Coleman and Hindle and Anor

[2009] FamCA 361

FAMILY COURT OF AUSTRALIA

COLEMAN & HINDLE AND ANOR [2009] FamCA 361

FAMILY LAW – COURTS AND JUDGES – Jurisdiction – Disqualification
FAMILY LAW – INDEPENDENT CHILDREN’S LAWYER – Disqualification

Family Law Act 1975 (Cth)

APPLICANT: Mrs Coleman

FIRST RESPONDENT:	Ms Hindle
SECOND RESPONDENT:	Mr Hindle

INDEPENDENT CHILDREN’S LAWYER: Mr Carter

FILE NUMBER: BRC 5431 of 2008

DATE DELIVERED: 29 April 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 29 April 2009

REPRESENTATION

APPLICANT: Applicant appears on her own behalf

SOLICITOR FOR THE FIRST RESPONDENT: Ms Hewitt

SECOND RESPONDENT: Second Respondent appears on his own behalf

INDEPENDENT CHILDREN’S LAWYER Mr Carter

COUNSEL FOR THE DEPARTMENT OF CHILD SAFETY Mr Selfridge

SOLICITOR FOR THE DEPARTMENT OF CHILD SAFETY Ms Day

Orders

IT IS ORDERED THAT

1. The Application in a Case filed by the Applicant on 28 April 2009 is dismissed.

2. The Application in a Case filed by the Applicant on 30 March 2009 is dismissed.

3. The application for costs made by the Independent Children's Lawyer in respect of the application filed on 28 April 2009 which was reserved to the hearing of the application filed on 30 March 2009 is reserved to the final hearing.

IT IS FURTHER ORDERED THAT

1. The matter be adjourned to the Magellan Directions List before Justice Murphy at 10.00am on 17 July 2009 in the Brisbane Registry of the Family Court of Australia.

2. The Maternal Grandmother Mrs Coleman, shall attend upon Mr M, Society Worker on 2^nd or 3^rd June 2009 at the time and place nominated by the Independent Children's Lawyer.

3. For the purpose of completing the Family Report Mr M has permission to inspect the Court file and all documents related to this matter.

4. Mr M has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

5. The parties shall do all such things, sign all such documents, and attend all such appointments as are reasonably necessary for the preparation of the Family Report.

NOTATION:

1. In the event that the maternal grandmother does not attend any interview times and dates so arranged with Mr M, then the interviews and report can proceed in her absence.

2. All such interviews and report process generally are to take specific account of paragraph 1(c) (ii and iii) of the orders made by Justice Murphy on 17 March 2009.

3. It is expected that at the hearing on 17 July 2009, all parties will provide in writing such orders as they consider appropriate, to have this matter ready for final hearing at the earliest opportunity.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC5431 of 2008

MRS COLEMAN

Applicant Maternal Grandmother

And

MS HINDLE

First Respondent Mother

And

MR HINDLE

Second Respondent Father

EX TEMPORE
REASONS FOR JUDGMENT

1. On 21 October 2002 orders were made in the Local Court at Sydney providing that the children, the subject of these proceedings, live with the grandmother and spend time with their mother and father.  At that time the mother was living with the grandmother.

2. In the six and a half years since, this case has had an appalling history of litigation that results, presently, in contested proceedings for parenting orders proceeding in this Court’s Magellan list toward a trial.

3. In March of 2003 as a result of complaints made to the Department of Children’s Services, the children were taken from the grandmother’s care and placed into foster care.  The children were subsequently returned in about May 2003. 

4. Approximately 12 months after that, in May 2004, the mother returned to live with the grandmother and the children.  Prior to that time, in about February 2003, the grandmother had moved to R, south of Brisbane.

5. There then followed a history of involvement with the Department of Children’s Services commencing in about February 2008.  There have been domestic violence proceedings and domestic violence orders made and a number of applications have been made in this Court and I gather from what the grandmother Mrs Coleman has said, proceedings are pending in at least the Supreme Court of Queensland in respect of assertions made by her with respect to orders made (I gather) in the Children’s Court. 

6. The grandmother has indicated, both today and on earlier occasions, that she anticipates that there may be an application to the High Court in respect of those proceedings.

