Yates and Yates - [2013] FamCA 67

FAMILY COURT OF AUSTRALIA

YATES & YATES

[2013] FamCA 67

FAMILY LAW – FAMILY CONSULTANT - Role as an investigator determined by the evidence presented by the parties or as dictated by the Court.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Yates

RESPONDENT:

Ms Yates

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

HBC

506

2009

DATE DELIVERED:

6 February 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

15 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Munro

SOLICITOR FOR THE APPLICANT:

John Munro Barrister & Solicitor

COUNSEL FOR THE RESPONDENT:

Mr McVeity

SOLICITOR FOR THE RESPONDENT:

Bishops Barristers and Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

That upon the wife filing and serving an affidavit of the child of the marriage P and an affidavit by her mother containing admissible evidence or alternatively, indicating a desire to rely on the two affidavits previously filed by or on behalf of the husband (noting that they contain inadmissible material), the family consultant should read such material and determine whether it is likely to assist the Court to express an opinion on the issues raised by that evidence.
That the family consultant read the previous family reports of Ms S contained on the court file.
That the application in a case filed 5 February 2013 by the wife and the response thereto by the husband filed on 31 January 2013 be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: HBC 506 of 2009

Mr Yates

Applicant

And

Ms Yates

Respondent

REASONS FOR JUDGMENT

This interlocutory application raises two main issues about a pending final parenting dispute. They are:
(a)to what extent should the Court dictate to a family consultant the level of investigation to be undertaken for a family report?; and
(b)to what extent did a Full Court circumscribe the parameters of the dispute in directing a rehearing of the case?
By application in a case filed 5 February 2013, Ms Yates (“the wife”) sought an order that in an updated family report, the family consultant:
i.Interview an adult child of the marriage P;
ii.Interview the wife’s mother; and
iii.Read all material “which was available” at a hearing in July 2010.
The wife went on to seek an order that this updated family report include “any further or different recommendations” as the family consultant saw fit after these tasks were fulfilled.
By his response to the wife’s application, Mr Yates (“the husband”) sought the anticipated application be dismissed.
This being a Hobart case, the matter was dealt with by video link. The submissions of all parties were heard in that video link and the parties’ respective affidavits read. This case will most likely be heard later in 2013.
To understand the complexities of these issues, it is necessary to traverse the relevant parts of the background.
The husband and wife married in 1989. P was born in 1991 and the child who is the subject of the forthcoming trial, F, was born in 2004. The parties separated in 2009 and proceedings were commenced in that year.
After a contested trial, Benjamin J made orders on 7 September 2010. In respect of the parenting issues, his Honour ordered inter alia, F live with the husband from Friday night to Monday morning in one week and from Wednesday after school to the commencement of school on the Friday in the second week. From those orders, the husband appealed, seeking a seven day per fortnight shared arrangement.
On 7 September 2010, the Full Court made orders setting aside the orders of Benjamin J and ordered a partial retrial. Relevantly for my purposes, the Full Court ordered that the rehearing be concluded “within and subject to the following notations and conditions”:
(a)the issue to be determined is whether in each fortnight the child should spend nine nights with the wife and five nights with the husband or equal time with each parent;
(b)the starting point for a determination of this issue shall be the facts in existence at the date of the hearing before Benjamin J, and as were found by Benjamin J;
(c)the only further facts to be considered in that determination are to be any relevant facts arising subsequent to the date of the hearing before Benjamin J.
The rehearing will take place this year and despite the narrow compass of the orders of the Full Court, the issue seems to be whether the parenting arrangement should be seven days and seven days for each parent or the present arrangement of five out of 14 for the husband.
In setting aside the trial judge’s orders, the Full Court declined to exercise its discretion to make orders bearing in mind the acceptance of the findings of fact by Benjamin J but their Honours did make interim orders pending the rehearing, consistent with those of Benjamin J’s determination.
As earlier mentioned, the pursuit of orders by the wife now concerns evidence by a family consultant but it also raises the question of whether the orders of the Full Court circumscribed the hearing by making the wife’s application unnecessary or even impermissible.
To add to the complexity, when the Full Court sent the case back for rehearing, Young J conducted a directions hearing and after hearing submissions, ordered an updated family report which was to include inquiry into the nature of various relationships including that of P with the parents.
Before dealing with the evidence, it is helpful to understand the respective submissions. The Independent Children’s Lawyer said the probative value of these interviews as sought by the wife, was doubtful because of the limited remit. Counsel for the wife submitted that absent this process, the Court would not have what it had asked for nor would it be the “best report” possible. The solicitor for the husband submitted there was no basis for the opening of this area at all.
It is clear from the court file that the trial judge had the evidence of P and the wife’s mother but that the affidavits were not read by the family consultant (at least according to the third family report) because the documents were filed subsequent to the report being delivered. I have read the affidavits of P and the mother and must remark that much of what was written does not seem to me to be admissible evidence but rather comment and opinion some of which was highly inappropriate.
