NEWPORT & NEWPORT

Case [2016] FamCA 1066

FAMILY COURT OF AUSTRALIA

NEWPORT & NEWPORT [2016] FamCA 1066

FAMILY LAW – PRACTICE AND PROCEDURE – Application to appoint an adversarial expert – Whether the single expert has delegated to a therapist deciding when the father is to commence spending unsupervised time with the children – Where orders have been made on the single expert’s recommendation that the parties and children’s therapy be confidential or non-reportable – Whether the single expert has provided non-responsive answers to questions asked by the father – Whether the single expert is biased – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge the Independent Children’s Lawyer – Whether the ICL has been responsible for the delay in the appointment of a single expert and the progress of the proceedings – Whether it was inappropriate for the ICL to convey the views of the children to the Court when the ICL has not interviewed the children in over eight months – Whether it was inappropriate for the ICL to pursue the recommendations of the single expert  –  Whether the ICL is biased – Application dismissed.

Evidence Act 1995 (Cth) s 79
Family Law Act 1975 (Cth) ss 68L, 68LA
Family Law Rules 2004 (Cth) rr 15.44, 15.49, 15.59, 15.62, 15.63, 15.64, 15.64B, 15.65

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
In the marriage of Bennett and Bennett (1991) FLC 92-191
In the marriage of Gyselman and Gyselman (1992) FLC 92-279
Lloyd & Lloyd and Child Representative (2000) FLC 93-045
Michael Wilson & Partners Ltd v Nicholls and Ors (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507
P & P (1995) FLC 92-615
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549
W & M and Anor [2006] FamCA 512
APPLICANT: Mr Newport
RESPONDENT: Ms Newport
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law
FILE NUMBER: SYC 2571 of 2015
DATE DELIVERED: 12 December 2016
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: McClelland J
HEARING DATE: 14 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC
SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers
COUNSEL FOR THE RESPONDENT: Mr Cummings SC
SOLICITOR FOR THE RESPONDENT: Pearson Emerson Meyer Family Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Messner

Orders

  1. The father’s Application in a Case filed 14 October 2016 is dismissed.

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 Newport & Newport 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).

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AGLC
NEWPORT & NEWPORT [2006] FamCA 512
Case
[2016] FamCA 1066
Decision Date

CaseChat Overview and Summary

The father applied to the court seeking to appoint an adversarial expert and to discharge the Independent Children's Lawyer (ICL). The dispute concerned the father's unsupervised time with the children and the conduct of the ICL and a single expert. The applications were heard by McClelland J in the Family Court of Australia.

The court was required to determine whether the single expert had improperly delegated decision-making authority to a therapist regarding the father's unsupervised time with the children, whether the single expert had provided non-responsive answers and exhibited bias, and whether the ICL had caused delays, improperly conveyed the children's views, pursued the single expert's recommendations inappropriately, and exhibited bias.

McClelland J applied principles of bias as articulated in *Minister for Immigration and Multicultural Affairs v Jia Legeng* and *Ebner v Official Trustee in Bankruptcy*. The court found that while the single expert had expressed a tentative opinion favouring the mother's contention of family violence, this did not demonstrate a lack of openness to persuasion. The expert had recommended unsupervised time with the father, indicating the preliminary opinion had not been applied to the matter in issue without fresh consideration. The court also found no evidence of bias or inappropriate conduct by the ICL.

The father's Application in a Case filed on 14 October 2016 was dismissed.

Orders

Orders of the court

1.

The father’s Application in a Case filed 14 October 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As noted by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng :[5]Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. … Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. (Emphasis added) [5] Ibid at 531 [71]. It is the case that Dr F has expressed a tentative opinion that is more supportive of the mother’s contentions regarding her being the subject of an assault perpetrated by the father. The expression of that tentative opinion does not justify an apprehension, on the part of a reasonable observer, that Dr F is not open to persuasion to a contrary view if additional information is presented to him. This will occur in the form of the parties’ updated consolidated trial affidavits and also during the course of the final hearing itself. Moreover, Dr F notes that, ultimately, it is for the Court to make findings in that respect. In Ebner,[6] the High Court stated that:The bare assertion that a [decision-maker] has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.[6] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345[8]. Further in Minister for Immigration and Multicultural Affairs v Jia Legeng,[7] Hayne J set out a three-step process that is required to establish bias as follows: Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. [7] (2001) 208 CLR 507 at 564 [185]. Applying the three part test proposed by Hayne J f, I have noted, in the context of the first part of the test, that Dr F has expressed a tentative opinion that favours the contention of the mother that she has been the victim of family violence. However, in terms of the second part of the test, Dr F has not applied that preliminary opinion “to the matter in issue”. Dr F has in fact recommended that the children spend unsupervised time with the father despite forming his preliminary opinion.

Ratio Decidendi

Legal Principle Established

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