Bruin & Bruin
[2024] FedCFamC2F 102
•14 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bruin & Bruin [2024] FedCFamC2F 102
File number(s): MLC 1939 of 2022 Judgment of: JUDGE HARLAND Date of judgment: 14 February 2024 Catchwords: FAMILY LAW – application to re-open proceedings after reasons reserved and before judgment has been delivered Legislation: Family Law Act 1975 (Cth) Division 12A Cases cited: Baghti & Baghti and Ors (No 2) [2014] FamCAFC 204
Chisler & Gatenby [2019] FamCA 200
Correia & Davila [2019] FamCA 558
Khadem & Penk [2020] FamCAFC 211
OP v TP an Another (Conduct of Counsel) [2002] FamCA 1155
Trevor & Trevor [2016] FamCA 756
Ressell & Morath [2023] FedCFamC1A 145
Division: Division 2 Family Law Number of paragraphs: 53 Date of hearing: 7 February 2024 Place: Melbourne The Applicant Self-Represented Solicitor advocate for the Respondent Mr Kelly of Coote Family Lawyers Solicitor for the Independent Children’s Lawyer Ms Trapski of Trapski Family Law ORDERS
MLC 1939 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BRUIN
Applicant
AND: MR BRUIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application in a proceeding filed on 31 January 2024 be dismissed.
2.Any submissions and supporting documents with respect to any application for costs be filed within 28 days and any submissions in reply and supporting documents be filed within 28 days thereafter.
3.The issue of costs is to be determined in Chambers unless leave is granted to be listed for an oral hearing.
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).
REASONS FOR JUDGMENT
JUDGE HARLAND
The parenting trial ran before me for three days. My chambers notified the parties of my intention to deliver written reasons for my decision at 10.00am on 31 January 2024. About half an hour before I was due to deliver reasons, the Independent Children’s Lawyer (‘ICL’) emailed chambers to advise that that the mother had attempted to file an application in a proceeding on the Commonwealth Courts Portal to reopen the proceedings before judgment had been delivered. The ICL also indicated that she would oppose that application being made. It was perfectly appropriate for the ICL to advise chambers of this. It avoided a situation where the application in a proceeding may have been filed very proximate to reasons being delivered. This is particularly so given that none of the parties had indicated they were going to appear for judgment delivery. I do not require attendances when delivering written reasons, however, parties are given sufficient notice so they are able to do so if they so wish via Microsoft Teams or in person. At my request after receiving her email, the ICL appeared at the judgment delivery. I indicated that given her notice of the impending application by the mother, I would defer delivering reasons and accept the application in a proceeding for filing and list the application for hearing the following week on 7 February 2024 at 10.00am. Given the short notice and that the mother lives in Queensland, I indicated that I would conduct the hearing via Microsoft Teams.
The parties were ready for the hearing to proceed on 7 February 2024. Neither the father nor the ICL sought to file any documents in reply. In the circumstances, this was a sensible approach as filing documents in reply would have delayed the matter further. The mother and the ICL tendered documents during the course of the hearing. The mother raises numerous complaints. I have considered all of her evidence and the exhibits. I will not refer to every complaint the mother raised but will address the mother’s primary complaints.
The mother’s solicitor filed a notice of ceasing to act on 9 January 2024. The mother prepared the application, notice of risk, supporting affidavit, and made submissions without the assistance of a solicitor.
The application in a proceeding seeks a series of final orders, some of which are at variance with her position at the final hearing. It is not necessary to consider those orders. Whilst she does not explicitly seek an order granting leave to reopen the hearing in her orders sought, it is clear from her affidavit filed 31 January 2024 that that is what she is seeking. The father and the ICL understood this.
For reasons I shall explain, the mother’s application is misconceived and will be dismissed. Before turning to the mother’s complaints, I shall refer to the applicable legal principles.
LEGAL PRINCIPLES
The Court has a discretion to grant leave to a party to reopen their case after the final hearing has concluded with judgment being reserved and before judgment has been delivered if the Court is satisfied that it is in the interests of justice to grant the application rather than refuse it. The discretion should not be exercised lightly. The questions considered in exercising that discretion have been considered in a number of cases.[1] The types of matters the Court should consider include:
(a)The nature of the proceedings;
(b)Is the further evidence material to the issues in the proceedings?
(c)If further evidence was accepted would it probably affect the outcome of the case?
(d)Could this further evidence have been discovered earlier with reasonable diligence?
