Flutter and Flutter

[2018] FamCA 935

FAMILY COURT OF AUSTRALIA

FLUTTER & FLUTTER [2018] FamCA 935

FAMILY LAW – PRACTICE AND PROCEDURE – Oral application to defer listing for final hearing – Application refused – Order listed for trial.

Family Law Act 1975 (Cth)

APPLICANT: Mr Flutter

RESPONDENT: Ms Flutter

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 6736 of 2007

DATE DELIVERED: 6 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 6 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Stratton-Funk, Nita Stratton-Funk & Associates

SOLICITOR FOR THE RESPONDENT: Ms Kennedy, Delaney & Delaney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Rayment as town agent for Legal Aid Queensland

Orders

IT IS ORDERED THAT

Setting down for hearing

1. The matter is listed for final hearing for three (3) days before Justice Hogan commencing at 10.00 am on 19 March 2019, at the Family Court of Australia at Brisbane.

2. All parties attend the hearing in person.

3. The matter is listed for a case management hearing commencing at 9.15 am on 1 March 2019 before the Honourable Justice Hogan.

4. For the purposes of the case management hearing referred to in Clause 3, the parties and their legal representatives have leave to attend by telephone. 

5. Should any party wish to exercise this liberty, they are to provide their best contact telephone number to … to the attention of the case manager, no later than three (3) business days prior to that hearing.

AND IT IS FURTHER ORDERED BY CONSENT THAT

Court fees

1. The Applicant shall pay the setting down and hearing fee by 4.00 pm on 14 January 2019 unless a fee exemption application has been approved beforehand.

Filing material

1. By no later than 4.00 pm on 20 February 2019: the Applicant and Respondent each file and serve the following:

   (a)one affidavit setting out his/her evidence in chief;

   (b)any affidavit setting out the evidence of any professional or lay witness that the party proposes to call at the trial.

2. In the event that a party (including the Independent Children’s Lawyer) refers to an annexure or exhibit within the body of an affidavit of evidence in chief, any such shall be included in an indexed and paginated folder (including a reference to the paragraph number within any affidavit where the annexure or exhibit is mentioned) and provided to the other party (including the Independent Children’s Lawyer) at the time of service of the affidavit AND a copy of the folder should be available to be tendered, if required, at the commencement of the trial.

3. By no later than 4.00 pm on 27 February 2019: the parties file and serve any affidavit strictly in reply.

4. By no later than 4.00 pm on 27 February 2019: the parties file and serve a list of the affidavits and material to be relied upon at the trial.

5. By no later than 4.00 pm on 27 February 2019: the parties notify each other in writing of the name or names of any witnesses not required for cross-examination.

6. By no later than 4.00 pm on 12 March 2019: the parties file and serve a list of objections to evidence, if any.

7. By no later than 4.00 pm on 15 March 2019: the parties file and serve a reply to objections to evidence.

8. The parties without the leave of the Court not be permitted to rely upon any affidavit not filed in compliance with these Directions.

Applications to appear by telephone or video

1. By no later than 9.00 am on 27 February 2019: all applications made pursuant to Rule 16.05 of the Rules for attendance of any witness at the trial by telephone or video communication be filed and served.

2. Any application made pursuant to the previous Order, be listed before Justice Hogan at the pre-trial mention of this matter referred to in Clause 3. 

Case information

1. By no later than 4.00 pm on 12 March 2019, each party file and serve a case information document setting out:

   (a)a precise minute of the orders sought by that party (with the Independent Children’s Lawyer exempted from this requirement);  and

   (b)a brief chronology of relevant events;  and

   (c)a summary of argument including a list of authorities upon which that party intends to rely.

Updated Family Report

1. The parties attend on Ms B to prepare an updated Family Report in relation to the child, X (the child), born … 2005, on a date to be advised by the Independent Children’s Lawyer.

2. The parties share equally the costs of the preparation of the updated Family Report. 

3. The parties shall attend and ensure the child attends all necessary appointments for the preparation of the updated Family Report.

