Cadriel & Gabbey (No 4)
[2023] FedCFamC1F 235
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cadriel & Gabbey (No 4) [2023] FedCFamC1F 235
File number(s): ADC 4072 of 2019 Judgment of: BERMAN J Date of judgment: 3 April 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Leave to reopen – Where there is a significant procedural history in the matter – Where the mother filed an Application in a Proceeding at the commencement of final submissions – Where the mother seeks a variety of orders in relation to adducing further evidence – Where the husband opposes the application – Where the father and the ICL make a concession to receive only the autism assessment report into evidence – Orders. Legislation: Family Law Act 1975 (Cth) ss Div 12A, 65L, 69SN, 102NA Cases cited: McEnearney & McEnearney (1980) FLC 90-866
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88
Division: Division 1 First Instance Number of paragraphs: 58 Date of hearing: 15 March 2023 Place: Adelaide Counsel for the Applicant: Ms Ross Solicitor for the Applicant: Southern Vales Legal Counsel for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Olsson Solicitor for the Independent Children's Lawyer: Silkwoods ORDERS
ADC 4072 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CADRIEL
Applicant
AND: MS GABBEY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
3 april 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 3 February 2023 is dismissed.
2.The Diagnostic Report in respect of Y, otherwise known as Y born 2019, be read into evidence and marked as exhibit “29”.
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
BERMAN J
INTRODUCTION
Mr Cadriel (“the father”) and Ms Gabbey (“the mother”) are the parents of X born 2016 and Y born 2019 (collectively “the children”).
BACKGROUND
The father was born in Country G and the mother born in Australia. The parties met online in early 2015 and were married in Country G in late 2015.
Following the mother’s return to Australia in late 2015, the father came to Australia on a tourist visa in early 2018 and was granted a residency visa enabling him to return to Australia in late 2018.
The parties separated in March 2019.
The proceedings between the parties is of high conflict. The mother alleges that she was the victim of sexual assault and that their relationship involved ongoing family violence.
The mother also alleges that the father sexually abused X.
THE PROCEEDINGS
Orders were made on 19 September 2022 listing all applications for final hearing on 23 September 2022. On the first day of final hearing, the parties were represented by solicitors. Ms Ross of counsel appeared for the father, Mr T, solicitor, appeared for the mother and Ms Olsson appeared in her capacity as the Independent Children’s Lawyer (“ICL”).
Mr T was successful in his application to adjourn the proceedings and the matter was listed on 4 October 2022. The trial proceeded on 4, 5 and 6 October 2022 however, on 7 October 2022 Mr T sought leave to withdraw from the proceedings. On 12 October 2022, Ms U appeared for the mother and the proceedings were adjourned to 31 October 2022. The proceedings were further adjourned to 1 November 2022 however, Ms U was not in attendance necessitating a further adjournment to 2 November 2022. On the adjourned date, the mother foreshadowed that she would terminate instructions to Ms U.
In the absence of Ms U, the mother argued an Application in a Proceeding filed on 1 November 2022 that leave be given for the father to be recalled for further cross examination on the basis that the mother asserted her previous solicitor, Mr T, was incompetent and that he had not followed her instructions concerning the tender of various documents.
Leave was given for the further cross examination of the father limited to 60 minutes.
The bundle of documents that was the focus of the mother’s application and her submission as to the level of competence of her previous solicitor, were not documents that had been discovered or produced. The mother indicated that the areas of concern related to the immigration status of the father and documents relating to the communication between the parties.
Later in the afternoon, Ms U appeared and requested leave to withdraw as the mother had terminated her instructions. The mother indicated her intention to complete the proceedings as a self-represented litigant. The trial proceeded on 2, 3, 4, 9 and 10 November 2022 with final submissions being made on 30 January 2023. The proceedings were again adjourned to 3 February 2023 to consider whether the Department for Child Protection (“DCP”) would make an application for leave to intervene. On 3 February 2023, judgment was reserved in respect of the substantive proceedings.
However following judgment being reserved the mother filed an Application in a Proceeding on 2 February 2023 seeking to reopen the evidence with a view to issuing subpoena to witnesses to give evidence in relation to the children’s separate diagnosis of autism and further evidence in relation to the children’s “associated emotional, psychological, physical, therapeutic, medical and educational needs.”
