Grier & Grier (No. 2)
[2021] FamCAFC 91
•11 June 2021
FAMILY COURT OF AUSTRALIA
Grier & Grier (No. 2) [2021] FamCAFC 91
Appeal from: Grier & Grier [2021] FCCA 804 Appeal number(s): NOA 18 of 2021 File number(s): BRC 11873 of 2018 Judgment of: TREE J Date of judgment: 11 June 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant father appeals from orders made by the primary judge appointing an alternate family consultant to prepare an updated family report – Where the respondent mother concedes the appeal – Inadequate reasons – Appeal allowed – Discretion re-exercised – Costs certificate granted to the appellant.
FAMILY LAW – LEAVE TO APPEAL – Where an order directing parties and children to attend upon a family consultant for the purpose of a family report is a matter relating to an aspect of parental responsibility – Hart & Sellwood (2016) FLC 93-753 followed – Leave to appeal not required.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 11F, 94AA
Federal Circuit Court of Australia Act 1999 (Cth) s 39(6)
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Family Law Regulations 1984 (Cth) reg 15A
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bass and Bass (2008) FLC 93-366; [2008] FamCAFC 67
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bhatnager & Raju [2018] FamCAFC 144
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Grier & Grier [2021] FamCAFC 83
Hart & Sellwood (2016) FLC 93-753; [2016] FamCAFC 254
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Padley & Padley [2020] FamCA 717
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
Thompson & Platt [2016] FamCA 1116
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Appeal Division Number of paragraphs: 36 Date of hearing: 1 June 2021 Place: Cairns Counsel for the Appellant: Mr Gordon Solicitor for the Appellant: Wilsons The Family Lawyers Solicitor for the Respondent: Alroe Somers & O’Sullivan Solicitors ORDERS
NOA 18 of 2021
BRC 11873 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR GRIER
AppellantAND: MS GRIER
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
11 JUNE 2021
THE COURT ORDERS BY CONSENT THAT:
1.The appeal be allowed.
2.The Application in a Case filed by the mother on 8 February 2021 be dismissed.
3.The parties attend upon Mr C for the purposes of having an updated family report prepared in the event that final consent terms are not made prior to 1 June 2021, with interviews to occur on Mr C’s first available date.
4.The parties and the children will attend family report interviews as directed by Mr C.
5.The parties will equally contribute to the costs of the updated family report prepared by Mr C and make such payment in accordance with the invoice terms of Mr C prior to the release of the family report.
6.That should Mr C be required for cross-examination that the parties will equally contribute to the cost of such cross-examination of Mr C and make such payment in accordance with the invoice terms of Mr C, including making a prepayment for half of the anticipated cost if requested by Mr C.
7.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grier & Grier (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
By Amended Notice of Appeal filed 13 April 2021, Mr Grier (“the appellant”) seeks to have certain orders made by the primary judge on 17 March 2021 set aside. In substance, those orders required the parties and their two children to attend upon a new family report writer, on the grounds that certain communications received by Ms Grier (“the respondent”) from the first family report writer “does create a perception of bias on his part.”
Although initially the respondent opposed the appeal, on 17 May 2021 the parties provided proposed consent orders to the Court, together with joint written submissions filed 26 May 2021 explaining why the appeal ought be allowed.
On 1 June 2021, I heard further submissions from the parties in relation to the proposed consent disposition of the appeal and reserved my decision. This is that decision and the reasons for it.
BACKGROUND
In Grier & Grier [2021] FamCAFC 83, I set out the relevant background as follows:
3So as to give context to this application, it is necessary to recite some brief background facts in these parenting proceedings which have a quite unfortunate history.
4The proceedings were commenced on 15 October 2018 by application of the father, who seeks a change in the primary care of the two children of the parties, X born in 2014, currently aged six years and Y born in 2016, currently aged four years (“the children”), from the mother to himself. Both children are therefore quite young, and the litigation over them has been on foot for some two and a half years.
5The matter proceeded to a final hearing before the late Judge Andrew on 10 and 11 October 2019, albeit went part heard, and was listed to conclude on 1 and 2 April 2020. As a result of the Covid-19 pandemic, the resumption of the trial was adjourned to a further two days of hearing on 21 and 22 September 2020.
6On 22 September 2020, the hearing of the trial was completed and the decision reserved, subject to further written submissions from the parties. However, before that decision was delivered, his Honour passed away, and a rehearing was ordered.