7. On about 29 October 2008, this matter was designated as a Magellan matter and has been dealt with in the Magellan list since that time. 

8. A s.91B order was made at that time and the Department of Child Safety is represented by counsel in the proceedings this morning.  The evidence before the Court indicates a significant involvement by that Department with this family over a lengthy period of time.

9. The matter has been before me in my capacity as the Magellan Judge in this Registry on two earlier occasions, the first on 29 January 2009 and the second on 17 March. 

10. On 17 March I made a number of orders including, relevant to the instant application, that Mr M be provided with what the grandmother then indicated was likely to be a significant volume of documentation which the grandmother considered to be directly relevant to the proceedings.

11. The grandmother also raised at that time an issue that her attending interviews with Mr M as required would involve a breach of a current domestic violence order because of a restriction contained in that order that the mother and grandmother should not come within 100 metres of each other.

12. With that in mind, in orders made by me on 17 March 2009 at par 1(c)(ii), I ordered that, in respect of any process to be conducted by Mr M (including any interviews with the maternal grandmother and/or grandfather and any other party) such process comply in every respect with any existing domestic violence order including any provisions of any such order in respect of any person the subject of such orders coming into contact with, or being in the vicinity of, any other person named in the order.

13. I further directed the independent children's lawyer to make Mr M aware of any existing domestic violence orders involving the participants or any potential participants to the assessment.

14. By an application filed on 28 April 2009 the grandmother seeks a number of orders.  They can be broadly described as being:

    (1)An order that these proceedings be transferred to another Registry outside of Queensland;

    (2)That the matter be assigned to a Registrar other than Turner R;

    (3)That the current proceedings be stayed pending the completion of an investigation by the Australian Federal Police into death threats made to Turner R;

    (4)As drafted, “an order of the Court that the parties to these proceedings produce to the Court what they claim to be evidence or persist from the continual malicious vexatious persecution that they persist in”;

    (5)An order that Mr M explain to the Court why he failed to comply with this Court’s (order) of 29 January 2009.

15. I provided to the grandmother an opportunity to explain what was meant by par 4 of the application.  In its current form it is nonsensical and does not refer to any order which in my view the Court can make.

16. The grandmother attempted to explain what was meant by the orders sought, consequent upon my giving her the opportunity to reframe those orders into a form which might sound in relief.  The explanation provided by the grandmother did not, in my view, satisfy that test.  I strike it out.

17. Paragraph 5 seeks an order that Mr M explain to the Court alleged aspects of his behaviour in and about what is, at this stage, a mooted interview process.  It seems to me that, if the grandmother alleges failures (in whatever respect) with the process conducted by Mr M, then she can do so as can any other party, by cross-examination at the trial of this matter.  I dismiss par 5.

18. In respect of paragraph 1 and 2, I consider that they can be conveniently grouped together.  There are a number of assertions made by the grandmother in support of the application. 

19. I found the affidavit filed by the grandmother on 28 April 2009, which I have read, to be very difficult to understand and, for the most part, to not relate to, or be probative of, any of the orders sought by her in her application.

20. That being the case, and despite the attitude displayed by her while making submissions, I attempted to give the grandmother ample opportunity orally to expand upon all such matters as she considered relevant in respect of the application.

21. Notwithstanding that many of the matters referred to by her orally were not the subject of evidence, I propose to treat them as such, having had regard to the provisions of Division 12A of the Act and, in particular, the statutory edicts as to the manner in which proceedings involving parenting orders ought be dealt with.

22. Accordingly, those matters raised from the Bar table by the grandmother (in what were effectively submissions), I intend to treat as evidence in support of her application. I do so primarily because I think it fairer to her, given her self-represented status, and because doing so represents the best chance of focussing upon the children’s best interests.

23. As best described it seems to me that the grandmother first makes a broad assertion (comprised of a number of specific allegations) to the effect that she has been treated badly by this court process - and probably by this Court. 

24. Specifically, she makes a number of specific allegations that she has been treated badly by Turner R.  She indicates that she has been told that Turner R is the only person with whom she should have contact within the Court. 

25. So much makes sense in light of the horrific history of litigation in this matter and the fact that this matter is in the Magellan list of cases and that Turner R - as well as being the senior Registrar attached to the Brisbane Registry of this Court - is also designated as the Magellan Registrar.

