PANERA & SLIEDELL
[2017] FCCA 1573
•10 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PANERA & SLIEDELL | [2017] FCCA 1573 |
| Catchwords: FAMILY LAW – Procedural – Application to discharge Regulation 7 Family Report writer is dismissed – update report interviews to be re-instated – raised apprehension of bias – mediations discussed at family report interviews – a document provided to report writer in family report interview. |
| Legislation: Family Law Act 1975 (Cth), ss.10J, 10H, 11A, 11C, 62G(2), 69ZN Federal Circuit Court Rules 2001 (Cth), rr.15.06AA & 15.07 |
| Cases cited: Dasreef Pty Limited v Nawaf Hawchar (2011) 243 CLR 588 Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705 Sydney Wide Distributers Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 |
| Applicant: | MR PANERA |
| Respondent: | MS SLIEDELL |
| File Number: | SYC 866 of 2013 |
| Judgment of: | Judge Kemp |
| Hearing date: | In Chambers |
| Date of Last Submission: | 27 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Brennan Tipple Partners |
| Solicitors for the Respondent: | CBD Legal |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Commission of NSW |
THE COURT ORDERS THAT:
The mother’s application in a case filed 20 February 2017 is dismissed.
The matter is listed on 14 December 2017 at 9.30am for callover.
THE COURT DIRECTS THAT:
A copy of these orders and reasons for judgment be provided to Ms L by the Independent Children’s Lawyer no later than 7 days prior to any re-scheduled family report interviews.
THE COURT REQUESTS THAT:
Ms L re-instate her family report interviews as soon as practicable so as to provide an updated family report.
IT IS NOTED that publication of this judgment under the pseudonym Panera & Sliedell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 866 of 2013
| MR PANERA |
Applicant
And
| MS SLIEDELL |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns a parenting application in respect of the parties’ child, X, born (omitted) 2010 (“the child”), currently aged 6 years.
On 30 July 2015, the Court made interim parenting orders to the effect that the child live with the mother and spend defined time with the father and adjourned the matter for a final parenting hearing scheduled to commence on 4 July 2016.
On 14 June 2016, the Court made a Chambers order, at the request of the Independent Children’s Lawyer, adjourning the matter to 27 June 2016 and noted that the parties had not complied with the hearing directions for the hearing stipulated to commence on 4 July 2016.
On 27 June 2016, the proceedings came before the Court and the 3 day hearing to commence on 4 July 2016 was vacated. The matter was then adjourned to 2 September 2016 and the Court noted that as between that date and the adjourned date, the Independent Children’s Lawyer would arrange for the parties to attend mediation and that if the parties sought an updated family report, they could forward a minute of order to Chambers to implement the same, with the Court also further noting that neither party had filed their trial affidavits, in accordance with the Court’s previous directions.
A family report had been previously prepared in this matter by Ms L (“Ms L”) and that report had been released to the parties on 3 December 2014 (“the family report”).
On 2 September 2016, being the next adjourned date, the father appeared in person, Ms Kaiti appeared for the mother and Mr Kennard appeared for the Independent Children’s Lawyer. The father was directed to file and serve a Notice of Address for Service within 7 days. The Court also directed that there be an updated family report, noting that Ms L had, previously, provided such a report. The matter was then adjourned to 9 February 2017. The Court noted that the father was having time with the child for 3 consecutive Saturdays, such time being unsupervised and the father stated that the child was asking for overnight time with him. The mother said that there had been some difficulties in overnight time as the parties had “trialled” that position. The Court noted that given the need for an updated report and given the parties’ willingness to move beyond the current interim orders and “trial” other arrangements, the Court was hopeful that the Legal Aid Commission of New South Wales would extend funding to enable a Legal Aid mediation to occur following the release of any updated report and the Court, again, noted that Ms L had, previously, provided the family report.
On 8 February 2017, by Chambers order, the 9 February 2017 date was vacated and the matter was listed on 5 May 2017 for mention, noting that the appointments with Ms L were then scheduled to take place on 28 February 2017 and that an updated family report would not be available until early April 2017.
Some 8 days prior to the family report appointments (that is on 20 February 2017), the mother filed her application in a case and obtained leave to effect short service. That application in a case was given a return date of 27 February 2017. The application in a case sought orders as follows:
(1)That the Regulation 7 consultant, Ms L having prepared the family report dated 3 December 2014 in these proceedings is/be hereby discharged.
(2)That pursuant to s.62G(2) (although the wife in correctly refers to s.60G(2)) of the Family Law Act 1975 (Cth) (“the Act”) the manager, Child Dispute Services hereby appoint a Regulation 7 consultant other than Ms L to prepare a family report for these proceedings.
(3)Costs.
The mother in her written submissions filed on 19 March 2017, sought a further order as follows:
(4)That the family report of Ms L dated 3 December 2014 be sealed and remain on the Court file and not be disclosed until further order.
When the matter then came before the Court on 27 February 2017 on an urgent basis (one day prior to the interviews), the Court made an order for the mother to pay the sum of $240.00, being Ms L’s costs for 28 February 2017. The interviews before Ms L were then cancelled and the Court understands that while Ms L may have been able to utilise her time on 28 February 2017 with respect to another matter, the $240.00 would still be charged to the Court. In those circumstances, given the late application of the mother in this case, the Court was of the view that the $240.00 should not be paid for by the Court, without any reimbursement from the mother.
The father’s position, at that time, was that he opposed the mother’s application in a case. He had not had time to file his affidavit or response and that was directed to be done within 14 days of 27 February 2017. Both parties were then directed to file written submissions and the Court’s decision was to be reserved, following receipt thereof.
The father filed his response to the mother’s application in a case on 13 March 2017, which sought an order to the following effect:
(1)That the Regulation 7 Family Consultant, Ms L, (having prepared the Family Report dated 3 December 2014 in these proceedings) be retained as the Regulation 7 Family Consultant and complete an updated Family Report as ordered by the Court on 2 September 2016.
Mr Kennard for the Independent Children’s Lawyer indicated that he would file his submissions at the same time as the father, after receiving the mother’s written submissions.
The mother filed her written submissions on 19 March 2017.
The father filed his written submissions on 27 March 2017.
The Independent Children’s Lawyer filed his written submissions on 27 March 2017.
In the circumstances, all parties agreed that the matter could be dealt with on the papers and in Chambers.
The Law
The Court has had regard to the following statutory provisions:
a) Section 10H of the Act:
Confidentiality of communications in family dispute resolution
(1)A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.
(2) A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3)A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by:
(a)if the person who made the communication is 18 or over--that person; or
(b)if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii)a court.
(4)A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of:
(a)protecting a child from the risk of harm (whether physical or psychological); or
(b)preventing or lessening a serious and imminent threat to the life or health of a person; or
(c)reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d)preventing or lessening a serious and imminent threat to the property of a person; or
(e)reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f)if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly.
(5)A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988 ) for research relevant to families.
(6)A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8).
(7)Evidence that would be inadmissible because of section 10J is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the practitioner's evidence is inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances.
(8)In this section:
“communication” includes admission.
b) Section 10J of the Act:
Admissibility of communications in family dispute resolution and in referrals from family dispute resolution
(1)Evidence of anything said, or any admission made, by or in the company of:
(a)a family dispute resolution practitioner conducting family dispute resolution; or
(b)a person (the professional ) to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c)in any court (whether or not exercising federal jurisdiction); or
(d)in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2)Subsection (1) does not apply to:
(a)an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b)a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3)Subsection (1) does not apply to information necessary for the practitioner to give a certificate under subsection 60I(8).
(4)A family dispute resolution practitioner who refers a person to a professional (within the meaning of paragraph(1)(b)) must inform the professional of the effect of this section.
c)SECTION 11A of the Act:
Functions of family consultants
The functions of family consultants are to provide services in relation to proceedings under this Act, including:
(a)assisting and advising people involved in the proceedings; and
(b)assisting and advising courts, and giving evidence, in relation to the proceedings; and
(c)helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and
(d)reporting to the court under sections 55A and 62G; and
(e)advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.