7That rehearing was listed for four days to commence on 4 May 2021 before the primary judge. However it has now been adjourned, given that the primary judge stayed her orders of 17 March 2021, pending the appeal from them being determined, which made a trial in May practically impossible.
8During the proceedings, Mr C, a family report writer, prepared a family report dated 26 February 2019 and he attended and gave evidence in the 2020 trial.
9On 8 February 2021, the mother filed an application in the proceedings seeking that another family report writer, namely Ms B, be retained to prepare an updated family report for the upcoming trial. That application was resisted by the father.
10 On 25 February 2021, the contested interim application was heard by the primary judge, and on 17 March 2021, her Honour made a raft of orders which included appointing Ms B to prepare an updated family report for the trial.
11On 29 March 2021, the father filed a Notice of Appeal against all of the orders made by the primary judge on 17 March 2021, which included procedural trial directions.
12On 13 April 2021, the father filed an Amended Notice of Appeal which sought to appeal only those orders relating to the appointment of the new family report writer…
However in the context of this appeal, a little more background is required, and particularly as follows:
(a)the first family report prepared by Mr C was dated 26 February 2019. Later he attended at the trial of the proceedings before Judge Andrew, and gave evidence;
(b)on 27 September 2020 the respondent’s solicitor received an email from Mr C enclosing an invoice for his fees for appearance at the final two days of that trial. It appears that the respondent thought that, whilst other solicitors were acting for her, she had paid for the attendance of Mr C at trial;
(c)after some correspondence between the respondent’s solicitor and Mr C, on 11 December 2020 Mr C wrote to the respondent’s solicitors and said, in part:
I understand this invoice has still not been paid. Unfortunately if it is not finalised by Monday I will be putting it into the hands of [a debt collector]. I have also been asked to secure a date for an updated report in this matter and I will not be able to secure a date. I have tried to hold a date in January hoping that this matter can be resolved. However, after Monday I will be releasing that date if my invoice is not paid and your client will need to explain to the Court…
(d)further communication ensued that day, including Mr C emailing the respondent’s solicitor saying “[t]hanks but please advise [the respondent] that I will be putting this in the hands of [a debt collector] if it has not been resolved by Monday”;
(e)on 14 December 2020 Mr C sent a further email to the respondent’s solicitors saying in part:
Please note I will not be in a position to be engaged further once this process has been handed over and the costs of recovery will be passed onto [the respondent]. My engagement was subject to a Court Order, and undoubtedly this will be noted by the Judge…
(f)after some discussions with the appellant’s solicitors, on 18 December 2020 Mr C re-issued the invoice solely in the appellant’s name, and the appellant thereafter paid the outstanding invoice in full.
LEAVE TO APPEAL
Unfortunately neither the original Notice of Appeal nor the Amended Notice of Appeal dealt with the question posed, namely whether leave to appeal is required.
Section 94AA of the Family Law Act 1975 (Cth) (“the Act”) establishes that leave to appeal is required from, amongst other things, a prescribed decree of the Federal Circuit Court of Australia. Regulation 15A of the Family Law Regulations 1984 (Cth) relevantly defines a prescribed decree as “[a]n interlocutory decree (other than a decree in relation to a child welfare matter)”. In turn, reg 15A(2) defines “child welfare matter” as meaning inter alia, “a matter relating to…[a]ny other aspect of parental responsibility within the meaning of Part VII of the Act, for a child”. That then squarely raises the issue of whether or not an order appointing a family report writer, and for the parties and the children to be made available to her or him for that purpose, is a matter relating to an aspect of parental responsibility.
In Hart & Sellwood (2016) FLC 93-753 (“Hart & Sellwood”) the Full Court considered whether leave to appeal was required from an order made pursuant to s 11F of the Act for the parties and child to attend an appointment with a family consultant arising from which a Children’s and Parents Issues Assessment would issue. At [28] and [29] the Full Court said as follows:
28.The meaning of parental responsibility contained within Part VII of the Act is found in s 61B of the Act. Section 61B provides:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
29.We emphasise the use of the word “all” in s 61B. Although counsel for the father did not concede the point, we are satisfied that whether or not a child should attend a family consultant (or counsellor) is an aspect of the “powers, responsibilities and authority” parents have in relation to children. It is a child’s parents, acting in the exercise of their individual and collective powers, responsibilities and authority who decide whether or not to take a step on the basis of the welfare of the child objectively assessed (Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 240). An order coercive of one or both parents in respect of any such step is an “…aspect of parental responsibility, within the meaning of Part VII of the Act, for a child” (reg 15A(2)(c)).
