Donalds and Donalds (No. 2)
[2021] FamCA 574
•27 July 2021
FAMILY COURT OF AUSTRALIA
Donalds & Donalds (No. 2) [2021] FamCA 574
File number(s): MLC11505/2020 Judgment of: BENNETT J Date of judgment: 27 July 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – split hearing to be conducted between Melbourne and Newcastle.
FAMILY LAW – EVIDENCE – admissibility – relevance – expert evidence – self represented litigants.
Legislation: Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)
Cases cited: Donalds & Donalds (first day) [2021] FamCA 521 Number of paragraphs: 27 Date of hearing: 27 July 2021 Place: Melbourne Counsel for the Applicant: Mr Goddard Solicitor for the Applicant: Joseph David Lawyers Solicitor for the Respondents: Appearing in Person Solicitor for the Respondents: Appearing in Person Counsel for the Independent Children's Lawyer: Mr Turner Solicitor for the Independent Children's Lawyer: Nicholes Family Lawyers ORDERS
MLC11505/2020 BETWEEN: MR DONALDS
Applicant
AND: MS DONALDS
First Respondent
MS GREGG
Second Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
27 JULY 2021
THE COURT ORDERS THAT:
UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019;
And further noting that the parties have each been advised by the court:
(a)that pursuant to those requirements, neither party may cross-examine the other party personally;
(b)that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
(c)as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d)that a copy of these orders will be provided by the court to Victoria Legal Aid which administers the said scheme.
IT IS ORDERED THAT;
1.The father make application to Victoria Legal Aid under the Cross-Examination Scheme for representation at the final hearing as contemplated by s 102NA (2) of the Family Law Act 1975.
2.The Application in a Case of the maternal grandmother, Ms Gregg, dated 14 July 2021 be filed this day and made returnable this day and the maternal grandmother forthwith arrange for service of the Application in a Case on each other party to the proceedings by electronic means.
3.That this matter be fixed for final hearing before me as follows:
(a)24, 25, 26 and 27 August 2021 in the Melbourne Registry of the Family Court of Australia; and
(b)9, 10, 16 and 17 September 2021 in the Newcastle Registry of the Family Court of Australia, New South Wales;
(“the final hearing”).
4.Each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her/their case, such documents to be filed to be as follows:-
(a)The following witnesses of the mother as described in her outline of witnesses as being witnesses in respect of whom the mother proposes to rely on further evidence other than that which has already been filed:
(i)Mr J;
(ii)Ms L;
(iii)Mr B;
(iv)Ms H;
(v)Mr K;
(vi)Ms M;
(vii)Ms O;
(viii)Ms N;
(ix)Ms P;
(x)Mr R;
(xi)Ms Q;
(xii)Mr T;
(xiii)Mr S;
(xiv)Ms V;
(xv)Ms U;
(xvi)Ms W;
(xvii)Ms Z;
(xviii)Ms AA;
(xix)Ms BB;
by not later than 2 August 2021
(b)The applicant father by 6 August 2021;
(c)The second respondent maternal grandmother by 9 August 2021;
(d)The respondent mother as to her own evidence by 13 August 2021 NOTING THAT this evidence will supplement the mother’s affidavit of evidence in chief sworn 12 July 2021 but the mother will not rely on her other affidavits already filed;
(e)The applicant father in reply by 20 August 2021.
5.Pursuant to section 62G(2) of the Family Law Act 1975 an update/addendum family report be prepared. For that purpose the maternal grandmother and children X, male, born … 2019 and Y, male, born … 2021 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of the addendum Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. Such report to be commenced by not earlier than 13 August 2021 and be released by not later than 18 August 2021 AND IT IS NOTED THAT an earlier family report has been prepared by Mr F.
6.The family report deal with the following matters:-
(a)any views expressed by the child/ren and any factors (such as the child/ren’s maturity or level of understanding) that may affect the weight that the court should place on those views;
(b)the matters set out in s60CC of the Family Law Act;
(c)an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;
(d)recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child/ren’s best interest to the greatest extent possible.
7.For the avoidance of doubt the family consultant, Mr F, be and is hereby authorized to have reference to:-
(a)all documents filed in these proceedings;
(b)any documents produced on subpoenae and released for inspection by all parties;
(c)any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;
(d)any documents or things referred to in this Order.
8.The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings unless specifically referred to in final orders and specifically discharged.
