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Thompson & Platt

Thompson & Platt

Case [2016] FamCA 1116 22 December 2016

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FAMILY COURT OF AUSTRALIA

THOMPSON & PLATT

[2016] FamCA 1116

FAMILY LAW – BIAS AND PROCEDURAL FAIRNESS – where the mother’s application is dismissed – where mother seeks Family Report writer be discharged and a new Family Report writer be appointed – where mother justifies those orders as the Family Report writer has demonstrated actual bias against her – where there is a reasonable apprehension of bias – where there is no actual bias.

Family Law Act 1975 (Cth) ss 11D, 62G
Family Law Regulations 1984 (Cth) reg 7

Bass & Bass (2008) FLC 93-366
Danell & Saller [2015] FamCA 859
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454
Johnson & Johnson (2000) 201 CLR 488
Kernot & Matson [2008] FamCA 756
Minister for Immigration & Jia Legeng (2001) 205 CLR 507
Payne & Payne [2009] FamCAFC 13
R & R [2003] FamCA 1180
Thompson & Platt [2015] FCCA 67

APPLICANT:

Ms Thompson

RESPONDENT:

Mr Platt

INDEPENDENT CHILDREN’S LAWYER:

Ms Murray

FILE NUMBER:

TVC

1003

2012

DATE DELIVERED:

22 December 2016

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

5 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Baczynski

SOLICITORS FOR THE APPLICANT:

Mohan Yildiz & Associates

SOLICITORS FOR THE RESPONDENT:

Groves & Clark

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Legal Aid Queensland

Orders

The mother’s Application in a Case filed 11 November 2016 is dismissed.

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 Thompson & Platt 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).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVC 1003 of 2012

Ms Thompson

Applicant

And

Mr Platt

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Application in a Case filed 22 November 2016, Ms Thompson (“the mother”) seeks orders that “Mr [H] be discharged as being the Family Report writer” and “that a new Family Report writer be appointed.” She justifies those orders on three grounds: firstly, that Mr H has demonstrated actual bias against her; secondly, that there is a reasonable apprehension that Mr H is biased against her; and thirdly, that the means by which Mr H came to be appointed was procedurally unfair to her (although counsel for the mother specifically eschewed that her Application in a Case comprised a review of the Registrar’s relevant decision).
Mr Platt (“the father”) opposes the mother’s Application in a Case, and seeks that it be dismissed. Whilst only very recently appointed, and hence not yet possessed of…

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 Thompson & Platt

Details

AGLC: Thompson & Platt [2016] FamCA 1116
Case: [2016] FamCA 1116
Decision Date: 22 December 2016

CaseChat Overview and Summary

In the matter of *Thompson & Platt*, heard before Tree J, the court considered an application filed by the mother on 11 November 2016. The specific nature of the dispute between the parties, beyond the mother's application, is not detailed in the provided text.

The central legal issue before the court was whether to grant the mother's application filed on 11 November 2016.

Tree J dismissed the mother's application. No further reasoning or legal principles applied are discernible from the provided extract.

The court ordered that the mother's Application in a Case filed 11 November 2016 be dismissed.

Orders

Orders of the court

The mother’s Application in a Case filed 11 November 2016 is dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Thompson & Platt [2016] FamCA 1116

Most Recent Citation

Carlevaro & Carlevaro [2024] FedCFamC2F 1736

Cases Citing This Decision

Carlevaro & Carlevaro [2024] FedCFamC2F 1736
Citation 1

…JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 R & C [1993] FamCA 62 Thompson & Platt [2016] FamCA 1116 Tryon & Clutterbuck & Attorney-General of the Commonwealth (Intervenor) [2010] FamCAFC 229; (2010) 44 Fam LR 361 Velevski v The Queen [2002] HCA 4 Weston & Laurent [2013] FamCAFC 34; (2013) 49 Fam LR 338 Div…
Grier & Grier (No. 2) [2021] FamCAFC 91
Citation 2 (Para 22)

…it appears that by reference to the decisions of Harper J in Padley & Padley [2020] FamCA 717 and an earlier decision of my own in Thompson & Platt [2016] FamCA 1116, he did not concede that the cases dealing with a reasonable apprehension of judicial bias necessarily applied to a family report writer; (b)further, i…
Padley & Padley [2020] FamCA 717
Citation 3 (Para 10)

