CARROW & BURKE
[2010] FMCAfam 1071
•15 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARROW & BURKE | [2010] FMCAfam 1071 |
| FAMILY LAW – Children – Parenting Orders – Family Report – whether earlier family reports should be shown to writer of new family report – whether reasons for judgment in earlier case should be shown to writer of new family report – injunction. CHILD SUPPORT – Appeal – Stay – whether stay order should be set aside. |
| Family Law Act 1975, s.62G |
| Carrow & Burke [2009] FMCAfam 603 Carlin & Carlin (1977) 3 Fam LN 52; FLC 90-320 Kelly & Kelly (1980) 6 Fam LR 741; (1981) FLC 91-007 Molier & Van Wyk (No 2) (1981) 7 Fam LR 474; FLC 91-001 |
| Applicant: | MS CARROW |
| Respondent: | MR BURKE |
| File Number: | SYC 1187 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 September 2010 |
| Date of Last Submission: | 20 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Respondent: | Appeared in person |
ORDERS UNTIL FURTHER ORDER
That the Mother and the Father be restrained by injunction from providing to the family consultant appointed by Order of this Court on 6 August 2010 copies of any of the reports prepared by Ms M in proceedings SYC 1187 of 2008 or the Reasons for Judgment delivered by Federal Magistrate Altobelli on 25 June 2009.
That the family consultant be restrained by injunction from reading any of the reports prepared by Ms M in proceedings SYC 1187 of 2008 or the Reasons for Judgment delivered by Federal Magistrate Altobelli on 25 June 2009.
That within seven (7) days of receipt from the Court of any document notifying the identity of the family consultant who is to prepare the report ordered by this Court on 6 August 2010, the solicitor for the Mother must forward to the family consultant a copy of:
(a)All applications, responses and affidavits filed by or on behalf of the Mother in this proceeding upon which the Mother seeks to rely; and
(b)All applications, responses and affidavits filed by or on behalf the Father in this proceeding upon which he seeks to rely,
and forward a copy of that correspondence to the Father.
That for the purpose of Order (3) above, within twenty-eight (28) days of the date of these Orders the Father is to inform the Mother’s solicitor:
(a)Which applications or responses upon which he proposes to rely in this proceeding;
(b)Which affidavits deposed to by himself upon which he proposes to rely in this proceeding; and
(c)Which affidavits by any other person he seeks to call as a witness in this proceeding upon which he proposes to rely in this proceeding,
AND THE COURT NOTES that each party has until 28 February 2011 to file and serve any further affidavit material upon which they seek to rely.
The operation of the decision made by the Social Security Appeals Tribunal on 31 March 2010 be stayed pending the hearing of the appeal by the applicant of that decision.
IT IS NOTED that publication of this judgment under the pseudonym Carrow & Burke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1187 of 2008
| MS CARROW |
Applicant
And
| MR BURKE |
Respondent
REASONS FOR JUDGMENT
Application
This application is about:
a)Directions for preparation of a Family Report for the purpose of the hearing of a parenting application; and
b)The Father’s application to set aside the order made on 13th July 2010 staying the operation of the decision made by the Social Security Appeals Tribunal on 31st March 2010 pending the hearing of the Applicant Mother’s appeal against that decision.
The Mother seeks the following Orders:
(a)That the Mother and Father be restrained by injunction from providing to the family consultant appointed pursuant to Orders of this Court of 6 August 2010 (“family consultant”) any of the reports prepared by Ms M in proceedings no. SYC1187/2008 or the Reasons for Judgment delivered by Federal Magistrate Altobelli on 25 June 2009.
(b)That the family consultant be restrained by injunction from reading any of the reports prepared by Ms M in proceedings no. SYC1187/2008 or the Reasons for Judgment delivered by Federal Magistrate Altobelli on 25 June 2009.
