Henley and Henley
[2017] FamCA 1133
•30 November 2017
FAMILY COURT OF AUSTRALIA
| HENLEY & HENLEY | [2017] FamCA 1133 |
| FAMILY LAW – EVIDENCE – Family Report – Where the proceedings were remitted after appeal for re-hearing to determine the time the child should spend with the father – Where the father sought the disqualification of the existing Family Consultant due to actual or apprehended bias and the prior Family Report be given no weight – Where there is no proper basis to demonstrate actual or apprehended bias – Ordered a Family Consultant chosen by the Director of the Child Dispute Services within the Adelaide Registry of the Court prepare an update Family Report concerning the child of the parties – Ordered all outstanding applications for interim or procedural relief are dismissed |
| Family Law Act 1975 (Cth) s 62G |
| Arndale & Kingley(No. 3) [2011] FamCAFC 128 |
| APPLICANT: | Mr Henley |
| RESPONDENT: | Ms Henley |
| FILE NUMBER: | ADC | 1876 | of | 2014 |
| DATE DELIVERED: | 30 November 2017 |
| PLACE DELIVERED: | Newcastle/Adelaide |
| PLACE HEARD: | Newcastle/Adelaide |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 30 November 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Mr Alevizos |
Orders
Pursuant to s 62G of the Family Law Act, a Family Consultant chosen by the Director of the Child Dispute Services within the Adelaide Registry of the Family Court of Australia shall prepare and furnish to the Court a fresh Family Report concerning the child of the parties, touching upon those matters of relevance to the care, welfare, and development of the child.
In order to facilitate preparation of the family report:
a.Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant;
b.Each party must ensure the attendance of the child at such interviews and observation sessions at such times and places nominated by the Family Consultant; and
c.The Family Consultant is granted leave to inspect the Court file and all documents produced on subpoenae.
The proceedings are adjourned until 9:00 am Adelaide time (9:30 am EST) on Tuesday, 13 March 2018, in the Adelaide Registry of the Family Court of Australia (via video link with Justice Austin in the Newcastle Registry of the Family Court of Australia), for further procedural directions.
Save as to costs, otherwise:
a.The Application in a Case filed on 31 October 2017 is dismissed;
b.The Response to an Application in a Case filed on 23 November 2017 is dismissed; and
c.Any and all other outstanding applications for interim or procedural relief are dismissed.
No order as to costs.
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 Henley & Henley 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 NEWCASTLE/ADELAIDE |
FILE NUMBER: ADC 1876 of 2014
| Mr Henley |
Applicant
And
| Ms Henley |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The applicant father and respondent mother are currently contesting parenting orders for their seven year old son under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The proceedings were determined by Berman J in August 2016, but the father successfully appealed one of the orders; that being the order which regulated the time the child would spend with the father. The Full Court upheld the appeal in July 2017 and remitted the proceedings for re-hearing in respect of the solitary order set aside.
Upon remittal of the proceedings, a dispute arose about whether or not the existing Family Consultant should be disqualified from further participation in the litigation. The issue is important because the existing Family Report was prepared in May 2016 and an updated Family Report will be required for the re-hearing, the dates for which are yet to be fixed.
The father filed an Application in a Case on 31 October 2017 seeking orders to the following effect:
(1)That a fresh Family Report be prepared pursuant to s 62G(2) of the Act, but that it be prepared by some Family Consultant in the Adelaide Registry of the Court other than Ms O; and
(2)That the existing Family Report prepared by Ms O in May 2016 “be given no weight in determining the issues between the parties”.
The father’s application was opposed in all respects by the mother.
Evidence
The father relied upon his affidavit filed on 31 October 2017, though he foreshadowed his intention to refer in his submissions to both the Family Report prepared in May 2016 and portions of the original trial judgment prepared by Berman J.
The mother sought to rely upon her Response to an Application in a Case and her affidavit, both of which were filed on 23 November 2017. The mother was ordered to file and serve those documents by 17 November 2017, but did not do so. No satisfactory explanation for the delay was advanced on the mother’s behalf so, on the father’s application, the documents were struck out. Nonetheless, the father understood the mother opposed his application in all respects and the mother’s solicitor made submissions to rebut those made by the father.
Discussion
Without reciting the father’s evidence verbatim, his complaints about the current Family Consultant appear to fall into three categories.
