Bale-Sutch and Bale-Sutch

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH

[2008] FamCA 564

FAMILY LAW – PROCEDURAL - Interim hearing about parenting issues – Despite Division 12A provisions, need for parties to present evidence that is relevant to the dispute in issue – Orders sought in interim hearings should not include unnecessary matters where no urgency; matters more appropriate to final hearing – Importance of legal practitioners knowing the legal issues and facts of the case and their responsibilities to the Court – Preparation of parties for the commencement of final hearing as a less-adversarial trial

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Pastrikos (1978) 31 FLR 524

APPLICANT:

Mr Bale-Sutch

RESPONDENT:

Ms Bale-Sutch

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

3800

2007

DATE DELIVERED:

24 JULY 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

18 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

MS MERCADER

SOLICITOR FOR THE RESPONDENT:

MERCADER BARRISTERS & SOLICITORS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

MCCORMACK & CO

Orders

That the applications in a case filed by the husband on 27 June 2008 and the response of the wife thereto filed 14 July 2008 be dismissed.
That all other outstanding applications for final orders be adjourned to 24 October 2008 at 2.15 pm for the first day of the final hearing as a less adversarial trial before me.
That the Independent Children’s Lawyer make all necessary inquiries about:
(a)the availability of Ms. D’s ability to attend on the first day to hear what the parties have to say about the issues in dispute concerning their children and to give evidence if necessary;
(b)the expected costs to the parties of the attendance of Ms. D; and
(c)whether, if she can attend, Ms. D has sufficient recent knowledge of the case to provide an assessment about the issues in dispute.
That the Independent Children’s Lawyer have liberty to apply on short notice in writing to the husband and the wife and to my Associate if Ms. D is unable or unwilling to so attend or, in the view of the Independent Children’s Lawyer, Ms. D should not be the single expert witness in respect of the parenting issues for any particular reason.
That the Independent Children’s Lawyer provide to Ms. D as soon as practicable:
(a)a copy of the orders of Senior Registrar Fitzgibbon and his reasons for judgment;
(b)a copy of these orders and my reasons for Judgment;
(c)a copy of the applications and affidavits of the parties filed 27 June 2008, 14 July 2008 and the unfiled affidavit of the husband tendered at the hearing on 18 July 2008.
That at the hearing on 24 October 2008, the husband be in a position to argue any issue he considers appropriate in relation to the jurisdiction of this Court to determine outstanding financial matters under Part VIII of the Family Law Act.
That the husband decide by 15 August 2008 whether or not to challenge the jurisdiction of the Court to determine financial issues, and then, by 4 pm on 15 August 2008, he advise the solicitor for the wife by letter whether or not he intends to argue that there is no such jurisdiction and if he acknowledges the jurisdiction exists then, by 4 pm on 3 October 2008, he file and serve upon the solicitor for the wife and the Independent Children’s Lawyer, by post, a document setting out the precise orders he proposes to seek in relation to:
(a) the parenting matters; and
(b) the property matters.
That regardless of what position the husband takes in relation to financial matters, the wife, by 4 pm on 10 October 2008, file and serve on the husband by post at his notice of address for service and the Independent Children’s Lawyer, a document setting out the precise orders she proposes to seek in relation to:
(a)       the parenting matters;
(b)       the property matters;
(c)the spousal maintenance claim of the wife; and, if she is so advised,
(d)       the child support question.
That insofar as there are unresolved property issues by the commencement of the hearing referred to in paragraph 2 of these orders, each party come to that hearing prepared:
(a)to discuss and appoint such single expert witnesses as may be necessary for the purposes of Part 15.5 of Chapter 15 of the Family Law Rules 2004; and
(b)to confirm that all matters required of that party pursuant to Chapter 13 of the said rules have been complied with.
That if the husband:
(a)acknowledges the financial jurisdiction in accordance with these orders; or
(b)fails to comply with paragraph 7 of these orders,
then:
(i)by 4 pm on 30 August 2008, either party requiring inspection of documents shall provide to the other party a list of such required for inspection; and
(ii)Upon receipt within the stipulated time of the list of documents required for inspection, the recipient of the notice shall by 4 pm on 8 September 2008,subject to any objection on the grounds of privilege, make all such documents available for inspection.
That unless otherwise impracticable, Registrar Field be appointed as the docketed registrar responsible for the management of the case.
Should any party fail to comply with these orders or any amending directions of the registrar responsible for the file, that registrar shall:
(a)If both parties are in default, be at liberty to vacate the final hearing date and strike the case out of the list with a right of reinstatement upon conditions to be determined by the registrar; or
(b)refer the case to me for directions as to its future management.
AND IT IS NOTED THAT a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from me leave to proceed on an undefended basis.
That should either the husband or the wife file any application for interim orders between this day and the trial date referred to in paragraph 2 hereof, IT IS DIRECTED that such application be referred to me for listing and hearing and unless I am otherwise unavailable, the matter be heard by me.
That should either party review any decision of the registrar appointed to manage this file or any other registrar making orders pending the hearing referred to in paragraph 2 hereof, subject only to my unavailability, the review application be listed for hearing before me.
That upon the next hearing date before me, the legal practitioner for the wife provide to me a letter served upon the wife, setting out:
(a)what costs the wife has incurred to date;
(b)what costs have been paid to that date;
(c)whether the wife is or has been eligible for assistance from Victoria Legal Aid; and
(d)what costs are anticipated for the period until the conclusion of the final hearing.
That upon the next hearing before me, if the husband is represented by a lawyer, that lawyer provide to me a letter served upon the husband, setting out:
(a)what costs the husband has incurred to date;
(b)what costs have been paid to that date;
(c)whether the husband is or has been eligible for assistance from Victoria Legal Aid; and
(d)what costs are anticipated for the period until the conclusion of the final hearing.
All interim applications are otherwise removed from the list of cases awaiting a hearing.

