Beardsley & Beardsley
[2021] FedCFamC2F 85
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beardsley & Beardsley [2021] FedCFamC2F 85
File number(s): ADC 587 of 2020 Judgment of: JUDGE KARI Date of judgment: 16 September 2021 Catchwords: FAMILY LAW –whether actions of legal practitioner constitute unsatisfactory profession conduct or professional misconduct – question over whether the legal practitioner has properly witnessed the swearing of documents – pandemic practice directions governing the swearing of documents - referral to Legal Profession Conduct Commissioner Legislation: Family Law Act 1975 (Cth) s 62G Division: Division 2 Family Law Number of paragraphs: 47 Date of last submission/s: 16 September 2021 Date of hearing: 16 September 2021 Place: Adelaide Counsel for the First Applicant: Ms Miller Solicitor for the Applicant: Resolve Divorce Lawyers Solicitor for the Respondent Mr Clarke of Clarke Hemmerling Lawyers Counsel for the Independent Children's Lawyer: Ms Fuda Solicitor for the Independent Children’s Lawyer Legal Services Commission of South Australia ORDERS
ADC 587 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BEARDSLEY
Applicant
AND: MS BEARSLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE KARI
DATE OF ORDER:
16 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.That the Affidavit of the mother sealed on 13 September 2021 at 3:51pm be uplifted.
2.That no later than 4.00pm on 30 September 2021 the mother do file and serve any Affidavit that she intends to rely on in support of her Response to the Application in a Case sealed on 13 September 2021.
3.That the Application in a Case sealed on 22 July 2021 and Response thereto sealed on 13 September 2021 be listed for Interim Hearing on 2 November 2021 at 12:15pm (45 minutes allowed) with such hearing to take place on a face to face basis.
4.That a Registrar of this Court provide the papers including but not limited to a copy of the transcript of today’s hearing and a copy of these reasons to the Legal Profession Conduct Commissioner for investigation with respect to the professional conduct of Mr Daryl Clark.
5.That the father’s oral application for costs thrown away today on an indemnity basis be reserved for Mention only 2 November 2021 at 12:15pm.
6.That the father be at liberty to file any affidavit that he intends to rely on with respect to the said application for costs no later than 4.00pm on 22 October 2021.
7.That in the event that Mr Clark wishes to be heard in relation to the application for costs thrown away he be at liberty to file any affidavit that he intends to rely on no later than 4.00pm on 29 October 2021.
8.That the mother be at liberty to file any Affidavit that she intends to rely on with respect to the father’s application for costs no later than 4.00pm on 29 October 2021.
9.That the Family Dispute Resolution process at the Legal Services Commission scheduled for 27 September 2021 be vacated.
10.That the hearing on 20 October 2021 be vacated.
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 Beardsley & Beardsley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KARI
The matter comes before me today in what are contested parenting proceedings.
I do not propose to go into the detail of the history of this matter firstly because, for today’s purposes, a detailed history is not necessary. But secondly, I am mindful that I delivered lengthy reasons in this matter at a relatively early stage in the proceedings which I published on 5 June 2020 in relation to, among other issues, the parenting issues that were live at that stage. In that judgment I set out in some detail the history of this family and how it is that they have come before the Court. I have had regard to those matters and that judgment for today’s purposes.
The matter comes before the Court today as a consequence of an Application in a Case filed on behalf of the husband on 22 July 2021. That application has been filed by the father in circumstances where, on 27 April 2021, I made orders in this matter by consent for the preparation of what is known as a family assessment report.
When I made the orders on 27 April 2021 both of the parties were represented. Ms Dickson QC for the father and Mr Lloyd for the mother. I made lengthy orders that day relating not only to the preparation of a family assessment report but also various other orders in relation to time spending between the two younger children and the mother.
In addition, I made an order in relation to the father obtaining an addendum report from Dr
D in relation to the mother, Dr D being a psychiatrist who has previously provided a report in these proceedings in relation to the mother.
As part of the orders that I made on 27 April 2021, I also made orders of the court’s volition and without the consent of the parties appointing, among other things, an Independent Children’s Lawyer.
Of significance however for today’s purposes were the orders I made by consent on 27 April 2021 relating to a privately prepared family assessment report. In particular, when I made those orders at paragraph 1(b) of the orders, I identified the identity of the person to carry out the family assessment report to be Ms N.
When the father filed his application on 22 July 2021 the focus of the application was then and remains now solely directed to the identity of the expert to undertake the family assessment report.