First, he considers she failed to take into account the evidence to which he deposed in his affidavit filed on 25 May 2016. It was an affidavit he filed late in reply to an affidavit filed late by the mother and, since the Family Report was completed a week before he filed that affidavit, the Family Consultant was ignorant of the important information contained within the affidavit when she formulated her initial opinions and recommendations.
Second, he believes the Family Consultant abandoned her impartiality and expressed opinions and recommendations which were biased against him. He expressed his complaints in terms of his “belief” that she was “hostile”, “dismissive”, “critical”, “censorious”, “angry”, and “boorish”.
Third, he believes the Family Consultant’s opinions are wrong for a variety of reasons.
It is important to observe some other background facts to contextualise the father’s complaint. Although the Family Consultant obviously did not read the father’s affidavit filed on 25 May 2016 before she compiled the Family Report on 19 May 2016, she conferred with both parties in interview before preparing the report, so she was appraised in a general sense of the father’s beliefs and contentions. In any event, the trial did not proceed before Berman J until some weeks afterwards. There is no evidence about whether the father gave his late-filed affidavit to the Family Consultant to consider in advance of her cross-examination at the trial and, if he did not, why he did not. He would have been at liberty to do so.
It is clear from the judgment of the Full Court, delivered on 20 July 2017 (at [31]), that the trial judge struck out portions of the Family Report at trial, pursuant to objections taken by the father. One ground of the father’s appeal related to the trial judge’s reliance on the Family Report (at [31]) but, while upholding the appeal on a different ground, the Full Court observed the question of weight to be given to the Family Report “would be better left to be considered during the rehearing” (at [67]). Logically, the weight attributed to the Family Report prepared in May 2016 will be a decision for the trial judge before whom the re-hearing occurs.
In any event, the father had the opportunity to cross-examine the Family Consultant at the trial in June 2016 and will have the same opportunity again at the re-hearing. Any alleged deficiencies in the Family Consultant’s evidence, if they are to be made good, may be exposed by cross-examination. By then, the father will have been afforded and accepted two separate opportunities to test in cross-examination the correctness and impartiality of the Family Consultant’s opinions and recommendations.
As observed by the Full Court (see Arndale & Kingley(No. 3) [2011] FamCAFC 128 at [77]), the subjective views of a litigant are not of themselves acceptable evidence of a Family Consultant’s actual bias, or alternatively, objective evidence of the Family Consultant’s perceived bias. In this case, the evidence does not establish as an objective fact that the Family Report, or the Family Consultant’s oral evidence under cross-examination at trial in June 2016, is inherently unreliable, even if some adverse findings might have been made about it in some respects by the trial judge. The fervour of the father’s belief in the Family Consultant’s unreliability does not prove it to be so and the liberal use of pejorative adjectives to unfavourably characterise the Family Consultant’s evidence does not vindicate his belief.
The father seems to confuse two concepts: the reliability of the Family Consultant’s evidence and his dissatisfaction with it. The Family Consultant’s evidence may ultimately prove unreliable to the trial judge on the re-hearing, either in whole or in part, but the father’s belief such a finding of unreliability will eventually follow is not a proper basis upon which to summarily reject her evidence before the re-hearing commences.
Importantly, litigants do not choose their judges or Family Consultants, just as judges and Family Consultants do not choose their litigants. Unless there is a proper basis to demonstrate actual or apprehended bias, the father cannot be permitted to eliminate the existing Family Consultant from consideration for appointment to prepare the update Family Report, which both parties agree is needed.
It is uncontroversial that an update Family Report needs to be prepared. The Director of the Child Dispute Services section of the Court in the Adelaide Registry may or may not appoint the existing Family Consultant to prepare the update Family Report. For example, she may be on holidays or on sick leave or her other Court commitments may clash with her further attention to this case. The selection of the Family Consultant to prepare the update Family Report rests within the exclusive discretion of the Director of Child Dispute Services, and it is a discretion I decline to fetter.
Regardless of which Family Consultant is chosen to prepare the update Family Report, logic suggests the fresh Family Report is liable to carry more probative weight at the re-hearing in 2018, by which time the original Family Report will be some two years old.
For those reasons, the father’s Application in a Case will be dismissed. Orders will be made for the preparation of a fresh Family Report, without restraint on the identity of the Family Consultant selected for that task, and the proceedings will be re-listed for further procedural directions on a date as soon as convenient after the fresh Family Report is prepared.
For those reasons, I make the following orders.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 30 November 2017.
Associate:
Date: 2 February 2018
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