DONNELLAN & BRADFORD
[2018] FCCA 1822
•9 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DONNELLAN & BRADFORD | [2018] FCCA 1822 |
| Catchwords: FAMILY LAW – Final property adjustment – consideration of full and frank disclosure – issues of credit – premature distributions – where the respondent fails to place evidence before the court – where the respondent fails to lead or test evidence – where the respondent retained significant assets upon separation of the parties. FAMILY LAW – Costs – costs of Independent Children’s Lawyer and mother. |
| Legislation: Family Law Act 1975, ss.4AA, 4AB, 60B, 60CA, 60CC, 60CC(2A), 60I, 61DA, 65DAC, 65DAA, 65DAA(5), 67Z, 67ZBA, 68LA, 69ZW, 69ZX, 78, 79, 90SF, 90SM, 106A, 117, 121 |
| Cases cited: Allesch v Maunz [2000] HCA 40 Gordon & Gordon [2015] FamCA 616 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Ketteman v Hansel Properties [1987] AC 189 Haset Sali v SPC Ltd [1993] HCA 47 Aon Risk Services v Australian National University [2009] HCA 27 John v Federal Commissioner of Taxation (1989) 166 CLR 417; [1989] HCA 5 Imbree v McNeilly (2008) 82 ALJR 1374 Re F Litigants in Person Guidelines (2001) FLC 93-072 Tate & Tate [2000] FamCA 1040 Brambles Holdings Ltd v. Trade Practices Commission (1983) 47 ALR 69 Oriolo v. Oriolo (1985) FLC 91-653 Burgoyne & Burgoyne (1978) FLC 90-467 Weir & Weir [1993] FLC 92-338 Black & Kellner [1992] FLC 92-287 Browne & Dunn (1893) 6 R 67 (HL) Jones & Dunkel (1959) 101 CLR 298 Makita & Sprowles (2001) 52 NSWLR 705 Reid v Kerr (1974) 9 SASR 367 Brandi v Mingot (1976) 12 ALR 551 Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 Stott & Holger and Anor [2017] FamCAFC 152 M v M (1988) 166 CLR 69 A v A (1998) FLC 92-800 Amador v Amador (2009) 43 Fam LR 268 B & B (1993) FLC 92-357 N & S and the Separate Representative (1996) FLC 92-655 Napier & Hepburn (2006) FLC 93-303 Potter & Potter (2007) FLC 93-326 Johnson & Page (2007) FLC 93-344 Mazorski & Albright [2007] FamCA 520 Stanford v Stanford [2012] HCA 52 Kowaliw & Kowaliw (1981) FLC 91-092 Harper & Harper [2017] FCCA 3309 Shimizu & Tanner [2011] FamCA 271 Kouper & Kouper (No 3) [2009] FamCA 1080 Omacini & Omacini (2005) FLC 93-218 C & C [1998] FamCA 143 Calvary & Green (1984) 155 CLR 242 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 Bennett & Bennett (1991) FLC 92-191 Articles Cited: Jolowicz, On Civil Procedure, (2000) – cited within Aon risk Services v ANU Hon. John Fogarty A.M., “Unacceptable Risk – A Return to Basics”, (2006) Australian Journal of Family Law, 20 AJFL 249 |
| Applicant: | MS DONNELLAN |
| Respondent: | MR BRADFORD |
| File Number: | PAC 4829 of 2015 |
| Judgment of: | Judge Harman |
| Hearing dates: | 9 May 2018, 11 May 2018 |
| Date of Last Submission: | 11 May 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 9 July 2018 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Mr Longworth |
| Solicitors for the Independent Children’s Lawyer | Legal Aid NSW Campbelltown Family Law |
THE COURT ORDERS ON A FINAL BASIS THAT:
The mother, Ms Donnellan, shall have sole parental responsibility for the children, [X] (AKA Bradford) born 2011 and [Y] (AKA Bradford) born 2012.
The children, [X] (AKA Bradford) and [Y] (AKA Bradford), shall live with their mother, Ms Donnellan.
Pursuant to section 68B of the Family Law Act 1975, the father Mr Bradford shall be and is hereby restrained from spending time with the children, [X] (AKA Bradford) born 2011 and [Y] (AKA Bradford) born 2012.
Pursuant to section 68B of the Family Law Act 1975, the father, Mr Bradford, shall be and is hereby restrained from removing the children, [X] (AKA Bradford) and [Y] (AKA Bradford), or either of them from the mother’s care or the care of any other person or organisation charged with the children’s care, including but not limited to the children’s school and/or any sporting or cultural events that the children may attend.
Pursuant to section 68B of the Family Law Act 1975, the father, Mr Bradford, shall be and is hereby restrained from communicating with or contacting the mother or the children [X] (AKA Bradford) and [Y] (AKA Bradford) by any means whatsoever, including but not limited to face to face contact or communication by telephone, email or text message.
Pursuant to section 68B of the Family Law Act 1975, the father, Mr Bradford, shall be and is hereby restrained from attending at any events involving the children, including but not limited to:
(a)Sporting fixtures;
(b)Extracurricular or cultural activities that otherwise allow parental attendance;
(c)School functions and events that allow for parental attendance, including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
Within 14 days of today’s date and within 14 days of the children’s enrolment at any school, the mother shall do all acts and things and sign all documents necessary to authorise and direct any school attended by the children or either of them at any time to forward directly to the father copies of the children’s school reports and any written materials produced by the school pertaining to the children’s academic progress together with order forms for school photographs of each child (with the intent that the father may order copies of such photos at his expense should he wish to).
Until the children, [X] (AKA BRADFORD) born 2011 (female) and [Y] (AKA BRADFORD) born 2012 (female) attain the age of 16, the Applicant, MS DONNELLAN born 1972 (female), and the Respondent, MR BRADFORD born 1976 (male), by themselves, their servants or their agents are restrained from removing or attempting to remove the children, [X] (AKA BRADFORD) born 2011 (female) and [Y] (AKA BRADFORD) born 2012 (female), from the Commonwealth of Australia.
Until the children, [X] (AKA Bradford) born 2011 (female) and [Y] (AKA Bradford) born 2012 (female) attain the age of 16, the Marshal of the Federal Circuit Court of Australia and all Officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia until the children attain the age of 16.
Until the children, [X] (AKA Bradford) born 2011 (female) and [Y] (AKA Bradford) born 2012 (female) attain the age of 16, the Commissioner of the Australian Federal Police shall take all necessary steps to immediately place the said children’s names on the Airport Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia until the children attain the age of 16.
The Australian Federal Police shall maintain an Airport Watch of the said children on all flights leaving any International Airport in all States and Territories of the Commonwealth of Australia until the children, [X] (AKA Bradford) born 2011 (female) and [Y] (AKA Bradford) born 2012 (female) attain the age of 16.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia shall assist in the implementation of, and give effect to, these Orders.
Pursuant to section 68B of the Family Law Act 1975, the father Mr Bradford, shall be and is hereby restrained from applying for any Passport for the children or either of them (including a (nationality omitted) Passport).
IT IS NOTED that the intention of the Order for sole parental responsibility made in favour of the mother, Ms Donnellan, is to vest sole parental responsibility for the children [X] (AKA Bradford) and [Y] (AKA Bradford) in Ms Donnellan for all purposes, including for the purposes of the Family Law Act 1975 and section 11 of the Australian Passports Act 2005.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
Subject to the following Orders and pursuant to section 79 of the Family Law Act 1975, each of the parties shall forthwith do all acts and things and give all consents, authorities and instructions and sign all documents necessary to forthwith request, instruct and direct the Registrar of the Supreme Court of New South Wales to release to Ms Donnellan all and any funds previously paid into Court and held by that Court on trust on behalf of the parties.
