Thompson & Platt

[2016] FamCA 1116

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 of 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

1. 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  

1. 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).

2. 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 all of the relevant documents, the Independent Children's Lawyer did not support the mother’s application.

3. On 5 December 2016 I heard the mother’s application and reserved my decision.  This is that decision and the reasons for it.

BACKGROUND FACTS

1. The father was born in 1982 and hence is presently 34 years of age.  He is a public servant.  The mother was born in 1969 and hence is presently 47 years of age.  It is not clear what her present occupation is, but during the course of her relationship with the father, she operated a retail business.

2. The parties formed a casual relationship between 2009 and 2011, although they never cohabited.  To that relationship one child, X, was born in 2011, and hence is presently five years of age, (“the child”).  It is unfortunate to record that the parties were in considerable conflict prior to the child’s birth, and have continued in almost unremitting conflict thereafter.

3. The mother first commenced proceedings on 14 September 2012, which culminated 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”).

4. The orders which his Honour made depended upon where the mother resided.  If the mother resided in the same area as the father, then the orders saw a progressive increase in the father’s time with the child, culminating in equal shared care from 1 April 2016.  In the event that the mother did not reside in the same area as the father, then the child was to live with the father and spend block holiday time with the mother.  In either eventuality, the father was awarded sole parental responsibility for the child.

5. Part of the evidence before Judge Coker was a Family Report prepared by Mr H dated 30 May 2014.  In the judgment, Judge Coker referred to that report, and extensively traversed Mr H’s cross-examination by the mother, observing that Mr H was “cross-examined at length by the mother in relation to the report that was given.”  His Honour’s judgment contains the following relevant passages:

   128.The fact is that the father was found by Mr [H] to be competent.  The father could make appropriate arrangements with parenting, and the mother's suggestion to Mr [H] that if the paternal grandparents were not present, then there might be a change in his recommendation was "shot down". Mr [H] indicated that whether the paternal grandparents were present, whether only one was present or neither of the paternal grandparents was present under the same roof, his conclusions and recommendations were, as he put it, "Not dependent on the grandparents. They were dependent upon the father," and his conclusion that the father would make decisions in the best interests of the child.

   129. Mr [H] was adamant and strong in his view that the father was capable of providing for the child, he was capable of caring for the child and, most importantly, was adamant in his view that if the mother were to be given the opportunity to have the child live with her in Melbourne then the relationship would be irretrievably damaged.  When asked by counsel for the father whether in his assessment the mother would foster the relationship with the father emotionally if the leave was given to move, his response was clear and precise.  He said, "No."  His position was unchanged with regard to any suggestion that the mother would not facilitate the relationship with the father and child.

   …

   132. Finally, and perhaps most significantly, the position taken by Mr [H] after all evidence had been considered and after cross-examination had been directed by both parents to him, was that if the situation arose where one parent or the other had to be primarily responsible for the care of the child, then he would support the father as the primary carer.  I was most assisted by the evidence of Mr [H] in relation to this matter.

   …

   156. Mr [H] was challenged in relation to his positive findings with regard to the father’s capacity to provide physically and emotionally for [X], but remained adamant that the father was competent and would make appropriate arrangements for the parenting of the child, and would act in the best interests of the child.  That reflects my assessment also of the father and, whilst there were criticisms understandably made of the father, I am satisfied that the father seeks substantial involvement in this child’s life and is capable in all respects of meeting the child’s needs.

   157. In respect of the mother, however, entirely different concerns arise.  Whilst there are not any overriding issues with regard to the mother’s capacity to physically meet the needs of the child, there are concerns of that nature but far more significantly concerns with her capacity to meet the child’s emotional needs, and to genuinely foster a relationship with the father.  The mother has acted on occasions in situations where the child and her physical wellbeing have been neglected.  The mother made much of the father’s actions on or about 10 September 2012 but failed in any way to appreciate that it was her initial act, the dropping of the child to the father’s workplace, which culminated in the institution of proceedings.  Her actions put the child at risk but there is no appreciation whatsoever by the mother of that being the case. 

   158. More particularly, however, the child’s psychological or emotional wellbeing if the mother were primarily responsible for the care of the child and more specifically if the child were to relocate to Melbourne is a very real concern.  The mother says that she will foster the relationship between father and child, and in fact would be better able to do so if she were living in Melbourne, because she would be more settled and happy.  The mother being in Melbourne certainly provides financial and familial benefits for the mother, but whether that will change ingrained attitudes to the father and the importance of his relationship with [X], is another consideration altogether.  Mr [H] identified that and returned to the concerns on a number of occasions in his report and in his oral evidence. 

