Duarte and Morse
[2017] FamCA 350
•16 May 2017
FAMILY COURT OF AUSTRALIA
| DUARTE & MORSE | [2017] FamCA 350 |
| FAMILY LAW – INTERIM – Discharge of the Independent Children's Lawyer – Application for writ of Certiorari – Whether the Court has jurisdiction to issue writ of Certiorari – Whether the Court should restore previous Interim parenting orders – Whether the Court should strike out Filed Form 4 documents |
Craig v South Australia (1995) 184 CLR 163
JB & BW (Application to extend time for Appeal) [2010] FamCAFA 144
McNamara & Rose [2007] FamCA 529
Re K (1994) FLC 92-461
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Duarte |
| RESPONDENT: | Mr Morse |
| INDEPENDENT CHILDREN’S LAWYER: | Hamish Cumming Family Lawyers |
| FILE NUMBER: | SYC | 737 | of | 2014 |
| DATE DELIVERED: | 16 May 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 3 March 2016, 6 December 2016, 27 April 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Othen |
| SOLICITOR FOR THE APPLICANT: | Slater & Gordon Lawyers |
| COUNSEL FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms Shae |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER : | Hamish Cumming Family Lawyers |
Orders
The appointment of the Independent Children's Lawyer is hereby discharged.
The mother’s Application in a Case filed 11 November 2015 and that filed 1 October 2014 is dismissed.
The mother’s Application in a Case filed 11 December 2014 is dismissed.
Should the final hearing of the parenting matters not proceed as scheduled on 26 June 2017, the mother has leave to renew any application for interim parenting orders she may seek.
I reserve each party’s costs of the determination of the mother’s applications set out above.
I reserve the right of the Independent Children's Lawyer to seek an order for costs incurred in acting as Independent Children's Lawyer during the period of the appointment. The Independent Children's Lawyer is to make any such application no later than 28 days after the conclusion of the parenting case listed to commence on 26 June 2017.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Duarte & Morse has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: SYC 737/2014
| Ms Duarte |
Applicant
And
| Mr Morse |
Respondent
And
Independent Children's Lawyer
REASONS FOR JUDGMENT
Introduction
This determination addresses applications made by the mother Ms Duarte. The orders sought are as follows:-
a)An Application in a Case filed 11 November 2015 (order 5 as sought in that application);
b)An Application in a Case filed 1 October 2014 (order 5 as sought); and
c)An Application in a Case filed 11 December 2014 (orders 1 and 2 sought in that Application).
The mother supports those applications with affidavits filed 11 November 2014 and 1 October 2014. The mother also relies upon paragraph 20 of the affidavit sworn by Ms BB on 30 March 2017.
In support of her orders as sought the mother provided written and oral submissions.
Before proceeding to determine the above matters, it is important to note that the final hearing of the outstanding parenting disputes is listed to commence on 26 June 2017. In relation to that hearing, the mother has filed her Response to the father’s Initiating Application seeking orders that his application be dismissed. The order she seeks is found in a document titled Response to Fourth Amended Initiating Application filed 29 January 2016. That Response was filed on 17 February 2017. That document seeks dismissal of the father’s application and a discharge of all current parenting orders.
In the hearing before me on 27 April 2017 the mother made clear that she was seeking the Court make no parenting order so that the parents could then negotiate the parenting arrangements for the subject children. When asked, the father informed the Court, through his counsel, that he did not agree to such a proposal.
Background
The order sought in the mother’s Application in a Case filed on 11 November 2015, which she pursues in this application is as follows: “That prior to making the above determinations, the ICL and the Intervener be discharged as parties to the case, and Justice Rees be discharged as the “trial judge”.”
The intervener at that time was The Secretary, Department of Family and Community Services. That party has now been discharged as a party on its own application. That part of the mother’s application becomes unnecessary to determine.
The trial judge is no longer Justice Rees, who has recused herself, and so that part of the mother’s application becomes unnecessary to determine.
The application for the discharge of the Independent Children's Lawyer remains necessary to determine.