Note: See subsection 4(1AA) for people who are taken to be involved in proceedings.
d) Section 11C of the Act:
Admissibility of communications with family consultants and referrals from family consultants
(1)Evidence of anything said, or any admission made, by or in the company of:
(a)a family consultant performing the functions of a family consultant; or
(b)a person (the professional ) to whom a family consultant refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is admissible in proceedings under this Act.
Note 1: Communications with family consultants are not confidential (except in the special circumstances set out in subsection 38BD(3) in relation to consultants having several roles).
Note 2: Subsection (1) does not prevent things said or admissions made by or in the company of family consultants from being admissible in proceedings other than proceedings under this Act.
(2)Subsection (1) does not apply to a thing said or an admission made by a person who, at the time of saying the thing or making the admission, had not been informed of the effect of subsection (1).
(3)Despite subsection (2), a thing said or admission made is admissible even if the person who said the thing or made the admission had not been informed of the effect of subsection (1), if:
(a)it is an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) it is a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
e) Section 62G of the Act:
Reports by family consultants
(1) This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.
(2) The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.
(3) If the court makes a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.
(3A) A family consultant who is directed to give the court a report on a matter under subsection (2) must:
(a) ascertain the views of the child in relation to that matter; and
(b) include the views of the child on that matter in the report.
Note: A person cannot require a child to express his or her views in relation to any matter (see section 60CE).
(3B) Subsection (3A) does not apply if complying with that subsection would be inappropriate because of:
(a) the child's age or maturity; or
(b) some other special circumstance.
(4) The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.
(5) For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant).
Note: Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).
(6) If:
(a)a person fails to comply with an order or direction under subsection (5); or
(b)a child fails to attend an appointment with a family consultant as arranged in compliance with an order or direction under subsection (5);
the family consultant must report the failure to the court.
(7) On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate.
(8) A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.
f) Section 69ZN of the Act:
Principles for conducting child-related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
g) Section 80 of the Evidence Act 1995 (Cth) which states that: “Evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue or a matter of common knowledge”.
h) Section 135 of the Evidence Act 1995 (Cth) which states that: “The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: be unfairly prejudicial to a party or be misleading or confusing or cause or result in undue waste of time.”
i) Section 15.06A of the Federal Circuit Court Rules 2001 which states:
15.06A Definition
In this Division:
expert, in relation to a question, means a person (other than a family and child counsellor or a welfare officer) who has specialised knowledge about matters relevant to the question based on that person’s training, study or experience.
j) Section 15.07 of the Federal Circuit Court Rules2001 which states:
15.07 Duty to Court and form of expert evidence
For an expert’s duty to the Court and for the form of expert evidence, an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses.
Note:While not intended to address all aspects of an expert’s duties, the key points in the guidelines are:
·an expert witness has a duty to assist the Court on matters relevant to the expert’s area of expertise
·an expert witness is not an advocate for a party
·the overriding duty of an expert witness is to the Court and not to the person retaining the expert
·if expert witnesses confer at the direction of the Court it would be improper for an expert to be given or to accept instructions not to reach agreement.
k) Practice Note CM7 of the Federal Court of Australia which as at 3 June 2013, provided as follows:
Expert witnesses in proceedings in the Federal Court of Australia
Commencement
1. Omitted.
Introduction
2. Rule 23.12 of the Federal Court Rules 2011 requires a party to give a copy of the following guidelines to any witness they propose to retain for the purpose of preparing a report or giving evidence in a proceeding as to an opinion held by the witness that is wholly or substantially based on the specialised knowledge of the witness (see Part 3.3 - Opinion of the Evidence Act 1995 (Cth)).
3. The guidelines are not intended to address all aspects of an expert witness’s duties, but are intended to facilitate the admission of opinion evidence, and to assist experts to understand in general terms what the Court expects of them. Additionally, it is hoped that the guidelines will assist individual expert witnesses to avoid the criticism that is sometimes made (whether rightly or wrongly) that expert witnesses lack objectivity, or have coloured their evidence in favour of the party calling them.
Guidelines
1. General Duty to the Court
1.1 An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.
1.2 An expert witness is not an advocate for a party even when giving testimony that is necessarily evaluative rather than inferential.
1.3 An expert witness’s paramount duty is to the Court and not to the person retaining the expert.
2. The Form of the Expert’s Report
2.1 An expert’s written report must comply with Rule 23.13 and therefore must
(a) be signed by the expert who prepared the report; and
(b)contain an acknowledgement at the beginning of the report that the expert has read, understood and complied with the Practice Note; and
(c) contain particulars of the training, study or experience by which the expert has acquired specialised knowledge; and
(d) identify the questions that the expert was asked to address; and
(e) set out separately each of the factual findings or assumptions on which the expert’s opinion is based; and
(f) set out separately from the factual findings or assumptions each of the expert’s opinions; and
(g) set out the reasons for each of the expert’s opinions; and
(ga) contain an acknowledgment that the expert’s opinions are based wholly or substantially on the specialised knowledge mentioned in paragraph (c) above[4]; and
(h) comply with the Practice Note.
2.2 At the end of the report the expert should declare that “[the expert] has made all the inquiries that [the expert] believes are desirable and appropriate and that no matters of significance that [the expert] regards as relevant have, to [the expert’s] knowledge, been withheld from the Court."
2.3 There should be included in or attached to the report the documents and other materials that the expert has been instructed to consider.
2.4 If, after exchange of reports or at any other stage, an expert witness changes the expert’s opinion, having read another expert’s report or for any other reason, the change should be communicated as soon as practicable (through the party’s lawyers) to each party to whom the expert witness’s report has been provided and, when appropriate, to the Court.
2.5 If an expert’s opinion is not fully researched because the expert considers that insufficient data are available, or for any other reason, this must be stated with an indication that the opinion is no more than a provisional one. Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.
2.6 The expert should make it clear if a particular question or issue falls outside the relevant field of expertise.
2.7 Where an expert’s report refers to photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter, these must be provided to the opposite party at the same time as the exchange of reports.
3. Experts’ Conference
3.1 Omitted.
l) Rule 15.54 of the Family Law Rules2004 (Cth) provides that:
Instructions to expert witness
(1)A party who instructs an expert witness to give an opinion for a case or an anticipated case must:
(a)ensure the expert witness has a copy of the most recent version of, and has read, Divisions 15.5.4, 15.5.5 and 15.5.6 of these Rules; and
(b)obtain a written report from the expert witness.
(2)All instructions to an expert witness must be in writing and must include:
(a)a request for a written report;
(b)advice that the report may be used in an anticipated or actual case;
(c)the issues about which the opinion is sought;
(d)a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and
(e)full and frank disclosure of information and documents that will help the expert witness to perform the expert witness's function.
(3) The parties must give the expert an agreed statement of facts on which to base the report.
(4) However, if the parties do not agree on a statement of facts:
(a)unless the court directs otherwise--each of the parties must give to the expert a statement of facts on which to base the report; and
(b)the court may give directions about the form and content of the statement of facts to be given to the expert.
The Court has had regard to the following authorities and notes as follows:
a) The Court accepts the mother’s submission that generally experts are permitted to give opinion evidence based on their “specialised knowledge”, as an exception to the opinion rule, provided the opinion is “wholly or substantially based on that knowledge”. The cases of Dasreef Pty Limited v Nawaf Hawchar (2011) 243 CLR 588 and Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705 support the position that a family report writer can be challenged as to qualifications to express an opinion and that a party seeking to rely upon such an opinion bears the onus of establishing that qualification. The qualification itself may be based on specialised knowledge, skill and experience. Further any opinions so expressed should be supported by a clear and logical path of analysis grounded on the facts or assumed facts and made by reference wholly or substantially to the said specialised knowledge concerned (see Sydney Wide Distributers Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354). If “facts” which are relied upon by a family report writer are not ultimately established in the evidence, any opinion based thereon may be undermined.
b) If an expert’s report is, otherwise admissible, within s.79 of the Evidence Act 1995 any apprehended partiality of that expert witness does not (subject to any possible exercise of a discretion under s.135 of the Evidence Act 1995) provide a separate basis to exclude that evidence. See Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485.
c) In Kirch Communications Pty Ltd v Gene Engineering Pty Ltd, Campbell J. applied the decision of Pagone J. in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454. Campbell J., in referring to that decision, stated and quoted Pagone J. as follows:
“…that, at least at the stage at which his Honour needed to consider the question, it was not necessary for him to apply a similar principle to exclude evidence in that case. The decision of Pagone J related to valuation evidence produced by the brother-in-law of one of the parties.”