9.Not less than 14 days prior to the commencement of the final hearing, the parties determine what, if any, rulings are required as to the admissibility of evidence and notify my Associate – email …@familycourt.gov.au – that the matter requires Court time AND IT IS DIRECTED that such strike out application may be listed before me for up to 2 days if practicable prior to the commencement of the final defended hearing, but otherwise the objections will be dealt with at the beginning of the final hearing.
10.Any party against whom a ruling is made striking part of that party’s affidavit or that of their witness, must file and serve a copy of the affidavit(s) from which the inadmissible has been redacted and do so by not later than 9:00 a.m. on the next working day after the agreement to strike out or the strike out ruling.
11.Any solicitor / practitioner who prepares an affidavit from which portions are ruled inadmissible and are struck out may be precluded from charging for that part of the affidavit which is struck out in addition to being liable for costs incurred on any strike out application (or a proportionate part thereof). Practitioners must be ready to deal with issues arising from material being struck out of evidence including issues of conflict between the interests of the solicitor and the interests of the client.
12.If a legal practitioner is precluded from charging costs for preparation of material which is struck out, he/she particularise for his/her client the amount of money by which the client’s legal costs will be reduced as a consequence of the material being held to be inadmissible.
13.Each of the father, MR DONALDS, the mother, MS DONALDS, and the maternal grandmother, MS GREGG, and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the children X, male, born … 2019 and Y, male, born … 2021 from the Commonwealth of Australia.
14.X, male, born … 2019 and Y, male, born … 2021 be and are hereby restrained from leaving the Commonwealth of Australia.
15.IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order.
16.A copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia
17.By not later than 20 August 2021, each party file and serve:-
(a)a case outline document; and
(b)a list of documents to relied upon by that party –
and send same to my Associate by email – …@familycourt.gov.au.
19.The case outline document summarise that party’s parenting case including, but not necessarily limited to, the following issues:-
(a)a) Whether the presumption in relation to equal shared parental responsibility is rebutted and, if so, on what basis; and
(b)b) Whether it is the best interests of X, male, born … 2019 and Y, male, born … 2021 to spend equal time with each parent and, if not, why not; and
(c)Whether it is the best interests of the children for the parent with whom the children are not primarily resident to be entitled to spend substantial or significant time to spend equal time with the children and, if not, why not; and
(d)What parenting orders are sought by that party;
(e)Why the parenting orders sought by that party are in the best interests of the children having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.
20.By not later than 20 August 2021 the independent children’s lawyer provide to each other party to the proceedings and by email to my Associate:-
(a)a chronology of relevant events;
(b)a minute of the orders which in the preliminary view of the independent children’s lawyer ought to be made at the final hearing;
(c)a list of documents upon which the independent children’s lawyer intends to rely.
and the parents, through their legal practitioners, cooperate with the independent children’s lawyer to ensure, to the extent that it is practicable to do so, that the information contained in the chronology is agreed to be accurate.
21.The father and the mother each be in a position on the first day of the defended hearing to specify what orders he/she will seek if he or she does not succeed with his/her primary position as to the state in which the children will live.
22.The parties prepare an Electronic Court Book using EBrief Ready AND IT IS DIRECTED that for this purpose my Legal Associate provide the template of the Electronic Court Book to the solicitors for the parties and the solicitor for the applicant include their documents first.
23.The mother and the father participate, by themselves and their legal advisers, in any round table conference which the independent children’s lawyer appoints, through the Victoria Legal Aid Family Dispute Resolution Service, in the week commencing 16 August 2021 and the independent children’s lawyer notify my Associate,– email - …@familycourt.gov.au - as soon as possible of the date and time of the conference, once appointed.
24.IT IS REQUESTED that the family consultant, Mr F, be available to discuss the matter by telephone with the independent children’s lawyer on the day of any round table conference appointed pursuant to paragraph 23 of this Order.
25.Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the independent children’s lawyer is hereby authorised to provide to Victoria Legal Aid Family Dispute Resolution Service Management:-
(a)any family report;
(b)any document referred to in this Order;
(c)any document filed in these proceedings; and
(d)any other report by a professional in this matter that the independent children’s lawyer considers is necessary.
25.In the event that this matter resolves prior to the hearing date, the solicitors for the parties and the independent children’s lawyer notify my Associate promptly.
AND IT IS NOTED BY THE COURT:
A.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
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 Donalds & Donalds 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).