IT IS NOTED that publication of this judgment under the pseudonym Bale-Sutch & Bale-Sutch is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3800 of 2007

MR BALE-SUTCH

Applicant

And

MS BALE-SUTCH

Respondent

REASONS FOR JUDGMENT

The parties separated in 2005 and have been litigating ever since. They have two children, an older son born in December 1997 and a younger son born in February 2000. The older son is therefore 10 and the younger son is 8.
Both children live with their mother and spend time with their father.

Litigation to date

The litigation between the parties has involved arguments not only about the children. Their marriage has been annulled on the ground that one of the parties was already married when the ceremony took place. Their relationship has also been affected by family violence orders. They currently have outstanding issues associated with parentage testing.

The hearing on 18 July 2008

The matter came before me on Friday afternoon 18 July 2008.
I listed the case for its first day of a less-adversarial trial because although there is a financial dispute between the parties, the predominant issue related to parenting. The parties were made aware of not only the fact that it was to be the first day of their trial but also what they could expect.
I was conscious however that the parties had each sought interim relief and that interim applications were alive.
Notwithstanding the annulment of the marriage, I propose to refer to the parties as husband and wife for the sake of convenience.

Less Adversarial Trial Process

The husband was the applicant in the interim proceedings. He appeared without legal representation.
The wife was the respondent. She appeared represented by her solicitor Ms. Mercader. Ms. Mercader said that she was not robed for a trial and that her client could not afford counsel. Neither of those issues made sense or was relevant. The parties had been advised that this was the first day of their trial hearing. That means that legal representatives would be expected not only to robe but also to fulfil the responsibilities to their client and the court on an on-going basis throughout the trial.
The Independent Children’s Lawyer appeared represented by Ms Agresta of Counsel.

Interim issues alive

I inquired of the parties whether they wanted me to determine the interim issues and each said that that was their position. I made it abundantly clear that if the issues that I had read were to be litigated and having regard to the time of the day, I would not embark on the final hearing.
Ms. Agresta sought to be excused on the basis that the Independent Children’s Lawyer could contribute little to the interim disputes between the parties. Having regard to the state of the material before me and the desperate shortage of legal aid funding in this State, it was sensible in my view to excuse Ms. Agresta.

The property component

Ms. Mercader raised the point that the parties still have an outstanding property dispute. The husband’s response was that there was no jurisdiction to hear that because the parties had lived “in a defacto relationship”. He pointed to a handbook apparently provided by the court as a justification for that position.
For the future benefit of the husband, there seems little doubt about the jurisdiction. Section 79 of the Family Law Act 1975 (Cth) (“the Act”) gives the court power to divide the property of the parties to a marriage. Section 71 of the Act says that a marriage includes a void marriage. In this case, there is no doubt the parties went through a marriage ceremony but their marriage was void because one of them was already married. There was no “defacto marriage” relationship.
The property issues will have to be sorted out. I had intended to inquire about what was in issue on that matter and to make directions so that that part of the hearing could commence immediately after the conclusion of the evidence in relation to the children’s matters.
Having regard to what I have now heard, seen and read, I have little confidence about the parties themselves getting the financial issues in order for a determination but I propose on the next return date to impose strict timetables. The parties will need to come armed with not only all of the information necessary to ensure that that issue can be set down for final hearing but also that they be in a position to explain to me each of the points that they will make concerning the steps that I will be required to follow to enable that determination. Of course, if the husband wishes to argue the jurisdictional point about property, he will be at liberty to do so.