Dispense with the requirement for Mr Bradford to sign any document required to give effect to these Orders.
Pursuant to section 106A of the Family Law Act 1975, each Registrar of the Federal Circuit Court of Australia at Parramatta shall be and is hereby authorised and directed to forthwith, upon presentation to them, sign in the place of Mr Bradford, and to thereafter do all acts and things necessary to give full force, effect and operation to, any document required to be signed by Mr Bradford pursuant to Order 13 hereof and so as to cause release of funds by the Supreme Court of New South Wales to Ms Donnellan and without any need or requirement for Ms Donnellan to demonstrate to the Registrar that she has requested that Mr Bradford sign the document prior to the presentation of that document to the Registrar for their signature.
Pursuant to section 78 of the Family Law Act 1975, each of the parties shall be and are hereby declared to be the sole and absolute owner at law, as against the other, of:
(a)All items of personalty in their respective possession, custody or control;
(b)All funds held by them whether in cash or on deposit with any financial institution;
(c)Any motor vehicle in their respective possession, custody or control;
(d)Any contributions to or benefits or entitlements arising from any fund of superannuation of which either party is a member;
(e)Any parcel of real estate in which either party holds an interest.
The Respondent Mr Bradford shall, by 4:00pm 3 August, 2018, pay to the Applicant Ms Donnellan, as a contribution towards her costs in these proceedings, a sum of $11,607.50 and failing payment of that sum by that time then:
(a)Interest shall then accrue upon that sum or such portion of it as remains outstanding from time to time at the rate prescribed by the Federal Circuit Court Rules 2001; and
(b)Ms Donnellan, or any person to whom Ms Donnellan may assign her rights and interests pursuant to this Order, shall then be entitled to recover that sum and any interest accrued thereupon together with costs of recovery in a Court of competent jurisdiction.
The Respondent Mr Bradford shall, by 4:00pm 3 August, 2018, pay to the Legal Aid Commission of NSW, as a contribution towards the costs of the Independent Children’s Lawyer in these proceedings, a sum of $7,031.50 and failing payment of that sum by that time then:
(a)Interest shall then accrue upon that sum or such portion of it as remains outstanding from time to time at the rate prescribed by the Federal Circuit Court Rules 2001; and
(b)The Legal Aid Commission of NSW shall then be entitled to recover that sum and any interest accrued thereupon together with costs of recovery in a Court of competent jurisdiction.
Pending compliance in full by Mr Bradford with Orders 17 and 18 hereof, the sums of $11,607.50 and $7,031.50 respectively shall be a charge against the whole of Mr Bradford’s right, title and interest in the real property Property A, and each of Ms Donnellan and the Legal Aid Commission of NSW shall be entitled to record this Order against title to that property.
Pursuant to section 121 of the Family Law Act 1975, leave is granted to Ms Donnellan to provide a portion of this Judgment comprising the Orders made and paragraphs 252 to 326 (inclusive) hereof to such credit reporting agencies, banks and similar financial institutions as are necessary to enable Ms Donnellan to address and correct any adverse matter recorded with respect to her and her credit worthiness.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Donnellan & Bradford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4829 of 2015
| MS DONNELLAN |
Applicant
And
| MR BRADFORD |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to issues of parenting and property adjustment.
The parties to the proceedings are Ms Donnellan, the Applicant, and Mr Bradford, the Respondent. Both Ms Donnellan and Mr Bradford were self-represented at trial.
The children whose interests are the subject of the proceedings are:
[X], born 2011, aged 7 years of age at trial; and
[Y], born 2012, aged five and a half years of age at trial.
The best interests of [X] and [Y] have been represented, and capably so, by an Independent Children’s Lawyer and Counsel retained thereby.
The parties were involved in a de facto relationship with each other. The relationship commenced in or about 2010. The parties commenced cohabitation approximately 2010. The relationship subsisted until 4 October 2013 when the parties separated from each other.
History of proceedings
These proceedings were commenced by an Initiating Application filed in the Family Court of Australia, Parramatta on 1 October 2015. By that Application, Ms Donnellan sought Orders with respect to property adjustment only. The Orders sought by Ms Donnellan were as follows:
a)That the parties, within seven days, shall do all such acts and things necessary to authorise the proceeds of sale of the Suburb A property, to be paid to the wife;
b)That all other assets of the parties be divided as to 65% to the wife and 35% to the husband.
Ms Donnellan also sought an Order pursuant to section 106A of the Family Law Act 1975 in the usual terms as well as declaratory relief (so that each party would retain all property in their respective possession, custody or control).
A Response to that Application was filed by Mr Bradford on 21 December 2015. The Response was filed shortly after the first return date of the proceedings. By that Response, Mr Bradford sought relief as follows, “I am not agree (sic) with 35%/65%, I want 50/50%”.
An Amended Response was subsequently filed by Mr Bradford on 21 March 2016. The Amended Response purported to join a plea for relief with respect to parenting. Mr Bradford annexed to the Amended Response a typed page setting out the Orders sought by him. In relation to property, Mr Bradford repeated his plea that the nett proceeds of sale of the Suburb A property should be divided equally as well as expanding his plea to seek that each party retain all property in their respective possession, custody or control.
With respect to parenting, Mr Bradford sought Orders for equal shared parental responsibility of [X] and [Y]. Mr Bradford sought that the children live on an “equal shared week about basis” defined as being from 6:00pm Friday until 6:00pm the following Friday with each parent respectively. Mr Bradford also sought a number of Orders which are not relevant or germane for present purposes.
A section 60I Certificate was issued by a Family Dispute Resolution Practitioner from the Suburb C Family Relationships Centre on 27 May 2015. That Certificate was filed with the Amended Response. The Certificate indicates that Family Dispute Resolution was assessed as inappropriate. As the Certificate was available prior to the commencement of the proceedings let alone the filing of a Response, it is unclear why Mr Bradford had not sought to join the parenting issue upon the filing of the earlier Response.
The proceedings first came before a Registrar of the Family Court of Australia on 17 December 2015. The proceedings were transferred to this Court. When the proceedings came before the Family Court of Australia on that occasion, the judicable controversy related solely to issues of de facto property adjustment. The Bench Sheet completed by the Registrar notes that Mr Bradford, who appeared in person on that occasion as he has done throughout these proceedings, had not filed his Response and Financial Statement and:
...advised that he is leaving next Tuesday for overseas for 8 weeks. No disclosure has been made. W [wife] alleges that H [husband] had taken monies from the parties’ savings. H had recently purchased a home in his own name. H also disputes date of separation which may mean that the application is out of time. W also asserts that H sold cars and removed furniture and have (sic) not accounted for them.
It was further noted that the case involved a “Small asset pool:- $168K held by Supt Ct [Supreme Court]”.
At trial the amount that is, in fact, held by the Supreme Court of New South Wales is slightly in excess of that figure, being an amount of $173,407.60. The funds are held by the Supreme Court of New South Wales as the former matrimonial home of the parties, if it might be so described, was sold by the mortgagee in possession. Action was taken by the mortgagee, by reference to the agreed evidence of the parties, as, for a period of 16 months post separation, Mr Bradford had remained in occupation of the home and had declined to service the mortgage or, it would seem, any other expense with respect to the property.