His Honour said:
“An expert witness has a special and important role in judicial proceedings to assist the Court by provision of objective and unbiased opinions about matters that bear upon the determination which the Court is called upon to make.
The exclusion of an expert's evidence should only occur when the Court is satisfied that the evidence to be led by the expert is unsound and cannot provide probative material of value to the court's task of determining the issues in the proceedings.
The possibility of a witness having a bias in favour of a party (directly or indirectly) is undoubtedly a matter to be taken into account by a court when deciding what weight to give to the expert evidence, but it is not a ground for rejecting evidence that may be of assistance to the Court in reaching the correct result.”
His Honour went on to say that,
“While it is undoubtedly the task of the Court to do justice between the parties, and necessary for the court to be not only independent, but perceived to be independent, a biased witness does not impugn the independence of the decision-maker. Rather, any bias is a matter to be taken into account as a matter of weight in assessing the evidence, not as a matter of admissibility.”
d) The Court accepts the mother’s submission that in Kernot v Matson [2008] 39 FamLR 695, reference is made to the decision of Pownall v Conlan Management Pty Limited (1995) 12 WAR 370 and in particular, to Ipp J. who said:
“In my opinion, expert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it. I form this view to admit such an opinion would be to admit, indirectly, the inadmissible evidence itself. If an opinion, based solely on evidence that the court by law is required to exclude, is itself admitted, the inadmissible evidence would have some influence over the courts decision. .. if the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant and in my opinion should be excluded.”
e) In Kernot v Matson the Court (Watts J.), further, considered the question as to what should happen if there was a mixture of legitimate material and objectionable material in a family report. The Court held that if the opinions of the family report writer were not based on entirely inadmissible evidence then there was no need to reject the entire body of the report.
f) In Maluka v Maluka (2011) 45 Fam LR and McGregor v McGregor (2012) 47 Fam LR 498, the Full Court of the Family Court of Australia have made clear that research evidence may only be introduced through an appropriately qualified expert who can render the research relevant and, directly, applicable to the facts of the case.
g) The Court accepts that Watts J. in Kernot v Matson was comfortable in accepting the proposition that a family report writer could be removed by the Court applying a similar consideration to the principles upon which a judge may be disqualified.
h) In Ebner v The Official Trustee in Bankruptcy [2000] 205 CLR 337, the plurality of the High Court of Australia considered the test for the disqualification of a judge as:
“…If a fair minded lay observer may reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
i) In Ebner v The Official Trustee in Bankruptcy, the plurality went on to state:
“The question is one of possibility (real and not remote), not probability.”
…
First, it requires the identification of what it is said might lead a judge …to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits… only then can the reasonableness of the asserted apprehension of bias be assessed.”
j) In Thompson & Platt [2016] FamCA 1116, Justice Tree, noting particularly the distinction between a judge as a decision maker and a family report writer tasked with the role of assisting the Court itself come to a decision, provided the following examination of the relevant law (statutory and legal principles) in paragraphs 15-26 and 33 as follows:
Family Reports
15.Section 62G(2) of the Family Law Act 1975 (Cth) provides that “the court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.” Section 62G(8) provides that such a report may be received in evidence in proceedings under the Act.
16.Part 3 of the Family Law Act deals with family consultants. Section 11D provides that a family consultant, in performing their function as such, have “the same protection and immunity as a Judge of the Family Court.”
17.In practice, the family consultant used to prepare Family Reports may either be a salaried employee of the court itself (noting that strictly they are now employees of the Federal Court) or sourced from the pool of family consultants approved under Regulation 7 of the Family Law Regulations 1984 (Cth). Depending upon the circumstances of the case, the court may require the parties to contribute to the cost of the preparation of a Family Report, or the court may bear that cost itself. Further complexity is introduced if there is an Independent Children's Lawyer engaged in the proceedings, as they may seek to undertake the briefing of the family consultant for the purposes of the preparation of the Family Report; in the event that the court itself arranges the preparation of the report, then such briefing occurs in-house.
18.Notwithstanding the immunity attached to the family consultant preparing a Family Report, the authorities make it plain that the witness enjoys no special position as regards other witnesses in relation to their evidence. The evidence contained within the Family Report is simply part of the material before the court, which stands to be tested in the usual way by cross-examination, and which may or may not be accepted by the court. Further, the weight which is given to the report remains a matter for the trial Judge.
Bias
19.In Minister for Immigration & Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J at 531-2 said this in relation to actual bias:
… Decision-makers, including judicial decision-makers, some times 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. The fact that, in the case of Judges, it may be easier to persuade one Judge of a proposition than it is to persuade another does not mean that either of them is effected by bias.
… The state of mind described as bias in the form of pre-judgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any pre-disposition or inclination for or against an argument or conclusion...
20.As to apprehended bias, in Johnson & Johnson (2000) 201 CLR 488 at 492, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
11. … It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias.. is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide.
21.Later in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a Judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bear assertion that a Judge (or juror) 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. Only then can the reasonableness of the asserted apprehension of bias can be assessed.
22.There is no clear reason why those principles, which require natural justice to be afforded by decision-makers, should apply in totality, or perhaps even at all, in relation to the writer of a Family Report. Such persons undertake no decision making; the decision making still resides with the court. To the extent that any authority suggests otherwise, it appears to have its genesis in a decision of Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 where at [8] his Honour said:
The principle rationale of the test of reasonable apprehension of bias is to ensure that decision-makers are perceived to be truly independent in their decisions. A biased witness does not impugn the independence of the decision-maker, especially where the proceedings are adversarial and the evidence can be tested. The possibility that a witness of fact or expert opinion may be bias does not infect the impartiality of the court. The situation might be otherwise where the expert is appointed by the court or where the role or function of the expert is more than that of a giver of evidence (whether that evidence be in the form of an opinion, as librarian of a body of knowledge, or otherwise). In such a case the role or function of the expert may perhaps come to be incorporated into that of the decision-maker, and, where the expert’s role or function is such that there is actual decision-making by the expert, then I can see some scope for the application of the test of reasonable apprehension of bias to exclude the evidence. I can see no scope for that test, however, to exclude expert evidence that may assist the court where the expert is called in adversarial proceedings by one party and where an opposing party is at liberty to test whether any bias corrupts the evidence. (Emphasis added).
23.The Full Court of this Court in Bass & Bass (2008) FLC 93-366 at 82,487-8, adverted to this passage but then proceeded to refuse leave to appeal in relation to a decision to not allow an adversarial expert to be appointed, explaining that the reasons for refusing to grant leave included:
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.. 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.
24.That does not suggest, at least to my mind, that the Full Court was endorsing the argument that a court can or should discharge a Family Report writer for actual or ostensible bias. Nor does the subsequent Full Court decision of Payne & Payne [2009] FamCAFC 13 at [77] compel such a conclusion either. I also note the helpful discussion on this issue by McClelland J in Danell & Saller [2015] FamCA 859 at [32]-[36].
25.I am conscious that in an ex tempore judgment of Boland J in R & R [2003] FamCA 1180 at [22] her Honour discharged the order which had appointed a Family Report writer, and restrained the distribution of a report, on the grounds that “neither rendering inadmissible parts of the report, or cross-examination could overcome the fundamental defect of a perception of bias or actual bias in the Report writer.” Later, Watts J in Kernot & Matson [2008] FamCA 756 at [16] was “comfortable in accepting” the proposition that a family consultant can be removed on the same basis as a Judge may be disqualified. However neither of those authorities bind me or otherwise require me to so hold.