In respect of the interlocutory application before me, both parties filed an affidavit which was brief. The wife said the family consultant had failed to read certain material and had not been aware of “three earlier reports” by the family consultant who gave evidence in the trial. As such, it was said, the family consultant was not fully aware of the history and that meant that generally, personality judgments about the husband and wife were being made after excluding much of that history. In addition, P had wanted to be involved in the interview process but had been denied that opportunity and further that the family consultant referred to the husband and wife’s relationship with the wife’s parents but had not heard from the wife’s mother personally.
The husband’s affidavit referred to the fact that in 2012, the family consultant had interviewed the parties as well as F and read the judgments of Benjamin J and the Full Court all of which covered the historical matters. Further, it was said, Young J’s orders did not contemplate an interview with P or the wife’s mother nor had they been interviewed by the previous family consultant. The husband’s position may be seen to be questioning not only the right to extend the investigation having regard to the limited Full Court remit but also whether Young J had it in mind either.
An examination of the Full Court’s judgment shows that the Full Court did desire that the issue be limited. The Full Court said:
(a)there was no challenge to Benjamin J’s findings that the family violence perpetrated by the wife during the relationship was likely to occur again and the wife did not pose a physical or emotional threat to the care of the child (paragraph 61); and
(b)P had filed an affidavit prepared by the husband and he had relied upon it. The wife chose not cross-examine P (who was then aligned with the husband) but the husband chose to call P to give oral evidence knowing that cross-examination by the wife’s counsel was not to occur. Benjamin J criticised the husband for that approach. The Full Court said there was no error in that approach.
It might be observed from those two points made by the Full Court that in the forthcoming trial, the issues for consideration by the trial judge as to what is in the best interests of F, are limited.
In the judgment of the Full Court, their Honours noted that both the husband and the Independent Children’s Lawyer urged a rehearing and had conceded that further evidence might ideally be needed including the preparation of an updated family report but that that should not be allowed to occur. The Full Court then said (paragraph 119):
Thus, given the passage of time and the prospect that circumstances may have changed and the fact that the parties are not in agreement that we should re-exercise on the basis of the evidence before the trial judge, we do not consider that we could re-exercise the discretion in relation to the parenting issues without receiving further evidence including an updated family report.
In directing that there be “limits” on the rehearing, the Full Court said:
121.Here, the dispute is within a narrow compass, namely whether in each fortnight the child should spend nine nights with the wife and five nights with the husband, or equal time with each parent. Thus, the re-hearing should be limited to a determination of that issue.
122.Further, we consider that in order to determine that limited dispute, the starting point for the re-hearing should be the facts as they existed at the time of the hearing before the trial judge, and as were found by the trial judge, and for the new judge to then only take into account relevant facts that have arisen subsequent to that date. In particular, we consider it unnecessary for evidence to be led at the re-hearing as to the historical facts and issues put before the trial judge including for example the allegations of family violence. We also consider that it would be of significant benefit to the new judge who re-hears this matter for there to be an updated Family Report prepared, but we will leave that issue to that judge.
It will be seen that whilst the findings of the trial judge were to be used, the issue of further evidence was a matter for the new trial judge. That must be the case. Despite the wording of the order of the Full Court, I do not think their Honours intended to restrict the judicial discretion. As was said in Sampson v Hartnett(scope of rehearing) [2009] FamCAFC 1 per Bryant CJ and Cronin J:
[23]Thus, subject to any relevant statutory provision, the scope of any rehearing is to be determined by the circumstances of the particular proceedings in the interests of justice.
[25]Thus, a trial judge must not be constrained as to the determination of a controversy other than that it must be determined according to law. For a Full Court to direct that a new trial judge accept findings of another judge and then apply the law would be to inappropriately shackle that judge.
[26]...equally there can be no permissible constraint upon the manner in which a rehearing is conducted by any judge other than [the judge] who is to now hear the matter, unless that constraint is with the consent of the parties.
The Court always has a residual discretion as to whether or not to admit evidence proffered by a party provided it is seen to be relevant to the exercise of the ultimate discretion (see Rusco and Walker [2001] FamCA 268 following Allesch v Maunz (2004) CLR 172). Division 12A of the Family Law Act 1975 (Cth) (“the Act”) has ameliorated the process by which evidence is admitted but it has not removed it. Importantly the Court should follow ss 55 and 56 of the Evidence Act 1995 (Cth) which provide:
55.(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to:
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.
56.(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
Here, the parties seek a parenting order and each proposes a different outcome. It is the function of the Court to determine in a disputed parenting situation what it considers to be in the child’s best interests. Part VII provides the requirements that a court must follow if it is to make a parenting order. That is, it is mandatory for the court to consider the factors which determine the best interests principles. In addition, s 65D(1) provides that having contemplated all of those matters, the court should only make an order if it is proper to do so.