(e)Will the other parties be prejudiced by the late admission of further evidence?
(f)Will the admission of further evidence require an adjournment? and
(g)The public interest in finality of litigation.
[1] See for example Khadem & Penk [2020] FamCAFC 211; Correia & Davila [2019] FamCA 558; Trevor & Travor [2016] FamCA 756; Chisler & Gatenby [2019] FamCA 200
The comments of the Full Court in Baghti & Baghti and Ors (No. 2) [2014] FamCAFC 204 are applicable here:
[15] In the context of applications to reopen an unperfected judgment or order, it has long been held that “the jurisdiction is not to be exercised for the purposes of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put” (Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300, per Mason CJ at 303).
The mother’s application is misconceived. Many of her complaints centre around the conduct of solicitors and trying to pre-empt the outcome of the final hearing. Some matters are more appropriately dealt with by way of appeal if she chooses that course. They also do not concern fresh evidence but seek to reagitate issues that were canvassed at the final hearing.
As these are parenting proceedings, it is also relevant to consider the application of Division 12A and the best interests of the children.
THE MOTHER’S COMPLAINTS
The mother’s complaints include the following:
(a)The use of Dr B’s assessment prepared for the Children’s Court proceedings in these proceedings;
(b)The use of Ms C’s clinical notes;
(c)The father making false allegations to the Department of Families Fairness and Housing (‘DFFH’);
(d)The conduct of the solicitors;
(e)Breach of parenting orders;
(f)The ICL not including all of the supervised visit reports for the final hearing;
(g)False allegations of animal abuse; and
(h)Breach of human rights.
Dr B
The mother’s complaint with respect to Dr B is misconceived. It is true that Dr B prepared her parenting and risk assessment for the Children's Court proceedings at the request of DFFH. DFFH was well aware that the father was seeking to rely on Dr B’s report for the family law proceedings as was the mother. Indeed, the mother focused a lot of her material on obtaining evidence to refute Dr B’s findings.
It is incorrect that the report could only be before this Court with Dr B’s consent or a subpoena. There are well-established information sharing protocols between the Courts. DFFH has a liaison officer co-located at the Court to assist in that process. Part of the protocol includes an agreement not to grant parties leave to subpoena DFFH which can be cumbersome and inconvenient for them when DFFH provides responses pursuant to s67 and s69ZW.
It is not unusual for proceedings that originate in the Children's Court to end up in this Court. Typically, when DFFH is satisfied that the protective concerns have been addressed and that the children are not at risk in one parties’ care, they will indicate a willingness to end the Children's Court proceedings, provided that orders are made in the family law proceedings and then leaving it for the family law Courts to determine what parenting arrangements should be in place.
Dr B regularly gives expert evidence before the family law Court and the Children's Court. The father’s solicitors arranged for Dr B to sign the affidavit that they prepared and subsequently filed on 1 April 2022. There is nothing untoward about that. Both parties were legally represented at the first return date on 30 March 2022. DFFH appeared as amicus curiae and consent orders were made on that occasion which included DFFH giving the Federal Circuit Family Court of Australia (‘FCFCOA’) jurisdiction under s 69ZK. Order 15 specifically requested DFFH to seek an order from the Children's Court to release the reports filed by DFFH in the Children’s Court proceedings to the parties in these proceedings and the FCFCOA.
The orders made on 30 March 2022 included orders for the filing of affidavits with specific reference to medical reports to be filed before the interim defended hearing which was scheduled to take place on the next occasion. The Judicial Registrar made a notation that if the mother planned to issue a limited subpoena to DFFH for the Client Relationship Information System (‘CRIS’) notes with respect to the face to face visits that DFFH supervised between the mother and children. DFFH indicated that they would appear as amicus curiae on the next occasion as well.
Apparently, the Judicial Registrar overlooked the fact that the pursuant to the information sharing protocol between the DFFH and the FCFCOA, the Court generally does not permit parties to subpoena the DFFH which is a more cumbersome method for DFFH when a s 69ZW order can be made requesting information and specific documents.
The matter was listed for interim defended hearing before a Senior Judicial Registrar on 21 April 2022. One of the orders made was an order pursuant to s69ZW for any reports commissioned by DFFH during the course of investigations and notifications including but not limited to having been prepared for proceedings in the Victorian Children's Court.
The Court records show that DFFH produced Dr B’s report with the s69ZW report. The parties were advised of this via email on 18 July 2022.
