Fowles and Fowles
[2018] FamCA 145
•8 March 2018
FAMILY COURT OF AUSTRALIA
| FOWLES & FOWLES | [2018] FamCA 145 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Relieve parties from obligation of confidentiality over documents in these pending parenting and financial proceedings – discovery – case management. |
| APPLICANT: | Ms Fowles |
| RESPONDENT: | Mr Fowles |
| INTERVENOR: |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Mary Lonergan |
| FILE NUMBER: | MLC | 8587 | of | 2015 |
| DATE DELIVERED: | 8 March 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 8 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gillard |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
| COUNSEL FOR THE RESPONDENT: | Mr North SC |
| SOLICITOR FOR THE RESPONDENT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms M Lonergan | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
IT IS ORDERED THAT:
1.There be leave to each of the parties to refer to affidavits sworn or affirmed by the husband and the wife in these proceedings, or by either of them, in proceedings in Case Numbers …and … in the State Magistrates Court at Melbourne for intervention orders which are next returnable before Magistrate … on … 2018.
2.The parties be at liberty to produce to the said Magistrate a copy of the family report of Dr B dated 12 December 2016 and/or a copy of the family report of Family Consultant Ms C dated 24 November 2017 NOTING THAT neither report has been the subject of cross-examination and each party has this day been provided with a copy of the reports from this Court’s file sequentially numbered pages 1 to 70.
3.By not later than Thursday 15 March 2018 at 12.00 noon the husband provide particulars in writing to the wife, via their respective solicitors, of the common interest privilege claimed in relation to documents in the proceedings between Mr G Fowles and the wife.
4.By not later than 4.00 pm on Wednesday 14 March 2018 each party provide the other parties with any objections in writing to evidence and by not later than 4.00 pm on Thursday 15 March 2018 a party whose evidence has been subject to an objection by the other party provide a response to that objection in writing.
5.By not later than 12.00 noon on 15 March 2018 the husband and the wife each file and serve and provide to my Associate by e-mail – … :- an outline of case in relation to property matters which includes:-
a) a list of documents upon which that party will rely at trial;
b) a list which identifies the property, including equitable interests in property, of each of the husband and the wife;
c) any monies or premature distributions of property to which either party has been entitled, including that property or money which is no longer in existence, and the basis (if any) upon which such property is to be adjusted against the entitlement of either party and the extent of that adjustment;
d) whether it is just and equitable within the meaning of s79(2) to make an order adjusting the husband and/or the wife’s interests in property; and
e) a summary of argument including but not limited to the following matters relating to a final alteration of property interests:-
1.the contribution based entitlement of each party;
2.in dot point form the different types of contribution being financial contributions (s79(4)(a)), non-financial contributions (s79(4)(b)) and contributions to the welfare of the family (s79(4)(c)) upon which that party relies to support the contribution based entitlement for which they contend;
3.any other matters relevant to a division of property including any adjustment to the contribution-based claim (if any) having regard to the factors in s79(4)(d), (e), (f) and (g);
ii.in dot point form what relevant s75(2) or other factors relied upon by that party for any adjustment;
iii.why the orders sought by that party are appropriate;
f) a summary of any matters upon which evidence is adduced from experts and is not agreed, including but not limited to:-
i.the date and outcome of the last conference between experts;
ii.the particular matters upon which there is no agreement between experts;
iii.what the difference there would be to the final outcome in the event that one expert’s view of any particular matter is accepted over the other experts view;
g) a summary of argument in relation to any other financial relief which is sought including child support or spousal maintenance;
h) a minute of the orders which he/she seeks be made at the final hearing if the orders sought differ in any respect from his/her last filed application or response.
