Shadler & Danzer
[2023] FedCFamC1A 215
•5 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Shadler & Danzer [2023] FedCFamC1A 215
Appeal from: Danzer & Shadler [2023] FCWAM 122 Appeal number(s): NAA 152 of 2023 File number(s): PTW 4213 of 2020 Judgment of: TREE J Date of judgment: 5 December 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the mother seeks leave to appeal an order permitting the single expert report to be released to the children’s medical practitioner – Application in an Appeal to adduce further evidence – Where further evidence not relevant to decision – Merits of the proposed appeal considered – Where the arguments raised on appeal were not raised before the primary magistrate – Where there is
no reason to think that the primary magistrate overlooked matters in giving ex tempore reasons – Where decision is not attended by sufficient doubt – No substantial injustice established – Leave to appeal refused – Appeal dismissed – Application in an Appeal dismissed – Costs ordered in favour of father.Legislation: Family Law Act 1975 (Cth) s 94AA (repealed)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 35
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
House v The King (1936) 55 CLR 499; [1936] HCA 40
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Maviglia v Maviglia [1999] NSWCA 188
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147
Date of hearing: 29 November 2023 Place: Cairns (via video link) Counsel for the Applicant: Ms Oakeley Solicitor for the Applicant: Meillon & Bright Legal Counsel for the Respondent: Mr Worth Solicitor for the Respondent: Greenstone Legal ORDERS
NAA 152 of 2023
PTW 4213 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SHADLER
Applicant
AND: MR DANZER
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
5 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s Application in an Appeal filed 19 September 2023 is dismissed.
2.Leave to appeal from Order 27 of the orders of the Magistrates Court of Western Australia dated 17 May 2023 is refused.
3.The Notice of Appeal filed 2 June 2023 is dismissed.
4.The applicant is to pay the respondent’s costs in the sum of $7,000 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shadler & Danzer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 17 May 2023, a magistrate of the Family Court of Western Australia made a number of interim parenting orders relating to the parties’ two children, being four year old X and three year old Y. By Notice of Appeal filed 2 June 2023, Ms Shadler (“the mother”) seeks leave to appeal, and if granted, appeals from only one of the orders, being Order 27 as follows:
27.Not by consent, the father be at liberty to provide to the medical practice agreed upon or nominated by the parties pursuant to paragraph 25 above a copy of these orders and the Single Expert Report prepared by [Ms B] filed 10 August 2022.
Mr Danzer (“the father”) opposes both the grant of leave, and any appeal. For the reasons which follow, leave to appeal is refused.
BACKGROUND
The mother and father commenced their relationship in either 2012 or 2013, and separated on 28 February 2020. The father commenced parenting proceedings in the Family Court of Western Australia about three months later.
On 10 August 2022 a single expert report (“the report”) prepared by a clinical psychologist, Ms B, was released to the parties.
On 10 and 17 May 2023, the primary magistrate heard and determined the parties’ competing interim parenting applications, some parts of which resolved by consent, including an order that the children have a new general medical practitioner (“GP”). However the father wanted leave to supply the report to the new GP, which leave was opposed by the mother.
For ex tempore reasons given 10 May 2023 (albeit later edited and published in writing on 22 June 2023) the primary magistrate permitted the provision of the report to the new GP as sought by the father, although the formal making of orders was deferred to 17 May 2023.
The report is comprehensive and extends to some 51 pages. In accordance with the instructions given for its preparation, Ms B has considered a raft of material, including some documents produced on subpoena, interviewed the parties, the children and others, and synthesised that material into her opinions and recommendations. It is fair to say that she seems to have taken a somewhat dim view of some of the things which the mother has allegedly done, and on occasion appears to have made factual conclusions adverse to her.
THE MOTHER’S APPLICATION TO ADDUCE FURTHER EVIDENCE
By Application in an Appeal filed 19 September 2023, the mother sought to rely upon her contemporaneously filed affidavit. The gravamen of the evidence she sought to put before me on the appeal contended that a friend of the father’s, who was working in the medical practice where the mother and children then attended, had accessed their records in 2022. The admission of that evidence was opposed by the father.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) gives this Court an unfettered discretion to admit further evidence on appeal. However, case law (albeit relating to the predecessor of s 35) has developed some well-known considerations which a Court will take into account in deciding whether to receive further evidence.
The principles relevant to the discretion were discussed in the High Court in CDJ v VAJ (1998) 197 CLR 172, where McX, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
The proposed evidence was not reasonably available to the mother at the time of the hearing before the primary magistrate. However it relates to the children’s former medical practice, and as such does not suggest that it could have been relevant to the determination to release the report to their new practice. It will not be admitted into evidence.