Procedural fairness generally
26.It may be taken that at the heart of procedural fairness is a right to be heard. That right may not extend to calling evidence but will certainly extend to an opportunity to make relevant submissions where an interest is sufficiently potentially affected by a decision proposed to be made.
33. Therefore although I am of the view that the obligation of procedural fairness that applies to Judges does not apply to Family Report writers, even if that is erroneous, I am not satisfied that the relevant tests are met in this case in relation to Mr H. Further, even if I were of the view that they were so met, in my view this is par excellence a case of the kind identified in Bass & Bass (supra), where the proper course is to deal with the matter by way of cross-examination of Mr H.
In Danell & Saller [2015] FamCA 859, McClelland J considered that the mother’s application to discharge an expert (Dr R) under s.135 of the Evidence Act 1995 was premature given that she had not pursued other avenues including seeking a conference to discuss her report and/or submitting questions to Dr R to seek further clarification and, further, that such application was, in any event, made prior to Dr R being cross-examined. His Honour considered that even if the entirety of the mother’s objections were accepted as raising valid concerns, they would not in those interim proceedings form the basis for the Court to exercise its discretion to determine that the entirety of Dr R’s report would be inadmissible under s.135 of the Evidence Act1995 at the final hearing. His Honour, further, considered that the issue as to whether any objectionable parts of the final report could be separated or were so intertwined that they could not be readily separated was a matter which needed to be dealt with at the final hearing.
In Nepean & Treloar [2010] Fam CA 781, Justice Fowler considered the position where a single expert had considered material that had been provided to the expert by the mother, without the consent of both parties, in breach of Rule 15.54(3) of the Family Law Rules 2004. The document as put by the mother contained allegations of “fact”, which were not truthfully in agreement between the parties. Given that the father was not aware of the document, he was unable to reply to the allegations contained therein. The father submitted that the single expert’s evidence was “contaminated” by that material and that, therefore, the single expert should be discharged. While Justice Fowler considered Kernot & Matson, his Honour was of the view that it was not appropriate to “trim” from the report objectionable material where such trimming rendered the report unhelpful to both the parties and the Court.
His Honour came to the conclusion that in that case, there was a “…sufficient reasonable reference to the unchallenged assertions made in the submission document in the report to give rise to a reasonable apprehension that the report is the product, at least in part, of a breach of the Rules and the influence of the document referred to”. Although it was still open to his Honour to permit the admission of the report into evidence, his Honour considered that it was “not only the doing of justice, but also the perception of it being done appropriately” that was “important for the longevity of result and the welfare of the child” and that, as such, “reports should be made in proceedings where parties can accept that the process is beyond reproach, even if the result is not to their liking.”
The mother’s evidence
The mother relied on her affidavit sworn/affirmed 14 February 2017 in support of her application. The mother refers to attending the Court’s registry with the child and another child, A, for the purposes of the preparation of the family report with Ms L. The mother says she became very distressed after the family report was issued because she did not believe Ms L had treated her fairly during the interview process. The mother says that she has “now gone through Ms L’s report dated 3 December 2014” with her current lawyer. In paragraph 15 of the mother’s affidavit, she says:
I refer to Ms L’s report and state as follows as to my recollection of the formal interview process.
15.1At page [2] of Ms L’s report, where she refers to the limitations of the report. Ms L states: “Both parties were concerned that this family report may not accurately reflect their situation. Every effort was made to be sensitive to the parties’ situation, including the report writer being more heavily reliant on affidavit and subpoenaed material than would normally be the case.”
15.2At paragraph 13 (page 6), Ms L refers to information contained in the subpoena material but then makes comments about my presentation on the day of the family report interviews which raised concerns about my capacity to support a relationship with the child in the future.
15.3At paragraph 93 (page 33), Ms L states that [my] presentation on the day of the family report interviews suggest that [I] would benefit from a psychiatric review and some formal professional intervention.
15.4The mother says that: Ms L was prejudicial and bias, as she clearly indicated at page 1 that she would be more heavily reliant on affidavit material, as this was the second time we were going through the interview process. She then makes recommendations of a mental health assessment, based on my presentation.
15.5The mother says that: Ms L has formed an opinion which is not within her area of expertise. I understand that her expertise is that of a social worker and also lawyer. At paragraph 97, (page 35), Ms L refers to my relationship with A as one of “classic enmeshment”. I recollect that Ms L spent very little time with A, and also A is not a child in these proceedings.
15.6The mother says that: Ms L refers to a telephone conversation with Mr A (“Mr A”), the father’s treating psychologist. In the subpoena documents, Mr A refers to Ms L and following up to obtain a copy of her report. He does not record that he had a telephone conversation with her on the 30 November 2014.
15.7The mother says that: I have concerns as to the correspondence between Ms L and Mr A, as in the subpoena documents, Mr A produces my affidavit in these proceedings and various documents provided to him from the father purported to be from my mother and from me.
15.8At paragraph 9 (page 4), Ms L refers to the parties having agreed to make arrangements to secure a place at the children’s contact service.
15.9The mother says that: Ms L, during the interview process, was probing me about what occurred at previous mediation with the father. I recall that previous mediations were through the Legal Aid Family Dispute resolution and I had signed a confidentiality agreement.
15.10The mother says that: Ms L would continue asking me questions and expecting answers about the mediations.
15.11At paragraph 95, (page 33), Ms L refers that there were previous mediations, that the father tried to get me to engage in the mediation process. Ms L also makes reference, (at paragraph 29, page 11), to the father’s section 60I certificate and my failure to mediate as the last attempt on 8 February 2013. I did tell her, as reflected at paragraph 42, (page 17), that I did not receive the correspondence.
15.12At paragraph 43 (page 18), Ms L refers to her discussions with me about what occurred at the mediation. She then comments and forms an opinion about my discussions at mediation and describes me as highly agitated as to how I answered her questions about mediation.
15.13The mother says that: Ms L comments that I have had a number of formal opportunities to mediate, including the Child Dispute Conference (“CDC”) in October 2013 and the Court Ordered Mediation Pilot (“COMP”) in early 2014. Ms L then follows on to compare what I allegedly said at the CDC and at the COMP and compare my concerns to things she states I said to DOCS caseworkers which she states were minor ones. Ms L then continues and ends the paragraph forming a view that I now raise issues that were not a concern in 2012. Ms L provides an opinion that my concerns raised at mediation are perplexing, taking I didn’t raise them in 2012. I say Ms L is bias.
15.14The mother says that: Ms L has formed a view based on what she was able to elicit from me in her questions relating to mediation.
15.15At paragraph 22 (page 9), Ms L refers to a card that [the father] showed her. I have not seen a card in the father’s affidavit. There is no reference to the card as a document sighted by Ms L (on page 1 of her report) as documents she has sighted and read. Ms L then pursued to ask me questions about writing on this card, and describes it in her report at paragraph 22.
The father’s evidence
The father relied on his affidavit filed on 13 March 2017 where he commented on, corrected or completed various paragraphs of the mother’s affidavit. The father says that as to certain points in relation to paragraph 15 of the mother’s affidavit they amounted to submissions, repeated sections of the family report, were unclear or he made no particular comment in respect thereof. The father annexes the card that he submits that he showed Ms L during his interview and that the mother submitted was not before the Court.
The father was of the view that Ms L was professional and had, accurately, reported his comments and interactions with the child. He sought that Ms L be retained as the family report writer for the purposes of preparing an updated report and providing any oral evidence at the hearing, if required.
