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PANERA & SLIEDELL

Case [2017] FCCA 1573 10 July 2017

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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
Family Law Rules 2004 (Cth), r.15.54
Federal Court of Australia, Practice Note, CM7 as at 3 June 2013

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
Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485
Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454
Kernot v Matson [2008] 39 FamLR 695
Pownall v Conlan Management Pty Limited (1995) 12 WAR 370
Maluka v Maluka (2011) 45 Fam LR
McGregor v McGregor (2012) 47 Fam LR 498
Ebner v The Official Trustee in Bankruptcy [2000] 205 CLR 337
Thompson & Platt [2016] FamCA 1116
Danell & Saller [2015] FamCA 859
Nepean & Treloar [2010] Fam CA 781
King & King [2014] FCCA 163

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…

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 PANERA & SLIEDELL

Details

AGLC: PANERA & SLIEDELL [2017] FCCA 1573
Case: [2017] FCCA 1573
Decision Date: 10 July 2017

CaseChat Overview and Summary

In the matter of *Panera & Sliedell*, heard by Judge Kemp, the mother sought to vary existing parenting orders. The specific nature of the dispute revolved around the mother's application to alter the current arrangements for the children.

The central legal issue before the court was whether the mother had established sufficient grounds to warrant a variation of the existing parenting orders. This required the court to consider the best interests of the children as the paramount consideration, in accordance with the *Family Law Act 1975* (Cth).

Judge Kemp dismissed the mother's application. The reasons for judgment, which are to be provided to Ms L by the Independent Children’s Lawyer, indicate that the court found no compelling reason to alter the current arrangements. The court requested that Ms L reinstate her family report interviews as soon as practicable to provide an updated report, and the matter was listed for a callover on 14 December 2017.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

PANERA & SLIEDELL [2017] FCCA 1573

Most Recent Citation

Hood & Weaver [2022] FedCFamC2F 118

Cases citing this decision · 1 of 1 shown

Hood & Weaver
[2022] FedCFamC2F 118 Para 14

…tance to the Court in reaching a decision: see Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 which was noted by Judge Kemp in Panera & Slidell [2017] FCCA 1573 at [19].…

View all 1 citing cases →

Cases cited in this decision · 19 of 19 shown

McGregor v McGregor
[2024] NZHC 3823

…McGregor v McGregor (2012) 47 Fam LR 498…
Thompson & Platt
[2016] FamCA 1116 Para 1

…an 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 follo…
DANELL & SALLER
[2015] FamCA 859 Para 1

…e 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…
King & King
[2014] FCCA 163 Para 5

…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…
Dasreef Pty Ltd v Hawchar
[2011] HCA 21 Para 1

…e 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…
Maluka v Maluka
[2011] FamCAFC 72 Para 1

…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 appropri…
Nawaf Hawchar v Dasreef Pty Ltd
[2009] NSWDDT 12

…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 Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 Kernot v Ma…
Payne & Payne
[2009] FamCAFC 13 Para 1

…le 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 [20…
Kernot & Matson
[2008] FamCA 756 Para 1

…ual 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. Procedu…
MS R and MR R
[2003] FamCA 1180 Para 1

…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…
Kirch Communications Pty Ltd v Gene Engineering Pty Ltd
[2002] NSWSC 485 Para 1

…he 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…
Red Bull Australia Pty Limited v Sydneywide Distributors Pty Limited
[2001] FCA 1750 Para 1

…ence 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…
Fagenblat v Feingold Partners Pty Ltd
[2001] VSC 454 Para 1

…unications 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 questio…
Minister for Immigration And Multicultural Affairs v Jia Legeng
[2001] HCA 17 Para 1

…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…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 1

…e 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.…
Johnson v Johnson
[2000] HCA 48 Para 1

…inst 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 disqualifi…
[1995] WASC 117
[1995] WASC 117 Para 1

…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 t…
Ebner v The Official Trustee in Bankruptcy
[2000] HCA 637 Para 1

…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 require…
Pty Ltd v Sprowles
636 F Supp 1419 Para 1

…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 upo…

Legislation cited in this decision · 7

Family Law Act 1975 (Cth)
10H, 10J, 11A, 11C, 62G(2), 69ZN 7 mentions (from Para 8)
Federal Circuit Court Rules 2001 (Cth)
15.06AA 3 mentions
Family Law Rules 2004 (Cth)
15.54 2 mentions (from Para 2)
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Family Law Regulations 1984 (Cth)
1 mention (from Para 1)
Federal Court Rules 2011 (Cth)
1 mention
Privacy Act 1988 (Cth)
1 mention