Adler & Parrow
[2023] FedCFamC2F 1758
•5 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Adler & Parrow [2023] FedCFamC2F 1758
File number(s): SYC 9242 of 2020 Judgment of: JUDGE BECKHOUSE Date of judgment: 5 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to adjourn the final hearing made by the father – Application dismissed.
FAMILY LAW – EVIDENCE – Family Report – Where the Regulation 7 Family Consultant could not give evidence – Where the Family Report was admitted with an assessment of weight to be place on the Family Report.
FAMILY LAW – EVIDENCE – Admission of family counselling notes – Where the Court could not be satisfied whether or not the counsellor met the definition of “family counsellor” pursuant to s 10C – Evidence not admitted.
Legislation: Family Law Act 1975 (Cth) ss 10B, 10C, 10D, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.06
Cases cited: Allesch v Maunz (2000) 203 CLR 172
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
In the Marriage of Shaw & Shaw [1989] FamCA 5
Sali v SPC Ltd (1993) 116 ALR 625
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Secondary sources: Heydon, John Dyson, Cross on Evidence (LexisNexis Butterworths, 11th edition, 2017) Division: Division 2 Family Law Number of paragraphs: 18 Date of hearing: 5 May 2023 Place: Sydney For the Applicant: Self-Represented Litigant Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Kells The Lawyers Counsel for the Independent Children's Lawyer: Ms Carr Solicitor for the Independent Children's Lawyer: Stidwill Solicitors ORDERS
SYC 9242 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ADLER
Applicant
AND: MS PARROW
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
5 MAY 2023
THE COURT ORDERS THAT:
1.The Father shall file and serve written submissions of no longer than 10 pages, including a list of any additional documents sought to be tendered, by 4pm on 19 May 2023.
2.The Mother shall file and serve any submissions in reply by 4pm on 26 May 2023.
3.The Independent Children’s Lawyer shall file and serve any submissions in reply by 4pm on 2 June 2023.
THE COURT NOTES THAT:
A.The Independent Children’s Lawyer is not seeking an order for costs.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
These are settled reasons for judgment that were delivered on 5 May 2023 while hearing the substantive application for parenting orders. Grammatical and literal errors have been corrected from the transcript for comprehension. References have been included and if the transcript contains an incorrect or incomplete reference, it has been corrected.
EX TEMPORE JUDGMENT AT 11.50 AM: THE FATHER’S ADJOURNMENT APPLICATION
The matter comes before the Court after a significant delay, and today was meant to be a relatively straightforward listing to finalise the hearing that had commenced on 28 February 2023. As has been conceded, it is not usual for a Court to release a transcript of proceedings, but this was done to ensure that the parties felt that they were able to make clear submissions when it came to final submissions.
The Application to adjourn these proceedings has been brought because Mr Adler (“the father”) says he has not had sufficient time to read the transcript and provide instructions. However, it is merely a transcript of what transpired over three days of final hearing. Over the period of time the matter was adjourned, he had both a legal representative and counsel, except for one day when counsel was not available. One of the things that happens in the course of a hearing is that his legal representative takes notes, as does the father, who was seen to take notes throughout the course of it. It is not a question of whether the transcript is accurate or not, and for the father to think that that was the purpose of releasing the transcript is of some concern. It was simply released to facilitate the making of submissions to me on what outcomes would be in the best interests of X.
I have the power to grant an adjournment under r 1.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), but in doing so there are a range of considerations I need to have. Indeed, it has been well recognised that ultimately it is a balancing exercise to be undertaken, and one that requires me to consider not only the resources of the Court and the way that the Court manages its time, but also the need to consider justice for both parties (see State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146).
I am also mindful of the Central Practice Direction: Family Law Case Management (“the Central Practice Direction”) and r 1.04 of the Rules that specifically require litigation to be conducted as quickly, inexpensively, and efficiently as possible, and I rely particularly on part 3.3 and 3.4 of the Central Practice Direction (see also Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175). I do appreciate that litigants, whether represented or unrepresented, should be aware that the time of the Court is a public resource (see Sali v SPC Ltd (1993) 116 ALR 625). This is more so in this matter where the Independent Children’s Lawyer (“ICL”) is here at the expense of the public purse, as is the father’s own legal representation because his legal representatives appear under the assistance of the s 102NA cross-examination scheme (pursuant to the Family Law Act 1975 (Cth), (“the Act”)).
