Thornton & Little

Case [2022] FedCFamC1A 49

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Thornton & Little [2022] FedCFamC1A 49

Appeal from: Little & Thornton (No 2) [2021] FedCFamC2F 434
Appeal number(s): NAA 70 of 2021
NAA 6 of 2022
File number(s): MLC 6705 of 2019
Judgment of: ALDRIDGE J
Date of judgment: 8 April 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals against final parenting orders made which provided for the child to live with the father – Relocation – Consideration of evidence by the single expert – Where the evidence of the single expert was not consistent with the evidence in the proceedings – Where neither party posed a risk to the child – Findings of fact – Attribution of weight – Manner in which the hearing was conducted – Where the findings were not open on the evidence – Error established – Exceptional case – Appeal allowed and orders set aside – Matter remitted for rehearing – Orders made returning the child to the mother – Costs certificates granted.  
Legislation:

Family Law Act 1975 (Cth) s 69ZW

Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited:

Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

Franklyn & Franklyn [2019] FamCAFC 256

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Skorpos & Anor v United Petroleum Pty Ltd [2013] SASCFC 117

Stokes v The Queen (1960) 105 CLR 279; [1960] HCA 95

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12

Winship & Wrays (2019) FLC 93-928; [2019] FamCAFC 225

Number of paragraphs: 131
Date of hearing: 9 March 2022
Place: Melbourne (via video link), delivered in Sydney
Counsel for the Appellant: Ms Smallwood SC
Solicitor for the Appellant: AFL Kordos Lawyers
Counsel for the Respondent: Dr Smtih
Solicitor for the Respondent: Berry Family Law

ORDERS

NAA 70 of 2021
NAA 6 of 2022
MLC 6705 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS THORNTON

Appellant
AND:

MR LITTLE

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

8 APRIL 2022

THE COURT ORDERS THAT:

1.Appeal No. NAA 6 of 2022 is dismissed.

2.Appeal No. NAA 70 of 2021 is allowed.

3.The orders of 24 November 2021 are set aside.

4.The orders made on 19 October 2020, as amended on 15 March 2021 and 20 August 2021 are to apply.

5.The matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing before a judge other than the primary judge.

6.The Court grants to the appellant a…

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AGLC
Thornton & Little [2022] FedCFamC1A 49
Case
[2022] FedCFamC1A 49
Decision Date

CaseChat Overview and Summary

The appellant, Ms Thornton, appealed against the final parenting orders made in the Federal Circuit and Family Court of Australia. The central issue was the relocation of the child to live with the father. The primary judge's decision was based on the opinion of a single expert, Dr C, whose evidence was inconsistent with other evidence presented in the case. Neither party posed a risk to the child. The appeal centred on whether the findings were open on the evidence, the manner in which the hearing was conducted, and the attribution of weight to evidence. The court found that the findings were not open on the evidence, which constituted an error. This was deemed an exceptional case warranting the setting aside of the orders. The appeal was allowed, the orders were set aside, and the matter was remitted for rehearing before a different judge. New orders were made returning the child to the mother, and costs certificates were granted to both parties.

The legal issues before the court included whether the primary judge’s findings were open on the evidence presented, particularly concerning the expert evidence. The court also examined the manner in which the hearing was conducted and the weight attributed to the expert’s evidence. It was established that the evidence provided by the single expert, Dr C, was not consistent with other evidence in the proceedings. The court concluded that the findings were not supported by the evidence, which led to the conclusion that an error had been made. This error warranted the setting aside of the orders and the allowance of the appeal. The court emphasized that the expert's opinion must be based on facts proven by admissible means or explicitly stated assumptions. Given the inconsistencies and procedural issues, the court found that the findings were not open on the evidence.

In light of the errors identified, the court ordered a rehearing before a different judge. The court reinstated the orders made on 19 October 2020, as amended on 15 March 2021 and 20 August 2021, which mandated the child to live with the mother. The court granted costs certificates to both parties to cover the costs incurred during the appeal and the rehearing. This decision underscored the importance of ensuring that findings in family law matters are based on consistent and admissible evidence.

Orders

Orders of the court

NAA 70 of 2021

NAA 6 of 2022

MLC 6705 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS THORNTON

Appellant

AND:

MR LITTLE

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

8 APRIL 2022

THE COURT ORDERS THAT:

1. Appeal No. NAA 6 of 2022 is dismissed.

2. Appeal No. NAA 70 of 2021 is allowed.

3. The orders of 24 November 2021 are set aside.

4. The orders made on 19 October 2020, as amended on 15 March 2021 and 20 August 2021 are to apply.

5. The matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing before a judge other than the primary judge.

6. The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

7. The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

8. The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the rehearing ordered.

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).

Background

Background to the litigation

It is well established that “[t]he basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based” (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”) at [64], see also [65]–[66]). To this it may be added, of course as often occurs, the relevant facts upon which the expert’s opinion is based are established not by the expert themselves, because quite simply they have no knowledge of those facts, but by evidence called from other witnesses.BACKGROUND In order to understand the grounds of appeal, it is necessary to set out some of the factual matrix, as well as to delve into the procedural history of the matter at some length. Regard must be had to what occurred at an interim hearing on 19 August 2021. This is because the evidence of Dr C, the single expert forensic psychologist, was received in an unusual manner and because the evidence given on this day was taken into account in the reasons of the primary judge (see [37] and [378]). The parties’ short relationship began in March 2018. The mother says that the relationship ended before the child was born in March 2019, whereas the father says that it ended in June 2019. The parenting proceedings were commenced shortly thereafter on 19 June 2019. The parties reconciled in September 2019 and the proceedings were discontinued two months later. According to the father, the parties finally separated in May 2020, whereas the mother maintained that it was March 2019. The mother refused to allow the child to spend time with the father until orders were made on 19 October 2020 for the child to live with the mother and spend supervised time with the father, with proceedings having been recommenced on 8 July 2020. On 15 February 2021, the parties attended on Dr C who prepared a report dated 19 February 2021. In that report, he recommended that the child spend more time with the father in a less structured environment. On 15 March 2021, orders were made extending the time the child was to spend with the father and dispensing with the need for supervision. However, changeovers became more difficult, sometimes lasting as long as 45 minutes and on 11 May 2021 the mother again suspended the child’s time with the father. The parties attended Dr C once more on 18 May 2021. The circumstances in which they did so are not entirely clear. Dr C described this meeting as “ad hoc” and it seems that it may have been arranged by the parties’ lawyers in an attempt to get assistance with changeover (Transcript 19 August 2021, p.32 line 25). At the meeting Dr C observed what he described as a disturbed and dysfunctional attachment between the mother and the child. He asked a colleague, Mr H, to observe what was taking place (Transcript 19 August 2021, p.32 lines 25–29). On 20 May 2021, Dr C conducted a teleconference with the parties’ lawyers to discuss his concerns. Dr C advised that he considered it desirable that the mother and child consult a bonding and attachment specialist. Dr C did not prepare a report at that time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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