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Padley & Padley

Padley & Padley

Case [2020] FamCA 717 1 September 2020

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FAMILY COURT OF AUSTRALIA

PADLEY & PADLEY

[2020] FamCA 717

FAMILY LAW – EVIDENCE – Expert evidence – competence and apprehended bias – where the mother contends the subject child made disclosures regarding alleged sexual abuse perpetrated by the father – whether single expert who has prepared two reports in the proceedings should be disqualified for apprehended bias on the question of risk arising from sexual abuse allegations – where mother seeks appointment of an additional single expert with expertise in relation to allegations of sexual abuse – where mother argues expert evidence about risk of sexual abuse can be given as discrete expert evidence – where held apprehended bias not available on point of principle to disqualify existing single expert – where no basis for apprehended bias in any event – where the existing single expert is known to the child and familiar with the parties and the proceedings – where mother’s application dismissed.

Family Law Act 1975 (Cth) s 60CC
Family Law Rules 2004 (Cth) rr 15.49, 15.59(3)(a)

Bass & Bass (2008) FLC 93-366
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454
FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33
McGrath v McGrath [2012] NSWSC 578
Nagel & Clay (2020) 60 Fam LR 550
Thompson & Platt [2016] FamCA 1116

APPLICANT:

Mr Padley

RESPONDENT:

Ms Padley

INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

FILE NUMBER:

SYC

1219

2015

DATE DELIVERED:

1 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

In Chambers by way of written submissions

DATE OF LAST SUBMISSION:

17 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ginges

SOLICITOR FOR THE APPLICANT:

Hal Ginges & Co

COUNSEL FOR THE RESPONDENT:

Ms Dart

SOLICITOR FOR THE RESPONDENT:

Eleanor Murphy & Company Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ng

Orders

Paragraphs 2 and 3 of the mother’s Amended Application in a Case filed 30 January 2020 be dismissed.
The parties and the Independent Children’s Lawyer confer and prepare a proposed agreed form of order to appoint Dr H, with appropriate letter of instruction, to prepare a further updated report as single expert, with such report to inquire into and report upon the considerations in s 60CC of the Family Law Act 1975 (Cth), including disclosures of sexual abuse made by the child born on … 2013 and such other matters as Dr H considers relevant.
The proposed agreed form of order specified in Order 2 be submitted to Chambers by no later than 9:00 am on 4 September 2020.

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 Padley & Padley 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Padley & Padley

Details

AGLC: Padley & Padley [2020] FamCA 717
Case: [2020] FamCA 717
Decision Date: 1 September 2020

CaseChat Overview and Summary

In the matter of *Padley & Padley*, heard by Harper J, the dispute concerned parenting orders for a child born in 2013. The mother had filed an Amended Application in a Case on 30 January 2020, seeking specific orders.

The court was required to determine whether certain paragraphs of the mother's application should be dismissed and, in relation to the remaining issues, how the court should proceed to gather further evidence to inform its decision on parenting arrangements. A key consideration was the need to investigate allegations of sexual abuse made by the child.

Harper J ordered the dismissal of paragraphs 2 and 3 of the mother's Amended Application. The court further directed the parties and the Independent Children’s Lawyer to confer and prepare a proposed agreed form of order. This order would appoint Dr H as a single expert to prepare an updated report. The report was to specifically inquire into and report upon the considerations outlined in section 60CC of the *Family Law Act 1975* (Cth), with a particular focus on disclosures of sexual abuse made by the child, as well as any other relevant matters Dr H deemed pertinent. The parties were to submit this proposed order by 9:00 am on 4 September 2020.

Orders

Orders of the court

Paragraphs 2 and 3 of the mother’s Amended Application in a Case filed 30 January 2020 be dismissed.

The parties and the Independent Children’s Lawyer confer and prepare a proposed agreed form of order to appoint Dr H, with appropriate letter of instruction, to prepare a further updated report as single expert, with such report to inquire into and report upon the considerations in s 60CC of the Family Law Act 1975 (Cth), including disclosures of sexual abuse made by the child born on … 2013 and such other matters as Dr H considers relevant.