The proceedings having been transferred to this Court, the matter was next listed on 4 April 2016. At that time, a number of Orders were made, including:
a)An Order that the parties attend Family Counselling Services. It would appear that both parties engaged with services as ordered. It is, however, manifestly clear that little, if anything, was learnt by the parties. That criticism might not necessarily be made of the parties to the same extent. As regards Mr Bradford, it is clear, from his own assertion to the Family Report Writer, that he does not believe that he learnt anything by attending Family Counselling (see paragraph 33 of the Family Report);
b)Orders were made pursuant to section 69ZW of the Family Law Act 1975 to obtain material from New South Wales Police. Whilst material was produced by the Police, none of the material has been tendered at trial;
c)Extensive Orders were made with respect to disclosure. The Order required the production, by each party to the other, of all documents specified in Parts 14 and 24 of the Federal Circuit Court Rules 2001, together with:
Any document within the possession, custody or control of that party proving disproving or tending to prove or disprove any allegation contained in either party’s Financial Statement or Affidavit or which will be raised as an allegation of fact at hearing.
It would appear to be common ground that Mr Bradford has produced not a single document by way of disclosure. During his closing address, some protest was raised by Mr Bradford that Ms Donnellan had also failed in that regard. However, that complaint had not been raised at any earlier point, nor would it appear particularly relevant to the determination of issues in these proceedings.
There is no controversy that Mr Bradford remained in occupation of the home and in possession of all significant assets of the relationship at separation. Further, there is no controversy that Mr Bradford has, since separation, purchased an interest in a property in Property A. Mr Bradford is the sole registered proprietor of that property. Thus, he alone would have material that would be relevant as to either the use or disposal of assets (the majority of them having been disposed of), or the acquisition of subsequent assets.
The matter returned before the Court on 5 September 2016. At that time, it was clear and apparent that the matter was not moving towards resolution. Accordingly, an Order was made for the preparation of a Family Report and the appointment of an Independent Children’s Lawyer.
As at 5 September 2016, the Applicant was still legally represented, but the Respondent was not. The appointment of the Independent Children’s Lawyer was predominantly to assist the Court and the parties in gathering of evidence and in acting as an honest broker of settlement.[1] That is not to suggest that the children’s engagement in the proceedings, to the extent consistent with their best interests, was not considered relevant or important, nor that the children’s views or an understanding of their lived experience was not important. However, at the time of appointment, the two children the subject of the proceedings were 5 and 3 years of age respectively, and, accordingly, those important aspects of the Independent Children’s Lawyer’s role were of less significance.
[1] See section 68LA of the Family Law Act 1975 for a definition of the roles and duties of the Independent Children’s Lawyer and especially section 68LA(5)(e) of the Act as to facilitation of an agreed resolution.
A Family Report was ultimately released to the parties by an Order made in Chambers 19 July 2017.
The matter returned before the Court on 28 July 2017. By that time, both parties were self-represented. On that date, Orders were made listing the matter for trial and directions were made as to the filing of Affidavit material. As is usual practice, explanation was given to each of the parties as to that which would be required of them in preparing for hearing, specifically the requirement that they provide their evidence in written, sworn form (an Affidavit) filed with the Court and served on the other party and the Independent Children’s Lawyer so as to ensure that each party was fully aware of the case that they were answering.
Ms Donnellan subsequently filed her Affidavit material. Mr Bradford has also filed Affidavit material, and I will turn to that shortly.
The matter was listed by telephone, for what might be described as a compliance check, on 16 April 2018. The further listing arose as difficulties had become apparent with the matter proceeding on each of the three days on which it was listed for hearing. At that telephone mention, it was noted that, “Both parties advise that their material has been filed and they are ready to proceed to hearing”.
The hearing dates were confirmed for two of the three dates allocated. On the basis of the witnesses then apparent (the parties and the Family Report Writer only), two days appeared sufficient, even on the basis that each of the parties required the assistance of an Interpreter.
The trial proceeded for the two days on which it was listed and concluded within that time, albeit after usual Court sitting hours on each of the two listed days.
At trial, both parties appeared self-represented and with the assistance of a Court-appointed Interpreter. It quickly became apparent that each party preferred to conduct their case without the assistance of the Interpreter. Notwithstanding this reality, the Interpreters remained for the entirety of the trial.
A number of attempts were made to engage the parties to address the Court and conduct their case via the Interpreter provided for their assistance. Each declined and, ultimately, they were requested to use the Interpreter whenever they felt that the Interpreter might assist them and/or whenever they felt they did not understand what was being put to them. Very little use was made by either party of the Interpreter provided for their assistance. That is no criticism whatsoever of the Interpreters. I have no doubt that their skills are at a high level and would have been of great assistance to the parties should they have determined to use that assistance more completely.
The trial
At the commencement of the trial, Mr Bradford sought an adjournment. The Independent Children’s Lawyer had appropriately and helpfully outlined that such an Application would be made.
The basis of the Application for adjournment was identified by the trial Affidavits filed by Mr Bradford.
Mr Bradford’s evidence in these proceedings requires some comment.
During the conduct of these proceedings, from their commencement to their conclusion, a period of approximately two and a half years, Mr Bradford has filed seven documents comprising:
a)His Response, filed 21 December 2015;
b)His Amended Response, filed 21 March 2016;
c)A Notice of Risk filed 21 March 2016.
It is noteworthy that the Notice of Risk filed by Mr Bradford did not identify any risk to the children whether past, present or prospective. At all times since the separation of these parties, the children have lived in the care of their mother which care, on the basis of the Notice of Risk filed by Mr Bradford, is not impugned.
d)An Affidavit of Mr Bradford sworn or affirmed 18 March 2016 and filed 21 March 2016. That Affidavit was filed at the time that Mr Bradford filed his Amended Response. The document is a little over one page in length.
The Affidavit filed 18 March 2016, to the extent that it relates to the parenting issue (and the Affidavit is confined solely to the parenting issue and noting that when the property dispute was commenced the proceedings were before the Family Court of Australia, under whose Rules, there is no requirement for an Affidavit to be filed), the document did no more than to identify that the children’s mother had been their primary carer, that the duties of the mother in being the primary carer of the children included bathing the children, cooking, and changing nappies, and that the duties of the non-primary carer, presumably Mr Bradford, had included shopping, cleaning, paying bills, washing and changing nappies. It was identified that the children had lived with their mother since separation and that the children were not spending time with their father. The document otherwise identified that an attempt had been made at attending Family Dispute Resolution and that Dispute Resolution had been assessed as inappropriate.
e)The Financial Statement of Mr Bradford filed 21 December 2015.
The Financial Statement is somewhat incomplete and unhelpful. For example, it identifies that Mr Bradford is the 100% registered proprietor of a property at Property A. However, the current value of that 100% share in the property is given as “nil”. The incomplete and inaccurate preparation of the Financial Statement is, perhaps, consistent with Mr Bradford’s general engagement with the financial aspect of these proceedings, if not, all aspects of the proceedings.
f)Mr Bradford swore or affirmed an Affidavit on 8 March 2018, which Affidavit was filed 12 March 2018. That Affidavit in its totality comprises the following:
Request for witness for court hearing… my father… will give evidence about:
- parenting matter;
- financial matter.
g)Finally, an Affidavit was filed by Mr Bradford, having been sworn or affirmed 8 March 2018 and filed 13 March 2018, and which, in its totality, provides: “Request for DNA Paternity Test between: [the two children]”.
The Application for adjournment made by Mr Bradford was prefaced upon his desire to obtain paternity testing for the two children. It is to be noted that this issue had not previously been raised at any point in the proceedings. Indeed, Mr Bradford introduced the parenting aspect of the proceedings through the filing of his Amended Response. There has never been an Application made by Mr Bradford, in any form, for a parentage testing Order. This is so notwithstanding that, by the time the Affidavit of Mr Bradford was filed, the proceedings had been on foot for some 26 months.
Mr Bradford was asked the basis upon which such adjournment might be granted. Mr Bradford did not articulate reasons beyond the desire for paternity testing which appeared to be prefaced almost exclusively upon the submission that the youngest of the children, [Y] “Does not look like me”. Mr Bradford does not suggest that anything has recently arisen which has led to his desire for paternity testing.
