyers
Counsel for the Respondent:	Ms Goldie
Solicitor for the Respondent:	Alroe Somers & O’Sulllivan Solicitors

ORDERS

BRC 11873 of 2018

BETWEEN:

MR GRIER

Applicant

AND:

MS GRIER

Respondent

ORDER MADE BY:	JUDGE PURDON-SULLY
DATE OF ORDER:	17 MARCH 2021

THE COURT ORDERS THAT:

Family Report

1.That the parties and the children, X born in 2014 and Y born in 2016, attend upon Ms B for the purpose of obtaining a Family Report pursuant to s.62G of the Family Law Act 1975.

2.That Ms B shall be provided with a joint letter of instructions by the parties and the parties shall advise Ms B of the date before which the report is required.

3.That the parties provide Ms B with a copy of the Family Report prepared by Mr C dated February 26, 2019, together with all Court material filed in these proceedings to date.

4.That Ms B be granted leave to inspect the documents produced by way of subpoena filed in these proceedings to date.

5.That pursuant to s.11 of the Family Law Act 1975, Ms B shall provide a written report to the Court and the parties that may include:

(a)Identification of issues for the children;

(b)A consideration of the relevant factors contained in s.60CC of the Act and an appropriate parenting plan for the children until there can be further investigations into the matter; and

(c)Such programs as may assist the parties establish a better functioning co-parenting relationship and more positive and effective communication or that might assist them in the development of their parenting skills.

6.That the parties shall ensure the attendance of the children upon Ms B in consultation with each other acting reasonably.

7.That the parties will comply with any reasonable request of Ms B to provide information and documents to complete the report.

8.That the cost of the Family Report is to be shared equally between the parties.

THE COURTS ORDERS BY CONSENT UNTIL FURTHER ORDER:

Directions for hearing

9.That the Applicant Father pay any hearing fee or seek a waiver of the fee by no later than 4.00pm on 14 April 2021.

10.That both parties file and serve on each other party by no later than 4.00pm on 21 April 2021:

(a)one (1) affidavit setting out all of the evidence in chief that party seeks to rely upon at the trial; and

(b)one affidavit of each witness intended to be relied upon at trial.

11.That either party file any affidavit material in reply by no later than 4:00pm on 28 April 2021.

12.That any subpoena be filed and served by no later than 4.00pm on 9 April 2021.

13.That the date of production for subpoena documents be by no later than 24 April 2021.

14.That inspection of any documents produced by way of Subpoena is required to take place prior to 30 April 2021.

15.That each party file and serve on each other party by no later than 4.00pm on 30 April 2021 a Case Outline setting out:

(a)a list of issues requiring determination;

(b)a precise minute of the final orders sought;

(c)a relevant chronology;

(d)a list of Affidavits and Applications and/or Responses (where appropriate) intended to be relied upon at trial; and

(e)a statement of evidence which they say supports the principles contained in section 79(4) and 75(2) or 60CC of the Family Law Act 1975.

16.That in the event that either party wishes to cross examine the family report writer or court expert at the final hearing, that party shall provide written notice to the family report writer of such intention as soon as reasonably practicable, but by no later than 4:00pm on 21 April 2021.

17.That the parties’ solicitors jointly arrange for the family report writer to be provided with the parties’ trial material on or before 4.00pm on 30 April 2021.

Objections to evidence

18.That should either party wish to raise any objections to the evidence contained in the trial affidavit material, by no later than 4.00pm on 30 April 2021, such party shall:

(a)notify other party in writing of any objection to any material in any affidavit filed by the other party;

(b)specify the paragraph or part of the paragraph of the affidavit objected to; and

(c)detail the grounds for the objection.

19.That each party’s Counsel (and in the event that Counsel is not briefed for the final hearing then the solicitor (if any) for that party) shall confer with each other party’s Counsel (or solicitor – if no Counsel is briefed) prior to the day of the commencement of the final hearing to attempt to reach an agreed position in relation to any objections to evidence.

20.That in the event a party or a party’s legal representative has failed to comply with an obligation imposed by these Orders (or any part of these Orders) and/or fail to appear at Court, then at the final hearing the Court may consider:

(a)making a costs Order against a non-complying party and/or against their legal representative; and/or

(b)dismissing the Application or Response summarily; and/or

(c)making final Orders summarily.

21.That on the first day of hearing the parties must provide to the Court signed consent orders where there is commonality in the orders being sought.

Notice to Associate

22.That each party provide written notice to the Associate to Judge Purdon-Sully by email to [email protected] by no later than 4.00pm on 27 April 2021 advising:

(a)the name of Counsel (if any) briefed to appear at trial;

(b)the number of witnesses required for cross examination at trial;

(c)the prospects of the matter settling;

(d)where agreement between the parties, witnesses that are to appear by telephone or video link; and

(e)any other relevant information affecting the trial.

23.That should the parties wish to engage in settlement discussions they must do so prior to the day of trial as the matter will be called upon by the Associate to commence at 10.00am.

IT IS NOTED that publication of this judgment under the pseudonym Grier & Grier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE PURDON-SULLY:

These reasons were delivered ex tempore and corrected for literal and grammatical errors.

1. I am sorry about the delay in getting back to everyone in relation to this issue to do with the report.  I am proposing to appoint Ms B for the purpose of preparing the report.  There was to be an updated report prepared by Mr C, but I propose that that report be prepared, or a report be prepared by Ms B.  The communication dated 11 December 2020 from Mr C to the mother’s solicitors was worded in a manner that was unfortunate.  It does create a perception of bias.  And in the circumstances, the better approach is to obtain the report by Ms B. 

2. It does not mean, in the context of the unusual circumstances that are presented with this matter, that Mr C cannot still give evidence at the trial.  I think everybody understands that.  I am not persuaded by the submission that was made on behalf of the father that because it was sent to the solicitor that that somehow impacts upon the perception that it might have created.  The mother’s solicitor acts for the mother.  It was a communication that was sent to Ms D, the communication of 11  December 2020. 

3. The costs can be shared equally, but the costs – any costs associated with that report and any costs associated with Mr C giving evidence at the trial will be an issue that I will reserve to trial because I may need some further submissions in relation to that.  But if Mr C is required, then, by anybody, whoever is requiring him will pay for his costs at first instance with how that is to be shared, if at all, or whether to be borne by one party, will be an issue for trial. 

4. Now, in relation to the trial directions I am just making my standard trial directions, which will require the applicant to file one affidavit of evidence-in-chief and one affidavit of any witness that they intend to rely upon, and then a response and then the applicant can reply.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Purdon-Sully.

Associate:

Dated:       22 April 2021