Hearing
The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read and the submissions of the parties’ legal representatives and those of the Independent Children’s Lawyer. There is no provision at this stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
Chronology
The parties’ combined chronology of Court events, incorporating the matters set out in paragraphs 1 to 17 above is, as follows:
a) On 3 July 2013, the father filed his Initiating Application.
b) On 26 November 2013, the mother filed her Response.
c) On 4 September 2013, the matter first came before Judge Walker in this Court. The matter was adjourned to 26 November 2013. Orders made on 4 September 2013 by Judge Walker referred the matter to a CDC in accordance with sections 11F and 11C of the Act.
d) On 22 October 2013, the CDC took place before Ms P (“Ms P”) and a memorandum was provided to the Court of that date. It should be noted that the Memorandum refers to “issues in dispute” and “any agreement reached”. It does not refer to mediation.
e) On 26 November 2013, Judge Walker made further orders for the appointment of an Independent Children’s Lawyer and an order that both parties contact (omitted) Contact Centre. The matter was then adjourned to 31 January 2014.
f) On 31 January 2014, whilst at Court, interim parenting orders were made in accordance with the document “Interim Consent Orders” signed by the parties and their legal representatives. The orders allowed for time for the child with the father supervised at the (omitted) Contact Centre. Leave was granted to file further proposed consent orders in Chambers including orders in relation to the preparation of a family report, in which case the interim hearing date would be vacated. The parties were also referred to a COMP on 11 February 2014.
g) On 11 February 2014, a COMP took place arranged by the Legal Aid Commission of New South Wales. Terms of settlement were reached and circulated by the Independent Children’s Lawyer at a later date. The terms of settlement were signed by the father on 27 February 2014, the mother’s lawyer on 10 March 2014 and the Independent Children’s Lawyer on 3 April 2014.
h) On 30 April 2014, Judge Walker made orders in accordance with the said “Terms of Settlement” document. Those orders included, inter alia, pursuant to s.62G(2) of the Act, an order for the preparation of a family report to address the s.60CC of the Act factors, for the parties to attend Unifam or, alternatively, if that could not occur, then to enrol in a Parenting Orders Programme with each party to enrol and participate in the identified course, training or counselling.
i) On or about 23 August 2014, the parties attended Ms M for a family report. The mother said that this included follow up phone calls however, Ms M fell ill and did not complete that report.
j) On 26 November 2014, a secondary appointment for a family report was made with Ms L.
k) On 3 December 2014, the family report of Ms L was released to the parties by an order made in Chambers on that date.
l) On 2 September 2016, the Court ordered that an updated report from Ms L be prepared.
m) In January 2017, the parties were notified by Ms L of the family report appointments scheduled for 28 February 2017 for her updated report.
n) On 4 February 2017, the mother sought to vacate the directions hearing due to the timing of her appointment with Ms L.
Mother’s complaints
The mother submits that there are 4 fundamental problems with Ms L being further retained as the family report writer and of the family report and those problems are as follows:
a) First, Ms L had discussed with the mother and reported on an undisclosed document provided to her by the father during the interviews;
b) Secondly, Ms L questioned the parties, reported their answers and expressed her opinions about what occurred at mediation. Ms L is reporting on information that was inadmissible and not within the scope of a family report. This, in itself, contaminates the family report;
c) Thirdly, Ms L had demonstrably expressed opinions outside her realm of expertise; and
d) Fourthly, there was an apprehension of bias in Ms L as a result of embarking on the above and, therefore, she no longer brought an impartial mind to the opinions that she was expressing and the recommendations she was making.
None of the matters referred to in paragraph 28 above, referred to the assertion that Ms L was actually biased.
Parties’ submissions and consideration thereof
Dealing with each of those 4 areas of complaint, the mother then made the following further submissions and the Court records the father’s submissions in reply thereto and its consideration, as follows:
a) Ms L has shown the mother and reported on an undisclosed document provided to her by the father during the interviews which the mother and the Independent Children’s Lawyer and the Court had been unaware of:
i)Ms L describes a card that the father showed her and she condenses the messages on the card purportedly written by the mother to the father. This card does not form part of the documents read as outlined in the list of documents considered, was not produced in any subpoenaed material as of the date of the family report and was not attached or annexed to the family report.
ii)Ms L then questions the mother on the contents of the said card.
iii)The said card was produced and shown to Ms L by the father.
iv)The mother was “asked” about the said card and it was not clear as to the date, source and content and circumstances of that enquiry.
v)In his affidavit filed 13 March 2017, the father annexes a document that, he says, was the card he showed Ms L at the interviews.
vi)The material produced by the father’s psychologist, under subpoena issued around 31 March 2016, contains the mother’s documents filed in response to the father’s Initiating Application and also includes a copy of the said card, identical to that which the father annexes to his said affidavit as the document that he provided to Ms L.
vii)It is unclear when the father’s psychologist received copies of the said documents and from whom he received them.
viii)Ms L refers to a conversation (at paragraph 86 of the family report), with the father’s psychologist on 28 November 2014.
ix)Ms L then forms an opinion and expresses certain views after questioning the mother on the said card.
x)That Ms L was in breach of Rule 15.54(3) of the Family Law Rules2004 (see paragraph 18(l) above) in that the said card had been provided to her, without the consent of both parties and thus had contaminated her report.
xi)The father makes no specific submission in relation to this area of complaint, although, as stated above, the said card was annexed to his affidavit dated 13 March 2017.
xii)The Court notes that Ms L is not an expert appointed pursuant to Rule 15.54 of the Family Law Rules2004 which do not apply here. Ms L is a family report writer appointed as a Regulation 7 Family Consultant to prepare a family report pursuant to s.62G(2) of the Act (see paragraph 18(e) above).
xiii)Nevertheless, it is also not controversial that Ms L discussed the said card with the mother and sought her input with respect to it. In those circumstances, the Court is satisfied that Ms L, appropriately, raised the contents of the said card with the mother so as to make her aware of it. That, clearly, distinguishes the matter from the facts the subject of the decision by Justice Fowler in Nepean v Treloar referred to in paragraph 21 above. The matters raised in the mother’s affidavit material can certainly be telegraphed to Ms L so that she can deal with those matters in any updated report, as this is not a trial of a family report writer by ambush. The Court will direct that a copy of these reasons be provided to Ms L by the Independent Children’s Lawyer no later than 7 days prior to any re-scheduled family report interviews.
xiv)The Court finds that as the said card has now been provided to the Court in the father’s affidavit, this issue can be dealt with in any cross-examination of Ms L. It is within the mother’s knowledge to confirm whether she, in fact, wrote the card and, if so when she wrote it (the Court notes the early lines indicate it was written to “her husband of 17 months”). Similarly, the father can be cross-examined about the said card.
xv)The Court is not of the view that the existence of the said card and the questioning of the mother about it has so impuned the family report or Ms L’s independence to have her removed as the family report writer for any updated family report.
b) Ms L questioned the parties, reported their answers and expressed her opinions about what occurred at mediation. Ms L is reporting on information that is inadmissible and not within the scope of a family report writer. This, in itself, contaminates the family report.
i)Ms L is to provide a family report that is admissible evidence. Section 62G(8) of the Act provides that a report may be received in evidence in proceedings under the Act.
ii)Ms L then incorporated inadmissible evidence in the family report, noting her report was admissible.
iii)Ms L questioned and invited the parties to a discussion as to mediation/s. This was a fundamental error in terms of sections 10H and 10J of the Act.
iv)Ms L, at paragraph 9 of the family report, refers to the COMP that took place in January 2014 and states that there was an agreement to make arrangements to secure a place at a Children’s Contact Centre. The mother says that this was misleading as the arrangements to secure a place to attend at (omitted) Contact Centre were orders by way of terms of settlement made on 31 January 2014, whilst the parties attended Court at a directions hearing. Prior to that, on 26 November 2013, both parties were ordered to contact (omitted) Contact Centre. Following the COMP, terms of settlement were made into orders in Chambers on 30 April 2014.
v)Ms L, at paragraphs 26, 27 and 28 of the family report, outlines her discussions with the father about mediation. In particular, at paragraph 28 she outlines the father’s views on the outcome, concerns, and complaints about the COMP in February 2014 (albeit she may have been referring to the mediation in January 2014).