4. The Independent Children’s Lawyer has leave to provide the Family Report Writer with a copy of any relevant document obtained pursuant to any subpoena issued.

5. The Independent Children’s Lawyer shall provide the parties with a list of the documents intended to be provided to the Family Report Writer.

Notification to Family Report Writer

1. The Independent Children’s Lawyer is requested to forthwith notify the report writer in writing of the trial dates and confirm the availability of the report writer to give evidence on those dates.

2. The Independent Children’s Lawyer shall take all necessary steps to liaise with the Family Report Writer and other such Court witnesses and single experts to facilitate their attendance at the hearing for the purpose of cross-examination.

Subpoena

1. The Independent Children’s Lawyer has leave to issue any subpoena considered appropriate.

2. The Independent Children’s Lawyer has leave to provide to the parties a copy of all subpoena material intended to be relied upon by the Independent Children’s Lawyer at the final hearing of this matter.

3. Upon leave being granted to inspect documents produced to this Honourable Court pursuant to subpoena each party is to arrange a time with the Registry to inspect all such documents (including any recordings) as soon as reasonably practicable. 

4. After inspection of documents produced to this Honourable Court pursuant to subpoena, the Applicant and Respondent shall each provide to the Independent Children’s Lawyer a detailed list of documents (sufficient to enable the Independent Children’s Lawyer to identify the document) requested by them to be included in a bundle of documents to be tendered at trial by consent no later than 4.00 pm on 5 March 2019. 

5. Leave is granted to all parties to photocopy the documents produced by subpoena and all parties acknowledge that the same are to be used only in these proceedings.

6. The Respondent has leave to issue a subpoena directed to Dr B for the production of documents and to the child’s treating general practitioner and/or the medical practice upon which she generally attends.

7. All parties have leave to copy any documents produced under subpoena directed to Dr B and the child’s treating general practitioner and/or the medical practice upon which she generally attends.

Tender Bundle

1. By no later than 4.00 pm on 12 March 2019: the Independent Children’s Lawyer provide the other parties with a list of the documents intended to form part of the bundle of documents to be tendered by the Independent Children’s Lawyer at the trial, with such list to describe each document with sufficient particularity to enable the parties to identify it.

2. By 4.00 pm on 15 March 2019: the Applicant and the Respondent each provide to the other parties a list of any additional documents proposed to be tendered by that party at the trial, with such list to describe each document with sufficient particularity to enable the parties to identify it.

3. Save for the purpose of obtaining legal assistance and/or representation at the final hearing of this matter, no party may provide any other person with a copy of the documents provided to them by the Independent Children’s Lawyer. 

4. Each party shall bring the material provided to that party by the Independent Children’s Lawyer in accordance with this Order to Court on the first day of the trial.

Failure to Comply

1. In the event a party fails to comply with these Trial Directions, the matter may proceed on an undefended basis on 19 March 2019 and the non-defaulting party shall be at liberty to seek orders by default on a final basis on that day.

Liberty to Apply

1. The parties have liberty to apply in relation to further directions for trial by directing correspondence to … to the attention of the case manager.

Trial requirements

1. In the event any party requires any of the following at the trial of this matter:

   (a)an interpreter; or

   (b)audio or visual equipment, including for the playing of any video or audio recordings; or

   (c)Cisco Jabber video equipment;  or

   (d)a hearing loop

   they are to notify the Case Co-ordinator for the matter in writing as soon as possible and no later than fourteen (14) days prior to the commencement of the final hearing.

Costs Disclosure (Rule 19.04)

1. No later than 4.00 pm on the day seven (7) days prior to the commencement of the trial the lawyer for each party must give the party a written notice of:   

   (a)the party's actual costs, both paid and owing, up to and including the trial; and

   (b)any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses; and

   (c)on the first day of trial:

   (i)a party's lawyer must give to the Court and each other party a copy of the said notice given to the party.

