Salvati & Donato

Case [2010] FamCAFC 263

FAMILY COURT OF AUSTRALIA

SALVATI & DONATO [2010] FamCAFC 263

FAMILY LAW - APPEAL – CHILDREN – Expert Evidence – Adequacy of Reasons – where there was evidence from two experts before the Federal Magistrate – whether the Federal Magistrate failed to provide sufficient reasons for adopting the recommendations of one expert over the other – whether the Federal Magistrate failed to provide sufficient reasons for adopting the recommendations of the expert – no merit in grounds.

FAMILY LAW - APPEAL – CHILDREN – whether the Federal Magistrate failed to provide sufficient reasons for why the child should commence to live with the father – whether the Federal Magistrate’s discretion miscarried in ordering a change in the child’s living arrangements and regarding the supervision of the maternal grandmother’s time with the child – no merit in grounds – appeal dismissed.

FAMILY LAW - APPEAL – PROCEDURAL FAIRNESS – comment made on the Federal Magistrate’s reference to and use of social science research where such material was not tendered by the parties and in respect of which the parties did not have an opportunity to make submissions – where no ground of appeal was directed to this issue.

FAMILY LAW - APPEAL – COSTS OF APPEAL – where the mother was wholly unsuccessful in the appeal – mother to pay the costs of the father and the Independent Children’s Lawyer.

FAMILY LAW - APPEAL – COSTS OF CROSS-APPEAL – where the father withdrew his cross-appeal at the hearing – father to pay the mother’s costs of the cross-appeal.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 69J, 69H, 69N & 117
Evidence Act 1995 (Cth) s 144

Family Law Rules 2004 (Cth)
Allen v Green (2010) 42 Fam LR 538
Andrew & Delaine [2009] FamCAFC 182
Barclay & Orton [2009] FamCAFC 159
Bennett and Bennett (1991) FLC 92-191
Friscioni & Friscioni [2010] FamCAFC 108
Hall and Hall (1979) FLC 90-713
House v The King (1936) 55 CLR 499
Kennedy & Kennedy [2010] FamCAFC 195
Lamereaux & Noirot (2008) FLC 93-364
Malak & Mairie [2010] FamCAFC 170
McCall & Clark (2009) FLC 93-405
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Vance & Vance [2010] FamCAFC 250
Wen & Thom [2010] FamCAFC 81
APPELLANT: Ms Salvati
RESPONDENT: Mr Donato
INDEPENDENT CHILDREN’S LAWYER: John Meehan
FILE NUMBER: SYM 7919 of 2006
APPEAL NUMBER: EA 109 of 2009
DATE DELIVERED: 24 December 2010
PLACE DELIVERED: Adelaide
PLACE HEARD: Sydney
JUDGMENT OF: Boland, Strickland and Benjamin JJ
HEARING DATE: 19 August 2010
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 20 August 2009
LOWER COURT MNC: [2009] FMCAfam 883

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Gillies
SOLICITOR FOR THE APPELLANT: Tiyce & Partners
COUNSEL FOR THE RESPONDENT: Ms Friedlander
SOLICITOR FOR THE RESPONDENT: Kells The Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stollier
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: JPM Legal

Orders

  1. The appeal is dismissed.

  2. The mother pay the father’s costs of and incidental to the appeal as…

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AGLC
Salvati & Donato [2010] FamCAFC 263
Case
[2010] FamCAFC 263
Decision Date

CaseChat Overview and Summary

The appeal arose from a decision made by a Federal Magistrate regarding the living arrangements for a child. The father and the mother of the child were the parties involved. The central issue was whether the Federal Magistrate's decision to order the child to commence living with the father was based on sufficient reasons. Additionally, the father argued that the Federal Magistrate's failure to consider certain expert evidence and other social science research resulted in a miscarriage of discretion and procedural unfairness. The father also contested the Federal Magistrate's handling of the maternal grandmother's visitation rights.

The court had to determine whether the Federal Magistrate adequately explained why the child should live with the father, if the Federal Magistrate's discretion miscarried, and if procedural fairness was upheld. The mother argued that the Federal Magistrate's reliance on expert evidence not presented by the parties did not constitute a procedural error. The court examined whether the expert evidence was crucial to the decision or merely background information. The court also considered if the father's lack of opportunity to comment on this evidence led to a miscarriage of discretion.