vi)Ms L, at paragraph 26 of the family report, refers to the father’s “last attempt” at mediation as outlined on the s.60I certificate and the mother’s “failure to attend”. This is despite, at paragraph 42 of the family report, she reported that the mother “emphatically and repeatedly denied ever getting any correspondence” to arrange that mediation. Her use of the word “last” was important as she was, in fact, reporting that there were previous mediation attempts. The mother said that Ms L had no evidence before her of any mediations that occurred prior to the commencement of legal proceedings by the father, other than the self-reporting suggestions by him upon which to ground this statement. The mother was also critical of Ms L’s statement questioning her about correspondence that she did not receive. The mother submitted that what further information the father provided to Ms L was unknown.
vii)Ms L, at paragraph 95 of the family report, is critical of the mother in not engaging in post separation mediation, with no evidence before her of such attempts and certificates or correspondence. Ms L states that it appears that the father was unable to get the mother to engage in mediation at any time post separation, noting of course that the mother has had a number of formal opportunities to mediate, including the CDC in October 2013 and the COMP program in early 2014. The mother says that Ms L’s statement concerning the CDC was incorrect and misleading as that event was not an “opportunity to mediate”. Ms L concludes: “this sounds like a situation that would have been perfect for mediation and to his credit, [the father] made a number of attempts to organize mediation in order to get some consistency in how he spent time with [the child]”. The mother says that Ms L had reached a conclusion about the credit of the parties by evaluating that the father was unable to get the mother to engage in mediation at any time post separation and that “this is a matter that the mother has misled the Court in her requests for supervised time”. Further, that while there was no clear evidence other than the father self-reporting as to his attempts to arrange mediation, Ms L stated this after the mother had disclosed to her that the father had mental health issues and a history of family violence. Ms L appears to have disregarded the mother’s allegations and formed an opinion and made a finding that the asserted violence was not of a controlling coercive nature but that of situational violence. She states this, even though she reported (at paragraph 87 of the family report) that this was “a complex matter”.
viii)Ms L, at paragraph 95 of the family report, following on in discussing attempts at mediation by the father that were self-reporting and a reference to the CDC and COMP mediations, stated that the mother in seeking that the father’s time be supervised during these “events” compared it to events in 2012 where “the concerns she expressed to DOCS case workers were minor ones relating to food, routines and possibly car safety”. The mother also asserted that Ms L had omitted evidence in the Department of Family Community Services subpoenaed material, which was consistent with her assertions of domestic violence. The entries by the Department of Family and Community Services and, in particular, the complaint made by the father about the risk to the children by the mother, she says, were unsubstantiated. The mother submitted that Ms L was, therefore, not impartial, but bias.
ix)Ms L, at paragraph 95 of the family report, states: “at both these events [the mother] has alleged that [the child] is not safe with her father”. The mother says that Ms L is clearly reporting confidential and inadmissible information, that is, that which was allegedly disclosed to her in the discussion with the mother and/or father about mediation and what had occurred. The mother maintains that while it is not known what else was discussed with Ms L as to what occurred at mediation nevertheless as the topic was discussed it was, necessarily, outside the requirements of Ms L.
x)Ms L, at paragraph 43 of the family report, openly discusses and probes the mother as to what occurred at the COMP in February 2014. Ms L then comments that the mother was “highly agitated” when discussing mediation. Ms L then paraphrases the mother’s answers about what occurred at mediation as follows: “Why are you setting me up? Why are you trying to make me answer? Is this a test I’m going to fail?” The mother submits that she is telling Ms L that she does not want to discuss mediation and Ms L not only continues to probe and seeks to know about confidential and inadmissible evidence, but also paraphrases the mother and describes her appearance in answering about those mediation matters.
xi)Ms L, at paragraph 84 of the family report, whilst reporting on subpoena material produced by the Department of Family and Community Services, refers to the comments made by the father to case workers: “[the father] told case workers that he had been trying to get [the mother] to attend mediation with him but she will not attend”.
xii)Ms L, at paragraph 13 of the family report, refers to the mother’s allegations of family violence and the father’s mental health issues which the mother says go unexplored and should not be dispensed with by Ms L, given, in particular, the limitations Ms L has identified in her report.
xiii)Ms L, at paragraph 94 of the family report, states that: “it is unlikely that [the father] completely controlled [the mother] during this time to the extent that she has claimed. …it is not outside the bounds of possibilities that there was a constant power struggle between the two of them”.
xiv)Ms L, at paragraph 96 of the family report, states that: “there is nothing in any aspect of [the father’s] behaviour post separation that suggests he is seeking to punish or otherwise control [the mother] in such an extreme way (as one might expect to see in a classically dangerous controlling and coercive dynamic)”.
xv)Ms L, at paragraph 91 of the family report, makes a finding that “the nature of the violence between [the father] and [the mother] was not of a controlling, coercive type. It was rather, situational violence”. The mother says that this is an extraordinary finding which having the limitations referred to in the report was not acceptable and Ms L, was therefore, in error.
xvi)In addition, Ms L made findings that the father’s concerns about the mother’s mental health had caused her to be fearful of him and aspects of the mother’s presentation raised concerns about her capacity to support a relationship between the father and the child. The mother said that this finding was made with little evidence and subject to limitations.
xvii)The mother says that Ms L evaluated that she had ample opportunities to mediate, including at the CDC. The reportable CDC refers to “list of issues” and includes serious family violence. The mother says that Ms L had misled her about this enquiry.
xviii)The mother maintains that the discussion of the mediation/s was a thread that ran through the family report and contaminated it.
xix)The mother maintained that Ms L had not only included inadmissible evidence in the family report but also formed an opinion of the parties and their credibility and was no longer impartial.
xx)The mother also referred to the Federal Circuit Court of Australia, Australian Standards of practice for family assessments and reporting of February 2015 and, in particular, paragraph 13, which states: “during the assessment process, the family assessor conducting a family assessment should not offer advice or undertake therapeutic interventions with anyone involved”.
xxi)The father responds to all of the mother’s submissions as referred to above as follows: that Ms L has not breached either s.10H or s.10J of the Act, as she is subject to s.11C of the Act. If there have been breaches of s.10H or s.10J of the Act, they have not been by Ms L. That Ms L did not form an opinion, she merely stated that the “s.60I certificate records the “last” attempt to mediate”. This could be ambiguous, as the word “last” does not necessarily mean the last of a sequence, but merely a past occurrence of the event. Further, the father says that Ms L informed the Court that the mother had stated that she did not receive the correspondence setting up the mediation as an explanation as to her position. In those terms, Ms L allows the judicial process to decide (upon witness evidence at the final hearing) the validity of the parties’ evidence regarding the correspondence sent to the mother. The father says that the mother has misquoted Ms L. He maintains that Ms L stated: “...yet [emphasis added] it appears that [the father] was unable to get her to engage in mediation at any time post separation”. The father says that the key word missing from the mother’s submission “yet” indicates that Ms L had not formed an opinion biased against the mother and allowed the Court to consider for itself, whether or not the father had been unable to get the mother to mediation. The father also states that Ms L says that while the mediation was discussed, she did not “probe” the mother. The father says that the mother’s submissions were incorrect to the extent that the CDC Fact Sheet states that: “it may also help the parties reach an agreement ...there may also be an opportunity to attempt to negotiate any or all of the issues if time permits”. This document also states that a CDC is not confidential. In the paragraph referred to (paragraph 43 of the family report), Ms L states her observation that the mother became “highly agitated”. Ms L quotes, not paraphrases, the mother when she says: “Why are you setting me up? Why are you trying to make me answer? Is this a test I am going to fail?” Ms L does not provide any further comment with respect to that conversation. It is not clear what the mother means by these questions. The father says that Ms L merely states what the subpoenaed material from the Department of Family and Community Services records. Further, the father maintained that Ms L’s assessment was limited in that the information gathered could be relied upon only to the extent that the parties were truthful. Further, that while this was a “complex” matter, this did not preclude Ms L being able to form her own opinion and to make recommendations on the matters in issue. The father says that the mother’s allegations of family violence and his mental health were not unexplored and that Ms L, at paragraphs 35 and 36 of the family report, clearly explored those aspects of the parties’ relationship. Further, the father maintains that the Court could have regard to the opinions of Ms L which would be tested under examination. The father maintained that the mother’s submissions failed to quote Ms L’s report accurately and neglected to include the words: “An analysis ...indicates that nature of the violence...”. The father maintains that there was no “extraordinary finding”, indeed, there was no finding [emphasis added] at all as Ms L leaves that matter to the Court for it to be tested. The father maintains that the mother’s views that the child is not safe with him (see paragraphs 35, 36, 38, 44, 45, 46 and 47 of the family report) are clearly reported by Ms L. The allegation that Ms L is reporting confidential and inadmissible information is clearly null and void, as the mother told her the same facts in the family report interviews. The safety of the child is central to the best interests of the child and, directly, relevant to the task and functions of Ms L as a Regulation 7 Family Consultant. The father says that the mother has not been misled by Ms L and, further, states it is unclear how the mother alleges that she was misled, in any event. Finally, the father says that a perusal of the family report does not indicate that Ms L was not impartial.