(c)That within 7 days of receipt from the Court of any document notifying of the identity of the family consultant, the solicitor for the mother forward to the family consultant a copy of all applications, responses and affidavits filed by the parties in proceedings no. SYC1187/2008 and send a copy of such correspondence to the Father.
(d)That within 28 days of the date of these Orders, the Father to notify the Mother’s solicitors of which documents filed by him or on his behalf are to be provided to the family consultant noting that no affidavit of any witness is to be provided unless the deponent of that affidavit will be called at the hearing.
(e)That Order 1 of the Orders made on 13 July 2010, being:
‘That the operation of the decision made by the Social Security Appeals Tribunal on 31 March 2010 be stayed pending the hearing of the appeal by the Applicant of that decision’
be affirmed.
The Father seeks an order setting aside the stay made on 13th July 2010. In his written submission dated 9th July 2010, the Father seeks the following orders:
1. That the stay motion requested by Ms Carrow[1] in her application of 4 May 2010 be rejected.
2. That the parties disclose how much they have spent on these proceedings.
3. That the SSAT appeal, requested by Ms Carrow in her application of 4 May 2010, not be heard until after the decision on the transfer application (on the matter of property between these two parties) is made in the Supreme Court.
4. That the SSAT appeal, requested by Ms Carrow in her application of 4 May 2010, not be heard until after the subpoenas filed with the court by Burke on 5 July 2010 have been returned.
5. That Ms Carrow immediately pay to the Child Support Agency all moneys owed by her to Mr Burke for the benefit of the children.
[1] The applicant mother
Background
There have been proceedings between the parties concerning parenting matters, including relocation. The Mother is the Applicant.
On 13th May 2009, after a final hearing, Altobelli FM made these Orders:
(1)That the solicitors for the Applicant and the Respondent provide to my associate within 21 days an agreed document which represents the current contact arrangements for [X] born [in] 2001 and [Y] born [in] 2005.
(2)The parties have leave to re-list this matter before Federal Magistrate Altobelli on 21 days notice as regards any dispute over the formulation of the agreed document in Order 1.
On 25th June 2009 Altobelli FM delivered Reasons for Judgment (Carrow & Burke[2]). I have not read his Honour’s reasons and I do not consider it appropriate to do so.
[2] [2009] FMCAfam 603
On 16th November 2009 the Father filed an application seeking leave to re-open proceedings and vary the Judgement delivered on 25th June 2009. That application was given a return date of 9th February 2010.
However, the matter returned to Court on 25th November 2009. On that day his Honour made the following orders:
1. I disqualify myself from any further hearing of this matter.
2. The matter be adjourned to 9 February 2010 at 9.30 am before Federal Magistrate Scarlett.
His Honour also noted:
3. The Father’s application filed 16 November 2009 is listed before Federal Magistrate Scarlett on 9 February 2010.
4. The Father has the right to apply for a short notice listing by way of the usual practices and procedures.
5. I requested both parents to consent to an order that both parties attend a Child Dispute Conference. The Father consented, however the Mother declined.
On 4th May 2010 the Mother filed an appeal from a decision of the Social Security Appeals Tribunal made on 31st March 2010.
On 5th July 2010 the Mother made an application for a stay of the operation of the decision made by the Social Security Appeals Tribunal pending the hearing of the appeal from that decision.
The Father pressed his application for leave to re-open the parenting proceedings.
I directed that the Father forward his submission on the stay application by 9th July 2010 and adjourned the matter to 13th July 2010. The Father did not attend Court on 13th July. A submission from the Father did not arrive before 13th July and on that day I made an order staying the operation of the decision of the Social Security Appeals Tribunal pending the hearing of the appeal.
That same day I listed the Child Support appeal for hearing on 2nd November 2010. I also listed the parenting application for final hearing on 29th to 31st March 2011. I directed that the parties were to file and serve all further affidavit material by 28th February 2011.