Extant interim orders

Before turning to the interim issues, it is important to understand that in their litigious frames of mind, the parties had an interim hearing before Senior Registrar Fitzgibbon on 27 May 2008 and a determination was made on parenting orders. The orders of the Senior Registrar were detailed.
Weeks later, both parties are back.

These interim applications

The husband brought the matter back on what appears to me to be two bases. The first was that someone other than the wife was at various times, caring for the children and he was not happy about not knowing who this person (or persons) was. The second was that he thought that the orders of Senior Registrar Fitzgibbon had effectively made him similar to a homeless person and he wanted the orders changed.
The wife through her lawyer, responded to the husband’s application by seeking a raft of orders. The absurdity of that approach was that the issues were neither urgent nor in some cases, applicable to an interim hearing.
The husband had some excuse for his approach; he is not a lawyer. The wife’s approach was reprehensible.
Before leaving the court, Ms. Agresta told me how confusing it was to try and work out what exactly the parties were litigating about. I agree. I spent some hours reading through the various documents to try and decipher what was really meant by what they said. Again, the husband can be excused to some extent for that; the wife cannot.
The husband filed an application in a case on 27 June 2008. He seems to insist upon filing affidavits of service of all of these interim documents. That is not only unnecessary, it burdens the court staff and clogs up the file. This file is in its fourth volume.

The husband’s interim application

In his application, he sought four orders which read:
1.The mother give the father first option to care and have contact with his children in the event that she is unable to supervise them.
2.The mother be prohibited to hand over her children to a third party unless it is a registered child care provider.
3.In the event that order 2 is not granted; The mother give in writing to the child apointed (sic) solicitor and the Father details of any carer that she intends to use. contact (sic) address phone numbers. duration of stay. And a police check as required by the Victorian government; any person working with children (sic).
4.A order (sic) that allows the Victorian Police power to remove the children from any third party that has not satisfied the above conditions and that the children be returned to the Father if the mother is not in attendance.
A registrar, quite properly, refused to list the matter for an urgent hearing. The application was listed for 28 July 2008 in the Registrars Directions List. That is where it should have been.
Undeterred, the husband filed a further application in a case on the same day seeking to review the registrar’s decision to refuse to abridge time.
Because I had the matter before me ostensibly as the first day of a trial, the review application became unnecessary. However, should there be any misunderstanding about the matter, I would have dismissed the application having regard to what I now know.
In saying that, I very much appreciate that emotions run high and that a parent like the husband may be frustrated about what he perceives is happening to his children. Without the objectivity of a lawyer acting for him, his focus is no doubt clouded. This court determines matters of private law even though the Act requires that every decision about children be determined according to principles about what is in their best interests. If he has concerns about the immediate welfare of the children and in particular, takes the view that that urgency requires state authorities to intervene, he may do so with the appropriate department.
The husband had the opportunity to litigate this matter and did so before the Senior Registrar. Two points therefore have to be made. The first is that he has not sought to review those orders. There is an element of irony in that because he had no hesitation in reviewing the decision of the registrar to refuse an abridgement of time. The second is that the law still stands as set out in decisions such as Rice and Asplund that after orders affecting children are made, the court should not lightly entertain further proceedings without the party showing a significant change of circumstances.
To compound the problem, with the husband having filed his review application, the wife took up a litigious stance rather than seeking to rely upon the two principles to which I have just referred. That was unhelpful.
The husband told me that he relied upon his application and an affidavit he filed with it. He told me that he had also tried to file an affidavit earlier in the week but there had been difficulties in so doing. He handed me the affidavit unfiled.