On that basis, the Application for adjournment was refused. Mr Bradford did not seek adjournment to enable him to put his case in order. Mr Bradford did not, for example, suggest that he required more time (by that point having already had some 28 months to prepare his case) to present evidence.
The Application for adjournment might be viewed as an Application for amendment. Certainly, it could and should be viewed on that basis, as the issue had not previously been raised.
I am conscious of that which fell from the High Court of Australia in Allesch v Maunz [2000] HCA 40, that the Court must afford to each of the parties a reasonable opportunity, in all of the circumstances, to participate in the proceedings and to present their case, so that each might not only be afforded, but perceive that they have been afforded, due process.
I am satisfied that the period of time that had passed in relation to the preparation and filing of material by each of the parties has been more than adequate to afford participation and to allow all issues which require determination to be raised. The trial dates were allocated some 10 months prior to trial.
To the extent that Mr Bradford’s Application with respect to paternity testing might be viewed as an Application to amend, I am conscious that section 42 of the Federal Circuit Court of Australia Act 1999 compels the Court to operate informally. However, the Court is also required to ensure that proceedings are not protracted. The section provides that the Court “…must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted”.
There are ways by which Applications are made to the Court. To simply make such a request in a two-line document, purportedly filed as an Affidavit to be relied upon at the trial of a substantive controversy with respect to parenting, is not sufficient or adequate, irrespective of whether a party is or is not legally represented.
Principles of due process and procedural fairness and the Federal Circuit Court Rules 2001 apply equally to all who come before the Court. The Rules are not divided, for example, into rules which apply if a party is legally represented and those which apply if they are not. The rules of evidence do not differentiate between the state of representation of a party. Due process must be afforded to both parties. Due process must be afforded to both parties simultaneously.
Importantly, in parenting proceedings, the Court must be conscious that section 60CA of the Family Law Act 1975 requires that the children’s best interests be treated as the paramount consideration for all purposes. So much is made clear by reference to the decision of Forrest J in Gordon & Gordon [2015] FamCA 616, and in particular paragraphs 3 to 5 thereof, which I incorporate herein:
3. Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.
4. Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.
5. In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others.
The interaction of the paramountcy principle (as section 60CA of the Act is often referred to) and all other principles, practices and procedures of the Court is complete. The child’s best interests are paramount in all that the Court does.
As the evidence unfolded, I became concerned that the Application for paternity testing made by Mr Bradford, an Application completely unsupported by evidence, was potentially mischievous and motivated not by a genuine desire to address controversy based on evidence. This is especially so by reference to and upon an acceptance of the evidence of Ms Donnellan regarding Mr Bradford’s motivations in the proceedings.
Ms Donnellan’s evidence, both in her Affidavit material and given during her cross-examination, is that she is concerned that Mr Bradford is motivated predominantly by financial considerations and far less so, if at all, by issues relating to the best interests of these children. Concerningly, Ms Donnellan gives evidence at paragraph 97(a) of her trial Affidavit that Mr Bradford had written a text message to her in the following terms:
“Private lawyers will investigate themselves, [in the context of a request for the provision of documents by way of disclosure having been made] you pay for everything. For every paragraph there is a separate court hearing, I think $3000 - $5000 each. Court process will be for long time. Witnesses have not come yet. Count for 5 – 7 years”.
That evidence of Ms Donnellan was not challenged in the proceedings. As will become apparent, I accept Ms Donnellan’s evidence in these proceedings, including the portion above.
It may well be that the position advanced by Mr Bradford, seeking to amend his case to seek Orders for paternity testing was motivated by a desire to create delay and cost for Ms Donnellan, as well as, perhaps, corroborating Ms Donnellan’s opinion of Mr Bradford that he is very much motivated by financial considerations. That particularly flows in connection with evidence given on the second day of hearing, and which I will come to in due course.
The Court’s requirement to act informally does not permit the Court to dispense with principles of due process and the proper administration of justice.
With respect to amendment, the Federal Circuit Court Rules 2001, at Rule 7.01, provides that:
At any stage in a proceeding, the Court or Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
Thus, it might well be argued that leave is required to amend or join an issue to proceedings. The joinder of this issue to proceedings immediately prior to the commencement of a trial, the dates for which have been allocated some 10 months earlier, and when both parties, at call over, have confirmed that they are ready to proceed, would have created significant delay and further cost.
The Application, unsupported by evidence, could not have been favourably received and, no doubt, Mr Bradford, had he chosen to obtain legal advice with respect to the issue, would have been made aware of that reality.
I am conscious of a line of authorities relating to amendment and late amendment, including Spigelman CJ in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37, Ketteman v Hansel Properties [1987] AC 189, Haset Sali v SPC Ltd [1993] HCA 47 and Aon Risk Services v Australian National University [2009] HCA 27. The latter authority, in particular, is of some assistance, and I incorporate herein paragraphs 111 to 113 of Aon Risk Services v Australian National University:
111. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases[2]. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
112. A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
113. In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy[3]. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[2] See John v Federal Commissioner of Taxation (1989) 166 CLR 417; [1989] HCA 5; Imbree v McNeilly (2008) 82 ALJR 1374 at 1385‑1386 [45] per Gummow, Hayne and Kiefel JJ; 248 ALR 647 at 659; [2008] HCA 40.
[3] Jolowicz, On Civil Procedure, (2000) at 79.
The simple reality in this case is that:
a)Prior to the filing of his Affidavit, 13 March 2018, Mr Bradford has never raised an issue with respect to paternity;
b)Mr Bradford had never made a formal Application for paternity testing;
c)Inconsistent with the purported joinder of the paternity issue, Mr Bradford had introduced the parenting issue by the filing of his Amended Response more than 2 years ago;
d)Mr Bradford did not lead any evidence in support of the Application (as might be inferred from his brief Affidavit), and thus the Application, or, as it is styled, “request”, could not be granted on its merits;
e)In the absence of evidence led by Mr Bradford, such an amendment or such an Order could not be assessed as in the best interests of these children; and
f)The cost, delay and inconvenience to the parties, let alone the cost and inconvenience to other litigants of the Court, which would arise from any further adjournment of this case (being the only matter that was listed for trial on the relevant days and so as to ensure the matter was concluded), and based on an Application without prior notice made on the first day of trial, outweighs any benefit that would be obtained through adjournment.
It is also to be noted that the position that was advanced by each party at the opening of the case rendered the Application, to say the least, somewhat curious. Mr Bradford, by his Amended Response sought an Order for equal time with both children.
During Family Report interviews, Mr Bradford’s position had changed (although he has never filed a further Amended Response) such that he advised the Family Report Writer that he wished both children to live permanently with him, and to spend alternate weekend supervised time with their mother.
Mr Bradford did not, for the benefit of the Family Report Writer or the Court, indicate any basis upon which the mother’s time would be supervised, let alone why such a significant change in the children’s circumstances was in their best interests.
At the opening of the trial, Mr Bradford indicated that the parenting relief he sought was reflected by his Amended Response, (i.e. an equal shared care arrangement), notwithstanding the suggested concerns raised by him as to the paternity of, at least, the youngest of the children.
For her part, Ms Donnellan sought that Mr Bradford either spend no time with the children or that his time be supervised.
I will return to those issues in the discussion of the parenting aspects of the matter and in due course.
For the reasons set out above, the Application for adjournment and amendment were each refused and the trial commenced.
After a discharge of the Court’s Re F Litigants in Person Guidelines (2001) FLC 93-072, the Family Report Writer attended to give evidence. The Family Report Writer was only available on the first day of trial, being scheduled to then take a significant period of leave thereafter. Each of the parties was then cross-examined. No Affidavit was filed by any other witness.