When the matters returned to Court on 6th August 2010 the Father’s written submission had come to my attention. The Father sought to set aside the stay, which the Mother opposed. I listed the matter for argument before me on 20th September 2010.
The other matter that was discussed was the question of a report for the purposes of the parenting application. The Father opposed appointing an independent expert. There had been two family reports prepared by Ms M on 21st July 2008 and 8th May 2009. The Mother sought that a report should be prepared by some other person, noting that Ms M had been criticised for the way she had prepared her report. It was submitted that the Court and the parties must have confidence that the reporter is independent.
The Father submitted that the preparation of another report, requiring the children to be re-interviewed, was akin to “systems abuse”. He sought that the original reports should be relied on. His oral argument was essentially similar to the written submission dated 9th July 2010 that was subsequently received:
The children have already been exposed to two sets of interviews with a family report writer whose evidence has been tested in open court in a final hearing and accepted by Altobelli FM in his judgement. The children did not enjoy this process and while at times such interviews may be necessary they, in an of themselves, are not consistent with the standard proposition that the children not be exposed to the process or the conflict.
I was satisfied that a further family report should be ordered under the provisions of s.62G of the Family Law Act and I made orders to that effect on 6th August 2010.
Submissions
The Mother seeks two injunctive orders and two directions in respect of the parenting application.
As to the two injunctive orders sought, restraining the parties from providing to the family consultant copies of the reports prepared by
Ms M or the Reasons for Judgment of Altobelli FM, and restraining the family consultant from reading those reports or his Honour’s reasons, the Father submitted that these orders raised the question of prejudice, as evidence can be excluded if prejudicial. He said that the Mother was seeking to exclude earlier evidence that did not favour her case.
In this case, he said, the family report by Ms M was accepted by Altobelli FM, and so it should be available.
He later submitted that, as the parties have now been separated for three years, there was a lot of background. The earlier family report would provide a background to the new family report writer. His intention is to minimise the impact on the children of “systems abuse”.
The Father also took issue with orders 3 and 4 sought by the Mother, which are:
3. That within 7 days of receipt from the Court of any document notifying the identity of the family consultant, the solicitor for the mother forward to the family consultant a copy of all applications, responses, and affidavits filed by the parties in proceedings no. SYC 1187/2008 and send a copy of such correspondence to the father.
and
4. That within 28 days of the date of these Orders, the Father to notify the Mother’s solicitors of which documents filed by him or on his behalf are to be provided noting that no affidavit of any witness is to be provided unless the deponent of that affidavit will be called at the hearing.
The Father opposed these orders on the basis that they contradict the directions for trial made on 13th July, namely that the parties are to file and serve all further affidavit material by 28th February 2011. He also submitted that the orders placed him at a disadvantage, requiring him to disclose his case to the Mother at an early stage.
The Mother also seeks that the order of 13th July 2010 staying the operation of the decision of the Social Security Appeals Tribunal pending the hearing of the appeal.
As to his application to set aside that order, the Father submitted that the SSAT has a degree of authority and responsibility and, given the effort put in by the Tribunal in making its decision, the appellant mother would need to show that there are exceptional circumstances in order to stay the decision.
The Father then went on to submit that the stay placed a greater prejudice on him, as the Mother’s financial resources are significantly greater than his. He conceded, however, that the Child Support Agency had not been pursuing him for payment, even though he had been advised by an officer on the telephone that the CSA would be collecting payments from him.
The Father relied on his written submission dated 9th July 2010 which, as I said, did not come to my attention until after 13th July.
Whilst the Father’s written submission referred to a proposed application to the Supreme Court of New South Wales to transfer a de facto property application from that Court to this Court, he informed the Court that this was no longer being sought.
