Tallant & Kelsey - [2016] FamCAFC 207

FAMILY COURT OF AUSTRALIA

TALLANT & KELSEY

[2016] FamCAFC 207

FAMILY LAW – APPEAL – JURISDICTION – Right of appeal – Where the primary judge overruled an objection against the admission into evidence of an expert’s report – Where ruling was drawn up in the form of an order and reasons were provided.

FAMILY LAW – WORDS AND PHRASES – Meaning of “decree” and “judgment” – Whether decision to admit an expert’s report into evidence is a decree – Where ruling did not determine the proceedings or a part of them – Where the decision is not a decree – Where decision not capable of appeal – Application for leave to appeal dismissed.

FAMILY LAW – COSTS – Where the ICL seeks costs of the appeals – Where applicant wholly unsuccessful – Costs ordered.

Australian Constitution (Cth): s 73
Family Law Act 1975 (Cth) : ss 4(1), 94, 94AA, 117
Family Law Regulations 1984 (Cth): reg 15A(2)
Family Law Rules 2004 (Cth): r 15.64(b), (c)

A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244
AH Toy v Registrar of Companies (1985) 10 FCR 280
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45
Helbig & Rowe [2014] FamCAFC 179
In the matter of P (a child); Separate Representative (1993) FLC 92-376
Lawrance v The Commonwealth of Australia [2007] FCA 1524
Medlow & Medlow (2016) FLC 93-692
Moller v Roy (1975) 132 CLR 622
Sahadi & Savva and Anor (2016) FLC 93-704

APPLICANT:

Ms Tallant

RESPONDENT:

Mr Kelsey

INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

FILE NUMBER:

PAC

3364

2013

FIRST APPEAL NUMBER:

EAA

102

2016

SECOND APPEAL NUMBER:

EAA

103

2016

DATE DELIVERED:

26 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Cronin JJ

HEARING DATE:

26 October 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 June 2016; 10 June 2016

LOWER COURT MNC:

[2016] FamCA 538;
[2016] FamCA 560

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Goodchild

SOLICITOR FOR THE APPLICANT:

Women’s Legal Service NSW

FOR THE RESPONDENT:

No appearance for or on behalf of the respondent

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Beck

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

Orders

By consent, the orders of Hannam J made on 3 September 2015 be added to the appeal books.
The appeal against Order 2 of Hannam J made on 6 June 2016 is dismissed.
The appeal against Order 19 of Hannam J made on 10 June 2016 is dismissed.
The applicant pay the Independent Children’s Lawyers costs of and incidental to the appeal in the sum of $4,725.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Numbers: EAA 102 of 2016; EAA 103 of 2016
File Number: PAC 3364 of 2013

Ms Tallant

Applicant

And

Mr Kelsey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

Ms Tallant (“the applicant”) and Mr Kelsey (“the respondent”) are engaged in defended proceedings concerning the parenting arrangements for their children. They have two children, C who was born in 2002 and D who was born in 2011.
Final parenting orders were made by consent in the Federal Circuit Court on 18 December 2013 which, in summary, shared the children’s time between their parents, as I understand it, equally. Those arrangements quickly broke down and in November 2014 the applicant commenced proceedings in the Family Court to vary the parenting orders so that she has sole parental responsibility for the children and they live with her. The effect of her proposed orders is that the children would not spend time with the respondent. It is the applicant’s case that she is the victim of family violence perpetrated by the respondent and, should the children spend time with him, there is an unacceptable risk they would be exposed to family violence. Based on statements attributed to the older child, it is also alleged that the respondent poses an unacceptable risk to the children of sexual abuse. The respondent denies the central tenets of the applicant’s case and, stated broadly, proposes that the children live with him during the school week and half school holidays.
It will be immediately apparent that the parties are polarised and the proceedings raised complex issues for the primary judge. As part of the

pre-trial procedures, the parties and an Independent Children’s Lawyer (“ICL”) agreed that Mr R, who is a psychologist, should be appointed pursuant to Part 15.5 of the Family Law Rules 2004 (Cth) (“the Rules”) as a single expert witness to investigate and report upon certain matters concerning the family. Their agreement is embodied in orders made by consent on 16 March 2015. Mr R’s report is dated 29 June 2015 and was released to the parties and ICL on 3 September 2015.
At the commencement of the trial before Hannam J on 6 June 2016, counsel for the applicant objected to the report being received into evidence. The primary judge overruled the objection and the report became evidence in the trial. It is this decision which is the subject of the first appeal (EAA 102 of 2016).
When the trial was not completed in the time allocated, it was adjourned