On that basis, at [31] the Full Court concluded that the order under consideration in that case was in relation to a child welfare matter, and therefore leave to appeal was not required.
In conformity with Hart & Sellwood, and particularly the rationale that it is the compulsion imposed upon the parents to make the children available which is critical in determining whether an interlocutory order deals with an aspect of parental responsibility, here plainly such compulsion was contained in the orders of the primary judge, and it follows that leave to appeal is not required.
THE APPEAL
Notwithstanding that the appeal was conceded by the respondent, an appellate court is nonetheless required to be satisfied of appealable error on the part of the primary judge (Bhatnager & Raju [2018] FamCAFC 144). It therefore follows that I am required to be satisfied of appealable error before consent orders allowing the appeal can be made.
The Amended Notice of Appeal contains four grounds as follows:
1.That [the primary judge] made an error of law by applying incorrect principles and taking into account irrelevant matters and overlooking relevant matters in her Honour’s decision made on 17 March 2021 (Ground 1).
2.That the finding of fact that there was apprehended bias in respect to the ongoing involvement of Mr C could not be supported by the evidence (Ground 2).
3.That [the primary judge] erred in the exercise of her Honour’s discretion in making the decision made on 17 March 2021 (Ground 3).
4.That [the primary judge] failed to provide adequate reasons for judgment in respect to her Honour’s decision made 17 March 2021 (Ground 4).
Only Grounds 1, 2 and 4 were conceded by the respondent. I intend the deal firstly with Ground 4 which challenges the adequacy of the primary judge’s reasons.
GROUND 4
The primary judge’s reasons for allowing the mother’s Application in a Case were delivered ex tempore albeit subsequently “corrected for literal and grammatical errors”.
Leaving aside one paragraph which dealt with trial directions, the reasons in their totality are as follows:
1I 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.
2It 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 [the mother’s solicitor], the communication of 11 December 2020.
3The 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.
The principles relating to the adequacy of reasons are well known.
In Bennett and Bennett (1991) FLC 92-191, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)The appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) Justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA with the concurrence of the other members of the bench said:
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge "'enter into' the issues canvassed and explain why one case is preferred over another".
(Citations omitted)
It is not necessary for a judge who is exercising a discretionary judgment to detail each fact which he/she has found to be relevant or irrelevant, nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference of a finding is sufficiently clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Rafferty & Spencer (2016) FLC 93-710 at [30]).
An appellate court will avoid an overly critical, or pernickety analysis of the primary judge’s reasons (AMS v AIF (1999) 199 CLR 160 at 211, per Kirby J).
It is not necessary that a trial judge “mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
In assessing the adequacy of the primary judge’s reasons, it is necessary to understand the nature of the argument which was advanced by the appellant before her Honour. Particularly:
(a)it appears that by reference to the decisions of Harper J in Padley & Padley [2020] FamCA 717 and an earlier decision of my own in Thompson & Platt [2016] FamCA 1116, he did not concede that the cases dealing with a reasonable apprehension of judicial bias necessarily applied to a family report writer;
(b)further, it was said by reference to the Full Court decision of Bass and Bass (2008) FLC 93-366 at 82,487-8 that any suggestion of bias could adequately be remedied by cross-examination. There at [50] the Full Court said:
50.Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings, as indeed was recognised by Steele J. Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial Judge. It is not particularly unusual, in our combined experience, for trial Judges not to accept, or to only give limited weight to, the opinion of a single expert in a children’s case.
(c)in any event, by reference to Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 the High Court held that the test of apprehended bias in relation to a judicial officer requires an articulation of the logical connection between the proceedings and the feared deviation from the course of deciding the case on its merits. Adapting that passage to reflect that a family report writer does not decide the case on its merits, it would therefore require a logical connection between the proceedings and the feared deviation from the expression of an honestly held professional opinion. Before the primary judge it was said that no such logical connection existed between Mr C’s perfectly reasonable desire to have his outstanding fees met, and his ability to thereafter professionally and impartially undertake assessments and interviews of the parties and the children, and, applying his professional skills, express opinions and articulate appropriate recommendations.