The Father submitted that the stay of the decision of the Social Security Appeals Tribunal is without foundation and should be dismissed on these grounds;
a)The Mother chose to apply for child support through the child support system so she should abide by the decision;
b)The stay would perpetuate an injustice against him;
c)The Mother’s various affidavits are contradictory;
d)The Mother received gross payments of $932,000.00 in gross payments between July 2007 and December 2008 as well as an income of $240,000.00;
e)There is no real evidence to support the Mother’s assertion that the money she received has all gone;
f)The Father has spent in excess of $60,000.00 on these proceedings;
g)Altobelli FM and the Social Security Appeals Tribunal have made adverse credibility against the Mother; and
h)The Father’s net assets are approximately $124,843.00 and he is currently losing $11,000.00 per year.
The Father submits that if the stay remains “it does not simply mean that she does not repay this money[3] but also that I continue to pay her $400.00 pm”.
[3] An amount in excess of $5000.00 which the mother was overpaid by the father
The Father then expands on the points in [29] above from pages 4 to 8 of his submission. He also takes issue with the contentions by
Mr Schonell in support of the Mother’s appeal.
In short, the Father submits that none of the submissions on behalf of the Mother’s appeal “hold up to a full and considered reading of the objection” and, whilst they should be tested in an appeal hearing, are not grounds sufficient to support the stay.
On behalf of the Mother, Mr Schonell of counsel submitted that there is no need for the family consultant preparing the family report to read the earlier reports. The new report should be untrammelled by what is contained in the earlier reports.
Further, the proposed Orders 3 and 4 do not contradict the Court’s earlier trial direction, nor do they impose an unfair prejudice on the Father. Order 3, in fact, would require the Mother’s solicitors to advise the documents relied on by the parties and would allow a longer period of time for the Father to advise which documents he would seek to provide to the family consultant.
As to the stay, Mr Schonell submitted that the Mother disputed that her financial position is greater than the Father’s. That is an issue in the appeal.
Further, the Father is not paying the sum of $400.00 per month to the Mother. The effect of the stay is that “no one will pay anyone anything” until the stay is removed.
Conclusions
The parenting matters are being considered afresh. The Father has filed an application to re-open the proceedings. Altobelli FM has disqualified himself from further hearing the matter, so his Honour’s reasons are not relevant to decision that I have to make. The obligation on me in hearing the matter is to form my own view of the evidence and of the parties.
A fresh Family Report has been ordered. Just as his Honour’s Reasons for Judgment are irrelevant to the decision the Court now has to make, they are irrelevant to the report to be prepared by the Family Consultant in preparing the Family Report. The Family Consultant must make his or her own assessment of the parties and the children based on his or her observations and interviews, and make his or her own recommendations. With respect, it is of no concern to the Family Consultant what his Honour’s views were.
Whether or not Altobelli FM accepted the earlier report by Ms M that is also irrelevant to what must be decided. Altobelli FM is not deciding this case, I am. It follows that the new Family Consultant should make his or her own recommendations from the material. Whatever Ms M recommended is irrelevant to the task that now falls to the new Family Consultant.
Whilst it has been submitted that his Honour’s Reasons and the earlier Family Report would be useful as background, it must be remembered that the Family Report and the Reasons for Judgment will contain more than just a recital of the earlier evidence.
The Family Report will contain recommendations from the Family Consultant and the Reasons for Judgment will contain the Court’s assessment of the evidence of the parties. Neither the recommendations nor the assessment are relevant to what now has to be done, and consideration of that earlier material runs the risk that the fresh proceedings could in some way be compromised if that material were presented to the new Family Consultant.
To preserve the integrity of the process of preparing the new Family Report, I am satisfied that it is necessary that neither the earlier family report (or reports) nor his Honour’s Reasons for Judgment should be given to the Family Consultant.
The proposed Order 3 provides:
That within 7 days of receipt from the Court of any document notifying of the identity of the family consultant, the solicitor for the mother forward to the family consultant a copy of all applications, responses and affidavits filed by the parties in proceedings no. SYC 1187/2008 and send a copy of such correspondence to the father.