I am not satisfied of the father’s reasons for the adjournment sought, and I am concerned about the detriment to X in not having these proceedings concluded. There has already been a delay of at least three months for the Court to reconvene. I am also concerned at the impact that further delays have on Ms Parrow (“the mother”), who continues to have X in her sole care. And no doubt as the father is finding this stressful, so too is the mother. She is entitled to have these proceedings brought to a timely conclusion, and I cannot see what the father is going to gain by an extension of time.
In fact, I must look at whether there would be a substantial injustice to the father if the matter did not proceed today (see Allesch v Maunz (2000) 203 CLR 172). I am unable to see what injustice would arise in circumstances where his legal representatives have had access to the transcript for four days and this matter has been waiting now for about three months for it to be concluded.
For all of those reasons, I will not be granting the adjournment, and the matter should proceed to conclusion today.
EX TEMPORE JUDGMENT AT 3.01 PM: ADMISSION OF THE FAMILY REPORT
I am being asked, and indeed, I am required today to make a formal decision and ruling on whether I admit the Family Report that was prepared by Regulation 7 Family Consultant, Mr B, on 31 August 2022 (“the Family Report”). The difficulty that has arisen is that the matter was to be heard over three days, commencing on 28 February 2023. At the commencement of the hearing, the Court was advised that Mr B would not be available to be cross-examined until after 1 April 2023. On that basis, the Court proceeded to hear the matter and adjourned it until today for the purpose of the cross-examination of Mr B. As the father has correctly indicated, it was intended that prior to Mr B being cross-examined, he would be given, by way of an update, any additional material, including subpoena evidence that has come to the attention of the Court since he prepared the Family Report.
Quite sadly, the Court has been advised this week that Mr B will not be able to give evidence at all. On Monday, 1 May 2023, the matter came before me, and I indicated to the legal representatives that I was inclined to admit Mr B’s Report but then be addressed by them on the weight that should be attached to that Report. I released the transcript of the three days of hearing to allow the parties to consider whether there was any evidence that had been given over those three days that might need to be disregarded. I reserved a formal decision until they had had the opportunity to look at the transcript, and I have now heard submissions from the parties about this today.
The Family Report is sought to be tendered by the legal representatives for the mother, and counsel for the ICL also supports it being admitted into evidence. The father opposes it. Having heard from the parties, I have resolved to allow the admission of the Family Report for the following reasons.
I was referred to a passage on page 679 from John Dyson Heydon, Cross on Evidence (LexisNexis Butterworths, 11th edition, 2017) (“Cross on Evidence”), where a range of authorities were cited in support of the contention that, if an affidavit is sworn by a witness who subsequently becomes ill, the evidence is admissible.
This situation was also considered by the Full Court in the case of In the Marriage of Shaw & Shaw [1989] FamCA 5 (at [72] to [74]) (“Shaw”). There, they noted and approved the passage from Cross on Evidence that I have been referred to and have just mentioned. Indeed, the Full Court noted at paragraph 77:
In our opinion, that practice accords with common sense, and nothing to our knowledge has occurred in the intervening century or so to detract from the good sense of it.
Relevantly, it was there that the Full Court concluded that if a witness is not available for cross-examination, the Court may admit the evidence, evaluating the weight that should be placed on the evidence. That is, the absence of cross-examination does not itself affect the weight to be attached to evidence, but it may affect the weight to be given to the evidence of the party who has not presented for cross-examination.
The transcript of the three days of hearing was released to the parties to afford them the opportunity to consider and make submissions on, essentially, the weight to be placed on the Family Report in final submissions. I also observe that, on the issue of weight, in Shaw, the Full Court alluded to potentially more weight being afforded to evidence provided by independent witnesses such as family report writers, saying at paragraph 78 that:
Where, as here, the affidavit is by a party to the proceedings, the trial judge is obviously entitled to place much less weight upon it than if it were an affidavit by an independent witness with no apparent interest in the outcome of the proceedings.
I have now made my ruling, and the Family Report now becomes Exhibit 9.
EX TEMPORE JUDGMENT AT 3.29 PM: ADMISSION OF FAMILY COUNSELLING NOTES
I have read the provisions of ss 10B, 10C, and 10D of the Act. It seems to me that there is a prohibition on the disclosure of communications that arose during the course of family counselling, which is defined as a process between “one or more persons to deal with personal or interpersonal issues in relation to the marriage”.
What I am not sure about is whether the family counsellor is a counsellor who is accredited as a family counsellor under the Rules pursuant to s 10C. But as nobody has been able to satisfy me of that, I am not going to read the notes that are contained from page 30 through to 33 of the mother’s affidavit.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 9 May 2024
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