   159. He was adamant in his view that relocation would irretrievably damage [X]’s relationship with her father, and was just as strong in his expert evidence to the effect that the mother would not foster the relationship between the father and [X] if relocation was to occur. Again, my own assessment in relation to this matter is that the mother would not be at all inclined to change her attitude to the father, and the fostering of the relationship with [X] and, if anything, would, with the geographical divide and the greater limitations in time to be spent with the father, allow the relationship to deteriorate. 

   160. It is a factor of the greatest significance therefore in relation to the determination of this matter.

6. Neither party appealed from the judgment and therefore remain bound by the findings of fact contained therein, including those which I have recited above. 

7. Subsequent to the judgment, the parties’ conflict scarcely abated.  On 27 May 2015 the father brought contravention proceedings against the mother and sought a recovery order, arising from the mother having withheld the child from him.  A Recovery Order was made by Judge Coker on 3 June 2015.

8. Next, on 3 March 2016, the father brought further contravention proceedings and sought a Recovery Order, again based upon a further withholding of the child by the mother in Melbourne.  However the mother countered with an application that the child live with her, because of alleged disclosures of sexual abuse of her by the father.  Those allegations were investigated by police and found to be unsubstantiated, after which, on 27 May 2016, orders were made that the child return to the father’s care, that thereafter the orders made by Judge Coker on 15 January 2015 “be suspended,” and the mother’s time with the child be supervised at the M Contact Centre for at least two hours per fortnight.

9. Up until then, so far as I can discern it, no fresh Initiating Application had been filed by either party.  However on 19 July 2016 the father filed an Initiating Application seeking that he have sole parental responsibility for the child, who would live with him and spend intermittent supervised time with the mother “for two hours on four occasions in each Queensland gazetted school holiday period” and communicate with the mother by telephone once a month and on special occasions.

10. By her Response filed 23 August 2016, the mother sought orders if not identical to, then at least substantially consistent with, those ordered by Judge Coker on 15 January 2015.  It therefore appears as though the mother has abandoned any claims in relation to the father posing an unacceptable risk of sexual harm to the child.

11. At the time of the hearing before me, the mother was, it seems, intermittently spending supervised time with the child pursuant to the orders of 27 May 2016.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

Family Reports

1. Section 62G(2) of the Family Law Act 1975 (Cth) provides that “the court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.” Section 62G(8) provides that such a report may be received in evidence in proceedings under the Act.

2. Part 3 of the Family Law Act deals with family consultants. Section 11D provides that a family consultant, in performing their function as such, have “the same protection and immunity as a Judge of the Family Court.”

3. In practice, the family consultant used to prepare Family Reports may either be a salaried employee of the court itself (noting that strictly they are now employees of the Federal Court) or sourced from the pool of family consultants approved under Regulation 7 of the Family Law Regulations 1984 (Cth). Depending upon the circumstances of the case, the court may require the parties to contribute to the cost of the preparation of a Family Report, or the court may bear that cost itself. Further complexity is introduced if there is an Independent Children's Lawyer engaged in the proceedings, as they may seek to undertake the briefing of the family consultant for the purposes of the preparation of the Family Report; in the event that the court itself arranges the preparation of the report, then such briefing occurs in-house.

4. Notwithstanding the immunity attached to the family consultant preparing a Family Report, the authorities make it plain that the witness enjoys no special position as regards other witnesses in relation to their evidence.  The evidence contained within the Family Report is simply part of the material before the court, which stands to be tested in the usual way by cross-examination, and which may or may not be accepted by the court.  Further, the weight which is given to the report remains a matter for the trial Judge.

Bias

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 being accused or suspected of bias.  The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.  The fact that, in the case of Judges, it may be easier to persuade one Judge of a proposition than it is to persuade another does not mean that either of them is effected by bias.

   … The state of mind described as bias in the form of pre-judgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any pre-disposition or inclination for or against an argument or conclusion...  

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 bias.. is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide.

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 might lead a Judge (or juror) to decide a case other than on its legal and factual merits.  The second step is no less important.  There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  The bear assertion that a Judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.  Only then can the reasonableness of the asserted apprehension of bias can be assessed.