The purpose of this proposed order is to give to the new Family Consultant the necessary materials by way of background for the purpose of preparing the Family Report. The affidavits contain the evidence and the applications and responses set out what orders the parties have sought and are seeking to be made. They differ from the Reasons for Judgment or the earlier Family Report or reports in that they do not contain any assessment of the evidence or any recommendations based on that evidence.
The proposed Order 4 provides:
That within 28 days of the date of these Orders, the father to notify the mother’s solicitors of which documents filed by him or on his behalf are to be provided to the family consultant noting that no affidavit of any witness is to be provided unless the deponent of that affidavit will be called at the hearing.
The Father has difficulty with that proposed Order, submitting that it cuts across the earlier direction made by the Court when setting the application down for hearing. The particular direction that was made on 13th July 2010 is:
5. Parties are to file and serve all further affidavit material upon which they seek to rely by 28 February 2011.
The purpose of that direction is to set a deadline for the filing of updating material for the purpose of a three-day final hearing that is to commence on 29th March 2011. Courts have been continually plagued by the late filing of affidavits, sometimes as late as the morning of the hearing.
It is not my intention to restrict the parties to filing all their affidavit material by the end of October or early in November. There may be affidavit material that will not be filed and served until late February 2011, and there is obviously good reason for the Court to have up-to-date information about the parties and the children. It is likely that the Family Report would have been completed and released by then, so that the Family Consultant may not see the most recent material. However, that is a matter that can be dealt with at the hearing if the Family Consultant is to give oral evidence.
The reason why the proposed Order seeks that only affidavits of witnesses who are to be called to give evidence should be provided to the Family Consultant is that, presumably, if the deponent to an affidavit is not to be called then it is likely that there would be an objection to the affidavit being received into evidence.
The proposed Order should not be seen as an attempt to influence the way the Father presents his case.
I am satisfied that the proposed Order 3 is appropriate to ensure that the new Family Consultant is given appropriate background material and I propose to make that Order.
I am not prepared to make the proposed Order 4 in the terms in which it has been suggested, although I note that it appears to be intended to allow the Mother’s solicitor to comply with the proposed Order 3. I propose to make an Order in terms which will make it clear that the Father should inform the Mother’s solicitor which applications or responses he wishes to have submitted to the Family Consultant, and which affidavits from himself and from any other person he wishes to call to give evidence on his behalf should be provided to the Family Consultant.
Turning now to the stay of the operation of the Decision of the Social Security Appeals Tribunal, it should be noted that an appeal does not operate as a stay of itself. A stay should not be ordered as a matter of right or as a matter of course. A stay is discretionary.
The general principles that should be considered are:
a)Whether refusing a stay will render a successful appeal nugatory or will make it impossible or impractical to restore the position;
b)Any hardship that would be suffered by the Applicant and the Respondent as a result of granting or refusing a stay;
c)The merits of the appeal;
d)Whether there has been a delay in applying for the stay;
e)The bona fides of the applicant; and
f)The time it is expected for the appeal to be heard
(See Carlin & Carlin[4], Kelly & Kelly[5]; Molier & Van Wyk[6]).
[4] (1977) 3 Fam LN 52; FLC 90-320
[5] (1980) 6 Fam LR 741; (1981) FLC 91-007
[6] (1981) 7 Fam LR 474; FLC 91-001
The effect of the stay is to “freeze” payments with respect each party. Until the appeal is heard, neither party is to pay anything to the other. Without pre-judging the appeal, the appellant’s case appears to be arguable, but that, of course, does not guarantee success. It does not appear to be a frivolous appeal lacking any merit.
There has not been any particular delay in applying for the stay. The Mother filed her appeal on 4th May 2010 against the decision of 31st March 2010. It was returnable on 5th July 2010, on which date the application was made for the stay.
It is an important consideration that the appeal can be heard relatively soon. It is listed for hearing on 2nd November 2010, less than six weeks away.
For those reasons, the stay will be affirmed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 29 September 2010