6.By not later than 12.00 noon on 15 March 2018 each party file and serve in relation to the parenting proceedings:-
a) a case outline document; and
b) a list of documents to relied upon by that party –
and send same to my Associate by email – … - including, but not necessarily limited to, the following issues:-
a) Whether the presumption in relation to equal shared parental responsibility is rebutted and, if so, on what basis; and
b) Whether it is the best interests of the child D born … 2003 (“the child”) to spend equal time with each parent and, if not, why not; and
c) Whether it is the best interests of the child for the parent with whom the child is not primarily resident to be entitled to spend substantial or significant time to spend equal time with the child and, if not, why not; and
d) What parenting orders are sought by that party;
e) Why the parenting orders sought by that party are in the best interests of the child having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.
7.By not later than 16 March 2018 the independent children’s lawyer provide to each other party to the proceedings and by email to my Associate:-
a) a chronology of relevant events;
b) a minute of the orders which in the preliminary view of the independent children’s lawyer ought to be made at the final hearing;
c) a list of documents upon which the independent children’s lawyer intends to rely;
and the parents, through their legal practitioners, cooperate with the independent children’s lawyer to ensure, to the extent that it is practicable to do so, that the information contained in the chronology is agreed to be accurate.
8.By not later than 4.00 pm on 16 March 2018 by way of compliance with Rule 19.04 of the Family Law Rules 2004 the practitioner for each party provide notice in writing to his/her client of:-
a) the actual costs incurred by the client up to and including that date;
b) any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;
c) the costs payable for each day of the private mediation;
d) the costs payable for each day of the trial;
e) the estimated length of the trial; and
f) the date of payments made and the source of the funds for the costs paid or to be paid so that:-
i.if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;
ii.if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and
iiiif costs have been paid in cash, the details must identify the payer;
And the parties exchange the cost notifications and send same to my Associate by email.
9.The costs of this day be and are hereby reserved NOTING THAT the independent children’s lawyer attended at Court this day.
10.Otherwise the Application in a Case of the wife filed 27 February 2018 and the Response thereto of the husband filed 7 March 2018 be and is hereby dismissed.
IT IS DIRECTED:
11.That Exhibit “H1” remain on the Court file.
12.My reasons for decision this day be transcribed and when settled be placed on the Court file and provided to the parties to the proceedings and a copy be sent to the said Magistrate.
AND IT IS FURTHER NOTED:
A.That this matter is currently set down for final hearing before me on 19 March 2018 at 10.00 a.m. estimated to take 5 days.
B.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowles & Fowles 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 MELBOURNE |
FILE NUMBER: MLC 8587 of 2015
| Ms Fowles |
Applicant
And
| Mr Fowles |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
ex-tempore
This matter comes before me as a mention brought on urgently on issues of discovery and the ability of the parties to produce documents in these proceedings in family violence proceedings in the state Magistrates’ Court. The proceedings in this Court have been on foot since 2015, which rather belies the large number of documents which have been filed in the matter. The matter is currently listed for final hearing before me on 19 March 2018 in relation to financial matters and the parties’ child, D (the child) who is 14 years old.
In the course of proceedings, each party has filed numerous affidavits, some by themselves, some by other people. Other documents have been brought into existence and there has been two forensic assessments of the family by appropriately qualified social scientists in relation to the children’s matter. There have been a number of documents produced to this Court by third parties pursuant to subpoenas and the Court has continued to hold those documents in its safe custody pending the final hearing of the matter. Some of the subpoenaed documents, and one to which I will refer shortly, has been marked “do not photocopy”, which indicates that at some point a judicial officer of this Court turned his or her mind to the matter and found that the parties would have a right to inspect the documents but not to photocopy them.
The parents are not the only parties to the proceedings. In the course of preparation of this matter for final hearing, an order was made requesting that Victoria Legal Aid appoint an independent children’s lawyer to represent the child’s best interests. That was done and Ms Mary Lonergan, solicitor, from Victoria Legal Aid, is the independent children’s lawyer. She is also before the Court today.
The parents are involved in mutual applications for intervention orders against the other in the state Magistrates’ Court at Melbourne. I understand that there has been two days of contested hearing thus far and that another two days will commence next Tuesday, 13 March 2018. These reasons are brief, in part because I want them to be transcribed and available to the state Magistrate next week.