The Application in a Case filed 1 October 2014 seeks as order 5 the following: “Restoration of former orders made 24th March, 2014, by His Honour Justice Le Pour [sic] Trench.” The orders made by me on 24 March 2014 provided for the children to live with the mother and spend time with the father. There were restraints on the mother which included not allowing the children to be “left in the care of Mr T unsupervised by her.”
The Application in a Case filed 11 December 2014 sought orders in paragraphs 1 and 2 as follows: “Seeking Certiorari writ to quash “Form 4” filed 12th June, 2014, by Ms CC; or, in the alternative, seeking a declaration of invalidity of “Form 4” filed 12 June, 2014, by [Ms CC].” And “Seeking Certiorari writ to quash “Form 4” filed 13th June, 2014, by [Mr Morse]; or, in the alternative, seeking declaration of invalidity of “Form 4” filed 13 June, 2014, by [Mr Morse]”. It is to be noted that Ms CC was, on 12 June 2014, the Independent Children's Lawyer appointed for the children.
The two Form 4 documents were filed at nearly the same time. The documents are both annexed to the mother’s affidavit filed 4 December 2014.
The Form 4 filed by the Independent Children's Lawyer sets out detail of concern relating to Mr T which raised concerns for the Independent Children's Lawyer as to the safety of the subject children living in the same house as Mr T. The information is contained in a section of the form which asks: “Describe the facts alleged to constitute any risk of abuse.” The form did not allege any of the subject children had been abused by Mr T.
Mr T was at the time the mother’s partner and is now her husband. The mother and Mr T now have two children of their own and live together. The Department of Family and Community Services have taken no action to remove those children from that circumstance. Mr T and the mother both assert there are no safety concerns for the subject children from being in the presence of Mr T in any circumstance.
The Form 4 filed by the father stated a risk to the children arising from the presence of Mr T in the proximity of the children.
Determination
The Discharge of the Independent Children's Lawyer
The circumstances of the children and the litigation have changed considerably since the Court appointed an Independent Children's Lawyer. As the above now demonstrates, the matter is listed for final hearing on 26 June 2017 and the mother is seeking a dismissal of the father’s application for parenting orders.
Although there have been orders in place for a considerable time, firstly providing the children live with the mother and then that the children spend time with the mother upon conditions, that spending time has not occurred for some 12 months. The Department of Family and Community Services has withdrawn from the case. The mother emphasises that the evidence from a relevant Department of Family and Community Services officer, Ms BB, is “there are no present risk of significant harm concerns for the children”.
It is to be noted by the Court that the position of the Department of Family and Community Services, as set out in the evidence of Ms BB, is that the children have had no face to face time with the mother “since the making of the interim orders on 11 April 2016.”
The father concedes that the necessity for the appointment of an Independent Children's Lawyer has changed significantly since the appointment was made. He concedes there is probably no practical role for the Independent Children's Lawyer to fulfil at this time.
The Independent Children's Lawyer also concedes that there does not appear to be the same necessity for the involvement of an Independent Children's Lawyer in this matter now that the parameters for the final hearing have been set and the hearing is imminent.
The orders made by me on 11 April 2016 varied the then interim parenting orders by stating it was a condition of the mother spending time with the children that she enter into an undertaking as prescribed by me in those orders. The mother has not provided the written undertaking and has not exercised any face-to-face time since the making of those orders.
Having considered the circumstances which the Court now faces, in terms of determining the now pressed Initiating Application and Response thereto, and considering the cost which would be incurred during a 10 day hearing of the parenting case by the Independent Children's Lawyer, I consider the Court and the children, on balance, can be adequately served by the termination of the current appointment of the Independent Children's Lawyer.
The Full Court in Re K (1994) FLC 92-461 set out the circumstances in which it would be appropriate to appoint an Independent Children's Lawyer. Whilst acknowledging that some of the indicia set out in Re K still remain as applicable to this case, there are matters of discretion which fall for consideration, one of which is the cost to the parties and/or the Legal Aid providers for NSW.