At the interim defended hearing, the parties consented to obtaining a private family report from Dr D at the parties’ joint expense. The orders included Dr D being provided with the relevant documents and assessments from the Children’s Court. Whilst the orders are silent as to whether or not Dr D would be requested to psychologically assess the parties as part of the family report assessment, if that had been done, Dr B’s report would have had less relevance.
Finally, no objection was raised by the mother’s solicitors or the mother to Dr B’s report being admitted into evidence. It is not surprising that Dr B was not aware of the final hearing dates as none of the parties sought to cross examine her about her report. The parties are responsible for putting witnesses on notice of their requirement to attend for cross-examination and they must make those arrangements including paying for any professional fee. As the father filed Dr B’s report, he could not cross-examine her. The ICL was not under an obligation to require Dr B for cross-examination. It is not the ICL’s role to run the parties’ cases or part of their cases for them.
The mother’s complaints with respect to Dr B are without merit.
It is convenient to mention at this stage the mother complained that her Counsel did not cross-examine her witness Dr E about issues. This shows a lack of understanding that as Dr E was called by her in support of her case, her Counsel was not permitted to cross examine him and could only have him confirm his details and adopt his report before being cross-examined by the father’s Counsel and the ICL’s Counsel.
Ms C
The mother complains that Counsel having access to Ms C’s notes is a breach of her privacy. This is not a situation where one person has issued a subpoena seeking access to the other party’s medical sensitive records. No subpoena was issued to Ms C. She must have been requested to provide her notes. As Counsel only had access to those during cross-examination presumably she produced them voluntarily. It is important to note that Ms C was the mother’s witness. The mother was relying on a two page letter from Ms C. It is not unusual for professional witnesses to be asked to refer to their notes during cross-examination. Parties are entitled to test evidence and that includes considering clinical notes and information provided to that individual. Again, no objection was raised during the final hearing presumably because her Counsel knew there was no proper basis for doing so.
Most Court files are electronic. The parties are ordered to prepare a Court book with the documents relied on at the final hearing. They are also directed to provide tender bundles of documents they may seek to rely on. This is to ensure the final hearing runs efficiently without delays whilst individual documents are submitted electronically. Tender bundles are not evidence. Commonly, documents from tender bundles will be used in cross-examination. At that stage, a party may seek to tender a particular document as an exhibit. The document only becomes part of the Court record when the judicial officer accepts and marks the document as an exhibit. Depending on what concessions are made during cross-examination, it is unnecessary to tender every document that was cross-examined on. It is common for a tender bundle to have hundreds of pages and only a small number of those pages being tendered as evidence. Ms C’s notes were not tendered as evidence. As they were not tendered in evidence, I have not seen them.
The Court is aware of sensitivities around access to personal medical records and therapeutic notes. A therapeutic relationship may continue long after a Court case ends. Therapeutic notes can be easily misinterpreted by solicitors. It is not usual for medical professionals to object to producing therapeutic notes in answer to a subpoena precisely because of their concern for their patient’s privacy and the misinterpretation of their notes. In such instances, the Court will hear argument as to whether those notes should be produced and under what conditions. In some cases, the Court will determine that it is necessary for the notes to be produced in order for the Court to be able to properly determine the children’s best interests.
The mother’s complaint about her privacy being breached is without merit given she sought to rely on Ms C as a witness in support of her case. She cannot be selective about the scope of cross-examination of her witness with respect to issues in dispute.
The mother also complains that the ICL refused to allow Ms C to read the observations of supervised visits. It was not appropriate for Ms C to have those notes. She is not the single expert. It was not her role to make any comment about the supervised visits and the mother’s parenting capacity. It is of concern that the mother has now provided those notes to Ms C. She has clearly involved Ms C as an advocate in her cause. This will not be helpful to the mother if she seeks to truly engage with and address the issues of risk rather than denying them.
Complaints about the father making false allegations to DFFH
The mother has made this complaint at various times including in the notice of risk she filed on 22 April 2022. She has not produced evidence to support this. DFFH protects the identities of reporters. The mother may believe the father has made false allegations, but a belief is not evidence. The father was not cross-examined about this which may well have been an appropriate forensic decision.