Material considered
In dealing with the proceedings, I have read and considered each of the documents filed by Mr Bradford, and as identified above. The evidence that is contained within those documents comprises a little over one page in total and does not address any issue of relevance in the proceedings. Nothing is raised at all with respect to the financial aspect of the proceedings.
In Ms Donnellan’s case I have had regard to:
a)Her Application Initiating Proceedings filed 1 October 2015;
b)Her Statement of Financial Circumstances, also filed 1 October 2015;
c)Ms Donnellan’s trial Affidavit sworn or affirmed 14 February 2018 and filed 15 February 2018. That trial Affidavit refers to and incorporates a significant number of the annexures that had been attached to an earlier Affidavit filed by Ms Donnellan on 24 July 2017. Those annexures, as identified, have also been considered;
d)Balance Sheet filed 11 April, 2018 (though not sworn evidence).
Curiously, noting the case presented by Ms Donnellan, for no or supervised time between the children and their father, Ms Donnellan has not filed a Notice of Risk.[4]
[4] Sections 67Z and 67ZBA require that a Notice of Risk be filed whenever a party alleges that there has been or that there is a risk of abuse of a child or family violence. Notwithstanding the failure to file such Notice of Risk, I accept that a risk is alleged and is made out.
As would be apparent, a Family Report was prepared in these proceedings. That Report, dated 19 July 2017, is an Exhibit in the proceedings (Exhibit A). Further Exhibits are in evidence, comprising:
a)Exhibit ICL1, a Google Maps printout showing the relative proximity of the parties’ homes;
b)Exhibit ICL2, screenshots of certain text messages between the parties, having occurred 7 May 2018. It will be apparent that the Exhibit has been written upon. The writing upon the document seeks to capture the translation of the messages provided by the mother’s interpreter (as the messages passed between the parties in (nationality omitted)). There is no controversy raised by Mr Bradford that the translation is accurate, save and except one message, being that at 10:12am (page 2 of the Exhibit). The handwritten notes are intended to inform that to which the messages relate. A transcript of evidence would provide the specific detail of the evidence;
c)Exhibit ICL3, a costs certificate tendered by the Independent Children’s Lawyer. The Independent Children’s Lawyer seeks an Order for costs as against each of the parties;
d)Exhibit ICL4, a Minute of the parenting Order sought by the Independent Children’s Lawyer;
e)Exhibit A1, an Amended Minute of Order sought by Ms Donnellan;
f)Exhibit A2, a document from Kemp Strang Lawyers, dated 21 September 2015, confirming the amount of funds presently held by the Supreme Court of New South Wales following sale of the home; and
g)Exhibit A3, brief Written Submissions provided by Ms Donnellan.
General issues with respect to the evidence
As would be apparent from the above discussion, Mr Bradford has effectively filed no evidence in these proceedings. That is a significant impediment to the conduct by Mr Bradford of his case. It is also a significant impediment to the Court’s role of “getting to the truth”. It is, however, the manner in which Mr Bradford’s case is presented and that is a matter for Bradford.
Notwithstanding the absence of any evidence filed by Mr Bradford, Mr Bradford was permitted to participate in the proceedings and to cross-examine both the Family Report Writer and the mother.[5] Mr Bradford’s cross-examination of each witness was, to say the least, brief.
[5] Authorities such as Tate & Tate [2000] FamCA 1040 would lend support to the proposition that a party who has filed no evidence and is in default of the Court’s Orders (as to disclosure and the filing of evidence) might not be permitted to cross-examine. Further, there is a lack of utility to cross-examination when the cross-examiner has filed no material and, thus, cannot contra-agitate. Further, Ms Donnellan raises serious allegations of family violence, there is the ethical issue of Ms Donnellan’s cross-examination by the alleged perpetrator of family violence, although due process requires that such opportunity is afforded. In this case, cross-examination was regulated by and conducted through the Bench to, as it were, filter and reframe the questions put.
Mr Bradford failed to provide any disclosure in these proceedings. Mr Bradford conceded during his cross-examination that he has not provided to the mother, or the legal representatives previously retained by the mother, any documents at all. It thus is relevant to consider the duty to make full and frank disclosure.
The duty to disclose was discussed at length by their Honours in Tate & Tate [2000] FamCA 1040 and I incorporate that which fell from the Full Court of the Family Court of Australia, particularly at paragraphs 50 to 75 as follows:
DUTY OF MAKE FULL AND FRANK DISCLOSURE
50. It is useful to recall that discovery is a continuing process (see Brambles Holdings Ltd v. Trade Practices Commission (1983) 47 ALR 69). Indeed, had there even been a compliance with the rules of court or practice directions on one occasion it would not obviate the need for a party to a property proceedings in this court to make a full and frank disclosure of all relevant financial circumstances which may involve a duty of continuing discovery. Indeed it is difficult to see how it could not.
51. The law in Australia on this point is the same as in England. In Oriolo v. Oriolo (1985) FLC 91-653 (a decision of Emery, Fogarty and Murray JJ), the Full Court held at 80,256:
“We consider that there is a clear obligation on a party to proceedings in this court to make a full and frank disclosure of all relevant financial circumstances. As was said by Lord Brandon for the House of Lords is Livessey v. Jenkins (1985) 1 AllER 106 at page 114:
“I stated earlier that, unless a court is provided with correct, complete and up to date information on the matters to which, under Section 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that sub-section. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it are to be found in the statutory provisions to which I have referred.”
52. In that decision the Full Court also approved the statement of Smithers J in Briese and Briese (then unreported 27 June 1985) (1986) FLC 91-713 at 75,180):
“I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner.”… “The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding.
In this case it is possible, but I believe largely with the benefit of hindsight, to suggest one or two other strategies which the wife could have employed in her search for the facts before the trial. On the whole however, I do not believe that her case was conducted other than appropriately and reasonably. It was in the power of the husband to curtail the costs by making adequate disclosure.
Although the case relates to quite different circumstances, I believe that the conclusion in the House of Lords in the case of Livesey v. Jenkins (1985) 1 All E.R. 106 is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required.
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins make it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties. The fact that in the present case it is not a question of ultimate non disclosure of a matter relevant to the orders made, but is of a different nature being relevant to delay and expense, does not in my view prevent the principle being applicable here as to the matter of costs. There is an obligation on each party to act so as to provide a basis upon which the two of them are in a position to resolve the case by agreement, or proceed to a hearing, as expeditiously as may reasonably be done.”
53. The position in this Court is indeed quite unlike that of the Common Law Courts. Full and frank disclosure is required as a matter of “principle in the light of the fact that that it is the duty of the Court, taking into account a number of designated criteria to make a decision which basically involves the exercise of a discretion”. (ibid)
ORDER 20 OF FAMILY LAW RULES
54. Order 20 of the Court’s rules deal with discovery and inspection. Rule 1 deals with mutual and informal discovery; Rule 2 with the request to make discovery; Rule 3 with the time for and form of discovery (within 21 days after service of that request or within such further time as the Court or the requesting party allows); Rule 4 with orders to make discovery; Rule 9 with orders for particular discovery; Rules 10, 10(a) and 11 with copies of documents for inspection, and Rule 12 with failure to make discovery or give inspection.
55. Order 20 Rule 12 is as follows:-
“12. Where a party to proceedings fails to comply with an order, requirement or agreement under this order, the court may make such order as to discovery, production, inspection, continuance of the proceedings or as to the right of the party in default to continue the proceedings as the court thinks fit.”
