Darley and Darley (No. 2)

[2017] FamCA 791

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 2) [2017] FamCA 791

FAMILY LAW – CHILDREN – Family consultants – Application for replacement of the Family Report Writer – Where the mother seeks an order that the Family Consultant be replaced – Where the mother challenges the expertise and qualifications of the Family Consultant to deal with matters of family and domestic violence – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for discharge of Independent Children’s Lawyer – Where the mother seeks an order that the Independent Children’s Lawyer be discharged – Application dismissed.

Family Law Act 1975 (Cth)

Knibbs & Knibbs [2009] FamCA 840

APPLICANT: Mr Darley

RESPONDENT: Ms Darley

INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

FILE NUMBER: BRC 2317 of 2013

DATE DELIVERED: 29 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kingston, Norman & Kingston

Orders

IT IS ORDERED THAT

1. The Application in a Case filed on 30 March 2016 by the Applicant is dismissed.

2. The Amended Application in a Case filed 7 August 2017 by the Respondent is dismissed.

3. The Application in a Case filed on 10 August 2017 by the Respondent is dismissed.

AND IT IS FURTHER ORDERED THAT

1. The time for compliance with Clauses 4, 5 and 6 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 10 October 2017.

2. The time for compliance with Clause 9 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 13 October 2017.

3. The time for compliance with Clause 10 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 16 October 2017.

4. The time for compliance with Clauses 14, 16, 17 and 18 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 10 October 2017.

5. The time for compliance with Clause 19 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 13 October 2017.

AND IT IS FURTHER ORDERED THAT

1. The Application in a Case filed on 10 April 2016 by the Respondent is adjourned to the first day of the final hearing on 17 October 2017.

2. The Application in a Case filed on 12 May 2016 by the Respondent is adjourned to the first day of the final hearing on 17 October 2017.

3. The Amended Application in a Case filed 28 September 2017 by the Respondent is dismissed.

AND IT IS FURTHER ORDERED THAT

1. In the event that Mr H has not provided his notes by way of Annexure to his affidavit, then Mr H is to provide a copy of his notes to the Court by 10.00 am on first morning of the trial, 17 October 2017.

NOTATION

(A)The Application in a Case filed 30 March 2017 is dismissed on the basis that subsequent Orders were made by Forrest J that dealt with the substance of that Application.

(B)The Amended Application in a Case filed 7 August 2017 and the Application in a Case filed 10 August 2017 were dismissed on the basis that the Orders made today dealt with the relief sought.

AND IT IS FURTHER NOTED THAT

(C)The Court today provided the Applicant and Respondent with an explanation about process and procedure in discharge of the obligations imposed by Re F:  Litigants in Person Guidelines (2001) FLC 93-072.

(D)It is inappropriate to communicate directly with Chambers other than in exceptional circumstances and any such necessary and exceptional communication must be with the consent of all parties and contemporaneously copied to all parties.

(E)All communications, unless otherwise directed, should be via the Registry to … to the attention of the case manager or to the National Enquiry Centre on ...

(F)In the event that a witness is required for cross-examination and leave is given for that witness to be cross-examined by telephone, the party calling that witness shall notify the Case Co-ordinator of the telephone number to be used to contact that person.

(G)Such leave for a witness to attend by telephone is conditional upon each witness being informed that they are:

(a)to be in a private place when they are called to give evidence;  and

(b)to have with them a copy of their affidavit/s or report/s;  and

to have available to them a method by which they can receive, electronically, any documentation that any party may wish them to be shown during the course of cross-examination.

(H)The Court today advised the parties of the importance of complying with the trial directions made on 6 July 2017.

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 Darley & Darley (No. 2) 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 BRISBANE

FILE NUMBER: BRC 2317 of 2013

Mr Darley

Applicant

And

Ms Darley

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. I have this morning before me an Amended Application in a Case filed by Ms Darley at 7.14 pm yesterday.  Despite the late filing of that document, which was accompanied by a substantial affidavit, itself filed at 6.22 pm yesterday evening, neither the father nor the Independent Children’s Lawyer sought to adjourn the hearing and determination of the Application. 