2. On the first day of trial the Independent Children’s Lawyer must give to the Court and each party a written statement of the actual costs incurred by the Independent Children’s Lawyer up to and including the trial.

NOTATIONS:

Issues for trial

(A)The following issues have been identified as issues for trial:

(i)in relation to the father’s case:

(a)the child’s wishes regarding contact with the mother and the weight to be given to those wishes;

(b)to what extent previous final Orders of Bell J made on 20 August 2012 should be re-opened in relation to the living arrangements for the child and in relation to parental responsibility;

(c)the impact of the mother’s mental health on her approach to parenting and the effect on the child’s emotional and psychological wellbeing.

(ii)in relation to the mother’s case:

(a)the wishes of the child and the weight to be attributed to those wishes having regard to her age and level of maturity;

(b)the capacity of the parents to meet the child’s physical, social, emotional and educational needs;

(c)the impact on the child of any change to her living arrangements;

(d)the child’s relationship with her parents;

(e)the capacity of the parents to support the child’s relationship with the other parent.

(iii)In relation to the Independent Children’s Lawyer’s case:

(a)the wishes of the child and the weight to be attributed to those wishes having regard to her age and level of maturity;

(b)the capacity of the parents to meet the child’s physical, social, emotional and educational needs;

(c)the impact on the child of any change to her living arrangements;

(d)the child’s relationship with her parents;

(e)the capacity of the parents to support the child’s relationship with the other parent.

Witnesses

(B)The witnesses in each party’s case are as follows:

(i)in the Applicant’s case it will be the father;

(ii)in the Respondent’s case it will be the mother, Mr C Flutter, Ms D Flutter and Mr E Flutter;  and

(iii)the joint expert required at trial is Dr G.

Communication with Chambers

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

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

Cross-examination by telephone

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

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

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

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

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

(G)The Court today advised the parties of the importance of complying with the Trial Directions made on 6 November 2018.

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 Flutter & Flutter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6736 of 2007

Mr Flutter

Applicant

And

Ms Flutter

Respondent

And

The Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. I am going to list the matter for trial.  I take into account the submissions made by Ms Kennedy on behalf of the mother to the effect that I should conclude that doing so is not in the child’s best interests because she and her mother are, at this stage, embarked upon the continuation of what I will term a rebuilding of time and, therefore, the mother is understandably very concerned that the imposition of the trial, to resolve the existing legal proceedings between the parents, might somehow derail that process.  I have taken that submission into account.

2. However, I have also taken into account the long history of litigation in this matter.  Before I say this, I should formally record that any conclusions I express are expressed within the context only of determining the application for the delay of finalisation of the matter and could not be regarded, and should not be regarded by either party, as constituting a finding of fact: because, of course, I am not in a position to undertake that without seeing each of the parties cross-examined and hearing the submissions made on each of their behalves by their respective lawyers at trial. 

3. What I am, I think, able to do, though, is reach a conclusion that I could not necessarily be persuaded in the history of this matter that delay would do anything necessarily to improve things.  In the same way, I cannot necessarily be persuaded that finalisation will “free the air” as one might hope it might in another case.  With those matters firmly in my mind, one thing I can do is finalise an application that was filed in, I think, April 2017 or thereabouts (Initiating Application originally filed on 5 April 2017) and, therefore, do my best, in a systemic context, to remove this dispute from the system within which it has been played out for the vast majority of this child’s life.

4. So, for those reasons, I intend to list the matter for trial for three days commencing on 19 March, noting that the interviews for the updated report are to occur on 16 January of next year. 

5. Now that I know that it seems that both parents agree that the child at least knows of the fact of an upcoming Family Report interview with Ms B and the fact of it occurring in January, I will not make any order restraining either of them from telling her about the prospective interview.  It is clear that, despite knowing this, there has been this continued progress towards spending overnight on this upcoming weekend – which is a good thing and, one hopes for the child, positive in terms of her views about her interactions and relationships with both of her parents. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 6 November 2018.

Associate:     

Date:              6 November 2018