xxii)The Court notes that there is no evidence of any advice or therapeutic intervention by Ms L and the mother does not refer to any evidence supporting such an assertion.
xxiii)The Court finds that all of the matters raised by the mother can be dealt with, substantially, in terms of the cross-examination and testing of Ms L. The Court is not satisfied that any of the matters so identified above would indicate that Ms L was, in any way, biased or partial in the presentation of her evidence in the form of the family report.
c) Ms L has demonstrably expressed opinions outside her realm of expertise
i)Ms L, refers on page 2 of the family report, that there were limitations to her report. She specifically states: “this event has caused the parties significant disruption and inconvenience as well as emotional challenges and difficulties as a result of having to recount their story and issues twice to different people in a short period of time. Both parties were concerned that this family report may not accurately reflect their situation. Every effort was made to be sensitive to the parties’ situation, including the report writer being more heavily reliant on affidavit and subpoenaed material than would normally be the case”.
ii)Ms L then provides her opinion beyond her expertise as a social worker. She has expressed opinions outside the realm of her expertise and the purpose of her appointment as a Family Consultant.
iii)Ms L then refers to her observations of the mother, in particular, the mother’s presentation on the day of the family report interviews, suggesting that she would benefit from a psychiatric review and some formal professional intervention.
iv)Ms L is a social worker and does not have the qualifications to provide an opinion and recommendation that the mother have a psychiatric review. Ms L has based this on the mother’s presentation, even though she has already referred to limitations of the family report. Ms L does not specifically refer to any medical evidence. The “limitations clause” she refers to specifically states that she chooses not to enquire and obtain information from the parties and instead relies on subpoenaed material to not put the family through further great stress.
v)Ms L provides an expert opinion beyond her professional qualifications and bases it on presentation and refers to the mother quickly becoming hostile and agitated if she felt she was being challenged or attacked. She refers to the mother discussing mediation and saying: “Is this a test I’m going to fail”, and at paragraph 43 of the family report describing her as “highly agitated”.
vi)Ms L, at paragraph 13 of the family report, acknowledges that “allegations made by the mother of intimate partner violence including physical violence, verbal abuse and controlling and coercive behaviour by the father towards her” is an issue in dispute and identified during the assessment. She then continues to say, at paragraph 91 of the family report, by analysing the events and behaviours in the subpoena material, as well as the parties’ self-narratives that the family violence was not of a controlling coercive type. Again she provides an opinion, which she makes with limitations as described in her limitation clause and not by way of an expert opinion.
vii)Ms L then goes even further, at paragraph 97 of the family report, and gives an opinion on the mother’s anxiety and concludes that it is the driving force behind her contradictory responses to the father’s attempts to have a relationship with the child. This was reflected in her report in her consideration of the mediation processes.
viii)The mother also refers to the Federal Circuit Court of Australia, Australian Standards of practice for family assessments and reporting February 2015 and, in particular, paragraph 10, which states: “family assessors should strive to be accurate, objective, fair and independent in gathering their data. They must be able to explain decisions concerning their methodology and treat all participants with respect”.
ix)Ms L spells out “classic enmeshment” between the child, who is not a child of the proceedings and the mother. Ms L, at paragraph 97 of the family report, states “A’s relationship with her mother is classically enmeshed”. The mother says that this view was provided without any factual evidence and observations and was beyond Ms L’s expertise. In light of this, the mother says that Ms L is not an expert to raise the question of enmeshment and has failed to assist the Court by limiting her report to s.60CC of the Act issues.
x)Ms L views the mother’s anxiety as the cause of her thwarting the attempts of the father to have a relationship with the child and then putting forward that there was then a risk to the child, which was a greater risk than the father, himself, posed to the child.
xi)Ms L was, further, of the view that the mother’s “extreme anxiety” was “highly likely” to transfer to the child.
xii)Again in limitations, Ms L refers to the significant disruption and inconvenience as well as emotional challenges and difficulties of having to recount their story twice in a short period and then she states that both parties were concerned that the report would not reflect their situations. The family report can only be deficient if the family report writer is to place such limitations on a report.
xiii)Ms L recommends strongly, at paragraph 99 of the family report, that the mother see her GP regularly, obtain a mental health plan for a referral to a psychiatrist and clinical psychologist’, for support for her anxiety. Ms L does not have the expertise to assess and make such referrals; nor does she have the expertise to recommend that the mother see her GP, regularly.
xiv)The mother also refers to Federal Circuit Court of Australia, Australian Standards of practice for family assessments and reporting February 2015 and, in particular, paragraph 30, which states: “family assessors should avoid offering opinions to a Court on matters that do not directly follow from the Court order or the brief for the assessment, or are otherwise not relevant to the purpose of the evaluation from a legal or social science perspective”.
xv)The father responds to all of the mother’s submissions as referred to above as follows: the mother makes no submissions as to what expertise Ms L does not have. She makes no challenges to Ms L not being capable of being a Regulation 7 Family Consultant; Ms L in her limitations on page 2, does not state that she chose not to enquire and obtain information from the parties, she merely states that she was more heavily reliant on subpoenaed/affidavit material than normal; neither does she state that this was so as to not put the family through great stress. In further response to the mother’s submissions, Ms L provides in her family report, based on her expert observations training and experience, certain recommendations to the Court. The father submits that Ms L provides a comparison in the aims of the mother with respect to various issues and that this was not biased, in any way. The father, further, submits that Ms L interviewed A and reported on that interaction. The father says that A is clearly a person to be interviewed as she is a step-sister in the household and Ms L states in her CV that she has expertise in the evaluation of alignment between parents and children. Further, the father submits that the mother has not raised any of her concerns with the family report for more than 2 years since it was first issued. The father, further, submits that while Ms L makes a strong recommendation, it is the Court ultimately, that must make orders. However, her recommendations can be a guide to the mother based on Ms L’s experience.
xvi)The Court, substantially, accepts the father’s submissions in that the matters of complaint raised by the mother are really matters which should be addressed with Ms L in cross-examination. They do not, of themselves, indicate any position where Ms L could be said to be biased or partial or where there could be said to be a reasonable apprehension of bias, as considered by a fair minded lay observer. The Court refers to those matters, further, below.
d) An apprehension of bias by Ms L as a result of embarking on the above and therefore no longer bringing an impartial mind to the opinions that she was expressing and the recommendations she was making.
i)The mother repeats most of the matters set out above as a ground for her application for the disqualification of Ms L.
ii)The mother, further, submits that while it could be argued that if there were inadmissible parts of the family report which could be deleted and Ms L could still be cross-examined at a hearing as to the balance of her report, she considered that those inadmissible parts were so intertwined that they could not readily be separated and that, therefore, the entirety of the family report needed to be rejected. The Court does not accept that submission.
iii)Further, the mother submits that Ms L’s path of reasoning is not transparent and cannot be followed in the family report. The Court does not accept that submission.