Beyond the primary judge identifying that one of the two 11 December 2020 communications from Mr C “was worded in a manner that was unfortunate” and “does create a perception of bias” there is no articulation of reasons as to why that is so. More significantly there is no identification of the logical nexus between that correspondence and the feared deviation.
Moreover, the primary judge did not engage with the appellant’s arguments that the law in relation to judicial bias did not automatically apply to experts undertaking family reports, nor that cross-examination was an adequate means of remedying or exploring any perception of bias.
It therefore follows that, as the respondent concedes, error is established in relation to Ground 4.
OTHER GROUNDS
Given that error has been established in relation to Ground 4, and the appeal is conceded, it is unnecessary to further traverse Grounds 1 and 2, or indeed 3.
DISPOSITION
In the event that I was persuaded that the appeal ought to be allowed, both parties sought that, rather than the matter be remitted for further determination by the primary judge, that I re-exercise the discretion by, in effect, imposing a similar suite of orders, albeit relating to Mr C, to those ordered by the primary judge, and that the respondent’s Application in a Case filed 8 February 2021 would be dismissed. As I explained to the parties on 1 June 2021, I was prepared to undertake a re-exercise, and to make those orders as the parties sought.
However the parties also sought Order 7:
That the matter be remitted to the Federal Circuit Court for trial by a judge other than [the primary judge] in the event that final consent terms are not made prior to 1 June 2021.
At paragraph 28 of the joint written submissions filed 26 May 2021, the justification for that order was said to be as follows:
28.In the event that the parties are unable to resolve the terms of the primary proceedings on a final basis and should a further trial be required, it is the position of the parties that it would be appropriate for a Judge other than [the primary judge] to hear the trial, with such submission made given the position taken by her Honour on 25 February 2021 at the hearing of the application in a case, and the judgment that was ultimately delivered on 17 March 2021, which ultimately has seen the appeal conceded.
At the hearing before me on 1 June 2021, no cogent basis for the order sought in this respect was able to be advanced by either party. Particularly, no application has ever been made that the primary judge disqualify herself from further dealing with the matter, and thus no appeal from any refusal to disqualify has been brought. Indeed it is difficult to apprehend how her Honour’s conduct during the hearing of 25 February 2021 could give rise to a reasonable apprehension of bias. There is therefore no conceivable basis upon which, in the re-exercise of a discretion vested in the primary judge, I could make orders in terms of paragraph 7 of the proposed consent orders.
It may be pertinent to note at this point that in the same way as judges do not get to choose their litigants, litigants do not get to choose their judge.
In similar vein, the joint written submissions “respectfully submitted that consideration be given to the matter being transferred to the Family Court of Australia…” (at paragraph 29). I assume that the “consideration” being advocated for was by me. However not only is there no power for the Family Court of Australia (much less the Appeal Division) to uplift matters to the trial division of the Family Court of Australia from the Federal Circuit Court of Australia, but no application for transfer was made before the primary judge. Of course even if such an application had been made and refused, no appeal lies from such a decision (Federal Circuit Court of Australia Act 1999 (Cth), s 39(6)).
OUTCOME
It therefore follows that I will allow the appeal and make orders in terms of paragraphs 1 to 6 of the consent orders proffered by the parties, but not paragraph 7.
COSTS
Neither party sought an order for costs, but in their proposed consent orders sought an order affording the appellant a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth). No such order was sought in relation to the respondent, it being said in the joint written submissions that “notwithstanding the concession by the respondent of such appeal where there has been an error of law…it is inappropriate to expect the public purse meet the respondent’s costs of and incidental with this appeal” (at paragraph 32).
Inferentially therefore the respondent did not ask for a similar costs certificate to that which the parties jointly ask to be made in favour of the appellant, which was specifically confirmed by the respondent’s solicitor on 1 June 2021. I do not understand why that is, and paragraph 32 of the joint written submissions does not assist in dispelling my ignorance, but it is suffice to say that a precondition to the granting of a costs certificate to the respondent is her request for one. Absent such a request, the discretion to make such an order does not arise.
The appeal has succeeded on a point of law, and it is therefore appropriate that a costs certificate issue, however the certificate will only be granted to the appellant.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree J. Associate:
Dated: 11 June 2021