The mother complains that her solicitor refused to obtain supporting affidavits from her friends Ms F and Ms G. She refers to her solicitor saying the Court would be displeased with late filing of affidavits. The mother appeared for herself at the compliance hearing on 6 November 2023. The issue of witnesses was discussed. The mother did not raise this. There is no affidavit from Ms F or Ms G. The mother does not provide any detail as to who they are and how they would be able to give this evidence. In her affidavit seeking to reopen the proceedings she mentions having a conversation on 13 October 2023 with Ms H who she claims she witnessed the father and his partner talking about the proceedings and that they plan to make her look mentally ill at the trial. This is not new evidence. The mother could have filed an affidavit by Ms H but did not.
The father’s partner was available to be cross-examined at trial. Her Counsel chose not to cross-examine her. That is a matter of forensic judgment. As officers of the Court, Counsel are required to exercise independent judgment and must not make serious allegations such as accusing someone of making false reports without having a proper foundation for it.
With respect to her complaints about other friends of hers not being put on affidavit, the mother refers to character references. These references have no probative value in the context of these proceedings. In fact, one such affidavit was included in the mother’s material which I did not allow. That person was someone the mother befriended in Queensland who has never seen the mother with the children. This affidavit had no probative value at the trial.
Complaints about the Lawyers
Solicitors and barristers are officers of the Court. At times the duty to the Court overrides their duty to their clients. They are not mere mouthpieces of their clients. That would do a disservice to their clients. Advocates need to make forensic decisions during the course of a trial.
When a party alleges incompetence by Counsel at trial, they must show the alleged incompetence produced an unfair result. The Full Court addressed a complaint about incompetence of Counsel in OP v TP an Another (Conduct of Counsel) [2002] FamCA 1155 observing that children’s cases are not strictly adversarial. In order to find that there has been a miscarriage of justice due to incompetence of Counsel, first it must be established that Counsel was incompetent, and secondly, that the result would have been different if Counsel did not handle the matter incompetently. The Court must be cautious in scrutinising Counsel’s performance as it can be too easy to second guess in hindsight. It is not about grading Counsel’s performance, but determining whether or not there has been a miscarriage of justice. One of the mother’s complaints was that I had to tell her Counsel to take instructions from her. I had the advantage of seeing the mother shaking her head and gesticulating. Mr J could not see her as he was facing the front addressing the Court. There is nothing particularly usual or concerning about this. Generally, parties are bound by the tactical decisions Counsel makes at trial. It is not enough for that decision to be wrong. The Full Court stated:
[123] We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a retrial, regardless of whether the result is apparently fair.
[124] On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
The mother alleges that Mr J attended Court every day smelling of alcohol. This is an extremely serious allegation to make. If it were so it should have been raised immediately. Indeed, other Counsel would be ethically obliged to raise it. The mother did not raise it nor did she withdraw instructions from Mr J at the time.
In Ressell & Morath [2023] FedCFamC1A 145, the Full Court discusses a complaint about competence of Counsel. After referring to the further evidence the appellant sought to tender, the Full Court said the following at paragraph 43:
…None of those matters indicate counsel’s incompetence. Rather they indicate forensic choices made with a keen eye to relevance, the orders sought by the appellant, and well within the requirement that counsel is not their client’s mouthpiece (Bar Association of Queensland 2011 Barristers’ Conduct Rules, as amended r 41). Counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister’s paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes: Smits v Roach (2006) 227 CLR 423 at [46].
Breach of parenting orders
The mother complains about the father breaching the orders following the end of the trial. She referred to being in the process of preparing a contravention application. That is the appropriate course. It is not a reason to reopen the proceedings. If this were the norm, there would be real delays to the Court with applications being made to reopen proceedings. The mother tendered a letter from the father’s lawyers dated 5 February 2024 where they indicate the unavailability of the father on 11 February 2024 and offering alternatives make up time.
The ICL not including all of the supervised visit reports for the final hearing
The mother is in error about this. Four affidavits by the supervised contact service were included in the court book dated 31 August 2022, 15 September 2022, 4 September 2023, and 10 November 2023. All the supervised visits from 8 May 2022 to 5 November 2023 were in evidence. The observation report of the supervised visit on 19 November 2023 was tendered as Exhibit 8 during the course of the trial. All of the observation reports have been read and considered. There was no need to cross-examine about each visit. That would add to the length and cost of the trial. There is no point in cross-examining about issues that are not in contention.
The mother tendered a further three supervised visit observation notes that have taken place since the trial on 19 November 2023, 17 December 2023, and 14 January 2024 without objection. The fact that further supervised visits have taken place is not a sufficient basis for reopening the trial. It would be never-ending. The must be evidence that is of such significance that it could affect the out outcome of the trial such that it is in the interests of justice to re-open the trial.
