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– Application in an Appeal dismissed – Costs ordered in favour of father.Legislation: Family Law Act 1975 (Cth) s 94AA (repealed)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,…
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CaseChat Overview and Summary
In the case of Shadler & Danzer, the mother sought leave to appeal an order made by the primary magistrate permitting the release of a single expert report to the children’s new medical practitioner. The father opposed the grant of leave and the appeal itself. The Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction, was tasked with deciding whether to grant leave to appeal and, if so, whether the appeal should be upheld.
The legal issues before the court included whether to admit further evidence on appeal, specifically the mother's affidavit alleging that a friend of the father had accessed the family's medical records. The court considered the principles established in CDJ v VAJ (1998) 197 CLR 172, which outline the discretion to admit further evidence on appeal. The court examined whether the evidence was relevant to the decision, whether the arguments raised on appeal were previously presented to the primary magistrate, and whether the primary magistrate's decision was attended by sufficient doubt to warrant an appeal.
The court found that the proposed evidence was not relevant to the decision, the arguments raised on appeal were not presented to the primary magistrate, and there was no sufficient doubt in the primary magistrate's decision. The mother failed to establish a substantial injustice that would warrant the admission of new evidence or a new hearing. Consequently, the court refused leave to appeal and dismissed the appeal. The court also dismissed the mother's application to adduce further evidence and ordered the mother to pay the father's costs.
In summary, the court's reasoning was grounded in the principles of finality of litigation, relevance of evidence, and the discretion to admit further evidence on appeal. The outcome was that the appeal was dismissed, and the mother was ordered to pay the father's costs.
The legal issues before the court included whether to admit further evidence on appeal, specifically the mother's affidavit alleging that a friend of the father had accessed the family's medical records. The court considered the principles established in CDJ v VAJ (1998) 197 CLR 172, which outline the discretion to admit further evidence on appeal. The court examined whether the evidence was relevant to the decision, whether the arguments raised on appeal were previously presented to the primary magistrate, and whether the primary magistrate's decision was attended by sufficient doubt to warrant an appeal.
The court found that the proposed evidence was not relevant to the decision, the arguments raised on appeal were not presented to the primary magistrate, and there was no sufficient doubt in the primary magistrate's decision. The mother failed to establish a substantial injustice that would warrant the admission of new evidence or a new hearing. Consequently, the court refused leave to appeal and dismissed the appeal. The court also dismissed the mother's application to adduce further evidence and ordered the mother to pay the father's costs.
In summary, the court's reasoning was grounded in the principles of finality of litigation, relevance of evidence, and the discretion to admit further evidence on appeal. The outcome was that the appeal was dismissed, and the mother was ordered to pay the father's costs.
Orders
Orders of the court
NAA 152 of 2023
PTW 4213 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
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.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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.”Conclusion22.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)
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.