26. A death threat made by telephone to Turner R is being investigated by the Australian Federal Police.  The grandmother says that she has been spoken to by the Australian Federal Police.  I gather from what she said that this conversation occurred a significant period of time after the alleged threat was made or at least she alleges it to be so.

27. The grandmother says that, as a result of that, I should infer, and indeed I do infer, that the Australian Federal Police, at least, consider that she is a person of interest in respect of their investigation into that death threat.  It is, I gather, partly as a result of that she says that Turner R should be removed.

28. Secondly, the grandmother makes a submission that this Court has no authority to make orders varying or changing domestic violence orders, and that any such jurisdiction in respect of that is the province of other Courts.  I consider this an odd submission, probably because I do not understand the premise. 

29. I have by order made it clear that the parties, and those associated with these proceedings, should comply with the existing domestic violence order.  There has never, at any stage of the proceedings, been any suggestion by me (nor any order or direction made by me) which would remotely suggest any alteration to the terms of the domestic violence order. Every order made contemplates adherence to it.

30. Next, the grandmother suggests that the proceedings should be stayed. I gather this is based on s 69ZK. 

31. No evidence before me suggests that any order within the meaning of that section, relevant to any of the children in respect of which orders are sought in the parenting proceedings here are covered by any such order. 

32. It seems to me that to the extent that s 69ZK is called in aid of any proposed stay or any allegation of lack of jurisdiction, that assertion is misconceived.

33. Next, the grandmother asserts that she has “been very badly treated” by Mr Carter who is the independent children's lawyer.

34. She alleges, specifically, that he has lied and, further, that he has lied in respect of a recent telephone conversation which Mr Carter, at least, considers is likely to have been recorded by the grandmother. It seems implicit that the grandmother agrees that she did record that telephone conversation.

35. The specifics of the allegations in respect of Mr Carter are otherwise not particularised in the grandmother’s affidavit, but I note that a separate application is made which I will deal with in a moment.  The application seeks an order that Mr Carter be removed as the Independent Children's Lawyer.

36. Next, there seems to be a broad, but unspecified and unparticularised, allegation of bias on the part of me and/or this Court. 

37. The grandmother submits that I “work day in and day out with Registrar Turner” and as a result it is said, at least implicitly, that somehow my judicial mind will be biased by that fact. 

38. No evidence is put forward in support of the proposition. I regard it as preposterous and I reject it.

39. It seems that, in essence, the application to remove both Turner R, and these proceedings from this Registry, are based on the grandmother’s assertions as to the way she has been treated within the context of these proceedings in this Court. 

40. I do not consider that there is any evidence deposed to before me that provides any substance to any such assertion. 

41. Despite a number of applications by the grandmother that might be thought to have no relevance to such, the best interests of these children remain the predominant consideration in these proceedings and the predominant concern of this Court. 

42. This matter has, as I indicated earlier, been the subject of litigation in various Courts, all of which have, in one form or another, the children as their subject. 

43. Specifically, this matter within the Federal Magistrates Court or the Family Court, be traced back to the early part of 2008 when domestic violence proceedings were conducted in the State Courts and thereafter, an application for recovery and contravention was filed by the grandmother. Thereafter further proceedings ensued in the Federal Magistrates Court.

44. There were, at about the same time I gather, proceedings in the Children’s Court. 

45. Ultimately this matter was transferred to this Court by Wilson FM on 15 October 2008.  It will be appreciated, then, that, most recently, proceedings have been live in respect of these children now for well over 12 months.  It is without question in my view in their best interests that the proceedings be heard and determined at the earliest possible time. 

46. It is for that reason, and that reason alone, that I indicated earlier that a family report is to be prepared by Mr M and that my order include a notation that it be prepared irrespective of the attendance of the grandmother for the purposes of that report. Every attempt has been made previously by this court to facilitate and encourage her involvement in that process.

47. Furthermore, whilst I consider there is no proper foundation whatsoever for either the transfer of the proceedings from the Brisbane Registry or the removal of Turner R, I consider, additionally, that either or both of those events would be highly likely to very significantly impact upon this matter being heard and determined, which such delay I consider to be utterly contrary to the best interests of these children.