4. There is no clear reason why those principles, which require natural justice to be afforded by decision-makers, should apply in totality, or perhaps even at all, in relation to the writer of a Family Report.  Such persons undertake no decision making; the decision making still resides with the court.  To 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 to be truly independent in their decisions.  A biased witness does not impugn the independence of the decision-maker, especially where the proceedings are adversarial and the evidence can be tested.  The possibility that a witness of fact or expert opinion may be bias does not infect the impartiality of the court.  The situation might be otherwise where the expert is appointed by the court or where the role or function of the expert is more than that of a giver of evidence (whether that evidence be in the form of an opinion, as librarian of a body of knowledge, or otherwise).  In such a case the role or function of the expert may perhaps come to be incorporated into that of the decision-maker, and, where the expert’s role or function is such that there is actual decision-making by the expert, then I can see some scope for the application of the test of reasonable apprehension of bias to exclude the evidence.  I can see no scope for that test, however, to exclude expert evidence that may assist the court where the expert is called in adversarial proceedings by one party and where an opposing party is at liberty to test whether any bias corrupts the evidence.  (Emphasis added). 

5. The Full Court of this Court in Bass & Bass (2008) FLC 93-366 at 82,487-8, adverted to this passage but then proceeded to refuse leave to appeal in relation to a decision to not allow an adversarial expert to be appointed, explaining that the reasons for refusing to grant leave included:

   50. Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings..  Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial judge.  It is not particularly unusual, in our combined experience, for trial judges not to accept, or to only give limited weight to, the opinion of a single expert in a children’s case.

6. That does not suggest, at least to my mind, that the Full Court was endorsing the argument that 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]-[36].

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 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 neither of those authorities bind me or otherwise require me to so hold.

Procedural fairness generally

1. It may be taken that at the heart of procedural fairness is a right to be heard.  That right may not extend to calling evidence but will certainly extend to an opportunity to make relevant submissions where an interest is sufficiently potentially affected by a decision proposed to be made.

THE BIAS CLAIM

1. The mother’s affidavit filed in support of her application only says this in relation to the alleged bias of Mr H:

   I sincerely believe that the matter at hand requires (sic) fresh set of eyes, whom have not worked in this matter and reached a conclusion in the past, to prepare the Family Report ordered by the court to avoid any possibility of bias; and/or apprehended bias.  Mr [H] was involved in the matter previously and had formed an opinion when he provided his final report to the Federal Circuit Court of Australia in Mackay in the past.  Mr [H’s] report and evidence was unfavourable for me in the earlier proceedings.  Accordingly, I am of the belief that it would not be just and reasonable for Mr [H] preparing the Family Report.

2. In the course of her submission, I asked the mother’s counsel to identify those passages of Mr H’s earlier report of 30 May 2014 which she said disclosed actual bias.  She referred me to paragraphs 48, 49, 50, 54 and 56, which provide as follows:

   48. [The mother] appears to continue to focus on [the father’s] initial lack of commitment as a justification for relocation but this is not supported by his behaviour.  [The mother], while wanting another child because she was in her early 40s did not appear to want any involvement by the father and she appears to have been taken by surprise, with regards to her current situation by the necessity for the inclusion of [the child’s] father in her future care.

   49.  [The mother] alleges that [the father] has been passively aggressive in his dealings with her and, of more concern, used his position in the Queensland [public service] in order to intimidate.  While there are some indications that [the father] has inappropriately used his position the extent of this will have to be determined by the court but does not appear to be sufficient to indicate that [the mother] and [the child] would be adversely affected in the long term.

   50. The situation over Mr [C] and [Y] is confusing with regards to [the mother’s] priorities, especially as her initial intentions appear to be moving to Port Douglas rather than Melbourne.  [The mother’s] decision not to explore alternative schools for [Y] appears to suggest that her intention was to move to Melbourne without consideration of [the child’s] need for an ongoing relationship with [the father].

   …

   54. [The father] has made decisions and arrangements that will ensure that he is fully involved in [the child’s] life and in my view this would be in her best interests.

   …

   56. I would also respectfully recommend that [the child’s] time with [the father] be gradually increased with the aim of an equal shared care arrangement once she has started school. 

3. I can see nothing in those paragraphs which, in accordance with the authorities that pertain to actual bias, would allow the conclusion that Mr H was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”  Actual bias is therefore not demonstrated.

4. As to apprehended bias, and modifying the Ebner (supra) test to the exigencies of this case, there is nothing in that material which would found a conclusion that Mr H might express opinions about the dispute between the parties in a subsequent Family Report, other than “on its legal and factual merits.”

5. Therefore although I am of the view that the obligation of procedural fairness that applies to Judges does not apply to Family Report writers, even if that is erroneous, I am not satisfied that the relevant tests are met in this case in relation to Mr H.  Further, even if I were of the view that they were so met, in my view this is par excellence a case of the kind identified in Bass & Bass (supra), where the proper course is to deal with the matter by way of cross-examination of Mr H.