part-heard to December 2016. On 10 June 2016 interim orders were made for the children to spend supervised time with the respondent and for the children to attend therapeutic counselling with a counsellor nominated by the ICL. The practical effect of this is that the children would cease counselling with their then counsellor and commence a therapeutic relationship with a different counsellor. The ICL was authorised to give the incoming counsellor a copy of the expert’s report and her Honour’s reasons for judgment published in relation to her decision to receive the report in evidence. Properly understood, the order concerning the use of the expert report was one which varied the original order for its release. This variation order was challenged by the applicant in the second appeal (EAA 103 of 2016).
As I will shortly explain, no appeal lies against her Honour’s decision to receive the report into evidence and the first appeal should be dismissed.
The second appeal was against an interlocutory order as to a matter of practice and procedure and thus the applicant required a grant of leave to appeal. As such, and notwithstanding that the substantive proceedings concern a child welfare matter as that phrase is defined in reg 15A(2) of the Family Law Regulations 1984 (Cth) (“the Regulations”), leave to appeal is required (s 94AA(1) of the Family Law Act 1975 (Cth) (“the Act”)): (In the matter of P (a child); Separate Representative (1993) FLC 92-376; Sahadi & Savva and Anor (2016) FLC 93-704; Helbig & Rowe [2014] FamCAFC 179).
The test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [57]). However, as Medlow also points out (at [55]), the discretion given by s 94AA is broad and the stated test will give way to the interests of justice in particular cases.
Because we were concerned about the failure to address the question of leave in either appeal and in relation to the first appeal whether the decision was amenable to appeal, on 21 October 2016, the National Co-ordinating Registrar informed the parties and ICL that they were required to address the following questions:
(a)Whether the appeals are in relation to a “decree” as defined in s 4(1) of the Family Law Act 1975 (Cth)?
(b)Whether the orders of Hannam J made on 6 June 2016 (Order 2) and 10 June 2016 (Order 19) can properly be categorised as orders and, if so, whether they are interlocutory or final?
(c)Whether leave to appeal in both appeals is required?
The applicant was directed to file written submissions in relation to these matters by noon 24 October 2016. The written submissions were provided this morning.
At the commencement of the hearing counsel for the applicant informed us that the second appeal was withdrawn. I am of the view that an order should be made for it to be dismissed. Having had the benefit of counsel for the applicant’s written argument and brief oral submissions, I am not persuaded that either element of the test stated in Medlow was satisfied. It bears repeating that the final hearing is part-heard and until a final judgment is delivered it is not really possible to do more than speculate about the significance, if any, of the matters about which the applicant complains.

The First Appeal (EAA 102 of 2016)