56. Rule 13 deals with the forensic consequences when documents are not discovered or produced:-
“13. A party to proceedings is not entitled, except by leave of the court, to put a document or a copy of a document in evidence or to furnish or cause to be furnished evidence of a contents of a document :
(a) where:
(i) the party has filed an affidavit of documents;
(ii) the document, being a document relating to a matter in question in the proceedings, was, at the time the party swore the affidavit, in the possession, custody or control of the party or the document was not at the time, but had been, in the possession, custody or control of the party; and
(iii) the document was not referred to in that affidavit of documents or in any other affidavit of documents filed by that party in pursuance of an order of the court; or
(b) where the party has been served with a notice to produce under rule 6 and fails to produce the document in accordance with the notice.
ORDER 32 HIGH COURT RULES
57. By way of comparison, Order 32 of the High Court Rules, Rule 20 provides a much stricter regimen for non-compliance:-
“20(1) If a party fails to comply with an order:-
(a) to answer interrogatories;
(b) to give discovery or inspection of documents; or
(c) to allow inspection of property,
he is liable to attachment.
(2) If a party fails to answer interrogatories, to give discovery or inspection of documents or to allow inspection of property as required by these rules or by an order:
(a) where that party is a plaintiff, his action may be dismissed for want of prosecution;
(b) where that party is a defendant, his defence, if any, and counter claim if any, may be struck out;
(c) where that party is a third party, his appearance may be set aside;
(d) where that party is a defendant who has given a third party notice, the notice may be set aside and the party placed in the same position as if he had not defended or appeared, and the party interrogating, appeared,
and the party interrogating, seeking discovery or inspection of documents or inspection of property, as the case may be, may apply to the court or a justice for an order to that effect.
ORDER 16 OF THE FEDERAL COURT RULES
58. Similarly Order 15 of the Federal Court Rules deals with discovery and inspection of documents. Rule 16 of that Order provides a “Procedure on default” as follows:-
“16(1) Where a party does not file or serve a list of documents or affidavit or other document or does not produce any document as required by or under this order, any other party may move the court on notice:-
(a) If the party in default is an applicant – for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings;
(b) If the party in default is a respondent – a judgment or an order against him;
(c) For an order that such document, affidavit or list of documents be filed, served or produced within the time limited in the order.
(2) The court may make an order of the kind mentioned in sub-rule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order as the courts think just.
(3) This rule does not limit the powers of the court to punish for contempt.
59. The default procedure in the Federal Court is supplemented by Order 10 Rule 7. Order 10 deals with directions hearings. Rule 7 thereof provides a procedure on default as follows:-
“7.(1) Where a party fails to comply with an order of the court directing that party to take a step in the proceeding, any other party may move the court on notice:
(a) If the party in default is an applicant – for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings;
(b) If the party in default is a respondent – for judgment or an order against him;
(c) For an order that the step in the proceeding be taken within the time limit of that order.
(2) The court may make an order of the kind in sub-rule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order, as the court thinks just.
(3) This rule does not limit the powers of the court to punish for contempt.
60. The commentary on Order 10 Rule 7 in the Butterworths practice makes reference to “guillotine” orders to the effect that, in the event of default by an applicant in compliance with the direction, the proceeding is to stand dismissed.
61. There is presently no similar express provision in the Family Law Rules.
ORDER 24 ENGLISH SUPREME COURT RULES
62. By way of further illustration of the practice concerning discovery, reference can similarly be made to the English Supreme Court Practice. Order 24 relates to the discovery and inspection of documents in that jurisdiction. The commentary at paragraph 24/0/2 sets out a short background to the order and contains the following:
“The obtaining of discovery of documents in a proper case always was, according to the English law, a right as between subject and subject. It is a right that continues to exist unless taken away. The Evidence Act 1851 gave the Common Law Courts power to compel a party to allow inspection of documents in all cases in which “a discovery might have been obtained by filing a bill, or by any proceeding in a court of equity”. Thus, a party wishing to obtain discovery of documents was not forced temporarily to stay his action and proceed by bill in equity. Relief could be provided by proceedings integral to his action and the action for discovery between parties fell into desuetude (see further “action for discovery” Harris 24/011 and 24/2/2 below. Since 1875 the procedure for these proceedings has been contained in Rules of Court.
63. Again those rules provide for draconian penalties for non-compliance. Order 24 Rule 16 provides:-
“16.(1) If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose or to supply copies thereof fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, the Rules 3(2) and 11(1) the court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.
(2) If any party against whom an order for discovery or production of documents is made fails to comply with it, then, without prejudice to paragraphs (1) he shall be liable to committal.
(3) Service on a party’s solicitor of an order for discovery or production of documents made against that party shall be sufficient service to found an application for committal of the party disobeying the order, that the party may show an answer to the application that he had no notice or knowledge of the order.
(4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable for committal.
(The commentary on this provision at 24/16/2 sets out the ordinary English procedure):-
“The usual application and order is that the action be dismissed or the defence struck out (as the case may be) unless the party complies with the rule or order for discovery by a stated hour of a stated day. If it is intended to attach the defaulting party, the copy of the order made on the application must be endorsed with a notice under Order 45 rule 7 (Hapden v. Wallis (1884) 26Ch D 746 CA). An order to dismiss or strike out need not be served if an order is made dismissing the action unless the discovery is given by a stated time then at the end of that time if the discovery has not been given the action stands dismissed. It is not so dead, however, that it cannot be revived by an extension of time for compliance with the order (Samuels v. Linzi Dresses Limited 1981 Q.B. 115; (1980) 1All E.R. 803,CA, parra 3/5/9) but the jurisdiction to extend time after the expiry of an “unless” order will be exercised cautiously and, where appropriate, only on stringent terms (see Samuels v. Linzi Dresses Limited, above).
The exclusion from any further part in the proceedings of a party who deliberately disobeys a peremptory order of the court as to discovery is appropriate where there is a real risk that the default will render the fair trial of the action impossible and any judgment in favour of the defaulter unsafe. Once the order for discovery has been complied with, even if compliance is after the time stipulated in the order, the defaulter will not be excluded from the proceedings unless the circumstances are exceptional and there remains a real risk that justice cannot be done (Logicrose Ltd v. Southend United Football Club Ltd (1988) The Times, March 5)…”
“Although the normal prerequisite for the striking out of an action under R.16 is the existence of a real or substantial or serious risk that a fair trial will no longer be possible, in cases of contumacious conduct, e.g. the deliberate suppression of a document, striking out may be justified even where a fair trial may still be possible (Landauer Ltd. v. Comins & Company (1991) The Times August 7 CA).”
64. Paragraph 24/16/3 records a commentary on failure to comply with an order for discovery. Whilst the Court should ensure that its order for discover is complied with it should not otherwise punish a defaulter (see Husband’s of Marchwood Ltd v. Drummond Walker Developments Ltd (1975) 1 WLR 603; (1975) 2 All ER 30 CA).
65. The English practice distinguishes between an order for discovery which is stated to be “final” as being different from an order which is an “unless” order:
“An “unless” order spells out the consequences of failure to comply with its terms and disobedience of such an order is likely to be held to be contumelious behaviour, resulting in the dismissal of the action or striking out of the defence and, in the case of the dismissal of the action, may prevent the plaintiff from issuing a second writ notwithstanding that the limitation period has not expired. Failure to comply with a “final” order is a serious matter, but the court is less likely to characterise such failure as contumelious behaviour, and, in consequence if the limitation period has not expired the action may be permitted to continue (Realistics v. Marsh Properties March 6 1986 (unreported) Court of Appeal.
In Star News Shops v. Stafford Refrigeration Limited (1997), The Times November 18 CA, it was held that it was wrong in principle to strike out a party’s defence for breach of the non-peremptory order although Order 24 rule 16(1) did give jurisdiction to make such an order.
In approaching an application to dismiss an action on the basis of non-compliance for an order for specific discovery, the court would give the benefit of any doubt in the construction of the order to the plaintiff whose action was facing the prospect of being dismissed (Triolacan Ltd v. Medway Car Drives Ltd (1991) The Times October 21 CA).”