iv)The mother maintains that Ms L has made an ultimate decision on credit and as such acted outside her authority and has predetermined issues for the Court. The Court does not accept that submission.
v)The mother says that Ms L’s reporting has led to further issues and fundamental errors and that this is not a case where deficiencies can be tested in cross-examination. Those further issues and fundamental errors have not been identified, save for the matters set out above.
vi)The mother says that the content of the family report reaches a level of bias that is necessary for the success of her application to have the report writer discharged and the family report excluded in its entirety. The Court does not accept that submission.
vii)The father responds to all of the mother’s submissions as referred to above as follows: that Ms L did not act outside her authority. He maintained her qualifications as a Regulation 7 report writer have not been challenged. She has held her qualification since September 2011, as disclosed in the family report. Prior to this, Ms L has had 20 years of experience within the NSW Department of Community Services including “all aspects of child abuse and neglect; bonding and attachment; substance misuse; and family violence”. The father, further, submits that Ms L at page 2 of the family report notes that “both parties were concerned that this family report may not accurately reflect their situation”. This, the father says, is a reality for every single party that is ordered to attend Family Court Dispute Resolution. Ms L goes on to state: “that, to their credit, both parties were fully engaged and involved participants in the second round of interviews”. The father submits that this credit was given for both parties to the appointment and does not portray Ms L as biased in any way. The father maintained that Ms L’s conclusions and recommendations were supported by the evidence and that her discussion of mediation did not go into any specifics as to what was discussed there and further, that Ms L could be cross-examined and that the ultimate decision was still for the Court to make, after hearing from Ms L in the witness box. Ms L has not acted outside of the functions as specified in s.11A nor s.11C of the Act regarding admissibility of communications. The Court accepts that submission.
viii)The father, further, says that Ms L had not formed an opinion concerning a history of mediations other than reporting what he had said and that she had noted, at paragraph 53 of the family report, that the mother had: “commented a number of times about how wrong and unfair it was that a Family Consultant should be making judgements about [the child] after seeing her for just one day, when [the mother] knows her best, and who is therefore best placed to make decisions that are in [the child’s] best interest. She said she was trying to come to terms with this process but still continues to have major doubts about its efficacy”. The father says that this evidences that the mother does not accept the role of Ms L nor, indeed, the role of the Court, having, earlier in the same paragraph, said “that the only being who can judge another is God”. The father says that this background must be considered in terms of the mother now bringing her application some 2 years after the family report was released in December 2014 and having raised no issues concerning that family report or Ms L in the intervening period. The Court attaches some weight to that position.
ix)The father says that Ms L’s views are supported by her observations of the mother and subpoenaed material to which she has had regard, including that in May 2010, the mother had been assessed as having significant anxiety issues, muddled thinking and depression and was referred to a clinic for antenatal care, a psychiatrist for medication review and a family counsellor. Further, in paragraph 70 of the family report Ms L records: “…in October 2010, it was noted that [the mother] had not presented at any of the services arranged for her in May 2010”.
x)The father maintains that Ms L, based on a review of the subpoenaed material, can give evidence as to whether the violence between the parties was situational violence based on specific stress factors of financial situation and the poor quality of the marital relationship. The Court accepts that position.
xi)The father says, and the Court accepts, that Ms L, at paragraph 93 of the family report, describes her observation of the mother’s presentation with the suggestion that the mother would benefit from a psychiatric review. This suggestion is for the Court to consider, if the mother does not avail herself of this recommendation. It does not amount to bias by Ms L.
xii)The father says that Ms L, at paragraph 94 of the family report, was also critical of him and considered the possibility of a power struggle between the parties. This, again, is indicative of an unbiased report writer.
The Independent Children’s Lawyer made the following submissions:
a) The Court will need to determine whether the mother’s application alleges actual bias or an apprehension of bias. This determination is required as the test for each category of bias is different. The Court is of the view that the mother raises issues going to an apprehension of bias.
b) The Independent Children’s Lawyer does not seek to be heard either in favour or against the mother’s application.
c) The Independent Children’s Lawyer notes that in considering the mother’s application, the Court will be obliged to balance 2 competing considerations:
i)The cost, delay and impact of a new Regulation 7 Family Consultant being appointed in circumstances where Ms L had been requested to provide an updated report. It is noted that Ms L had met with the child and observed the child in the presence of the father.
ii)The risk of the Court finding, following cross-examination of Ms L, that little weight can be placed on the family report and updated report, leaving the Court with no “expert” evidence to assist it in the resolution of the parties’ competing parenting applications.
Conclusion
The Court is of the view that there is no evidence to support a finding of actual bias in Ms L. There is no evidence to say that Ms L’s position is not open to persuasion. Ms L is being requested to provide a further updated report which will consider additional matters.
In relation to paragraph 15.4 of the mother’s affidavit (as referred to in paragraph 23 above), the Court simply notes, in that regard, that the statement by Ms L as to her being more heavily reliant on affidavit material is not inconsistent with a statement that she makes recommendations based on her own observations. The two positions are not mutually exclusive.
In relation to Ms L’s expertise, her observations, conclusions and recommendations, these are as Ms Kaiti, substantially, conceded, all matters upon which Ms L can be cross-examined. The Court gives that matter significant weight.
In relation to paragraph 15.14 of the mother’s affidavit (as referred to in paragraph 23 above), which refers to Ms L forming a view based on what she was able to elicit from the mother in her questions relating to mediation, none of those matters are articulated by the mother, in any meaningful way. Ms L did not refer to the substance of any matters discussed at mediation but rather to the efforts to implement mediation. This, again, is a matter upon which Ms L can be examined.
The Court accepts that Ms L has already met with the child and observed the child in the presence of the father and the mother and that this weighs against the involvement of a further consultant. The Court has also given consideration to the provisions of s.69ZN of the Act which are referred to in paragraph 18(f) above. The Court has also had regard to its own decision in King & King [2014] FCCA 163. The Court accepts, further, that there would be an unnecessary cost and delay in the proceedings by seeking to appoint a further consultant and this weighs in favour of the father’s position.
The Court is of the view that there is no evidence to support a finding of a reasonable apprehension of bias in Ms L as the Court is of the view that a lay person would not reasonably apprehend that she would not bring an impartial mind to the resolution of the issues relevant to the best interests of the child. Further, that she would be, otherwise, available for cross-examination where the mother’s concerns about her evidence and the family report can be put to her and her evidence can be, appropriately, tested. Similarly, the factual matters and assumed facts can be tested in that process. The Court accepts the dicta of Justice Tree (as referred to in paragraph 19(f) above) noting it is the Court which is the decision maker, that the appropriate course is to deal with the matter by way of cross-examination of Ms L and it is only after that that the Court will be in a position to determine what weight can be provided to Ms L’s recommendations, in any event. Further, her final recommendations must await the outcome of her further report. This is not a matter where the Court can say now that ultimately none of her evidence should be before the Court. The Court is of the view, similar to that of McClelland J. in Danell & Saller, that the mother’s application is premature, given also its consideration of s.135 of the Evidence Act 1995. Given that position, the Court does not need to consider making order 4 as set out in paragraph 9 above. The mother’s application in a case filed 20 February 2017 should, otherwise, be dismissed.
The matter will be adjourned to 14 December 2017 for a call-over to consider the allocation of final hearing dates in 2018, noting the Initiating Application was filed by the father on 3 July 2013 and, as submitted by the Independent Children’s Lawyer, the Court should seek to avoid any further delay or cost to the parties in terms of s.69ZN of the Act. That will enable the updated family report to be completed and the parties will not be delayed further. The Court would also look to the Independent Children’s Lawyer to arrange a Legal Aid mediation following its release to assist the parties to resolve matters.
Given that the mother sought costs in respect of her application in a case which was unsuccessful and the father sought no costs in response, the Court proposes to make no order as to costs, reliant upon s.117 of the Act, it being satisfied that without more, there are no justifying circumstances to ground that application.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 10 July 2017
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