The wife’s responding application

The wife relied upon her response to the husband’s application. Her document and an affidavit in support of it was filed on 14 July 2008.
Her response sought orders which read:
1. That the applicant’s application be dismissed.
2.A declaration by the court that domestic violence has been committed by the father against the mother.
3.That payment of the $100.00 owed by the father to the mother consequence (sic) to the father’s breach of the court order of 1 November 2007 be taken out from the father’s share of property entitlement (sic).
4.That the husband pay maintenance for the children by way of lump sum for an amount as the court deems fit to be taken out of the husband’s share of his property entitlement.
5.That the husband pay maintenance to the wife by way of lump sum for an amount as the court deems fit to be taken out of the husband’s share of his property entitlement in addition to the wife’s share of the property division.
6.That the husband be prohibited in encumbering the property at [K] VIC and the property at [M] particulalry (sic) described in certificate of title Volume […] Folio […].
7.That consequence to (sic) the deliberate breaches of the father of the orders of 14 May 2007 and 25 May 2007 made by Justice Bennett and paragraphs 1 and 2 of 22 November 2007 made by Justice Carter the father (sic) pay the wife’s solicitor’s cost (sic) of n$700.00 for caveats on the propety (sic) at [K] VIC and the propety (sic) at [M] particulalry (sic) described in certificate of title Volume […] Folio […].
8.The father pays (sic) the mother’s costs of these proceedings.

Power to make the orders sought by husband

I asked the husband to explain to me where he thought that I had the power to make the order numbered 4 leaving aside how the practicalities of orders numbered 2 and 3 could possibly work. He told me that the power came from the United Nations Convention on the Rights of a Child. The particular paragraph he read to me was interpreted by him to mean that every parent has the right to know who is looking after their child at all times.
Perhaps understandably, he could not address the issues that would go to jurisdiction and the matters set out in Part VII of the Act. Even allowing for the requirements of the Act in Division 12A, I could not see how I could make the sorts of orders he was seeking in paragraphs 3 and 4.
More importantly, having regard to what he set out in his two affidavits, there is no material upon which I could or should make the orders he wanted.

The husband’s evidence

In addition, the few facts, as distinct from the expressed opinions, set out in his affidavits would not justify relitigating those matters which were determined by the Senior Registrar as I have already set out.
The husband said that despite the recently-made court orders, the children had not been at home when he telephoned. However, he said that on 26 June, the wife telephoned him to give him an unfamiliar number to ring. When he telephoned that number, his son told him that he was being cared for by two males and that his mother was not present. The child said he was not happy to be there and his other son was crying. The husband made no mention of endeavouring to speak to the adults or what inquiries he made of the wife. The rest of the affidavit amounts to opinion and conjecture.
The second affidavit, handed to me in court and which had not been filed, did little to assist the husband’s cause. His focus might very well be on the welfare of his children but that was not apparent from the facts that he led in evidence. He would do well if he intends to remain unrepresented to obtain some legal advice about the distinction between evidence that is relevant and his own opinions and beliefs.
This second affidavit said:
This affidavit concerns the actions of the mother, on handover (sic) the children have not had sufficient clothing. This continues to happen despite notations made at the last hearing and being placed in the orders made on 27 May 2008.
The balance of the affidavit was opinion and conjecture including a complaint about the wife’s lawyer “constantly” changing address, not answering her telephone nor answering letters regarding children’s matters.
The wife’s affidavit in reply denied a failure to comply with the telephone communication orders. As for the “strangers” to whom the husband referred, she said she left the children with a “close friend”. She said that the children denied telling their father about “two males”. She went on to say that this was a false allegation “as usual”.
There is no basis in the material filed to make the orders sought. I understand that the husband wanted to vary the Senior Registrar’s orders but as I explained to him that was not what he had sought.

The husband’s oral application

He then sought to make an oral application that the orders be varied to allow him to have the children from 6 pm Friday to 6 pm Sunday on the weekends referred to in the orders. This oral application was opposed by the wife. Notwithstanding the absence of the Independent Children’s Lawyer, I determined that I should at least contemplate it.
Although I allowed the application to be heard, it should be noted that the Senior Registrar made an order, with which I agree, that applications thereafter had to be made in writing and supported by affidavit.
The wife’s practitioner told me initially that the Senior Registrar had made an order under s 118 of the Act preventing the husband from making further applications. When challenged about that, I examined the orders and found that indeed, the Senior Registrar had done the exact opposite and given liberty to apply on written application as I have described. When alerted to that order, the wife’s practitioner withdrew what she had earlier asserted.