In this case it is probable that the Independent Children's Lawyer will apply to the Court for a costs order to be met by the parents. In that case the Court could not exclude at this time that an order would not be made against one or both the parents to contribute towards or pay in whole the costs incurred by the Independent Children's Lawyer. That cost would probably be considerably enlarged should the Independent Children's Lawyer be required to attend the hearing for a total of ten days, as is currently set.
In the circumstance therefore I propose to make an order discharging the appointment of the Independent Children's Lawyer. I propose to make an order reserving the right of the Independent Children's Lawyer to seek an order for payment of costs for work done during the currency of the appointment.
The mother, in her written submission of 2 May 2017, submitted that the appointment of the Independent Children's Lawyer (when first appointed in June 2015) was flawed because of the order made by Rees J. The written submission I found impossible to comprehend, however, to the extent that it be the mother’s case that Rees J did not comply with the provisions of the Family Law Act in making the appointment of an Independent Children's Lawyer, such an error, if made, is an appealable error and not within the jurisdiction of a trial judge to remedy. As such, I am unable to make a declaration, which seems to be what the mother would require, even if I was in agreement with her submissions about any such error, which I am not.
Restoration of the Orders made 24 March 2014
As set out earlier, the matter is set for final hearing to commence on 26 June 2017. It would, in those circumstances, be unwise to vary the current interim orders, by relying upon limited untested evidence, where the final hearing is scheduled in such close proximity. The mother has not, at this time, filed her evidence to support her case for the final hearing, nor have I had the opportunity to see each of the parents and their witnesses cross-examined.
At this time the current interim order permits the mother to have face-to-face time with the children subject to specified requirements. The Orders were made on 11 April 2016. It was common ground at the hearing before me on 27 April 2017 that the mother was not exercising any face-to-face time with the children. That circumstance alone would cause the Court to move with caution, until the reason for that failure to exercise face-to-face time has been understood or determined by the Court.
As a consequence of the above I decline to consider the mother’s stated application at this time. Should the final hearing not proceed as scheduled the mother may renew her application.
Writ of Certiorari to quash Form 4s dated 12 June 2014 and 13 June 2014 or alternatively declaration of invalidity of those Form 4s
In order to consider this part of the mother’s application it is necessary to define what is within the scope of a writ of certiorari and to consider whether this court has jurisdiction to grant/make such a writ.
The High Court in Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) described the scope of certiorari as follows:
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and ‘error of law on the face of the record’ …
The Full Court in McNamara & Rose [2007] FamCA 529 concluded that the reasoning of Carter J in determining that a Judge of this Court does not have the power to issue a writ of mandamus, a writ of prohibition or a writ of certiorari against another judge of this Court. The trial judge had determined that the High Court has exclusive jurisdiction under the Constitution and the Judiciary Act 1903, to grant such remedy “against an officer of the Commonwealth or a federal Court.” An “officer of the Commonwealth” “extends to judicial officers”.
In JB & BW (Application to extend time for Appeal) [2010] FamCAFA 144, Faulks DCJ, sitting as a single judge of the Full Court, found that the power to grant/order certiorari was outside the jurisdiction of the Family Court of Australia.
Based upon that binding authority, I find that the mother’s application for certiorari must fail.
The next part of the mother’s application to be determined is seeking a declaration of invalidity in relation to the subject two Form 4 filed documents.
The mother based her application upon the following.
Section 67Z(2) sets out the following:
S 67Z Where interested person makes allegation of child abuse
(1) This section applies if an interested person in proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at risk of being abused.
(2) The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.
(3) If a notice under subsection (2) is filed in a court, the Registry Manager must, as soon as practicable, notify a prescribed child welfare authority.
The mother pointed to the requirement to serve the person from whom the children are alleged to be at risk. In this case that person is the mother’s husband Mr T. The mother says there is no evidence he was not served and she asserts he was not served.
In addition to the above the mother points to the Family Law Rules 2.04D(2) which provide as follows:
Rule 2.04D Prescribed form
(1) The prescribed form for a notice mentioned in subsection 67Z(2) or 67ZBA(2) of the Act is the Notice of Child Abuse, Family Violence or Risk of Family Violence.