LEAVE TO APPEAL
Although the discretion to grant leave to appeal is unfettered, ordinarily the test adopted in this Court, confirmed in Medlow & Medlow (2016) FLC 93-692 (“Medlow”) is that leave to appeal will only be granted where:
(a)The decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration; and
(b)If leave were refused, a “substantial injustice” would ensue.
The subsequent repeal of s 94AA of the Family Law Act 1975 (Cth), and its replacement with the substantially similar s 28 of the FCFCOA Act is no reason to doubt the correctness or continued applicability of Medlow.
It is therefore convenient to consider the merits of the proposed appeal first.
THE MERITS OF THE PROPOSED APPEAL
The decision sought to be appealed here was made in the exercise of a discretion. The relevant principles which govern appeals from discretionary judgments are uncontentious. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504-505 must be established. There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Ground 1
This ground provides:
1.In making the order under appeal, the learned Magistrate failed to take into account the following relevant considerations:
(1)The [report] has not yet been tendered in evidence.
(2)The [report’s] content has not yet been tested by cross examination.
(3)The content of the [report] has not yet been accepted as correct by any judicial officer in the course of this proceeding.
(4)The [report] is dated August 2022 and itself recommends review of the contents thereof in 9 months.
(5)The [report] records highly personal details of the relationship between the Mother and the Father, which should not be shared with children of any age.
(6)The [report] … is not intended to be distributed to a specified General Practitioner, nor for any therapeutic purpose.
(7)The provision of the [report] is to an unnamed person and will be distributed to a General Practitioner Medical Practice. As a result, the publication of the Report will be available to many doctors, allied health practitioners and medical administration staff, without control of the Court.
(8)The provision of the [report] to a General Practitioner Medical Practice (at large), without any restraint or injunction from further distribution, is harmful to the children and both parties.
(9)The provision of the [report] to the Children’s GP Medical Practice is not necessary to protect the children’s best interests. Indeed, the provision of the [report] to the Children’s GP is contrary to those interests. See sub-paragraph (10) below.
(10)The provision of the [report] to the Children’s GP Medical Practice might compromise the ability of the children to access any specialist medical care, pursuant to a referral from the Children’s GP Medical Practice, that may be required in the future.
(11)The provision of the [report] to the Children’s GP Medical Practice will, or at least may well, damage the reputation of the Mother in the eyes of the Children’s GP Medical Practice as a result of some of the [report’s] untested content.
(12)The provision of the [report] to the Children’s GP Medical Practice will eventually result in the children having access to a significant piece of evidence in their parent’s litigation.
To understand this ground, a little more background is required.
On several occasions, the mother had taken X for medical examination of, and treatment relating to conditions affecting, his anus and penis. On one occasion the GP tested the child for herpes, to see whether that might have been the cause of an anal ulcer.
On other occasions, the mother took photographs of both children’s genitalia and sent them to the father to show him their then condition, seemingly shortly after they returned from being in the father’s care.
It appears that the father was very troubled that this might all have been setting the scene for allegations that he had been sexually abusing one or both of the children, although it seems that the mother has never made any such allegation, whether explicitly or implicitly.
More, the father was worried that the history which the mother had given the children’s previous GP painted him in an unfavourable light, including him having been a perpetrator of family violence.
It was to prospectively guard against such risks that the father sought to have the report released to the children’s new GP.
For her part, whilst she conceded that “[t]hose sections of the report which relate to the children … would be potentially relevant to a GP” (Transcript 10 May 2023, p.17 lines 25-27), the mother opposed its release on the ground that the report “goes way beyond that which is necessary for a medical doctor to treat the children” (Transcript 10 May 2023, p.17 lines 49-50) and “focuses on parental conflict not medical treatment” (Transcript 10 May 2023, p.18 lines 9-10).
However none of the 12 matters listed in Ground 1 were pressed by the mother before the primary magistrate. Unless they were fundamental or obvious, the failure to bring them to the primary magistrate’s attention is fatal to now raising them for the first time on appeal (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [120]). Only the first four were fundamental or obvious. However precisely because they were obvious, there is no reason to think that the primary magistrate overlooked them in giving ex tempore reasons.
It is well established that “[a]n ex tempore judgment should not be picked over” (Maviglia v Maviglia [1999] NSWCA 188 at [1]) and yet that is precisely what the mother seeks to do here. Further, “[a]ppellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked” (Perdicari & Perdicari (2019) FLC 93-914 at [25]).
The primary magistrate’s reasons explain in a brief way why the order was made. Particularly her Honour said:
18.In relation to the issue of the release of the expert’s report to the children’s treating medical practice, it was the father’s case at the hearing on 10 May 2023, as indicated by his counsel that “what we want to do is buttress against this risk of the mother’s narrative only being provided to the GP. What we want to ensure is that, when the GP - if an allegation is made that the GP has to investigate, that the GP is looking at it through the lens of Ms [B’s] report instead, and understanding the dynamics in this family so that the allegation can be properly investigated.”