The court concluded that the Federal Magistrate's decision to have the child live with the father was supported by sufficient reasons and did not result in a miscarriage of discretion. The Federal Magistrate's reliance on the expert evidence did not constitute procedural unfairness as it did not integrally influence the decision. The appeal was dismissed, and the mother was ordered to pay the father's and the Independent Children's Lawyer's costs of the appeal. The father was ordered to pay the mother's costs relating to the cross-appeal.

Orders

Orders of the court

1.

The appeal is dismissed.

2.

The mother pay the father’s costs of and incidental to the appeal as agreed and in default of agreement as assessed.

3.

The mother pay the Independent Children’s Lawyer’s costs of and incidental to the appeal as agreed and in default of agreement as assessed.

4.

The father pay the mother’s costs in relation to the cross-appeal as agreed and in default of agreement as assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In McCall & Clark (2009) FLC 93-405, the Full Court (Bryant CJ, Faulks DCJ and Boland J), in the context of discussing that the Federal Magistrate in that case did not have before him any expert evidence, said at 83,477:126. ... Neither party tendered to the Federal Magistrate any of the well recognised peer reviewed research on the establishment of primary and significant attachments of infants and young children, nor did the Federal Magistrate raise with the parties that he could have recourse to such material. Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term ‘common knowledge’ in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act. (Emphasis added) In Barclay & Orton [2009] FamCAFC 159 May J commented on the reliance by the Federal Magistrate in that case on academic writings. After reference to the above passage from McCall & Clark, her Honour observed:71. While of course it is entirely desirable that judges have the assistance of expert evidence it is not appropriate, in my view, that a Federal Magistrate inform himself about some academic writings and not provide those writings to the parties nor allow other expert evidence to be called. As it is quite clear that his Honour relied upon his own appreciation of this expert evidence in making what was an important decision to the parties in this case, that is, what arrangements should be made during Christmas holidays, the appeal must be allowed. Further, in Allen v Green (2010) 42 Fam LR 538, Boland J also addressed this issue, finding there had been lack of procedural fairness amounting to appealable error in that case. Her Honour said at 549:54. The father’s central complaint is directed to an asserted lack of procedural fairness. It is not controversial that neither party had referred to the two specific articles the subject of the complaint, or that the father was denied the opportunity to make submissions on those articles. No attempt was made by the mother’s counsel to provide the article by Professor Chisholm and Dr McIntosh to which she alluded in her cross-examination to Dr T for him to comment on its relevance to specific circumstances in this case, or to tender that article. The paper by Ms Tucker was sourced by the Federal Magistrate without reference to either party. In these circumstances a careful scrutiny of the Federal Magistrate’s reasons is necessary to discern whether she treated the material to which she referred as a “background” to the proceedings before her, or whether her decision rested on this material, as well as the evidence adduced before her, and was integral to her exercise of discretion. …56. If the material merely gave background to the Federal Magistrate’s decision or was extraneous to her decision, then notwithstanding she did not draw the parties’ attention to the material such a process would not constitute appealable error. Similarly, the appeal will fail if notwithstanding the failure to afford procedural fairness, a new trial would not produce a different result… ...59. I do not consider that the Federal Magistrate’s treatment of the material can be regarded as background to the issue she was required to determine. The reasons disclose she took into account Ms Tucker’s opinion that a cautious approach should be adopted in making overnight arrangements for young children in situations where there was an absence of cooperative parenting. This determination was made notwithstanding the firm opinions expressed by Dr T. I will refer to Dr T’s opinion and recommendations in more detail later in these reasons. The Federal Magistrate’s further reference under the heading “Conclusion”, in paragraph 57, to the report of the research conducted by Professor Chisholm and Dr McIntosh in their article published in the Australian Family Lawyer was again expressed as material “to which she had regard” in reaching her decision.60. The father did not have the opportunity to address the material on which the Federal Magistrate relied. That absence of procedural fairness discloses appealable error. See also Vance & Vance [2010] FamCAFC 250 at paragraphs 67 to 71.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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