6. The Application in a Case, insofar as it seeks to have Mr H discharged on the grounds of bias, is rejected.

THE PROCEDURAL FAIRNESS CLAIM

1. In order to understand the mother’s argument in this respect, a little more detail of the chronology is necessary.  On 24 August 2016 a Registrar of this Court made an order which, it was uncontroversial before me, effected an obligation on the Court’s North Queensland Manager of Child Dispute Services to cause a Family Report to be prepared in relation to the child.  On 30 August 2016, Ms S, a Regulation 7 Family Consultant, emailed the lawyers for both the mother and the father, advising that she had “been appointed to prepare the Family Report which has been ordered in this matter.”  I infer therefore that the manager of Child Dispute Services had nominated Ms S to prepare the Family Report.

2. On 2 September 2016 the solicitors for the mother forwarded to Ms S information that she had requested in her email.  However on 14 September 2016 Ms S again emailed the mother’s solicitors advising them that, in fact, Mr H “will now be preparing the updated Family Report ordered.”  There is no suggestion that the email was not received by the mother’s solicitors, as it is annexed to her affidavit.  However it appears as though her solicitors did not communicate that fact to the mother, as she says that she “only became aware of Mr [H’s] appointments for preparation of the Family Report in or about mid-October 2016 when I returned a missed telephone conversation which went to Mr [H’s] message bank.”  Perhaps it was this which precipitated correspondence from the mother’s solicitors to the Registrar of the Family Court of Australia in Townsville, in which they noted that “the mother objects to Mr [H] writing the Family Report.”  The letter continued:

   In the circumstances, we are writing to you:

   1.        To draw this matter to the Court’s attention;

   2.To request that the Court direct that a new report writer be commissioned;

   3.To advise that the mother will not be participating in the Family Report process with Mr [H] until her objection is dealt with.

   It may be convenient to address this issue at the forthcoming mention on 2 November although obviously we are in the Court’s hands about that.

3. On the same day the Senior Family Consultant of the Family Court in North Queensland emailed the mother’s solicitors and said:

   I have spoken with Registrar Laurie Boyd regarding your request.  Registrar Boyd considered it was now too late to change the report writer, particularly considering Mr [H] has already interviewed [the father] and has read all the subpoenaed material.

   Please inform your client her interview with Mr [H] will proceed and she needs to contact Mr [H] on … to arrange a time.

4. There was no further communication between the mother’s solicitors and the court registry in evidence before me.

5. The new Family Report was dated 31 October 2016 and was released to the parties by order of Registrar Boyd made 2 November 2016.

6. The mother then filed the Application in a Case which I am presently dealing with, nine days later on 11 November 2016.

7. It is difficult to pin down precisely the complaint which the mother makes in relation to procedural fairness.  She was advised of Mr H’s appointment by Ms S’s email of 14 September 2016 and yet did nothing to complain about that until her solicitors’ letter of 24 October 2016.  Moreover, her response was only to ask that her objection to Mr H be brought to the Court’s attention, and to communicate her request that a new report writer be commissioned, but no application of the kind which I am presently dealing with was then made or foreshadowed.  The Court promptly responded to the mother’s solicitors, and yet the evidence does not disclose any further communication from them.  Unsurprisingly, Mr H then proceeded to complete his Family Report, albeit regrettably without the mother’s involvement, and it was released to the parties.  All of this was against the background of the order of 24 August 2016 requiring the report to be prepared.

8. The mother appears to argue that the effect of her solicitors’ correspondence of 24 October 2016 was to require Mr H to immediately down tools, but that ignores that there was an order requiring the report to be prepared.  That order was still operative.

9. Further, having received the Court’s email on 24 October, there was, on the evidence before me, no further demur by the mother, until after the Family Report had been released.  There was no reason for the Family Report not to continue to be prepared, given the absence of any apparent response to the Court’s email.

10. Moreover, even if I am wrong as to that, and the effect of the mother’s correspondence of 24 October ought to have been to put preparation of the report into abeyance, I am nonetheless satisfied that the mother, by cross-examination of Mr H, can adequately remedy any perceived disadvantage which she now labours under.  The basis of her submission remains one of bias, and as has been seen, in my view the appropriate means for investigating and determining any claim bias by Mr H will be during the course of his cross-examination at trial.

CONCLUSION

1. For these reasons the mother’s Application in a Case filed 11 November 2016 will be dismissed.           

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 22 December 2016.

Associate:

Date: 22 December 2016