The mother complains that the supervised report dated 19 November 2023 and its observations were amended and had not been raised before the Court. Upon reviewing the supervised report relied on at the final hearing and the supervised report tendered in this application marked as Exhibit D, this is not the case. The reports are identical.
Complaint about the children being at risk in the father’s care
The mother complains that the children have been left alone unsupervised and makes other complaints included in her notice of risk and affidavit. In her supporting affidavit, she claims that DFFH and police have open investigations. Exhibit B is the DFFH response to the mother’s latest notice of risk dated 4 February 2024. Contrary to the mother’s affidavit, DFFH closed the report at intake. They advise that there have been 15 previous reports between 2018 and 2024, with three being closed after investigation, and one being closed after a protective order was made. They summarise various complaints being made including that the father leaves X to care for Y whilst he is at work, there being limited food at home, Y presenting as underweight and losing her hair, the children self-harming, and the mother arranging excessive medical appointments for the children.
DFFH refers to other historical concerns raised that have been raised at trial. The most recent notice of risk complains that the children are left alone, that they are exposed to verbal abuse between the father and his partner, and that the father drinks to excess. A review of the family violence portal revealed no family violence incidents since 2022. They also refer to the complaint that Y disclosed to her grandmother that the father “tickles her vagina” in late 2023.
Many of these matters have been addressed at the trial. The mother does not provide detail of any incident that would justify re-opening the proceedings. To the contrary, with respect to concerns about the children’s weight and hair loss, these are further examples of concerning behaviour of the mother.
The mother unsuccessfully sought to tender two undated photos of the girls which she said supported her claim that the girls are underweight.
The further supervised visit observations show that the mother returned the children’s animals, but also inappropriately talks to the girls about the expense and asking them if they were happy that the father finally allowed the animals home. It is of concern that particularly during the supervised visit on 24 January 2024 that the mother was inappropriately questioning the girls and was clearly trying to gather evidence that she thought would support reopening the case.
I will not discuss these notes further as contrary to the mother’s beliefs, if the case was reopened and these were tendered in evidence, they would only be further evidence of the risk concerns due to the mother’s preoccupation with the girls’ health and her lack of insight.
False allegations of animal abuse
The mother complains that false allegations have been made against her with respect to animal abuse.
This has been raised in the following documents:
(a)s69ZW report dated 30 June 2022 where investigations in early 2022 and early 2021 reported that the mother would hurt the family pets by hitting and kicking them;
(b)The Family Report dated 13 September 2023 where the children disclosed to the Family Report Writer that they were exposed to the mother shouting at the pets and physically harming them; and
(c)Dr B’s Report dated 10 November 2021 where she references the reports made to DFFH of the mother hitting the family pets.
I was not asked to make any findings with respect to the mother abusing the children’s pets. With respect to the pets, the focus on the children’s distress at being separated from them was the issue raised during the final hearing with the mother taking the pets when she relocated to City K and the subsequent orders made by consent for the pets to be returned to the father.
Breach of human rights
The mother makes a general complaint that her human rights and her rights to privacy have been breached. There is no substance to this complaint. She did not appeal the orders made in the Children’s Court. Her complaints about her rights to privacy being breached are without foundation. She called Ms C as a witness. She cannot then complain when that evidence is tested.
CONCLUSION
The matters the mother raises do not justify reopening the parenting trial, particularly as she has other avenues open to her.
When considering whether or not to grant an application to reopen a trial and receive further evidence, the Court must also consider the best interests of the children. The mother’s complaints lack any detail and fall well short of being able to establish that the trial was unfair. Many of the issues the mother raises are not new. None of the matters the mother raises support the case being reopened which would lead to further court time, expense and delay without changing the result.
None of the complaints raised by the mother justify reopening the proceedings. The ICL accurately characterises the mother’s attempts as trying to fix things she thought did not help her case and pre-empt the judgment. I dismiss the mother’s application.
I will immediately proceed to deliver my reasons in the primary application. As the father’s solicitor indicated he wished to be heard with respect to costs, I will order that any party wishing to seek costs file submissions and any supporting documents in 28 days and any response and supporting documents be filed 28 days thereafter. I will then determine the issue of costs in chambers unless a party seeks to have the issue of costs listed for an oral hearing.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 14 February 2024
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