The father filed an affidavit in support of his application and, from that document, it is understood – and I suspect the subject of agreement – that Ms N is no longer prepared to undertake the family assessment report in this matter. That circumstance has arisen because it is now understood that the mother is in receipt of a grant of legal aid funding and, despite the father being prepared to solely meet the costs of the private report process, Ms N herself is not prepared to undertake the report process despite the payment arrangements that the father has been willing to put in place.
What that has meant is that the father now proposes a different psychologist to undertake the report process privately. In effect, he is simply proposing that Ms N be replaced by a different psychologist, namely Miss O. The father also seeks consequential orders that relate to his proposed change of identity of the report writer.
The father’s Application in a Case was sealed on 22 July 2021. When that Application in a Case was sealed it was endorsed with a hearing date of 16 September 2021, being today’s date.
Since the filing of that application, the matter has been before the court on 5 August 2021 in the Winter Callover before Judge Howe from another registry. I am told that the issues raised by the father’s application in a case were ventilated, to some extent, at the Winter Callover. Ultimately however I am mindful of the orders made by Judge Howe on that day and, in particular, paragraph 2 of the orders directing that the matter remain listed on 16 September 2021 for interim defended hearing.
The reason I have gone to the bother of giving that background is because the topic of an alternate report writer has been on foot for some very long time now. As far back as 5 August 2021, being at least 5 weeks ago, it was known to both parties that the issues raised by the Application in a Case filed on 22 July 2021 remained in dispute.
For reasons that have not been at all been explained to me, it was not until 13 September 2021 at 3.51 pm that the mother electronically filed a Response to that Application in a Case. In addition the mother filed an affidavit in support of her Response at 3.51 pm, seemingly simultaneously.
I will come back to issues in relation to the filing of those documents in a moment. However the reason I comment as to the timing of events is that it is not clear to me why the mother’s documents were only filed three days prior to today’s hearing. Moreover, given they were filed so late in the day, from my perspective they were not filed in accordance with the practice direction “two clear business days” before the scheduled time of today’s hearing, which was 2.15pm.
That however is not the only problem that infects the mother’s responding documents.
The Response to the Application in a Case is one that appears to have been properly filed and signed by the mother’s lawyer Mr Clarke. It bears a signature and a date of 12 September 2021. I cannot tell from the document itself whether it was physically signed or if the signature was inserted by way of an electronic signature onto the document. That is not clear to me. On the face of it however, that document appears to have been properly executed and filed.
The same, however, cannot be said in relation to the mother’s affidavit purportedly affirmed by her on 12 September 2021. I say that because I have had regard to the court’s practice direction that has been implemented as a consequence of the Covid-19 pandemic.
While I am conscious that there was an earlier practice direction of this court, being the “Joint Practice Direction Number 2 of 2020 – Special Measures in relation to Covid-19”, that practice direction has been replaced as of 1 September 2021 by a new practice direction that applies to the Federal Circuit Court and Family Court of Australia as a consequence of the merger of the two courts. The new practice direction is entitled “Covid-19 Special Measures (PD-COVID) FCFCOA Practice Direction.” The date of the practice direction is 7 September 2021.
It is that practice direction that applies to the swearing and/or affirming of the mother’s document on 12 September 2021. Significantly – in that practice direction – paragraph 5 deals with matters relating to signatures on documents and affidavits. What the practice direction requires is as follows:
5.1 The Court acknowledges that the COVID-19 environment may pose significant challenges to having Court documents sworn or affirmed.
5.2 The Court will accept documents for filing that have been signed electronically by the deponent and/or the legal representative on record for that party. Documents may be signed electronically by affixing an electronic signature or by typing in the relevant space in the signature block.
5.3 If a person is unable to have a document witnessed in person, they should endeavour to have the document witnessed by a qualified witness via electronic means, including by video. Legal practitioners and parties should refer to the relevant State or Territory legislation for information about how to witness documents electronically.
5.4 If a person is unable to have a document witnessed via electronic means, the Court will accept documents for filing that have been signed without a qualified witness, except for an Affidavit for eFiling Application (Divorce). This is subject to the deponent of the document being made available by telephone, video-conference or in person at a subsequent Court event to swear or affirm that the contents of the document are true and correct to the best of their knowledge, information and belief, if requested by the presiding judicial officer.
I have gone to the bother of setting out in full, the entirety of the relevant practice direction, because of events that have arisen during the course of today’s hearing.
Before I turn to those events, I comment as to the document that was purportedly affirmed by the mother.
(a)Firstly, that document does not state – anywhere on it – that it has been affirmed in accordance with the court’s practice direction.
(b)Secondly, the document has a typed name for the mother on each page in the space where the deponent is required to ordinarily sign.