48. As regards the death threat made to Turner R by telephone and the subsequent investigation by the Australian Federal Police, the grandmother has, firstly, denied categorically that she was in any way, shape or form involved in that death threat. Secondly, she has indicated that she herself has spoken to the police and has requested them to continue a thorough investigation of that threat.

49. Accordingly it seems to me that any such investigation by the Australian Federal Police does not place her in jeopardy in the strict sense of that word should that investigation be carried out at the same time that these proceedings continue. 

50. Furthermore it is plain that, when a death threat is made to any officer of this Court the matter is firstly taken very seriously; secondly, the Marshall of the Court ensures that the Australian Federal Police conduct the most thorough investigation of any such threat and in the process of conducting any such investigation all parties who may, I repeat may, have had some involvement recently with the subject of the death threat are frequently the subject of the investigation.  I do not consider that the grandmother falls into any specific of different position in that respect. 

51. Accordingly the evidence in support of Order 1 and 2 sought by her does not assist my determination of her application.

52. For those reasons, but primarily because I consider it fundamental to the best interests of these children that these proceedings conclude and orders be made at the earliest possible opportunity, I dismiss the application in a case filed by the grandmother on 28 April 2009. 

53. At the conclusion of argument, Mr Carter the independent children's lawyer made application for costs fixed in the sum of $500 in respect of the application were it dismissed. 

54. The grandmother has indicated that she proposes to prosecute a further application which I will deal with now which seeks to remove Mr Carter from the proceedings.

55. I reserve, in the first instance, any question of the costs payable by the grandmother to the independent children's lawyer to those proceedings.

56. By application filed on 30 March 2009, the maternal grandmother seeks five orders. 

57. The first four are to similar effect and that is that the Independent Children's Lawyer, Mr Carter, should be removed from these proceedings.  The fifth order seeks an order that the mother, the second respondent to these proceedings, be assessed by a psychiatrist.

58. Earlier, I gave reasons for judgment in respect of a separate application filed by the grandmother. 

59. I direct that those reasons be incorporated with these reasons so as to form one set of reasons in respect of each of the two applications.

60. Pursuant to the terms of s 69ZX3 of the Act I have received into evidence Reasons for Judgment in the Court of Appeal of the Supreme Court of Queensland dated early 2009 (that is, a couple of weeks ago). 

61. That section of the Act provides that I can draw any conclusions of fact from the transcripts including, relevantly, the reasons, that I consider appropriate.

62. At par 8 of her Honour’s reasons she records:

    “On 30 March 2009” [ – I interpolate, the same day the applications with which I have dealt today were filed in this Court – ] “the applicant” [ – that is, the grandmother – ] “filed an application for orders including a two-week extension for her to prepare, file, lodge and serve the material on which she will be relying on her application for leave to appeal that the second respondent Mr Carter be removed as the children’s independent representative due to incompetence and neglect and that disciplinary action be taken against him for intimidating the applicant since early February 2009.  In support of her application she supplied a doctor’s certificate from Dr [B] of the […] medical practice, […], Sydney.  Dr [B’s] report” –

    -    and then her Honour quotes from that report.

63. It will be noted that the allegations made in the Court of Appeal of the Supreme Court of Queensland mirror precisely the allegations made in respect of Mr Carter in this Court. 

64. Ultimately her Honour found as follows (at par 15 of her Honour’s reasons):

    “The application filed on 3 March 2009 also requested that the second respondent be removed as the children’s independent representative and that disciplinary action be taken against him.  The applicant filed no material to support this extraordinary application.  In these circumstances I could only conclude that in seeking those orders her application mischievous, vexatious and abuse of process and must be refused.”

1. In this Court the grandmother purports to file evidence said to support the assertions made by her. 

2. For example, in respect of the assertion that Mr Carter has been intimidatory she specifically refers to annexure A and to annexures E1 and E2 of her affidavit.  Nothing in those email communications by him could possibly be regarded as being intimidatory.

3. In fact, it seems to me, the opposite is the case. That is, in my view Mr Carter, in what I can only describe as extraordinarily difficult circumstances in dealing with an extraordinarily difficult person, has behaved commendably.