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This matter comes before me for directions for a trial which I have ordered will commence in Melbourne on 24 August 2021. Mr Goddard, of counsel, appears on behalf of the father. The mother appears in person. Mr Turner appears on behalf of the Independent Children’s Lawyer. Ms Gregg, the maternal grandmother, appears on her own behalf.
Hearing dates
The hearing will be split between the courts’ registries in Melbourne and Newcastle. The parties, their witnesses and counsel will remain in their local registry and the court will travel between the Melbourne and Newcastle. I have allocated days for hearing this matter face to face in the Newcastle registry. At the moment those dates are 9 and 10 September and 16 and 17 September 2021. Those dates may change, depending on access to the state of New South Wales. At the moment it is mooted that New South Wales may be subject to hard border restrictions until the end of September. If that is so, those dates would be vacated and the first available dates that I have, in which I could sit in Newcastle, after 1 October 2021 will be allocated.
Application by the maternal grandmother
On or about 15 July 2021 the maternal grandmother sent an application in a case to the registry, which has apparently not been filed or allocated a return date. I now give permission for that document to be filed as of today and for it to be returnable this day. I and I will make directions on that application.
The maternal grandmother’s application is somewhat derivative of the mother’s application in a case filed 13 July 2021, which was dealt with by me at paragraphs 30 to 73 of my earlier reasons, court neutral citation Donalds & Donalds (first day) [2021] FamCA 521. The orders sought by the maternal grandmother are stated as follows:
1.I seek to join the proceedings. I am the children’s Grandparent and have spent 40 to 80 hours per week with them assisting Ms Donalds with their care.
2.The children remain permanent residents in New South Wales with the mother who is a NSW resident with 17 family, 35 friends and 8 professional supports for X with special needs and their mother who has been diagnosed with severe PTSD and Depression.
Also considering the increasing outbreaks and lockdowns of COVID 19 in both states the high risk of movements with my daughters autoimmune disease puts her at high risk of death.
3.A STAY on June orders that my grandchildren and daughter return to Victoria; and that Y has been erroneously added to the orders.
4.We have a significantly large family unit who contribute to the well being of the children and their mother.
5.I have high concerns about the safety of the children. There is unacceptable risk of harm should they be in their fathers supervision or care unsupervised.
6.The father is a flight risk, he has told the majority of family members as well as everyone at church in Melbourne that he wants to raise his boy/s in New Zealand. I request that the children be put on a National Register to prevent them being able to be taken on a place out of Australia.
7.Orders I am seeking as below;
a)Have regular time/access with the children and my daughter at least three times a week.
b)That the children live with their mother in NSW where I am able to supply constant support.
c)That X and Ms Donalds continue with their current medical team of experts/therapists for their health, wellbeing and Xs development.
d)That proceedings be of a more normal pace. Not escalated which to date has threatened the very life of Ms Donalds and Y. The well-being and quiet enjoyment to live life in the absence of fear and extreme compulsion/coercion is not in the best interests of the children.
e)That the father Mr Donalds, provide a copy of his current contract (for work) to be supplied to the court, where Mr Donalds is advising he has a solid 5-7 years of work secured.
f)Proceedings be moved to NSW to a registry which has access to the lighthouse program for Domestic Violence victims. The Domestic Violence in this case cannot continue to be minimised. SEE EXHIBIT 7- Lighthouse project for Domestic Violence Victims; and EXHIBIT 8- Australian Domestic and Family Violence Clearing house issues paper written by partnerships of against Domestic Violence and the University of NSW.
g)The father is a flight risk, having told a number of family members and EVERYONE at church that he wants to raise his boy/s in New Zealand. My grandchildren must be protected from this occurring. I want the children to be put on a National List that they cannot be put on flights outside of Australia.
Many of the orders sought by the maternal grandmother are not in an appropriate form and will be vulnerable to being struck out if not recast in any amended application. The parties, particularly any party who is not legally represented, must obtain an understanding of the distinction between specifying precisely what orders are sought and the evidence needed to support an application for an order.
The maternal grandmother does not have any affidavit material in support of her application in a case but I have consolidated the maternal grandmother’s application with the applications which are set down for final hearing to commence on 24 August 2021. I have made provision for the grandmother’s affidavit evidence to be filed and served by 9 August 2021 and for it to be responded to by the other parties to the proceedings.
