Daniels and Barber

[2018] FamCA 436

FAMILY COURT OF AUSTRALIA

DANIELS & BARBER [2018] FamCA 436

FAMILY LAW – PRACTICE AND PROCEDURE – Mention preliminary to First Day of Trial – appointment of an independent children’s lawyer – case to which Trans-Tasman Proceedings Act 2010 applies – service of subpoenas in New Zealand – dispensation with compliance with certain requirements under Division 34.4 of Federal Court Rules 2011 and Family Court Rules 2004 for filing and service of application and affidavit in support – oral application allowed.

APPLICANT: Ms Daniels

RESPONDENT: Mr Barber

FILE NUMBER: MLC 11303 of 2016

DATE DELIVERED: 14 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. O’Shannessy

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

(1)This matter be fixed for a First Day Hearing before me on Friday 27 July 2018 at 9.00 am.

(2)The wife have leave to make an oral application to facilitate production of documents from outside Australia.

(3)Permission is granted to the wife to cause subpoenas to produce documents to be served on the following persons in New Zealand pursuant to the Trans-Tasman Proceedings Act 2010:-

a)      Mr B of C Lawyers, in respect of the D Trust;

b)      Mr E Barber in respect of the Barber Family Trust;

such service to be effected by not later than 19 June 2018 by post or electronically and to be accompanied by $50 conduct money.

(4)Liberty is reserved to the husband to apply within 7 days to vary or set aside the previous paragraph of this Order or as he may be advised.

(5)That pursuant to Section 68L(2) of the Family Law Act 1975 the children X born …2007 and Y born … 2010 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the independent children’s lawyer be appointed in sufficient time to be able to consider recommendations about what parenting orders would be in the best interests of the children by the next return date and in the meantime to consider the preparation of a s62G(2) report NOTING THAT the wife objects to Dr F preparing the report.

(6)That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

(7)That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

(8)My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniels & Barber has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11303 of 2016

Ms Daniels

Applicant

And

Mr Barber

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me as a mention preliminary to the first day of hearing, which I have, in consultation with counsel for the wife and Mr Harper, solicitor for the husband, appointed for Friday 27 July 2018 (estimated to take one hour).  There are two matters which the parties have sensibly addressed prior to the first return date. 

2. The first is the appointment of an Independent Children’s Lawyer.  The children here are aged 10 and 7.  They have been the subject of proceedings in the courts but initially the Federal Circuit Court since 2016.  The matter has moved slowly.  There has been one social science assessment, and that was by Dr F and was presented to the court in oral form on 12 December 2016.  There was then an appeal of the decision taken on the basis of that evidence.  The appeal was abandoned.  The proceedings were ultimately transferred into this court, and it has come to me.

3. Mr Harper was not enthusiastic about the appointment of an Independent Children’s Lawyer.  He didn’t oppose it.  Mr O’Shannessy was rather more keen to have one appointed.  Where there arises a question of evidence in relation to the independence or admissibility of an expert in a case, my view is that it may well be of assistance to have an Independent Children’s Lawyer.  It will facilitate there being someone other than the husband and wife to choose practitioners and have input and to ready the matter for trial.  Otherwise, this is a case of high parental conflict which is intractable.

4. I will request an Independent Children’s Lawyer noting that on the first date, we will have to consider who prepares a report pursuant either to section 62G(2) of the Act for the court will pay or privately. 

5. The role of the independent children’s lawyer is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what he or she believes to be the best interests of the child.[1]  The independent children’s lawyer is not a legal representative retained by the child and is not bound by any instructions from the child.[2]  The role of the independent children’s lawyer is to deal impartially with the parties, to ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]

   [1] s 68LA(2) Family Law Act 1975 (Cth).

   [2] s 68LA(4) Family Law Act 1975 (Cth).