2. Reference to the relief sought within it establishes that, in a sense, it addresses two separate issues. 

3. Before turning to those, the matters sought by way of relief as particularised in paragraphs 1 through 3 of the Amended Application in a Case have already been the subject of orders and do not need further consideration. 

4. The other aspects of the Application can, as I have said, be broken into two separate categories, it seems to me, although they are interlinked, in a sense. 

Challenge to Family Consultant’s expertise

1. The first is, in essence, that the appointment by the Independent Children’s Lawyer of Mr H, upon whom it has already been ordered the mother and children attend for interview this coming Monday in order to facilitate the hearing of the trial set for 17 October 2017 before me, be the subject of inquiry, and that, in essence, that report process not go ahead.

2. Issues are raised by Ms Darley, and challenges to Mr H’s expertise are clearly put on record: in relation to his expertise to deal with matters which include circumstances in which there have been made allegations of family and domestic violence. 

3. As I have outlined to Ms Darley during the course of discourse with her this morning, of course it is entirely appropriate that she raise with Mr H those concerns and issues.  It is entirely appropriate that they be the focus of consideration.  And, of course, more importantly, it is entirely appropriate that such allegations and counter-allegations be the subject of fact finding by me at the trial.

4. As I have outlined, that is one of the reasons why I have accorded to this matter priority: namely, because it has been within, speaking broadly, the family law system for a considerable period of time.  And equally, if not more importantly, it involves allegations of family violence and the impact upon the children of exposure to the same.

5. I consider it clearly established, when regard is had to page 47 of the mother’s affidavit filed yesterday (being correspondence from the Independent Children’s Lawyer to Mr H dated 10 September 2017) that included within the documents provided to Mr H at that time was an affidavit by Dr J, filed 14 November 2013. 

6. Reference to that affidavit contains Dr J’s outlining or summary of the information provided to him by each of the parents during their respective interviews.  Reference to it will clearly establish that Ms Darley raised with Dr J the allegations of family violence, as well as other issues that remain, it seems, live issues for determination at trial.  It is therefore, in my view, established that because Mr H has been provided with Dr J’s affidavit, he will be able, from reference to it, to be fully aware about the issues raised by each of the parties. 

7. It is also, of course, relevant to note that at the time the information and documents were provided by the Independent Children’s Lawyer to Mr H, there had not been compliance with the directions made by the Registrar in July of this year in relation to the filing of affidavit material by Ms Darley.  In fact,  her opportunity to file affidavit material has been the subject of further order made earlier this morning. 

8. I am not persuaded, on the material relied upon by the mother, to grant the relief sought in paragraphs 4 through 11 of the Amended Application in a Case filed yesterday. 

9. I consider, as I have outlined, and for the reasons I have already expressed during discourse with Ms Darley and the Independent Children’s Lawyer (to a lesser extent) that any issues in relation to the weight to be accorded to Mr H’s report can be the subject of submission, following his cross-examination.  It is, of course, entirely appropriate that a party who seeks to challenge the weight to be accorded to the contents of any report do so following cross-examination, in which they are perfectly entitled to explore issues of, or touching upon, experience and the basis for whatever opinions are expressed by the author of that report. 

10. It is also, of course, a matter entirely for parties to seek to adduce other expert evidence touching upon issues that they say are relevant.  Again, that is why Directions are routinely made by Registrars in this Court in their often vain, or often desperate attempts, perhaps, to ensure that parties prepare the material they wish to rely upon and file it in a timely manner. 

11. Insofar as the relief contained in paragraph 12 is concerned – namely, that the Family Report writer produce notes made during the assessment to the parties – I consider it appropriate that Mr H provide to the parties a copy of the notes he has taken in preparing his report, and that he do so at some time prior to his cross-examination. 

