Grier & Grier (No. 2)

Case [2021] FamCAFC 91

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 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR GRIER
Appellant
AND:

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…

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Details
AGLC
Grier & Grier (No. 2) [2021] FamCAFC 91
Case
[2021] FamCAFC 91
Decision Date

CaseChat Overview and Summary

In the matter of Grier & Grier, the appellant, Mr. Grier, appeals against the orders made by the primary judge which included appointing a new family report writer to prepare an updated family report for the upcoming trial. The respondent, Ms. Grier, concedes the appeal. The primary issues before the court were whether the appeal required leave and whether the primary judge's reasons for appointing the new family report writer were adequate. The court found that leave to appeal was not required as the orders pertained to an aspect of parental responsibility, and thus followed the decision in Hart & Sellwood. Additionally, the court found the reasons provided by the primary judge were inadequate, and accordingly, the appeal was allowed.

The court exercised its discretion to re-exercise the primary judge's discretion in appointing the family report writer. The court considered that the appointment of a new family report writer was necessary due to the previous family report writer's refusal to prepare an updated report unless his outstanding invoice was paid. The court found that the primary judge's reasons did not adequately address the circumstances leading to the need for a new family report writer. The court further found that the costs of the updated family report and any potential cross-examination should be equally borne by both parties.

The final orders of the court were as follows: the appeal was allowed; the mother's application filed on 8 February 2021 was dismissed; the parties were required to attend upon the previous family report writer, Mr. C, for the preparation of an updated family report; the parties and children were to attend family report interviews as directed by Mr. C; and both parties were to equally contribute to the costs of the updated family report and any potential cross-examination of Mr. C. Additionally, the court granted the appellant a costs certificate under section 9 of the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

NOA 18 of 2021

BRC 11873 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR GRIER

Appellant

AND:

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).

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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