66. The decision in the latter matter (Triolacan) by the Court of Appeal (Otten and Robert Walker LJJ) laid down clearly the English Practice. There, in an action for damages for breach of contract and negligence arising from a fire in a refrigeration unit supplied to the plaintiffs, the defence to a fourth party notice was dismissed under Order 24 rule 16(1) following a failure to comply with an order for specific discovery, (not expressed in final or “unless” form). Judgment was given for the third parties. In the main action judgment was given for the plaintiffs and for the defendant against the third party. Liability for damages therefore rested with the fourth party which appealed against the dismissal of its defence.
67. After stating the provisions of Order 24 rule 16 Otten LJ, (with whom Robert Walker LJ agreed), held that the effects of the Judge’s order was to debar the fourth party from advancing an arguable defence and left it vulnerable to the outcome of the main action and the third party proceedings. To do so was a misuse of the power within Order 24 Rule 16(1). That order did not secure compliance relating to discovery but punished the fourth party for not having complied with a “bare” order in time. The circumstances were not so exceptional as to justify such an order. At the hearing the third party should have asked for an order striking out the defence “unless” within a certain time the fourth party had produced a discovery. That would then have become a peremptory order of the Court which, if not ultimately complied with, would have justified the ultimate sanction. The fact that discovery was not yet complete and that there was no evidence justifying the default were not sufficient reason for imposing the sanction of strike out. The order for discovery made was not peremptory. In Hytec Information Systems Limited v. Coventry City Council (The Times December 31 1996) Lord Justice Auld described an “unless” order as “the end of the line for a party who has failed to comply with it.”
68. The fourth party had not reached the end of the line, merely because it failed to comply with one previous order which was not a final or “unless” order. Although Order 24 rule 16(1) gave the Judge jurisdiction to make the order, he, none-the-less, erred in principle in striking out a defence for breach of a non-peremptory order. He should have made a final or “unless” order and plainly exercised his discretion wrongly.
69. This decision of the English Court of Appeal is clearly distinguishable.
70. Firstly it was made of course, under a different set of rules and in a Common Law matter. Here the trial Judge was dealing with an exercise of discretion in a matter requiring full and frank disclosure of all relevant financial material as a continuing obligation.
71. Secondly, the practice of “unless” orders in the United Kingdom (or “guillotine” orders in the Federal Court), has not been expressly inter-woven with the Family Law Rules. In the absence of such rules, or established practice, each order of this Court stands to be interpreted according to its own terms and in its own context. Here, although the trial Judge had understandably not made an “unless” or “guillotine” order, she had already spelt out the ultimate sanction at which the husband was staring – i.e. the matter would proceed “undefended”. He specifically acknowledged such a possible outcome as her Honour’s “prerogative” on 22 June 1999 in the passage of transcript set out above.
72. Thirdly, the Court of Appeal noted that the failure there complained of there was non-compliance with “one” (bare) non-peremptory order. Before the trial Judge here, the husband’s failures to comply had been numerous and serial, extending over almost four years.
73. Fourthly, the Court of Appeal was not considering an instance of “contumelious” conduct persisted in despite numerous extensions, warnings and the vacation of previous trial dates, as was the situation confronting the trial Judge in this matter. It is true that the trial Judge made no specific finding that the husband’s conduct was contumelious. However the evidence available, that the husband remained both hell- bent on delaying the trial and prepared to afford the Court’s orders much lower priority in his life than the asserted higher demands of his practice, was sufficient for the trial Judge to make the order she did. The husband’s continual neglect of his duty to provide full and frank disclosure and, moreover, serial non-compliance with the court’s specific orders, was all the more culpable when it is remembered that he was and is by profession an accountant. He had the professional ability to purge his contempt at any time: the remedy lay within his own hands. No exculpatory evidence was offered, nor any acceptable explanation for his continued conduct.
CASE MANAGEMENT ORDERS
74. The interlocutory orders made by the trial Judge by way of case management, were no less orders of the Court. There were entitled to full and punctilious obedience. This Court has a duty to order its business with justice according to law. The Rules of Court are there to assist in the fair and timely preparation of matters for expeditious trial. Litigants in such matters also have the duty of full and frank – and we would add prompt – disclosure of relevant financial matters. Against that background the trial Judge’s specific orders achieved an even greater potency. They did not have to be expressed as “unless” or “guillotine” orders: they were interlocutory orders of a judge of a superior court of record and to be obeyed as such according to their terms, which included specific times for performance.
75. It is not for litigants, appearing in person or otherwise, to pick and choose which orders they will or will not obey, or when they may condescend to comply with them. Such an attitude, amply evidenced in this matter, if adopted, brings its own nemesis. That is not only because it is contemptuous of the Court’s orders. It is also because it works injustice to the parties who do comply, and unfairness to that myriad of litigants waiting to have their matters despatched as soon as the Court can hear them. The luxury of procrastination – let alone deliberate disobedience – is a luxury of the past if it ever existed.
With respect to the Independent Children’s Lawyer’s Application for costs, again, the financial circumstances at and following separation are of some significance. On the evidence of Ms Donnellan, which I accept, Mr Bradford has retained assets with a value of substantial value. He has also had the benefit of the use and occupation of the matrimonial home without cost to him and has been able to accumulate significant savings as a consequence. Mr Bradford has purchased the home at Property A. He is in a far stronger financial position than Ms Donnellan.
Whether any party is in receipt of Legal Aid
Neither is. From the perspective of an Order as sought by the Independent Children’s Lawyer, costs are not precluded by reference to that fact.
As regards costs as sought by Ms Donnellan, her absence of Legal Aid funding means that she will be required to meet her costs from that which she will receive. Thus, in meeting costs, Ms Donnellan’s entitlement as determined by the Court will be reduced.
The conduct of the parties
This is a significant issue with respect to costs.
Mr Bradford’s attitude towards the proceedings generally, particularly towards adducing evidence and giving disclosure and discovery, is discussed at some length above. The conduct of Mr Bradford is, to a large extent, the basis upon which Ms Donnellan has been put to cost in undertaking inquiry through the issue of subpoena and the like. It is also the basis upon which an Independent Children’s Lawyer has been appointed.
Mr Bradford has denied allegations of family violence, but through his failure to adduce evidence or to challenge Ms Donnellan’s evidence, he has been wholly unsuccessful in resisting those allegations being found as fact.
The positions that have been advanced by Mr Bradford have been unexplained and inexplicable throughout the proceedings. Mr Bradford’s initial Application for equal time, in circumstances whereby he had time available to him but chose not to exercise it, and then, by the time of the Family Report, seeking that the children pass to live with him, was simply unattainable and, as I have already found, motivated by factors other than a consideration of or insight with respect to the children’s best interests.
Mr Bradford has made clear to Ms Donnellan that he will do all within his power, through both action and inaction, to inflate her costs and whilst never intending to retain legal representatives himself and thus not incurring legal costs.
I am satisfied that Mr Bradford’s conduct with respect to these proceedings, including but not limited to:
a)His complete failure to lead or test evidence;
b)His complete failure to respond to any request for information by either Ms Donnellan, Ms Donnellan’s former attorneys or the Independent Children’s Lawyer;
c)His complete failure to engage with disclosure or discovery or to take any active step in the proceedings that would have limited issues, identified issues or moved towards the resolution of issues;
d)His express intent to inflate Ms Donnellan’s costs;
is such as to represent a justifying circumstance by and of itself.
That Ms Donnellan has been required to prosecute an Application, over a period of two and a half years, to arrive at an outcome whereby she is wholly successful (and could not be other than wholly successful as a consequence of Mr Bradford’s actions or inactions as regards evidence) suggests that Mr Bradford’s conduct is a justifying reason, of itself, to award costs in these proceedings.