12. It seems to me appropriate that, if possible, he provide to the Court a copy of his notes by 10.00 am on the first day of the trial.  If that is not possible, then it is certainly a matter to which I will return on the first day of the trial so that an order can be made for the provision of those documents as soon thereafter as possible.  In that way, then, parties will have an opportunity to peruse whatever notes Mr H takes, and then produces, prior to his cross-examination. 

Application for discharge of the Independent Children’s Lawyer

1. I turn now to deal with the remaining aspect of the mother’s Amended Application in a Case: namely, an order for the discharge of the Independent Children’s Lawyer. 

2. I intend to dismiss that aspect of her Application also. 

3. I do so taking into account the submissions made by Mr Kingston.  In particular, I note that the issues relating to the Independent Children’s Lawyer’s choice of Mr H that are said to provide a basis for, or a basis upon which I would be minded to make an order discharging the Independent Children’s Lawyer seem first to have arisen, in some way at least, as long ago as early June 2017.  I note, of course, that the application for an order discharging the Independent Children’s Lawyer was contained in the Amended Application in a Case filed after the close of the Registry last night. 

4. The lateness of an application would not, of course, prohibit the making of an order discharging the Independent Children’s Lawyer if that were otherwise thought appropriate on the material before the Court. 

5. However, I am not persuaded, on the material relied upon by Ms Darley, that the evidence she seeks to rely upon reveals any fact or circumstance which would give rise to a reasonable concern that the Independent Children’s Lawyer at this stage has either failed properly to discharge his obligations, or, in particular, that his objectivity and impartiality is compromised in the manner or way suggested by Ms Darley. 

6. There is, of course, every opportunity for the parties to present their evidence at the trial.  As I have emphasised during the course of discourse today, it is entirely appropriate and open to any party engaged in litigation in this Court, in which there is an Independent Children’s Lawyer, to form their own view about the relevance of documents and to seek to tender those documents in their own case.  It is not a matter for the Independent Children’s Lawyer to determine an answer to the issue of relevance.

7. If there are documents that the Independent Children’s Lawyer tenders that Ms Darley says should be supplemented by other documents, produced pursuant to subpoena, it is of course entirely appropriate that she seek to tender them during the course of the trial: decisions can be made at that time in relation to the receipt or otherwise of the same. 

8. Further, as Murphy J noted, for example, at paragraph 102 of his decision in Knibbs & Knibbs[1], the Court is not bound in any parenting case to accept whatever views or submissions are proffered or made on behalf of an Independent Children’s Lawyer, either in whole or in part. 

   [1] [2009] FamCA 840.

9. It is, of course, the role of an Independent Children’s Lawyer to gather evidence that that party considers to be relevant and to ensure that it is presented to the Court.  But it is also, as I have continued to emphasise, the role of parties – being parents, and, in that sense, perhaps, eminently placed – to ensure that the Court has available to it all of the evidence that is said to be relevant to the decisions the Court is asked to make in support of the ultimate orders for parenting for children, those orders being those which are determined to be in the best interests of any children in any particular case.

10. At this stage, and for these very short reasons delivered orally, I dismiss the Amended Application in a Case filed 28 September 2017. 

Application seeking an order for production of Family Report Writer’s notes

1. I make an order in terms I have outlined in relation to the provision by Mr H of his notes by 10.00 am on the first day of the trial. 

2. I give liberty to the parties to raise the issue of the provision by Mr H of his notes, if it is not possible for them to be produced by 10.00 am on the first morning of the trial, at the first morning of the appearance before me on 17 October 2017. 

3. I otherwise make orders in terms that I have already discussed in dealing with the extension of time for the filing of material.  And, again, I emphasise to the parents, who are both litigants in person, the importance of providing their evidence to the Court, because it is their evidence, and the evidence before me that will, of course, inform the decisions that ultimately will be made. 

4. The order will remain requiring the production of the notes by the first morning, but I will amend it so that it reads that, in the event that Mr H  has not otherwise provided the notes by way of annexure to his affidavit, anticipated to be filed, then he will produce them by 10.00 am on the first morning of the trial.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 September 2017.

Associate:

Date:              29 September 2017