The proposed agreed form of order specified in Order 2 be submitted to Chambers by no later than 9:00 am on 4 September 2020.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Padley & Padley [2020] FamCA 717

Most Recent Citation

Cripps & Aragon [2023] FedCFamC2F 1253

Cases citing this decision · 5 of 5 shown

Carlevaro & Carlevaro
[2024] FedCFamC2F 1736 Para 19

…In Padley & Padley [2020] FamCA 717 (“ Padley ’) at [44] & [45] and Behrendt & Cadenet (No 2) [2021] FamCA 19 (‘ Behrendt & Cadenet ’) at [27] Harper J approved of obiter from Pembroke J in McGrath v McGrath [2012] NSWSC 578 at [21] that – … Too high an insistence on independent experts being required to avoid even…
Cripps & Aragon
[2023] FedCFamC2F 1253 Para 6

…I note that in advancing her case, the mother relied on Padley & Padley [2020] FamCA 717, and Cadenet & Behrendt (No. 2) [2021] FamCA 19. Those cases are of limited assistance to the Court and I give them little weight. First, they turn on their own facts. Second, and more importantly, those cases occurred prior to…
Padley & Padley
[2021] FamCA 604 Para 6

…Father argued for Dr H to be retained and a further expert report be prepared. I acceded to the Father's application concerning Dr H: Padley & Padley [2020] FamCA 717.…
Grier & Grier (No. 2)
[2021] FamCAFC 91 Para 22

…hich 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 ju…
Behrendt & Cadenet (No. 2)
[2021] FamCA 19 Para 27

…In Padley & Padley [2020] FamCA 717 (“ Padley ”) at [44] & [45] I accepted that the following comment of Pembroke J in McGrath v McGrath [2012] NSWSC 578 at [21] stands as an apt caution in relation to any expert witness, including family report writers: Too high an insistence on independent experts being required…

View all 5 citing cases →

Cases cited in this decision · 8 of 8 shown

Nagel & Clay
[2020] FamCA 326 Para 8

…The mother relied upon a number of decisions including the decision in Nagel & Clay [2020] FamCA 326; (2020) 60 Fam LR 550 (“ Nagel ”). In Nagel I expressed the view, with some misgivings, that the weight of authority in this Court probably supported application of the principles of apprehended bias both to expert…
Thompson & Platt
[2016] FamCA 1116 Para 10

…this Court cited this passage in Bass & Bass [2008] FamCAFC 67; (2008) FLC 93-366 at 82,487-8 but, as Tree J pointed out in Thompson & Platt [2016] FamCA 1116 (“ Thompson ” ) at [24], the Full Court did not necessarily endorse the argument that a court can or should discharge a family report writer for actual or os…
McGrath v McGrath
[2012] NSWSC 578 Para 1

…rom being appointed, or from remaining, as a single expert in this Court because of an apprehension of bias nursed by one party. In McGrath v McGrath [2012] NSWSC 578 (“ McGrath ”), Pembroke J was faced with the question whether the court should interfere with the process conducted by an expert valuer on the ground…
Bass & Bass
[2008] FamCAFC 67 Para 10

…expert may perhaps come to be incorporated into that of the decision maker ”. The Full Court of this Court cited this passage in Bass & Bass [2008] FamCAFC 67; (2008) FLC 93-366 at 82,487-8 but, as Tree J pointed out in Thompson & Platt [2016] FamCA 1116 (“ Thompson ” ) at [24], the Full Court did not necessarily e…
FGT Custodians Pty Ltd v Fagenblat
[2003] VSCA 33 Para 11

…the mother relied also upon the judgment in the Victorian Court of Appeal in FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 (“ FGT Custodians ”). Ormiston JA (with whom Chernov and Eames JJA agreed) gave the principal judgment. The question under consideration was one of c…
Fagenblat v Feingold Partners Pty Ltd
[2001] VSC 454 Para 10

…Counsel for the mother referred to the decision of Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 (“ Fagenblat ”), at [8] where he said that the possibility that a witness of fact or expert opinion may be biased does not infect the impartiality of the Court, except possibly where “ the expert is…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 4

…)(a) of the Rules. This supports a conclusion that he is capable of continuing to do so. Beyond that, in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 the High Court held the test of apprehended bias requires an articulation of the logical connection between the proceedings…
Ebner v The Official Trustee in Bankruptcy
[2000] HCA 637

…Bass & Bass (2008) FLC 93-366 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 McGrath v McGrath [2012] NSWSC 578 Nagel & Clay (2020) 60 Fam LR 550 Thompson & Platt [2016] FamCA 1116…

Legislation cited in this decision · 2

Family Law Rules 2004 (Cth)
15.49, 15.59(3)(a) 5 mentions (from Para 1)
Family Law Act 1975 (Cth)
60CC 2 mentions