Summary of the husband’s evidence

The husband’s evidence says little more than that from the husband’s perspective, the existing orders are difficult because of timing. He complained that he had acquired clothing for the children and that notwithstanding the rigours of Melbourne’s winter, they were not provided by the wife. The husband gave no evidence that I could make any finding on about the clothing issue insofar as it would point to parenting capacity.
In my view having regard to the fact that the Senior Registrar deliberated on this and heard each party, and those orders have not been reviewed within the time prescribed by the rules, it would be inappropriate for me to tinker with them.
On this issue, I received no assistance from the wife’s practitioner.
I asked why I should not consider making some sort of interim order about the police intervention even if it could be made. The practitioner’s response was that police should not have their time wasted and in any event, did not have time to do these things. It seemed to have eluded her that the welfare issues of this nature were generally the responsibility of the Department of Human Services as a result of the Children and Young Persons Act (Vic).

Family report

I asked whether there had been a recent family report. There was some debate about this but I found an affidavit of Ms D filed 23 April 2007. The husband opposed me examining it because he said that it had been discredited. I have carefully looked at the various orders and it seems clear that the evidence has not been tested. I will not take it into account in determining the husband’s application but it is interesting to note that Ms. D referred to the children as emotionally and psychologically vulnerable. Her recommendations included that the husband undergo a psychiatric assessment. I note on the court file there is an affidavit by psychiatrist Dr. E. I have not read that material but its presence indicates that this parenting dispute is protracted and not necessarily child-focussed. That is certainly the impression from hearing from the husband and the wife’s lawyer. I shall bear all of those matters in mind when I begin the less-adversarial trial soon.
The husband’s application cannot therefore succeed on the bases that I have mentioned.

Part VII provisions

However, as a matter of precaution, I say that the following are matters that I have considered.
This is a parenting application. In relation to the question of the presumption of equal shared parental responsibility, I do not have anywhere near sufficient material on an interim hearing to make any interim order. Section 61DA(3) of the Act applies.
The best interests of the children is the paramount consideration. Section 60CC provides the guidance in respect of what is in the children’s best interests.
The parties did not provide any material upon which I could make a finding about the children’s views, the respective relationships between the children and the parents, the impact or effects of a change of the orders on the children nor the capacity of the parents to provide for the children.
The husband certainly made assertions about the wife’s parenting capacity relating to her leaving the children with strangers. That issue is denied. As such, I can make no finding about it. Had the parties decided to proceed with their final hearing, that may have been immediately possible.
The question of the impracticability of the husband’s time with the children is apparently what he was most concerned about. Unfortunately however, because the issues were all canvassed before the Senior Registrar, it would be inappropriate for me to review those on this material.
In relation to the respective abilities as parents, the husband objected to me reading the affidavit of Ms. D. I do not know whether she had complimentary things to say or not about the husband’s capacity and relationship with the children.
There is a family violence order apparently in existence. That does not bode well for a co-operative and child-focussed parenting regime. These matters will no doubt become very important when I ultimately consider the question of equal shared parental responsibility.
Thus, leaving aside the issues of the power of the court to make the disputed orders to which I have referred, it is not appropriate on this evidence to do so. I propose therefore to dismiss the husband’s two applications.

The wife’s application

I then turn to the wife’s applications.
I discussed each order sought with the wife’s lawyer. She either conceded that it was a matter more appropriate for a final hearing or that there was no jurisdiction.
For example, the wife’s practitioner insisted that there was power to make a child maintenance order. She could not point me to the relevant provision. There is no such capacity.
She also sought to justify the claim for spousal maintenance. The material did not disclose such a basis and she referred me only to s 75 of the Act. She seemed unaware of ss 72 and 74.
When challenged about the ability to proceed with that application for those orders on an interim basis, she said her client withdrew that.
When I asked about order numbered 6, she withdrew that. That course seemed appropriate having regard to the state of the evidence.
When I asked about orders numbered 3 and 7, she said that they were in reality, an enforcement application. Having regard to the way in which it was put, I thought the wording unintelligible but the wife’s practitioner conceded that she should have brought an enforcement application. She said she wanted to vary the wording to seek an enforcement order immediately. I refused to permit that on the basis that if she was genuinely seeking to have the husband dealt with for a contravention of the orders to which she was referring, the document would need to plead the allegations with particularity. If the application was a simple enforcement of money application under the Family Law Rules, the approach by the practitioner had not followed those rules.
I asked the practitioner to explain to me the basis for order number 2. She said that I could make a declaration under s 61DA. How that could be done escapes me but in any event, on the evidence that was apparently disputed by the husband, I would not have been prepared to deal with the matter on the papers. I reiterate that it was by this stage 4 p.m. However, the wife’s practitioner then said that the wife would withdraw that on the basis that it would be dealt with at trial. I thought that a sensible move.
In addition to those matters, the affidavit of the wife did not address most of the matters set out in the application. I am unsure how the wife thought that those issues could be canvassed without evidence.
After discussion, it became apparent that there was no application remaining by the wife. Accordingly it is dismissed.