As regards the costs of the Independent Children’s Lawyer, the only reason that an Independent Children’s Lawyer was necessary and appointed was the position advanced by Mr Bradford. That position was not only without foundation but contradicted by Mr Bradford’s own evidence that Ms Donnellan was a “wonderful mother”.
Mr Bradford’s parenting Application was not only unsupported by evidence. It was, I am satisfied, mischievous. The Application was made to harass and pressure Ms Donnellan, to make her fearful of losing the children or of having to equally share their care and, ultimately, to coerce and control Ms Donnellan in the financial proceedings. I am not satisfied that Mr Bradford conducted his case in good faith. Mr Bradford has, I am satisfied, used the Court process to coerce and control Ms Donnellan as a form of family violence.
Mr Bradford’s property Application was no different. In light of the findings of fact made and the inevitability of those findings in light of Mr Bradford’s failure to adduce any evidence or engage in even the most rudimentary disclosure, Mr Bradford’s case was doomed to failure from the outset. Mr Bradford’s actions in controlling and occupying the home to Ms Donnellan’s exclusion and substantially reducing that available for adjustment, was, again, a form of family violence perpetrated by Mr Bradford against Ms Donnellan. Accordingly, I am similarly satisfied that the financial aspect of the proceedings was not conducted in good faith by Mr Bradford.
Ms Donnellan’s costs in these proceedings are $11,607.50. In relation to the Independent Children’s Lawyer, costs are $7,031.50.
I am satisfied that the Court would be justified in making an Order for costs against Mr Bradford for each of those sums. I am satisfied it would be just for those sums to be awarded against Mr Bradford.
The inactions of Mr Bradford in failing to take any step towards engagement with these proceedings cannot be condemned strongly enough. That in combination with paragraph 97(a) of Ms Donnellan’s material, asserting that Mr Bradford had clearly evinced and expressed an intention, from early in the proceedings, to inflate her costs and drag out the proceedings for as long as possible, evidence which is completely unchallenged, and thus which I accept, would render it just for costs to be awarded.
Whether the proceedings are necessitated by the failure of a party to comply with the previous order
The proceedings, as such, are not necessitated by such a failure. However, during the proceedings Mr Bradford has failed to comply with most, if not all, Orders made by this Court, either as to their terms or their spirit.
Mr Bradford has half-heartedly engaged in Family Counselling services but has learned nothing from them. He has not complied with any Order for trial preparation or disclosure.
As the Full Court of the Family Court of Australia observed in Tate & Tate (No.3) (2003) FLC 93-138, such Orders and directions as those to attend Family Counselling and to file documents and give disclosure, are Orders of the Court and are to be complied with.
Mr Bradford’s failure to appropriately prepare or engage, including following the accommodation extended to Mr Bradford to permit him to continue to participate and cross-examine, notwithstanding those failures (see, again, Tate & Tate [2000] FamCA 1040), suggests that the matter could have proceeded on an undefended basis as regards Mr Bradford. As the case contained a plea for relief with respect to parenting, I was satisfied that the children’s best interests warranted and required that Mr Bradford be permitted to engage in such cross-examination as he desired and, at least, to participate in the trial.
Mr Bradford’s failures, whilst not leading to his exclusion from the proceedings, have very much dragged out the proceedings, rendered them more difficult and onerous, financially and otherwise, and being costs inflicted upon Ms Donnellan, and, through her, the children as well as upon the Independent Children’s Lawyer. That is another justifying circumstance and another reason why it is just for an Order for costs to be made.
Whether a party has been wholly successful
In this regard, I am conscious that not only has Mr Bradford been wholly unsuccessful, but Ms Donnellan has been wholly successful. As the Full Court of the Family Court of Australia observed in Davida & Davida (Costs) [2011] FamCAFC 61, both success and its absence are relevant considerations, as is apparent from the following portion of the decision:
The other justifying circumstance is the husband’s relative success. True it is that the relevant paragraph in section 117(2A) refers to a party being “wholly unsuccessful”, but I think it is fair to say that the practice has been to look at what one might term the relative merits of success or lack of success between the parties, even if necessary doing that under the last matter mentioned in section 117(2A), being any “other” matter.
This is also a justifying circumstance and a basis for justice being served by an Order for costs being made.
Offers in writing
There is no evidence of any offer, other than Ms Donnellan having maintained a consistent position throughout the proceedings and which she has obtained.
Quantum of costs
In considering the quantum of costs, no Application is made by Ms Donnellan or the Independent Children’s Lawyer for indemnity costs and hence I need not consider the issue further.
In addressing party/party costs, I must have regard to Division 21 of the Federal Circuit Court Rules 2001 and incorporated thereby Schedule 1 to those Rules.
I am satisfied that the costs that are sought by each of Ms Donnellan or the Independent Children’s Lawyer fall within that which would be allowed by reference to Schedule 1.
The Independent Children’s Lawyer has been involved in the matter from the second or third Court event until conclusion. On that basis, the costs of preparation for a 2 day hearing and the hearing itself (items 7, 12 and 13) exceed that sought. Thus, I am satisfied the quantum of costs sought is appropriate and should be ordered.
Ms Donnellan’s lawyers did not assist Ms Donnellan with preparation for or the conduct of the hearing. However, Ms Donnellan would be entitled, by reference to Schedule 1,[15] to not less than:
a)Item 1 Commence Proceedings $2,199
b)Item 13 First Return Date $299
c)Item 4 Conciliation Conference $1,832
d)Item 13(b) First Return Date FCC (1/2 day)[16] $1,099
e)Enquiries with respect to disclosure and subpoena[17] $4,686
f)Items 14 and 15 Disbursements[18] $600
[15] I propose to use the current schedule of costs. The amounts per item have increased over time. However, the matter was commenced in the Family Court of Australia and, similarly, I do not propose to consider any scale under the Family Law Rules 2004. The costs provided in Schedule 1 are indicative event based costs and not intended to be prescriptive. The amounts can be departed from.
[16] Federal Circuit Court of Australia.
[17] There is no general preparation item within the schedule but this work was clearly required and required in light of Mr Bradford’s failure to engage in the proceedings or to give disclosure. I propose to use item 6 – preparation for 1 day hearing – as a guide.
[18] Including any filing fees on subpoena, service fees, conduct money and photocopying.
These amounts total $10,715. However, substantially more appearances and substantially more work was undertaken than the above items which are included for illustrative purposes.
Based on the above, I am satisfied that if a complete calculation of all claimable party/party work was undertaken that the amount would exceed that sought. Hence I am satisfied that the amount sought is an appropriate amount to Order on a party/party basis.
Conclusion
For the above reasons, I am satisfied that Orders for costs in favour of each of Ms Donnellan and the Independent Children’s Lawyer for the sums that they seek, $11,607.50 and $7,031.50 respectively, are justified. I am satisfied that the interests of justice are served by costs being ordered.
I do make clear, for the benefit of Ms Donnellan, that an Order for costs in her favour creates a right for Ms Donnellan to seek payment from Mr Bradford of the sum awarded. A costs Order does not obviate against Ms Donnellan’s obligation to pay her lawyers from her funds, and to then recoup funds from Mr Bradford. I have not made an Order in the nature of an indemnity, nor could I, as it would affect the rights of a third party who has not been afforded due process.
Accordingly, Ms Donnellan should be clear that it is her obligation, at first instance, to pay her former lawyers, Soden Legal, although she is perfectly entitled to either assign her debt created by the costs Order or to take enforcement action against Mr Bradford herself to recoup that amount.
For those reasons, I make Orders as follows (see Orders).
I certify that the preceding three hundred and eighty-four (384) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 9 July 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
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Damages
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Discovery
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Natural Justice
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Procedural Fairness
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