The application by the mother against the father for an intervention order seeks to include as an aggrieved family member, or the subject of an eventual order, the child.
The mother’s application that the parties be able to disclose or rely upon documents from these proceedings, either affidavit material by themselves, family reports prepared by single expert witnesses and/or documents produced on subpoena, is opposed in every respect by the father. The independent children’s lawyer, Ms Lonergan, has indicated that in her view the family reports and the trial affidavits of the parties would provide helpful context for the state Magistrate. I’m not surprised that she has that view.
The parties in Family Court proceedings are bound by obligations of confidentiality not to disclose to other persons either evidence generated for the purpose of the proceedings, documents produced on discovery, documents generated for the purpose of the proceedings or information that comes to them for the purpose of the proceedings without specific leave of the Court. The application before me now is an application that such leave or permission be granted.
Turning first to the subpoenaed documents. The wife originally sought to produce to the Magistrate various documents which had been produced on subpoena but then reduced that request in the running of the matter to one file, which is a file produced by E Psychology pursuant to a subpoena and the person responding in particular was “Ms F”. Those documents are original documents. They appear to relate to the mother. I have not read them. Production of them or an ability to rely upon them is opposed on a number of cogent arguments advanced by Mr North of senior counsel. However, for my purposes, I am satisfied that the documents ought not be produced, because the author of the documents, who entrusted the original documents to this Court in the first place pursuant to a subpoena, has no notice of the intention of any party to use them for a purpose other than the family law proceedings in this Court. Furthermore, if the documents were sought by the mother with such a sense of purpose as warrants an application being made before me now, I don’t know why she didn’t raise a subpoena or other relevant process in the Magistrates’ Court to secure production of the information from the author who, presumably, has retained copies of the documents so produced or would be able to access the documents in this Court. In the circumstances, I do not propose to accede to the mother’s application for this Court to deliver subpoenaed documents to the Magistrates’ Court for the mother to have leave to be able to rely on the subpoenaed documents in that other Court.
Next are the affidavits of the parties. I am sure there are many affidavits of the parties. It is only those which they have personally sworn that access is sought to. The father, for his part, says that no documents should be able to be referred to and, under cover of that opposition, has not sought to otherwise constrain which documents can be referred to in the proceedings. I note the independent children’s lawyer would have been comfortable with the trial affidavits going. But from my personal knowledge is that there are many more affidavits sworn by the parties.
The questions to be determined by this Court in relation to the child are quite different to those which are to be determined in the state Magistrates’ Court. However, both involve risk of various forms of family violence. Mr North has submitted, accurately, in my view, that the evidence upon which the mother has made this application is scant. It amounts to two assertions that affidavit evidence and documents in these proceedings would be of assistance to the State Magistrate. One is expressed as the hearsay opinion of counsel who appears for the mother in the Magistrates’ Court and the other is the opinion of the solicitor with conduct of the family law file on behalf of the mother.
There is merit in Mr North’s criticism of the evidential basis of the mother’s application. However, in my view, the overwhelming obligation of this Court is to ensure that justice is done as between the parties and the child. Whilst the evidence relied upon by the mother could have been more extensive and better expressed, I am satisfied that there is sufficient commonality between the proceedings in two courts for the documents to legitimately be available to the Magistrates’ Court subject to rulings by the state Magistrate. Whereas Mr North has advanced before me cogent arguments in relation to admissibility, in relation to relevance, in relation to the prejudicial impact of documents, in my view these are matters to be considered and determined by the State Magistrate, as is the weight to be accorded to any documents admitted into evidence in those proceedings.
I will make an order relieving the parties from their obligations of confidentiality in relation to affidavit material sworn by them personally and by the other party (but not by any third parties) to the state Magistrates’ Court for the purpose of the intervention order proceedings and any appeal to the County Court therefrom, but not for any other purpose.