…this Court cited this passage in Bass & Bass [2008] FamCAFC 67; (2008) FLC 93-366 at 82,487-8 but, as Tree J pointed out in Thompson & Platt [2016] FamCA 1116 (“ Thompson ” ) at [24], the Full Court did not necessarily endorse the argument that a court can or should discharge a family report writer for actual or os…
Nagel & Clay [2020] FamCA 326
Citation 4 (Para 1)

…In Thompson & Platt [2016] FamCA 1116 (“ Thompson ”), Tree J reviewed at some length the authorities concerning the operation of the bias principles on the evidence of family consultants. Consistently with the comments from Cross on Evidence , cited above at [143], he noted particularly the distinction between a jud…
PANERA & SLIEDELL [2017] FCCA 1573
Citation 5 (Para 1)

…an the reasonableness of the asserted apprehension of bias be assessed.” j) In Thompson & Platt [2016] FamCA 1116, Justice Tree, noting particularly the distinction between a judge as a decision maker and a family report writer tasked with the role of assisting the Court itself come to a decision, provided the follo…

See all citing cases →

Cases Cited

DANELL & SALLER [2015] FamCA 859
Citation 1 (Para 6)

…Payne [2009] FamCAFC 13 at [77] compel such a conclusion either. I also note the helpful discussion on this issue by McClelland J in Danell & Saller [2015] FamCA 859 at [32]-[36].…
Thompson and Platt [2015] FCCA 67
Citation 2 (Para 3)

…nated in a four day trial before Judge Coker in the Federal Circuit Court, who gave his decision and made orders on 15 January 2015: Thompson & Platt [2015] FCCA 67 (“the judgment”).…
Payne & Payne [2009] FamCAFC 13
Citation 3 (Para 6)

…at a court can or should discharge a Family Report writer for actual or ostensible bias. Nor does the subsequent Full Court decision of Payne & Payne [2009] FamCAFC 13 at [77] compel such a conclusion either. I also note the helpful discussion on this issue by McClelland J in Danell & Saller [2015] FamCA 859 at [32]…
Kernot & Matson [2008] FamCA 756
Citation 4 (Para 7)

…examination could overcome the fundamental defect of a perception of bias or actual bias in the Report writer.” Later, Watts J in Kernot & Matson [2008] FamCA 756 at [16] was “comfortable in accepting” the proposition that a family consultant can be removed on the same basis as a Judge may be disqualified. However…
MS R and MR R [2003] FamCA 1180
Citation 5 (Para 7)

…I am conscious that in an ex tempore judgment of Boland J in R & R [2003] FamCA 1180 at [22] her Honour discharged the order which had appointed a Family Report writer, and restrained the distribution of a report, on the grounds that “neither rendering inadmissible parts of the report, or cross-examination could ove…
Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454
Citation 6 (Para 4)

…o the extent that any authority suggests otherwise, it appears to have its genesis in a decision of Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 where at [8] his Honour said: The principle rationale of the test of reasonable apprehension of bias is to ensure that decision-makers are perceived…
Minister for Immigration And Multicultural Affairs v Jia Legeng [2001] HCA 17
Citation 7 (Para 1)

…In Minister for Immigration & Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J at 531-2 said this in relation to actual bias: … Decision-makers, including judicial decision-makers, some times approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without…
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Citation 8 (Para 3)

…Later in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345, Gleeson CJ, McHugh, Gummow and Hayne JJ said: 8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the iden…
Johnson v Johnson [2000] HCA 48
Citation 9 (Para 2)

…As to apprehended bias, in Johnson & Johnson (2000) 201 CLR 488 at 492, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said: 11. … It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bia…
Ebner v The Official Trustee in Bankruptcy [2000] HCA 637
Citation 10 (Para 3)

…Later in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345, Gleeson CJ, McHugh, Gummow and Hayne JJ said: 8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said m…

Legislation Cited

Family Law Act 1975 (Cth) 11D, 62G
3 mentions (from Para 1)
Family Law Regulations 1984 (Cth) 7
2 mentions (from Para 3)
Family Law Rules 2004 (Cth)
1 mention