19.In opposing the release of the expert’s report it was the mother’s case that the expert’s report “speaks to the conflict between the parties.” Counsel posed the question how information about that conflict could assist a GP “treating a child for medical ailment of some kind?”
20.Counsel for the mother conceded that sections of the expert’s report which relate to the children “would be potentially relevant to a GP.” However, the mother argued that the report is lengthy and references third parties who have not seen the report, namely the grandparents and the father’s new partner.
21.The mother’s case was also that she did not want the relevant medical practitioner to have “any reticence about providing services to children for fear of being embroiled in family court proceedings.”
Conclusion
22.I find there is sufficient reason in this case for the expert’s report to be made available to a GP treating the children, understanding the dynamics of this family. In most cases it would be unlikely that an expert’s report would be made available to a treating GP of the subject children, but in this case I consider there is sufficient reason to do so in the children's interests.
23.I would suggest the GP is not likely to consult the report in general circumstances, such as where the children have been taken to the doctor because they have the flu, a common cold, fever or some ailment along those lines. But if the children have been taken to the doctor for reasons that relate to more serious concerns, for example, of a sexual nature, I think it is appropriate, and in the children’s interests, for this new GP to be able to access the history as contained in the report, if they so choose, in order to give advice and treatment.
24.The matters referred to in the expert’s report are not findings against either party. The report contains observations and opinion of one expert, given after only a couple of sessions with the parties and with the children. A GP may well get to know the children a lot better than Ms [B] has had opportunity to do.
25.The decision to make the report available to the GP however, is about providing the best medical care for the children, and providing that care with an understanding of the history of a dispute between these children’s parents which might, for whatever the reason, be impacting on the children.
26.If a GP is doing due diligence, then, if something comes up about the children’s behaviour, I think it is important for the GP to have information from both of the parents, but also to have “in their back pocket” access to this report, if appropriate.
27.I am therefore going to allow the provision of the report to the GP as requested by the father. I see no reason for the information from the Family Consultant to be provided.
(Footnotes omitted) (Emphasis added)
As I have said, the arguments now raised by the mother were not raised before the primary magistrate, which explains why they were not addressed. Although on 17 May 2023, the mother sought to revisit the 10 May 2023 decision, that was not permitted by the primary magistrate. No appeal ground challenges that refusal.
Ground 1 therefore does not enjoy any sensible prospects of success.
Ground 2
This ground provides:
2.The order under appeal was made, at least in significant part, as a result of the learned Magistrate finding that the Mother was likely to make a false claim that the Father had abused the children. The learned Magistrate erred in fact in making that finding.
Plainly this ground is premised upon a contended finding that “the [m]other was likely to make a false claim that the [f]ather had abused the children”. However no such finding was made, whether explicitly or inferentially.
The closest statement to the contended finding is the example given in [23] of the children being taken to the doctor for concerns of a sexual nature; however that falls far short of a finding that the mother was likely to do so. Indeed during argument, her Honour specifically said:
But if there was something that came up again that I think Mr Worth has touched on, where there’s a concern about the reasons why your client has taken the children to the doctor - and I’m not saying that would happen, but if that came up, then I think for the GP’s purposes it is relevant to have that as a record…
(Transcript 10 May 2023, p.17 lines 4-9) (Emphasis added)
The premise being false, no error as contended by Ground 2 is able to be established.
In any event, it is plain that the reason for the release of the report was to enable the children’s general practitioner to understand the family dynamics if that proved desirable. To the extent that the mother disagrees with any factual or other matters in the report, she is, of course, free to take that up with the relevant doctor if she thinks that is wise.
Conclusion
The decision of the primary magistrate is not attended by sufficient doubt to warrant its reconsideration.
SUBSTANTIAL INJUSTICE
If leave were not granted, the substantial injustice contended by the mother was, firstly, that the GP could not “unsee” what s/he read in the report; secondly, that there is the prospect that the children may one day read the report, and hence become aware of their parents’ conflict; and thirdly, that the report may be inappropriately accessed by staff at the children’s medical centre. How the first was a substantial injustice was unable to be cogently explained by the mother; at most it was said that if the general practitioner read the report, they may have some reticence in acting upon history given by the mother, given the context of contested family law litigation. That is not substantial injustice.
The latter two contentions are such remote possibilities as to not warrant further attention.
The mother has not established that, if leave to appeal were refused, substantial injustice would ensue.
OUTCOME
Leave to appeal is refused, and the appeal is dismissed.
COSTS
In the event that leave was refused, the parties agreed that the mother should pay the father’s costs in the sum of $7,000 within 28 days. There will therefore be an order in those terms.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 5 December 2023
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