The mother sought to adduce evidence from the children’s maternal uncles concerning the children’s attachment to the mother and the mother’s extended family.
The mother also sought that the ICL be discharged and in addition, that a DCP report dated 20 January 2023 be produced under subpoena together with the CV of the author.
The mother also wanted to file an exhibit book, case summary and final orders document, recall the father for cross examination and have the family consultant’s report uplifted from the Court file.
Finally, the mother sought an order that Court documents that she considered had been “illegally” provided to various businesses and government departments by the father and his former solicitor, be destroyed.
THE MOTHER’S APPLICATION
The mother’s application is supported by two affidavits filed 2 February 2023. The first affidavit annexes a number of documents that appear to relate to health professionals involved in X’s care. There is no dispute between the parties that X has a diagnosis of autism. The documents referred to by the mother in her affidavit are dated between March 2019 and March 2020.
In relation to Y, the mother annexes a report by Y’s speech pathologist which includes a diagnosis that, like her brother, Y also presents with autism.
The autism diagnosis report sets out the behavioural presentations of the child in considerable detail.
It is apparent that as at the conclusion of the evidence, the mother had not yet received the report.
Whilst there is some uncertainty as to the mother’s state of knowledge of Y’s referral for an assessment, the report confirms that the date of assessment was 30 November 2022.
There is a concession on behalf of the father and the ICL that the autism assessment report authored by Ms V, psychologist and Ms W, speech pathologist can be received into evidence without the need for the authors of the report to be called for cross examination.
Accordingly, the autism assessment report in respect of Y will be received into evidence.
The second affidavit filed 3 February 2023 also seeks to call Dr BB as a witness in relation to his involvement with X. The mother was aware as early as 1 March 2022 that Dr BB could only be called if a subpoena was issued for his attendance.
The mother’s explanation for not doing so during the course of the lengthy proceedings seems to be based upon a complaint as to the conduct and competency of the ICL and for reasons that are not adequately explained, instructions to her various solicitors that were not acted upon.
The broad thrust of the mother’s concerns are encapsulated in paragraph 12 of her second affidavit filed 2 February 2022:-
I gave instructions to prior solicitors to subpoena the children’s medical / autism related records, and paediatricians [Dr BB] & [Dr CC], the children’s educators, and to obtain witness affidavits from several of my relatives… My instructions were not acted upon. Generally and specifically the relevant legal representatives (the few who purported to act for me) did not prepare my case for trial, further evidenced by me having a “sliced to pieces” trial affidavit, no exhibit book filed, no tender book circulated, no case summary and no final orders document filed, as well as various witness affidavits (including but not limited to from my brothers [Mr DD] and [Mr EE] and social worker Dr [FF]) and subpoenas to witnesses and for records in relation to the children’s diagnosed medical conditions (autism) and related supports, outstanding / not filed.
The balance of the affidavit does not deal with the gravamen of the mother’s application namely, that she seeks to reopen the evidence and adduce further information from the children’s health professionals but rather repeats the mother’s trenchant allegations as to the father perpetrating family violence and subjecting the mother and the children to financial, verbal, physical, abuse and reproductive abuse as well as the stalking and the molestation of X.
LEGAL PRINCIPLES
The proceedings have been conducted pursuant to Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular the application of the principles for conducting child related proceedings pursuant to s 69ZN of the Act.
A parenting case differs from a civil jurisdiction dispute. It is also different to proceedings for settlement of property pursuant to Part VIII of the Act.
The focus of parenting proceedings is to consider what orders within the parameters of the separate proposals of the parties will serve the best interests of the children.
That consideration must be tempered by the proposition that ongoing and never ending litigation could not be in the best interests of a child.
The proceedings have been before the Court since 2019.
The father has not spent time with the children since the conclusion of time supervised by Ms B in June 2021.
Moreover, the mother refused to comply with an Order made pursuant to s 65L of the Act on 7 July 2022 that the father’s time with the children be the subject of observation by a Court Child Expert.
The mother concedes that she requires ongoing therapeutic assistance and support however, that cannot realistically be commenced until the proceedings are concluded.
The mother also concedes that the litigation effectively has put on hold the lives of the children and the parties.
In Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88, the case had closed but judgment had not been delivered. In summary, it was said that fresh evidence should be admitted only:-
(a)When it was so material that the interests of justice required it;
(b)The evidence if believed, would most probably affect the result;
(c)The evidence could not by reasonable diligence have been discovered before; and
(d)No prejudice would ensue to the other litigant because of the lateness of that evidence.
In Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 the Court held that the guiding principle in determining whether to grant an application for leave to reopen is whether the interest of justice are better served by allowing or rejecting the application.
In the marriage of McEnearney & McEnearney (1980) FLC 90-866, Nigh J considered the potential for litigation involving children to be relentless and at 75,499 said:-
Having said that I would hasten to add that the principle that there be an end to litigation has equal force in custodial disputes and in some respects may even have greater force in custodial disputes. The last thing, of course, that this Court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
(Emphasis in original)
Whilst the final days of the proceedings were concluded by the mother appearing as a self- represented litigant, it could not be said that she did not have the opportunity nor access to legal representation.
The history of the mother’s representation is as follows:-
(1)Ms GG – 14 November 2019 to 7 February 2020;
(2)HH Lawyers – 11 February 2020 to 30 June 2020;
(3)The mother representing herself – 20 July 2020 to 21 September 2021;
(4)Ms JJ of KK Lawyers – 22 September 2021 to 12 October 2021;
(5)The mother representing herself – 13 October 2021 to 2 March 2022;
(6)LL Lawyers – 3 March 2020 to 17 March 2022;
(7)MM Lawyers – 18 March 2022 to 12 May 2022;
(8)The mother representing herself – 3 June 2022 to 5 July 2022;
(9)Ms NN of OO Lawyers – 6 July 2022 to 19 September 2022;
(10)Mr T of PP Lawyers – 16 September 2022 to 23 October 2022;
(11)Ms QQ of RR Lawyers – 24 October 2022 to 6 November 2022;
(12)The mother representing herself – 7 November 2022 to present.
As discussed, Mr T represented the mother for the father’s cross examination which extended over a period of two days.
A relevant consideration was that the proceedings are the subject of a s 102NA order. The mother was prevented from the direct cross examination of the father.
The mother’s current application to reopen the evidence of the father and enable further cross examination could only occur if the mother was represented. There is no proposal by the mother that suggests she has sought or obtained legal representation. Without attempting to be overly pessimistic, the mother’s history of representation and her strong contention that perhaps for different reasons each of her various legal representatives were incompetent, would suggest that without some clear evidence to the contrary, the mother may be hard pressed to obtain suitable representation.
The mother was aware that I would not be able to make an order requiring miscellaneous business and government departments to destroy documents that may have come into their possession from time to time nor that I would be prepared to uplift the Family Consultant’s report from the Court file.
I have given careful consideration to the matters raised by the mother and in particular, the information contained in her two Affidavits in support of the Application in a Proceeding.
I do not consider that other than the diagnostic assessment report relating to Y, that any other information would affect the result of the trial.
The mother has had ample opportunity, over a long period of time, to assess what is required in order to support the order that she seeks namely, that there be no relationship between the children and their father.
The father was the subject of cross examination and there could be no proper basis for leave to be given to put further matters to him in circumstances where a further opportunity to do so was taken up.
The proceedings have a never ending quality about them which very much raises a proper concern as to the significant detriment that might enure to the children by there not being a timely resolution.
Whilst the mother resiles against the notion of the children having any relationship with the father, his application is that there be a resumption of time and in circumstances where the mother is not able to support a relationship then they should remain in his primary care.
The interests of the children are not served by further, lengthy and indeterminate delays likely to be occasioned by the mother’s application.
A further relevant consideration is the prejudice caused to the father. His representation is funded by a grant of legal aid which has expired.
The litigation has exhausted the parties and other than the diagnostic assessment report relating to Y, the balance of the evidence sought now to be adduced by the mother could have occurred prior to the conclusion of the proceedings.
The Court file reflects that every possible accommodation to assist the mother was made. It is not axiomatic that because the mother considers her legal representation to have been unprofessional and/or incompetent that I am obliged to accept the mother’s bold assertion.
Accordingly I propose to dismiss the mother’s application but will receive into evidence the diagnostic assessment report for Y dated 22 November 2022.
I make orders as appears at the commencement of these reasons.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 3 April 2023