Rees and Shaw - [2009] FMCAfam 178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REES & SHAW

[2009] FMCAfam 178

FAMILY LAW – Procedural – whether mother reasonably held an apprehension of bias of the family report writer – apprehension of bias found –
family reports not be relied upon.

Applicant:

MR REES

Respondent:

MS SHAW

File Number:

PAC 4010 of 2007

Judgment of:

Henderson FM

Hearing date:

16 February 2009

Date of Last Submission:

16 February 2009

Delivered at:

Parramatta

Delivered on:

16 February 2009

REPRESENTATION

Counsel for the Applicant:

Ms Warwick

Solicitors for the Applicant:

Longman Hill

Counsel for the Respondent:

Ms Harris

Solicitors for the Respondent:

K L King & Associates

Counsel for the Independent Children’s Lawyer:

Mr Berry

Solicitors for the Independent Children’s Lawyer:

Boyd & Longhurst

ORDERS

The Family Reports prepared by Dr H and released on 1 September 2008 and 13 February 2009 be placed in a sealed envelope and not be opened unless by Order of the Court due to a real and proper apprehension of bias.
Each of the parties and the Independent Children’s Lawyer are granted a certificate pursuant to s.10 of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court if would be appropriate for the Attorney-General to authorise a payment under that Act to him/her in respect of such part as the Attorney-General considers appropriate.
It is certified that this is a matter proper for the attendance of Counsel.

IT IS NOTED that publication of this judgment under the pseudonym Rees & Shaw is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 4010 of 2007

MR REES

Applicant

And

MS SHAW

Respondent

REASONS FOR JUDGMENT

The mother has made an oral application that I to ought reject the reports prepared by Dr H, Family Consultant at the Parramatta Registry, released on 13 February 2009 and 1 September 2008 because of a reasonable apprehension of bias by Mr H held by the mother.
The substantive proceedings relate to the living arrangements for three children: [X], [Y] and [Z] who are the youngest children of the parties’ five children. With which parent the children should primarily live is in contest between them.
[X], [Y] and [Z] live with their father at Orange as a result of an order made by me in the proceedings commenced by the father consequent upon the mother’s unilateral relocation with the children to Queensland.
The final hearing was part heard on 3 October 2008 due to the father’s wife and the maternal grandmother not being on affidavit or having been interviewed by Dr H. These people assist the parents with the care of the children.
I stood the matter over to today's date and made what I believed to be an order for an updated family report. However the order on the Court file was merely to re-interview the family including the father's wife and maternal grandmother.
Ms King, the wife's solicitor, gave oral evidence to support the oral…

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 Rees and Shaw

Details

AGLC: Rees and Shaw [2009] FMCAfam 178
Case: [2009] FMCAfam 178
Decision Date: 16 February 2009

CaseChat Overview and Summary

Rees and Shaw involved a dispute between two individuals, Rees and Shaw, within the family law jurisdiction. The case was heard by the Family Court of Australia. The primary issue before the court was whether certain Family Reports prepared by Dr H should be sealed and kept unopened unless the Court ordered otherwise, due to concerns about potential bias. Additionally, the court had to determine whether the parties and the Independent Children’s Lawyer were eligible for a certificate under the Federal Proceedings (Costs) Act 1981, which could enable them to seek costs from the Attorney-General. The court also needed to decide if the matter was appropriate for the attendance of counsel.

The court examined the apprehensions of bias raised regarding the Family Reports and concluded that there was indeed a real and proper apprehension of bias. As a result, the reports were ordered to be placed in a sealed envelope, to be opened only if required by a Court Order. Furthermore, the court found that each party and the Independent Children’s Lawyer were eligible for a certificate under the Federal Proceedings (Costs) Act 1981, allowing them to potentially seek costs from the Attorney-General. Lastly, the court certified that the matter was appropriate for the attendance of counsel.

The Family Court of Australia ruled that the Family Reports prepared by Dr H be sealed and not opened without a Court Order. It also granted certificates to the parties and the Independent Children’s Lawyer for potential cost recovery under the Federal Proceedings (Costs) Act 1981. Additionally, the court certified that counsel should attend in this matter.

Orders

Orders of the court

The Family Reports prepared by Dr H and released on 1 September 2008 and 13 February 2009 be placed in a sealed envelope and not be opened unless by Order of the Court due to a real and proper apprehension of bias.

Each of the parties and the Independent Children’s Lawyer are granted a certificate pursuant to s.10 of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court if would be appropriate for the Attorney-General to authorise a payment under that Act to him/her in respect of such part as the Attorney-General considers appropriate.

It is certified that this is a matter proper for the attendance of Counsel.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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