(c)Thirdly, on each page of the document, there appears to be a signature of the mother’s solicitor, Mr Darryl Clarke. That signature – on my viewing of the document – appears to be close to identical on each page. Again, I do not know if that was a standardised electronic signature that has been inserted on each page, or whether, in fact, it has been physically signed on each page and it is just that Mr Clarke’s signature is relevantly consistent.
(d)Either way, on the final page at the signing jurat of the document Mr Clarke’s stamp identifying that he is a commissioner for taking affidavits in the Supreme Court of South Australia is affixed.
(e)In addition, on the final page of the document and on the date section of the first page of the document a typed date is inserted; that date being 12 September 2021.
(f)On the first page of the document, it is identified that the affidavit has been affirmed because the words, “make oath and say” have been struck out.
(g)On the final page of the document, however, it is not identified the fashion in which the document has been sworn. The word “sworn” is not crossed out, and it is not clear to me with any certainly what has occurred. I might be able to infer – because the first page of the document says, “affirmed” – that the affidavit was affirmed. However that is not clear from the final page of the signing jurat.
Before I turn to the circumstances that have occurred today, it is important to record that by her Response to the Application in a Case, the mother, through her solicitor has asked the court, effectively, to vary the orders made on 27 April 2021 which provided for a private practitioner to undertake a family assessment report, such that it now be conducted by a family consultant of the court, pursuant to section 62G of the Family Law Act 1975 (Cth). Essentially, the mother’s position is that the report be done internally by the court.
In addition and in advance of today’s hearing, I have had the benefit of a case outline document filed on behalf of each of the parties. The mother’s case outline document is dated 16 September 2021, as is the father’s. Both documents were sent to my Chambers today by email in readiness for today’s hearing.
So far as events that have transpired during the course of today’s hearing, I observe the following:
(a)Having explained to counsel and the mother’s solicitor that post the merge of the court, there is a new process for child dispute services. After explaining that new process, I stood the matter down to enable Mr Clarke to take instructions from the mother.
(b)Having done so and upon resuming the hearing, Mr Clarke indicated to me that the mother’s position effectively remained that, as set out in the Response to her Application in a Case; albeit that the mother, in the first instance now seeks a child impact report pursuant to section 62G of the Family Law Act 1975 (Cth), rather than a family assessment report.
(c)When Mr Clarke returned from taking instructions he also told me that he was instructed that the mother did not consent to the order that was made on 27 April 2021 for the family assessment report.
(d)Having had that submission put to me, I drew Mr Clarke’s specific attention to paragraph 5 of the mother’s affidavit sworn on 12 September 2021, which reads as follows:
“I did not agree to the appointment of Ms N. During the course of the proceedings I felt that I had no choice but to agree to the appointment of Ms N. The order was then made by consent.”
(e)When the mother in that paragraph refers to “during the course of the proceedings”, she is referring to the hearing that took place on 27 April 2021 at which she was represented.
(f)Having read and drawn Mr Clarke’s attention to paragraph 5 of the mother’s affidavit, I commented to him that the second sentence of that paragraph, namely that the mother felt she had no choice but to agree to the appointment of Ms N and that the order was then made by consent, leaves no doubt in my mind that the mother was conveying to the court that she initially did not agree to the appointment of Ms N, but that she effectively felt pressured during the hearing to agree and she ultimately did agree, hence the order being made by consent.
(g)Having gone through that exercise, I then inquired of Mr Clarke whether there was a difficulty with the mother’s affidavit and, in fact, a difficulty with his continued representation of the mother in these proceedings given it appeared that an affidavit had been sworn or affirmed by her which was, in fact, different to the position that was now being advanced on her behalf.
Against that background, I inquired of Mr Clarke how the mother’s affidavit came to be sworn/affirmed and filed. What I was then told, effectively, was the following.
(a)That the mother’s affidavit was affirmed over the telephone.
(b)That there had been several drafts prepared prior to the mother’s affidavit being affirmed and filed.
(c)That the version that was filed and affirmed was the only version of the affidavit that had 21 paragraphs.
(d)Mr Clarke indicated to me that the mother had not typed her name on the document and that because it had been affirmed by telephone, he had not sighted her signing or affixing her name to the document.
I immediately raised a concern with Mr Clarke as to the circumstances of what had transpired regarding the mother’s affidavit. I commented to Mr Clarke that, in my view, what had occurred was not proper. I drew Mr Clarke’s attention to the practice direction, and I commented that there was no endorsement on the affidavit indicating that the affidavit had been sworn or affirmed in accordance with the practice direction.