Maternal grandmother as an unrepresented litigant
The maternal grandmother queried whether she is entitled to a section 102NA lawyer for the purposes of final hearing. Division 4 of Part XI of the Family Law Act 1975 (Cth) provides that, from 10 September 2019, unrepresented parties will not be permitted to personally cross-examine another party if there are allegations of family violence and:
- either party has been charged with or convicted with an offence involving violence or threat of violence involving the other party: s.102NA(1)(c)(i);
- a final Family Violence Order applies to both parties: s.102NA(1)(c)(ii);
- an injunction has been made under section 68B or section 114 of the Family Law Act for the personal protection of one party against another: s.102NA(1)(c)(iii); or
- the Court makes an order that personal cross-examination should not be permitted: s.102NA(1)(c)(iv).
In matters involving alleged family violence which do not fall into the above categories, the Court may permit personal cross-examination by an unrepresented party but must ensure alternative protections, such as cross-examination via video link, are implemented: s.102NB. Parties who are not permitted to personally cross examine another party may retain private legal representation or apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme to obtain legal representation. The mother has been assigned two such lawyers and has now applied for a third s.102NA lawyer for the final hearing.
The maternal grandmother is not a person for whom the appointment of a s.102NA lawyer is mandatory. Given the short time before the hearing I am not inclined to exercise my discretion to order that personal cross-examination should not be permitted as between the father and the maternal grandmother and request that a 102NA lawyer be appointed for her. The only basis upon which the maternal grandmother said that she might be eligible, by virtue of family violence, was that the father has denigrated her family and besmirched its reputation by saying, amongst other things, that all of her family are “crazy”. That complaint does not bring the maternal grandmother within the operation of the mandatory provisions of the legislation nor do I regard it as speaking of the sort of disadvantage to which section 102NA is directed.
Supplementary s.62G(2) Family Report
I have ordered a supplementary Family Report to be prepared by Mr F, Reg.7 Family Report writer. That is at no cost to the parties and will be done prior to the commencement of the trial. It will not be able to be done face to face due to pandemic restrictions. Amongst other things, that report should have some focus on the historical relationship between the mother and the maternal grandmother and the maternal grandmother and the children in light of the father’s allegation that the maternal grandmother was not particularly involved with the family’s day to day life prior to separation.
Evidence
Parties to this proceeding, particularly those who are not represented by a lawyer, will be assisted by an understanding of:
·what evidence is relevant;
·the distinction between an allegation and evidence by which an allegation is proved;
·the distinction between a submission (argument) and the evidence on which a submission (argument) must necessarily be based before it can be put.
The mother has presented her witness list, drawn in accordance with paragraph 2. of my order of 15 July 2021. The witness list is headed:
Please note; it is definitely not about numbers. All of my witnesses were chosen for a reason. I certainly don’t want to have any more time away from spending with the babies than is absolutely necessary. Each [witness] have pertinent information as to proceeding as witness.
I have perused the witness list briefly during this morning’s hearing. There are a few points which need clarification.
Whereas the mother says that she relies on her affidavit sworn 27 November 2020, 9 December 2020, 15 December 2020, 1 March 2021, 19 May 2021 times two and 12 July 2021 and “will have addition/update coming”, it is, in fact, only the affidavit of 13 July 2021 upon which the mother will rely plus “an updating affidavit” which is to be filed and served by 13 August 2021. That supplementary/updating affidavit will augment her affidavit of evidence-in-chief with any further developments in the matter and will contain her response to the father’s evidence which he is required to file and serve in affidavit form by 6 August 2021.
I discussed with the mother the difference between a barracker or a supporter of her case and a person who is competent to give evidence relevant to a determination of a matter in issue between the parties. It is the latter which is required under section 55 of the Evidence Act 1995 (Cth), which provides, subsection (1):
The evidence that is relevant to a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Mr Goddard has prepared some preliminary objections to evidence, to which I was not taken in detail, but I did ask him to identify an affidavit which he considers contained a high amount of inadmissible material. He chose the affidavit of Ms M, sworn 6 June 2021. The mother’s summary of that affidavit is:
Ms M has known, admired, worked with and respected our family for years. She knew Mr B with his cheerful disposition prior to Melbourne and now, 2021, noticing he has lost his spark (after abuse for eight and a quarter years). She provides consistent practical care, assistance to the children and me, constant support in New South Wales every week. Ms M’s observations of the children and I.