   [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

   [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

6. The next matter was raised by Mr O’Shannessy, and I must say has been dealt with a great degree of common sense by Mr Harper, and that was the issue of a Trans-Tasman subpoena pursuant to Chapter 26A of the Family Law Rules, which import provisions of the Trans-Tasman Proceedings Act 2010 and Division 34.4 of the Federal Court Rules 2010. Mr Harper says that his client has complied with his responsibilities for disclosure and discovery of documents but admits that the solicitors for the wife have sought financial statements for the last three years from two named trusts in New Zealand which statements have not been forthcoming.

7. They are, in particular, the Barber Family Trust, of which Mr B, a solicitor of C Lawyers, New Zealand is the trustee.  I beg your pardon, the trust of which Mr B is the trustee is D Trust.  The other family trust is the Barber Family Trust, of whom the trustee is the husband’s brother, Mr E Barber, who is also a resident of New Zealand. 

8. The solicitors for the husband have sought financial statements for the last three years from the trustee of each trust and have been told that the documents will not be made available. 

9. The matters to which I properly have regard as particularised in the submissions of Mr O’Shannessy are set out in the Federal Court Rules 2011 – Rule 34.66 - are as follows:

   a)The documents sought are the financial statements for the last three years for the trust.  The basis for this request is that the husband, during the marriage relationship and in particular in 2010, received an advance in the vicinity of $80,000.  I do not know from which trust.  There were other distributions between 2014 and 2017 which are not estimated as to value.  The parties cohabited for approximately 13 years, separating in July 2016 under the one roof and then with the mother moving out of the house in November 2016.  Accordingly, all distributions and advances came during the period of cohabitation or relatively shortly after separation.  It seems to me that that is relevant, because it must be known whether they were received by way of loan or distribution entirely and what other interest, if any, the husband may have or be entitled to have in the trust or both of them.

   b)There have been steps undertaken to obtain the documents.  I understand that the practitioners for the husband have written to C Lawyers asking for documents and have been told they won’t be available.  The solicitors for the husband shared that correspondence with the wife.

   c)The date by which the subpoena must be served.  I am advised by Mr O’Shannessy that his instructing solicitors require 21 days to draw an engross subpoena.  It seems like a fair amount of time.  They should do so carefully.  They might not get be a second bite of the cherry.  They may even choose to draw it in draft form, send it to C Lawyers and see if they say that there’s anything wrong with it, but that’s a matter for those two solicitors.  Assuming that the subpoena is ready by the first week of June 2018, it seems to me that it should be served by not later than 18 June 2018.  The subpoena is a subpoena to produce documents only, and the Federal Court Rules allow this to be done electronically or by post.

   d)I am informed that $50 in conduct money will be provided to the recipient of each subpoena.  And as documents are only required to be produced either at the High Court or this court via post, that seems sufficient.  Of course, if there are extensive photocopying charges, that $50 conduct money the wife will have to meet expenses reasonably incurred by the recipient in complying with the subpoena.

10. I have no direct evidence of it, but I am confident that Mr B is going to be over the age of 18, and so is Mr Barber. 

11. Rule 26.19.01 provides that Division 34.4 of the Federal Court Rules 2011, as modified by Rule 26A.02 apply to these proceedings. Both Rules of Court provide that compliance with the Rules can be dispensed with (see FCR2011 Rule 1.34 and FLR2004 1.12) I am satisfied in all of the circumstances that there should be dispensation with the rules which require an application in a case and an affidavit in support for permission to serve a subpoena in New Zealand. They do not serve any purpose.

12. Mr Harper does not believe that there is anything in respect of which he should get instructions at this point.  However, for the avoidance of doubt and in recognition of the responsible way in which he has conducted the matter this morning, I permit him seven days to seek any variation or to discharge this order in relation to the subpoena on informing anyone in writing, including my Associate, of the nature of the controversy.

13. I stress that the impact of this order is merely to get documents from New Zealand to Australia and into court reliably.  It does not mean that such documents as are produced in compliance with the subpoenas (or other of them) will ultimately be admissible in evidence before me. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 May 2018.

Associate: 

Date:  18 June 2018