Of more significance is my concern that the way the document has been prepared – even if I knew nothing as to how it was affirmed over the telephone – suggests to me that Mr Clarke has virtually, by some electronic means, video, Skype, FaceTime, Zoom, or otherwise, actually witnessed the mother affixing her name to the document. Clearly, that is not, in fact, what occurred.
Secondly, because the document has purportedly been affirmed over the telephone in the manner in which I was advised, I cannot be satisfied that the mother actually affirmed the version of the document that was filed.
On any view, the court practice direction has not been complied with and, in particular, paragraph 5.3 of the practice direction has not been complied with.
In addition, I am also cognisant of the practice direction that applies in South Australia as issued by the Court’s Administration Authority in this State in relation to the witnessing of affidavits during COVID-19 as applies to the Supreme Court, District Court and Magistrates Court. The practice note is dated 16 April 2020 and it reads as follows:
The question as to how to witness affidavits during the current situation has been raised, given that deponents may be in social isolation, quarantine or vulnerable persons.
It is not appropriate for an oath to be taken via video link. Affidavits must continue to be witnessed in person, with appropriate safety precautions in place.However, if for health or logistical reasons this is not possible, a solicitor should exhibit the deponent’s unsworn affidavit to his/her own affidavit, with an undertaking to file the sworn original once it is possible to have it sworn.
The solicitor’s affidavit should attest to:
1.the reasons why it was not possible for the exhibited affidavit to be sworn by the deponent;
2.the unsworn document has been prepared on the instructions of the deponent;
3.the deponent has read the document and agrees with its content; and
4.upon it becoming possible to do so, the deponent will swear/affirm the document.
The reasons that I have referred to the State practice direction that applies to courts in this State is because paragraph 5.3 of this court’s practice directions also refers to state and territory legislation or information about how to witness documents electronically.
While the practice direction to which I have just referred does not refer specifically to the electronic witnessing of documents, it is the practice direction that applies in this state with respect to the pandemic and the witnessing of documents where circumstances do not allow for documents to be witnessed in person.
Again, on any view, and perhaps more so if I look at that practice direction in isolation, what has occurred in this matter in no way complies with this state’s practice direction.
While it might be said that this court’s practice direction is a little more lenient as to what is required. Either way, it is my firm view that neither practice direction has been complied with.
These are matters that are of grave concern to the court. As an officer of the court, Mr Clarke has an obligation to ensure that documents that have been filed have been properly prepared, sworn, and/or affirmed. That is not the case in the current circumstances. That is very problematic. Where documents have been sworn or affirmed, the court is entitled to assume, particularly because the witnessing solicitor has an obligation to the court, that they have been sworn or affirmed properly.
As I commented to Mr Clarke during the hearing, the circumstances to which I am now aware are matters which properly enliven my ability to refer what has occurred to the Legal Profession Conduct Commissioner. This is the reason that I intend to publish the transcript of today’s hearing, and it is the reason that I am going to the effort of delivering extensive ex tempore reasons today.
The greater travesty of what has transpired is that because the mother’s affidavit is infected with problems, and I propose to uplift it, I am now unable to determine the applications that are before me today. I am unable to do so because the mother quite properly wishes to be heard with respect to the application and wishes to file an affidavit in response.
The consequence of that is that I am unable to bring the matter back for a hearing until 2 November 2021, given the heavy burdens of my listings and docket. That is, on any view, a very significant delay, and I do not know, because the father’s solicitors have been unable to receive a response to their inquiry as to whether that will impact the availability of the father’s proposed expert, Ms O, if, indeed, I was to accede to the orders sought in his application.
Either way, whether I accede to the father’s application or the orders sought by the mother, the consequences of what has occurred today is that undoubtedly there will be delay and, in my view, unacceptable delay to the orderly progression of this matter.
In particular, these children, who have been the subject of these proceedings from the time that they were commenced in February 2020, will be in this system longer, and any delay for any children in the Family Law system is a matter that concerns me greatly.
Inevitably, however, because of what I have been told as to the swearing of the mother’s documents, it is my view that I should uplift the affidavit in circumstances where it has not been properly affirmed, and I intend to make that order.
As a consequence of doing so, the mother’s solicitor has made an application for an adjournment, and, again, quite properly, both the independent children's lawyer and the father’s counsel have acknowledged that I should accede to that application in all of the circumstances, and I intend to do so.
As a consequence of doing so, the father’s counsel has made an application on an indemnity basis for costs thrown away, and that application is made and directed both to the mother and also to her solicitors jointly and/or severally.
That costs application is one that I intend to reserve. It is an application about which Mr Clarke is entitled to be separately heard and represented.
For all of those reasons, I make the orders that appear at the commencement of these reasons.
NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kari. Associate:
Dated: 27 September 2021
0
0
1