Going through the affidavit paragraph by paragraph, it was nearly wholly irrelevant. The exception being the extent to which the mother could rely on Ms M as a support person if the mother and the children are permitted to remain in Suburb D. However, Mr Goddard indicated that the fact that the mother has a support network in Suburb D is not contentious. I have not struck out the affidavit of Ms M but will do so when we deal with objections to evidence. If the degree of support for the mother in Suburb D does become an issue, the mother can apply to rely on Ms M’s affidavit.
Preferably, objections to evidence will be dealt with prior to the commencement of the final hearing. However, if time does not permit that to occur, objections will be taken on the first day of the final hearing. I do not consider that this is a case where irrelevant evidence can be admitted subject to considerations of what weight (if any) I may attribute to it because, prima facie, the party relying on irrelevant evidence would fairly assume that it will be accorded weight and the other parties to the proceedings will have to go to the time and trouble of responding to such evidence.
A good starting point to gauge relevance of material is to look at s.60CC of the Family Law Act 1975 (Cth) and match the “evidence” sought to be relied upon with a primary or additional considerations which is contentious as between the parties (or some of them) and be able to say how the court will be assisted by the “evidence” to make a decision about the contentious issue. Material which is struck out is disregarded. I will have a copy of s60CC attached to these reasons when they are settled.
The parties, and particularly those who are not legally represented, should be aware that it will not be possible to file evidence other than in accordance with the directions made today. No further evidence (affidavits or proofs of evidence) can be filed or relied upon once the hearing starts unless and until the court gives permission for further evidence. The court’s discretion to permit further evidence is informed, first and foremost, by the relevance of the evidence to an issue(s) in the proceedings and then, amongst other things, by the extent to which other parties will be prejudiced or disadvantaged by the evidence being produced late.
Expert evidence
The next matter with which Mr Goddard took issue was the number of reports or letters or statements by expert witnesses which are relied upon by the mother but merely annexed to an affidavit by her. This being a parenting trial, the application of the rules of evidence are relaxed pursuant to section 79ZT(1)(a) of the Family Law Act 1975 (Cth). Therefore, to the extent that the evidence is relevant and has probative value, it is admissible. The fact that the author is not put before the Court for cross-examination may significantly impact upon any weight that I would accord the document, but weight is not an issue of admissibility.
Mr Goddard submitted that any reports or statements by expert witnesses should be in standalone affidavits which are prepared and filed by the mother. That is correct. However, in relation to any expert witness upon whom the mother relies, who has not made a standalone affidavit, it seems to me that the deficits around the report being attached to the mother’s affidavit may be overcome if:
(1)the witness is available to verify the accuracy (swear up to) the report sought to be relied upon;
(2)the witness is available for cross-examination by all other parties to the proceedings;
(3)prior to giving evidence or being cross-examined, the party who is seeking to rely on the expert’s evidence provides:
(a)a statement of the expert’s qualifications, and
(b)a description of the Court documents or other materials to which the expert has had regard in the preparation of their report.
It would also be necessary to provide a summary of instructions given to the expert for the preparation of the report, that might be oral or it might be in writing. Indeed, solicitors generally make such requests in writing, and it is appropriate to produce their letter to the expert. The mother being in-person may not have gone to the formality of a letter.
It is generally of assistance for the expert witness to have access to his or her notes whilst being cross-examined and usually prudent for one of the parties who will be cross-examining the expert witness to require production of the expert witness’s notes and records relevant to this case to the Court prior to the commencement of the proceeding so that they can be inspected. This does not go to the admissibility of the evidence, but is, I hope, something to which the parties will turn their minds and issue any subpoenas in good time.
Again, I have not struck out parts of the mother’s evidence which is hearsay reports or statements from experts. However, the mother and other parties should assume that the weight I am prepared to accord to the documents may be significantly be diminished if the information outlined in paragraphs [22] to [23] is not provided in a timely manner.
S102NA lawyer for the father
The father’s solicitor expressed some concern about his client’s resources for future representation. It is imperative that the father be able to test the mother’s evidence in cross examination so I have made an order under s102NA in the hope that a lawyer can be allocated to the father, if needs be, in time for the final hearing. As earlier indicated, I have not made such an order in relation to the maternal grandmother and the mother has already had two s.102NA lawyers and has applied for her third.
Restraint on removing children from Australia
There was no opposition to a watchlist order, as sought by the maternal grandmother, being made today. I will make that order on an unopposed basis and it binds the father, the mother and the maternal grandmother from removing or seeking to remove the children, or either of them, from the Commonwealth of Australia.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 5 August 2021
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