The next hearing

The parties wasted court time as a result of this approach. They had had an opportunity to begin having heard, the real issue between them even if the husband was of the view that there was no property jurisdiction. He would do well to get some advice about that as it will be a matter I will want resolved when the matter returns.
This case has to be heard for the sake of the children. I propose to make orders to ensure first that the parties begin focussing on their children’s needs for the purposes of the forthcoming hearing. Secondly, I intend ordering that no further application of an interim nature be listed without it being brought to my attention pending what will be the first day of the parties’ final parenting trial. Any such application is to be listed before me at a time that is convenient unless there is some urgency which is to be assessed by a registrar. Insofar as the registrar deems the matter not to be urgent and the husband or the wife desires to review that decision, I direct that the matter be also brought to my attention for it to be heard by me.
I do not intend in this case to order the involvement of a family consultant in advance of the first day of the hearing because there has already been involvement of a professional. The husband seems to have a view that that witness’ evidence has already been discredited or that he intends to challenge it. That is a matter that I will consider on the first day of the hearing. I will ask the Independent Children’s Lawyer to look at that issue and be prepared to indicate on the return date just what the position is about the evidence and why Ms D should not be used as the consultant to avoid the children being interviewed by another stranger.
I also draw to the parties’ attention, the following provisions that I will rely upon. Whether they intend to come to grips with those provisions and direct their material to those issues is a matter for them but I intend to follow the legislative path.

The provisions under which parenting cases should be heard

The relevant provisions are now set out:
The principles which guide the court in the conduct of a parenting matter are:
Principle 1
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b)the parties to the proceedings against family violence.
Principle 4
The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
These principles give both the parties and the court the direction about not only what issues need to be determined but what sort of evidence is to be led.
The Division then says (and it is important to note) that the powers under the Division may be exercised as a matter of the court’s own initiative (see s 69ZP).
Section 69ZQ directs what the Court is to do in seeking out what is really in dispute between the parties or, more appropriately, how the court will get to determine what is in the best interests of the child. It says:
In giving effect to the principles in section 69ZN, the court must:
(a)      decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b)      decide the order in which the issues are to be decided; and
(c)      give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d)      in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and
(e)      make appropriate use of technology; and
(f)       if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and
(g)      deal with as many aspects of the matter as it can on a single occasion; and
(h)      deal with the matter, where appropriate, without requiring the parties' physical attendance at court.
This provision is the one that enables the Court to start looking for what is relevant to the issues it sees as being in dispute.
Section 69ZR then empowers the court to make various findings:
If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a)      make a finding of fact in relation to the proceedings;
(b)      determine a matter arising out of the proceedings;
(c)      make an order in relation to an issue arising out of the proceedings.
………………..
To avoid doubt, a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
(3)      Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)     the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
Section 69ZX says:
In giving effect to the principles in section 69ZN, the court may:
(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c)give directions or make orders about how particular evidence is to be given; and
(d)if the court considers that expert evidence is required--give directions or make orders about:
(i)the matters in relation to which an expert is to provide evidence; and
(ii)the number of experts who may provide evidence in relation to a matter; and
(iii)how an expert is to provide the expert's evidence; and
(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
(2)      Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:
(a)      about the use of written submissions; or
(b)      about the length of written submissions; or
(c)      limiting the time for oral argument; or
(d)      limiting the time for the giving of evidence; or
(e)      that particular evidence is to be given orally; or
(f)       that particular evidence is to be given by affidavit; or
(g)that evidence in relation to a particular matter not be presented by a party; or
(h)that evidence of a particular kind not be presented by a party; or
(i)limiting, or not allowing, cross‑examination of a particular witness; or
(j)limiting the number of witnesses who are to give evidence in the proceedings.
As to the evidence that I propose to discuss with the parties, they would do well to consider the following provisions of the Evidence Act 1995 (Cth):
Section 55 reads:
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.
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.
Section 56 reads:
Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
Evidence that is not relevant in the proceeding is not admissible.
I do not intend to make any orders in this case other than those set out in the start of these reasons.

I certify that the preceding Seventy Nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 24 July 2008

[2008] FamCA 564

24 July 2008

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Jurisdiction

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Remedies

Procedural Fairness

Expert Evidence

Discovery