It is clear therefore that the Court must consider all of the matters in s 60CC to enable it to make a proper order providing that it is in the best interests of F. The consideration of the matters in s 60CC can only realistically be undertaken through the evidence which is admissible if it satisfies ss 55 and 56 of the Evidence Act.
The Full Court has ruled that the findings of Benjamin J have satisfied the evidentiary basis but ultimately s 65D(1) must prevail and the trial judge must then be satisfied that it is proper to make the order as well as it being in F’s best interests and satisfying s 60CA.
The wife submitted that the family consultant was an investigator and I interpreted that submission to mean was at large to pursue every avenue so that the s 65D(1) and s 60CA requirements were satisfied.
Section 11A of the Act describes one of the functions of a family consultant as including reporting to the court under s 60G which in turn provides that the court may direct that the report address such matters as are relevant to the proceedings as the court thinks desirable.
The family consultant carries out an expert role but it is ultimately for the court to decide what is relevant in the proceedings. That is consistent with s 60ZQ(1) which mandatorily requires the court to decide which issues require full investigation in a parenting dispute.
By s 60CC(3), the court is mandated to consider inter alia the nature of the relationship of the child with persons other than just the parents and that includes the impact upon the child of separation from those other persons. How that could be done without investigating relationships with a sibling and a grandparent, is hard to know until the evidence is obtained.
As the discretion of the new trial judge cannot be fettered and because of the mandatory requirement to consider the s 60CC factors (including those found by Benjamin J) it is important for the trial judge to be vigilant about changes subsequent to those findings. I consider it is appropriate for the parents to show how the evidence will affect the ultimate decision. I reject the suggestion by counsel for the wife that the Court must have the best evidence possible. Rather, the Court must have admissible evidence on all of the matters in s 60CC. It is not, in my view, simply a case where the family consultant should be told to go and search out everything and anything that might assist a judge. It is the responsibility of the parties to point to the evidence.
The family consultant is deemed to be an expert but the evidence of that witness must still be of an expert nature. The family consultant should therefore draw from the evidence provided by the parties and otherwise as is directed by the Court, just what issues are to be investigated. It may be that in the course of investigating that evidence, other matters arise. They should then be followed but the parties need to have an opportunity to contemplate that evidence and call other evidence themselves. I am not entirely sure what the relevance of the evidence of the wife’s mother and P is having regard to the concerns I earlier expressed about its admissibility.
The appropriate course is for the person who wishes that evidence to be considered, to have it placed in an affidavit and for the family consultant to consider it and if necessary question it from a social science point of view. I reject the suggestion that the starting point is that these two people simply be interviewed. If they are not witnesses, the truthfulness of their statements may not be able to be properly tested. The trial judge may be put into a position where the expert evidence is flawed if the statements made by these people to a family consultant are found to be inaccurate.
Accordingly, if the wife wishes the Court to consider all of the evidence, so that it can fulfil its obligations under s 60CC, that evidence should be properly presented so that it can be tested.
Subject to the wife filing and serving a further affidavit of P and her mother or alternatively indicating that she proposes to rely upon the affidavits of those two witnesses as previously filed by the husband, the family consultant should read that material and then determine whether the witnesses should be interviewed taking into account any indication (preferably through a party’s affidavit responding to that material) which would suggest that the material is disputed. It is my view neither necessary nor appropriate at this point for the Court to direct the family consultant to interview those persons without knowing the relevance of the evidence to be given. Quite the contrary, the family consultant should decide that issue based on the indication of the parties.
In relation to other documents which the wife asserts the family consultant has not read, three were prior family reports. The Full Court found that Benjamin J relied upon them and his Honour accepted that evidence. By virtue of the Full Court’s order, the family consultant should read those documents because they may have material which Benjamin J accepted as factual. The family consultant is entitled to presume that what was stated in those reports was correct. Whether the family consultant agrees with any opinion expressed in those reports is a matter for the new trial judge to decide based upon the evidence as then presented. The proper testing of how that evidence influences the new trial judge’s discretion will obviously be determined by the cross-examination of the family consultant.
In summary, I do not accept that without specific indication from the Court, it is the function of the family consultant to simply undertake a wide-ranging search for material. Rather, it is to examine the parameters of the dispute as determined by the parties. Thus, if the evidence is so presented, the family consultant will need to decide whether or not it should be examined and investigated by an interview.

I certify that the preceding Thirty Six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 February 2013.

Associate:

Date: 15 February 2013