Swefford & Tarbell - [2013] FamCAFC 50

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL

[2013] FamCAFC 50

FAMILY LAW – APPEAL – CHILDREN – Appointment of Single Expert

Family Law Act 1975 (Cth)

De Winter and De Winter (1979) FLC 90-605
Edwards v Noble (1971) 125 CLR 296

APPELLANT:

Ms Swefford

RESPONDENT:

Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER:

Christos Christaki

APPEAL NUMBER:

149

2012

FILE NUMBER:

SYC

889

2008

DATE DELIVERED:

25 March 2013

PLACE DELIVERED:

Sydney

DATE HEARD:

20 March 2013

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace & Murphy JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 October 2012

LOWER COURT MNC:

[2012] FamCA 888

REPRESENTATION

THE APPELLANT:

Ms Swefford in person

SOLICITOR FOR THE RESPONDENT:

Duncan Holmes of KDB Holmes Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr John Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

Orders Made on 20 March 2013

The appeal against the order of Watts J made 22 October 2012 be dismissed.
The Appellant pay the costs of the Respondent and the Independent Children’s Lawyer on a party/party basis as agreed or assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 149 of 2012
File Number: SYC 889 of 2008

Ms Swefford

Appellant

And

Mr Tarbell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 22 October 2012 Watts J made an order appointing Dr R to act as Single Expert Witness in the proceedings. The mother, Ms Swefford appeals that order. The father, Mr Tarbell and the Independent Children’s Lawyer both resist the appeal and seek to maintain his Honour’s order.
On 20 March 2013 the Full Court heard the appeal, made orders dismissing the mother’s appeal and ordered her to pay the costs of the respondent and the Independent Children’s Lawyer. We indicated that we would deliver reasons for that decision later. These are our reasons.
The matter before this Court involves the child of the parties, D who was born in August 2004. The history of the parties’ relationship as it involves the child is somewhat complex.
For convenience we include here an extract from our reasons for judgment delivered in December 2012 in which we set out what we understood to be non controversial matters of background.
In early April 2008 the mother removed the child from Australia without the father’s knowledge or consent. In May 2008 an order was made in this Court, ex parte the mother, that the child live with the father. The child remained out of Australia, his whereabouts unknown to the father, until he was returned to Australia and the care of his father on 25 January 2011.
The child has remained living with his father and spends time with the mother under supervision.
There are…

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 Swefford & Tarbell

Details

AGLC: SWEFFORD & TARBELL [2013] FamCAFC 50
Case: [2013] FamCAFC 50
Decision Date: 25 March 2013

CaseChat Overview and Summary

In the matter of Swefford & Tarbell, the Court of Appeal was tasked with reviewing the decisions made by the trial judge regarding the appointment of a single expert witness in a family law dispute. The central issue in the appeal was the alleged errors of fact made by the trial judge, which the mother argued were significant enough to warrant appellate intervention. The mother contested several findings of fact, including the trial judge’s conclusion that she opposed the appointment of Associate Professor Q, that she had supported Dr R as an appropriate expert, that the court would need to force Associate Professor Q to undertake the report, and that she had made a novel suggestion regarding the responsibility for the final report writing.

The Court of Appeal considered each of the grounds of appeal individually. It held that the trial judge’s finding that the mother opposed the appointment of Associate Professor Q was open to him based on the evidence, and the mother had not established that this finding was erroneous. The court also found that even if the trial judge had made a factual error in concluding that the mother had supported Dr R as an appropriate expert, this error did not require appellate intervention as the outcome was plainly right. Regarding the assertion that the trial judge would need to force Associate Professor Q to undertake the report, the Court of Appeal held that the trial judge’s comment was apt and not a factual error. Finally, the court determined that the mother’s submission about the responsibility for the final report writing was more an expression of hope than evidence, and thus, the trial judge’s findings in this regard were not erroneous.

Ultimately, the Court of Appeal found that none of the alleged errors of fact were sufficient to merit appellate intervention, and thus dismissed the appeal. The findings of the trial judge were upheld as they were either correct or, in the case of minor factual errors, did not affect the outcome of the case.

Orders

Orders of the court

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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

These grounds can not be made out.Consideration of Associate Professor Q Under the rubric of the consideration of Associate Professor Q’s appointment are grounds referring to the mother’s suggested appointment of Ms V. Two grounds were asserted which seem not to fall under either heading, assert errors of fact made by the trial judge. We will consider them separately. It is necessary to set out these grounds as they appear in the Notice of Appeal.Ground 5. His Honour proceeded on a factual error that the mother had opposed the appointment of A/P [Q]. I sent a letter to the court on 21 August 2012 stating that I did not oppose but to the contrary request the appointment of A/P [Q]. I presented my letter dated 21 August 2012 to his Honour in Court on 22 October 2012 in support of my application and affidavit to have A/P [Q] re-appointed the Single Expert Witness. The mother asserts that his Honour’s finding that she had previously opposed the appointment of Associate Professor Q was an error. It was a finding open to the trial judge on the evidence before him. Indeed the mother conceded that her lawyer, then acting for her, sent a letter to all parties in those terms. That she asserted to the trial judge that that letter was not sent on her instructions was a matter of which his Honour was aware. The mother has not established that his finding was indeed an error much less established that it was productive of appellate error.Ground 6. His Honour proceeded on factual errors that the mother had in an email supported Dr [R] as an appropriate expert. At no time did I mention the name of Dr [R] or that Dr [R] was an appropriate expert in any email or to the court. Although the mother’s submission is correct that she had not supported Dr R in terms, her propounding of any psychiatrist at Z Child and Family Centre could well found his Honour’s acceptance that, when the email was sent, she did indeed support Dr R. However, even if his Honour was incorrect in that finding, it is not an error of fact that enlivens appellate intervention. As the High Court made clear in De Winter and De Winter (1979) FLC 90-605, where there has been a mistake of fact made, the judgment may nevertheless be upheld where the result is “plainly right”. Such is the case here.Ground 7. His Honour proceeded on factual errors that he would need to “force” A/P [Q] to undertake the report. My application to re-engage A/P [Q] was based on cooperation with A/P [Q] by asking her if she would reconsider the appointment if the problems that caused her to withdraw were resolved – including cancellation of or frequently changing appointments dates by the I.C.L and the father refusing to pay A/P [Q’s] fees. This does not involve “force”. The mother asserts that his Honour proceeded on a factual error in finding that he would need to “force” Associate Professor Q to undertake the assessment. Associate Professor Q’s letter, in the clearest of terms, set out her reasons for wishing to withdraw. The mother put no evidence before the trial judge of any contrary view of Associate Professor Q or that she was amenable to reconsideration. Her submissions on this point, it seems to us, to have been an expression of hope over experience. His Honour in making that comment at [7] was entirely apt and not, as asserted, a factual error.Ground 8. His Honour proceeded on the factual error that I had made a ‘novel suggestion’ that the responsibility for the final report writing be split between two professionals… This is incorrect. I applied to have A/P [Q] re-appointed as a Single Expert Witness as is documented in my Application filed 10 October 2012 at Order 1, 2 and 3 and in my Affidavit filed 10 October 2012 at paragraph 58 and 59. I provided a “suggestion” in my submission filed 22 October 2012, that A/P [Q] cold be approached to ascertain if she believed she would be assisted by Ms [V], a child protection expert providing input as part of the assessment. I stated that this would be a matter for A/P [Q] to decide upon and that A/P [Q] would remain responsible for writing the final report.