The challenge raised by the first appeal is embodied in the applicant’s Amended Notice of Appeal filed on 23 September 2016. No application was made for leave to appeal. In short, this appeal was presented on the basis that the applicant had an unqualified right to appeal. Counsel for the applicant’s summary of argument proceeded on the same assumption. However, in response to the letter from the National Co-ordinating Registrar, counsel for the applicant said her Honour’s order was an interlocutory order as to a matter of practice and procedure and acknowledged that leave was required.
The respondent, who is self-represented, did not file a summary of argument and did not appear. However the appeal is resisted by the ICL. The summary of argument presented by counsel for the ICL barely engages with the issues germane to either appeal and was of no assistance. That said, counsel for the ICL supported the applicant’s contention that the decision to admit the report into evidence is amenable to an appeal. Neither counsel for the applicant nor counsel for the ICL was able to address the relevant authorities (indeed none was provided on the point).
Thus the first question to be answered in this appeal is was her Honour’s decision to admit the report into evidence a ruling in relation to evidence or a decree? If it is the former there is no right of appeal. Counsel for the applicant argued that because the primary judge gave reasons for judgment and an order issued, the decision was both a judgment and order. Counsel for the ICL agreed. The “order” was “The report of Mr R dated 29 June 2015 is admitted and Reasons for Judgment will be published in due course.” Written reasons for the decision were duly published.
As we convened for the purpose of delivering these oral reasons, counsel for the applicant sought to supplement the argument on the point made earlier today so as to contend that her Honour’s ruling was, in fact, an order pursuant to r 15.64(b) of the Rules and thus it was not a ruling as to evidence. I do not agree and am of the view that the substance of rr 15.64(b) and (c) relates to the admission into evidence of experts’ reports.
Appeals to the Full Court of the Family Court from a judge exercising original jurisdiction are governed by s 94 of the Act. Relevantly, s 94(1) provides:
(1) Subject to sections 94AAA and 94AA, an appeal lies to a Full Court of the Family Court from:
(a) a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction:
(i) under this Act; or
(ii) under any other law; or
(b) a decree of:
(i) a Family Court of a State; or
(ii) a Supreme Court of a State or Territory constituted by a single Judge;
exercising original or appellate jurisdiction under this Act or in proceedings continued in accordance with any of the provisions of section 9.
Note: This subsection applies to appeals from the making, variation and revocation of court security orders under the Court Security Act 2013 as described in section 94AB.
“Decree” is defined by s 4(1) of the Act as:
decree means decree, judgment or order and includes:
(a) an order dismissing an application; or
(b) a refusal to make a decree or order;
It is well settled that the words “a judgment, decree or order” have the same meaning as the words “all judgments, decrees, orders…” in s 73 of the Constitution (Moller v Roy (1975) 132 CLR 622 at 625; AH Toy v Registrar of Companies (1985) 10 FCR 280). The words “judgments etc” refer to the formal orders which the court may make, “whether in the form of a judgment strictly so-called or a decree, order …” Moller v Roy per Barwick CJ at 625. It follows that an expression of reasons does not give rise independently to a right of appeal (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64). It is perhaps useful to also record the remarks of Barwick CJ and Kitto J in Driclad at 64:
The word “judgments” in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment.
In Commonwealth v Mullane (1961) 106 CLR 166 the High Court had to consider whether a decision under review, which involved a ruling on a point of law, amounted to a judgment, decree, order or sentence. At 169 the Court said:
What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling; there was no determination.
It needs to be understood that in Mullane the trial judge delivered reasons and a document was drawn up which was expressed to be an order. The Court at 169 said of the ruling and order:
It did not, in our opinion, amount to a judgment, still less to a decree; it did not amount to an order … It is outside the terms of s. 73 of the Constitution and this appeal has no foundation in any curial order which is appealable.
Much more could be said about the issue, but it is sufficient to observe that following Mullane rulings on the admissibility of evidence have routinely been held not to be interlocutory judgments (or orders or decrees) which are amenable to appeal (see the decision of R A Hulme J in A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244 with whom Beazley P and Bellew J agreed; Lawrance v The Commonwealth of Australia [2007] FCA 1524).
Her Honour’s decision did not determine the proceedings or an identifiable part of them. It was a decision which could be varied without the intervention of an appeals court. It is telling that the decision would not be entered in the records of the Court. In my view, the facts of this case are on all fours with the decision in Mullane and no appeal lies against the decision of the primary judge.
The application for leave and the associated appeal should be dismissed.

Ainslie-Wallace J

I agree with the reasons given by Ryan J and the orders she proposes.

Cronin J

I also agree with the reasons given by Ryan J and the orders she proposes.

Costs

Ainslie-Wallace J

The ICL seeks an order for their costs consequent on the failure of the applicant’s appeal.
The question of costs on appeal is governed by s 117 of the Act and, in particular, s 117(2A).
These appeals have been wholly unsuccessful. Counsel for the applicant argued that, notwithstanding that important fact, the applicant should not be ordered to pay the costs of the ICL because the applicant, whilst she is earning $1,000 per week net, has debts, she is caring for the children, she is represented by a community legal centre and in the principal proceedings, it was asserted that important matters were to be raised.
That may be the case but both of these appeals were doomed to failure from the outset.
As we have already said, the argument that her Honour’s order was capable of being challenged on appeal was unsupported by any authority and flies in the face of significant High Court authority.
That the applicant is in strained financial circumstances is not a bar to an order for costs being made in favour of the ICL if it is otherwise appropriate. In my view, to bring two appeals which were wholly misconceived and doomed to fail and which have indeed failed, is sufficient to cause a costs order to be made and I would order the applicant to pay the ICL’s costs in the sum of $4,725.

Ryan J

I agree.

Cronin J

I too agree.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan and Cronin JJ) delivered on 26 October 2016.

Associate:

Date: 28 October 2016