Note: The Notice of Child Abuse, Family Violence or Risk of Family Violence is set out in Schedule 2.
(2) A person who files a notice referred to in subrule (1) must file an affidavit or affidavits setting out the evidence on which the allegations in the notice are based, no later than the time the notice is filed.
Note: For service of a notice filed in a case to which section 67Z or 67ZBA of the Act applies, subsections 67Z(2) and 67ZBA(2), respectively, require that a person that is the subject of the allegation in the notice must be served with a copy of the notice. The requirements for service of filed documents are set out in rule 7.04.
The mother submits there is no evidence to show that either the father or the Independent Children's Lawyer complied with Rule 2.04D(2).
The mother then relied upon section 42(1) of the Family Law Act which sets out the following:
S 42 Law to be applied
(1) The jurisdiction conferred on a court, or with which a court is invested, by this Act shall be exercised in accordance with this Act and the applicable Rules of Court.
The mother submits that as the provision of s 67Z(2) or Rule 2.04D(2) have not been complied with, then the Court did not have jurisdiction to proceed with a hearing which relied in part on the information contained in both of the Form 4 documents.
The father submits in response to the mother’s case that, in relation to the Form 4 filed by the father, it named Mr T as the potential risk posed to the children. That risk was set out in an affidavit which was before Stevenson J on 10 July 2014. Judgment was given on 25 July 2014. Other evidence was provided by the Department of Family and Community Services and also tendered from documents produced on subpoena.
The father submits it was appropriate and obligatory for the father to file the Form 4 given the circumstances which were presented to the Court on 10 July 2014.
In relation to the mother’s complaint that the Form 4 had not been served upon Mr T, no complaint was made to that effect on 10 July 2014. That was the time when the mother could have and should have made that complaint.
In any event, the father submits that Mr T has been provided with a copy of the relevant Form 4 by letter dated 30 January 2015. A copy of that letter became exhibit H1 in the hearing. I am satisfied that provided Mr T with notice of the Form 4 which named him. As such no established prejudice is asserted to have arisen arising from the failure to effect service in the manner set out in the Family Law Rules.
The father submitted that Mr T has been a party to the property proceedings and has been before the Court on many occasions as the Court record discloses. The father said that Mr T has on a number of occasions made his position clear that he is only a party to the property proceeding.
The father submits that this Court ought not interfere with orders which have never been the subject of an appeal. The father submits that the mother’s application seeks to challenge the jurisdiction to make the orders made by the court on 25 July 2014 and that is an appellant function not a matter which falls within the power of a trial judge.
It is further submitted that the orders of 25 July 20124 were not made on the Form 4 evidence alone. It was submitted that having regard to the judgment of Stevenson J of 25 July 2014 it can be seen that Her Honour would clearly have made the order she made had there been no Form 4 filed at all.
Similar submissions were relied upon by the Independent Children's Lawyer. The Independent Children's Lawyer made the following further submission.
Mr T has never been a party to the parenting case and so lack of notice of a Form 4 is not an issue to the validity of orders of the court which are not made against him.
The Independent Children's Lawyer concedes that the Form 4 filed by the Independent Children's Lawyer was not served upon Mr T. What has happened since the filing of the Form 4 serves to illustrate that no unfair prejudice has flowed to Mr T as a result of the failure to serve him with the Form 4 filed by the Independent Children's Lawyer.
The Independent Children's Lawyer directed the Court’s attention to Division 12A of Part VII of the Act. This hearing is subject to those provisions unless varied by exclusion (to the extent permitted by the Act). In particular section 69ZN(7) will have application.
The Independent Children's Lawyer submits that non-compliance with a Rule needs to be considered in context and where appropriate the compliance with the Rule would be waived.
The Independent Children's Lawyer submitted the Court does not have the power to strike out the notice.
In this determination I accept the submissions of the Father and the Independent Children's Lawyer where they each submit the matter raised by the mother in this application is really in the nature of an appeal which lies outside my power to determine. That being the case, there is no further need to consider the balance of the submissions by each.
I propose to dismiss the mother’s application.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 16 May 2017.
Associate:
Date: 16 May 2017
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