4. He has attempted at all times to arrange such matters as this Court has considered appropriate as matters for investigation by an independent expert in order to ascertain, or should I say attempt to ascertain, in the midst of this ridiculous litigation, those matters that are in the children’s best interests.

5. As best I can ascertain it, the application made by the maternal grandmother is based on 10 separate assertions with respect to Mr Carter.  They are as follows:

   (1)He is “not doing the right thing by not passing on relevant correspondence to Mr [M]”;

   (2)That he is “not passing on” information in relation to the domestic violence order;

   (3)That the grandmother “doesn't think” he has explained to Mr M the domestic violence order [I interpose here that Mr Carter is subject to direction by me as a result of Court orders made by me on an earlier occasion];

   (4)She does not trust Mr Carter;

   (5)That he has been “sending strange emails”. When asked to explain what “strange emails” were she said they were emails that “leave everything up in the air”;

   (6)She asserts that, in an email communication (which I should add was a communication directed by me to occur by email), the email address used by Mr Carter was in fact an email address belonging to her husband. She received the email.  Mr Coleman lives in the same house.  Quite why this should be the subject of objection utterly escapes me.

   (7)She claims that Mr Carter “made a claim for costs when he has moved out to [N]”.  I am not sure what that assertion is supposed to mean.  I suspect it means that, in the course of these proceedings, Mr Carter has left the firm with which he was formerly connected and now, apparently, is asserted to be practising from N.  Quite what that has to do with the application also remains a mystery;

   (8)That the Court was being “led to believe that (the mother) had delayed these proceedings and caused trouble”.  I have been the Judge managing this case since the matter came into the Magellan list but nothing that I have seen, heard or read emanating from Mr Carter, sustains that assertion. I reject it utterly;

   (9)“He does not have the best interests of the children at heart”.  That is an assertion which not only remains completely unparticularised but is not supported by any evidence to which I have been referred;

   (10)Some assertion is made in respect of documents purporting to form part of a medical file which it is said are forged.

6. The grandmother also relied upon Mr Carter’s non-appearance at proceedings that occurred on 17 March before me. 

7. Mr Carter submits, correctly, that those proceedings were brought at the grandmother’s application on a very urgent basis.  He says that he was served by email dated 12 March 2009 but he did not receive until 19 March 2009.  The grandmother asks me to infer, in effect, that he is dishonest about that.  I do not infer that.

8. Mr Carter submits that, in respect of the alleged forged documents, any such documents relating to medical treatment that are specifically referred to by the grandmother are those which have been obtained during the usual course of inspection of subpoenaed documents.  He says that he does not have the documents – at least that he is aware of among the very many document he has.  If he does have them or if further searches reveal that he has them, they are documents that have been obtained via that subpoena and inspection process and in no other way.

9. The order seeking that Mr Carter not harass the grandmother is based on the assertions earlier made which I have rejected.

10. The Independent Children's Lawyer occupies a significant and important role in the context of children’s proceedings.  That is all the more so when allegations are made by litigants, frequently without foundation, about matters that might be described as factual but which have very little relevance, if any, to the best interests of children.

11. One of the specific roles of the Independent Children’s Lawyer is to marshal such evidence as is considered appropriate and for that evidence to be put before the Court as expeditiously as possible. 

12. It is a serious matter, then, to make allegations against an independent children's lawyer, including, significantly, allegations that an Independent Children’s Lawyer has lied and lied to a Court. 

13. No doubt the grandmother will make those allegations during the course of the trial and factual findings will be made by the trial Judge about those allegations.

14. If, however, pending a trial, an Independent Children's Lawyer who has had a long involvement in this very unsatisfactory case (both in this Court and in other Courts in the State jurisdiction) is to be removed, then a compelling case would need to be made out consistent with the best interests of the children for that to occur.  The grandmother makes out no such case. 

15. I utterly reject the assertions she makes and I dismiss her application.

16. I reserve the question of the costs of the first application.  I record that, at this point in the oral delivery of these reasons, the grandmother stood up from the Bar table and removed herself from the Court.

17. In respect of the application for costs made by the Independent Children's Lawyer in respect of the first application which I reserved to the hearing of this application, I reserve to the trial. No application is made for the costs of this application.

18. I will order additionally that the matter be mentioned again at the Magellan directions date on 17 July 2009.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  11 May 2009