Finally, turning to the family reports. One is a family report by Dr B dated 12 December 2006 arising out of assessment interviews on 30 November 2016. It is 44 pages long and was prepared pursuant to an order of the Federal Circuit Court of Australia, where this case first started, made on 13 October 2016. The purpose of the report is clearly for family law purposes and the author sets out details of himself, the methods, the parties’ consent to the preparation of the report and then the body of the report. Dr B is a private report writer.
The next report in respect of which the mother has made oral application to rely upon before the Magistrate is a family report prepared by a family consultant who is employed by this registry of the Family Court. It is dated 24 November 2017 and was prepared pursuant to an order made by me on 8 November 2017 by Ms C. It is 26 pages long, including the qualifications and curriculum vitae of the author. That report is the last social science evidence on the Court file and the social science basis upon which the current parenting orders have been based.
It is important for all to record that there has been no cross-examination of the authors on either of these reports. The reports are entirely untested. Family reports are provided for in our legislation and referred to at rule 15.04 of the Family Law Rules which provides that, if a family report is prepared in a case, the Court may release copies of the report to each party, the parties’ lawyers, and to the independent children’s lawyer. It may receive the report into evidence and it may permit oral examination of the person making the report, including cross-examination, and “order that the report not be released to a person or that access to the report be restricted”. In this case, such an order was made in relation to the family report of Ms C and that appears at page 2 of the report. The same inferentially applies to the report of Dr B. And that is why it is necessary for the mother to seek leave to be able to rely on the reports before the state Magistrate.
Mr North, in opposition to relieving the parties of their obligations not to publish the reports to anyone else or permit reference to them, has again advanced cogent and sensible arguments. He points out that the reports were done for a specific purpose and that is family law proceedings. They were not done for family violence or intervention order proceedings in the state Magistrates’ Court and when the parents and the child were assessed they were not informed that the resulting reports would or could be used for other purposes.
The Rules of our Court make it obvious that information contained in family reports is to be held close and is the subject of express confidentiality.
The proceedings in the state Magistrates’ Court will be about an assessment of risk of the parties and of the child, the child. In my view, the material in the reports ought appropriately be able to be referred to by the parents in the event that the state Magistrate makes a ruling to that effect. By this I mean that the issues again of admissibility, of weight, of relevance are all matters to be addressed before the State Magistrate. And it is to be noted again that these reports have not been the subject of any cross-examination of their authors. In the ordinary course of proceedings in this Court, cross-examination would occur and is likely to occur before me at the final hearing. As matters currently stand, the reports are untested. I will permit the parties to rely on the family reports in the Magistrates’ Court.
The final matter which was the subject of the application was discovery in the financial aspect of the case. Exception is taken by Mr North on behalf of the father to the assertion in the material filed on behalf of the mother that there has been anything but full and frank and cooperative disclosure by him of financial proceedings. I have set those arguments to one side. It would not surprise me if that is a specific line of inquiry and the subject of specific evidence at the final hearing.
In relation to the few matters which the mother continues to press by way of financial discovery, they being paragraphs 9, 12, 13 and 16 appearing in the longer letter from Lander & Rogers dated 27 February 2018 to the solicitors for the father, I’m not in a position to make any further orders having regard to the contents of correspondence dated 1 March 2018 from the father’s solicitors to the mother’s solicitors which arrived in the office of the mother’s solicitors, it is said, after the application was sent to this Court for filing.
The one exception is in relation to item 13 in which the wife seeks “copies of all communications between your client and [J Lawyers] (in their capacity as solicitors for [Mr G Fowles]) in relation to the claim by [Mr G Fowles] regarding the alleged ‘loan agreement’ between [H] and your client dated 21 November 2000”. In that respect, the solicitors for the husband raise in the letter of 1 March 2018 that “the requested communications are the subject of common interest privilege”.
There are two things which must obviously happen. One is that Mr G Fowles needs to be put on notice that the documents are sought. Secondly, in my view, it would make for a smoother running of the case if the particulars of the common interest privilege were provided prior to the trial so that they may be addressed in either preliminary argument or argument during the trial. I’m assuming it’s common interest privilege because the interest is in common between the father and his father, but particulars would help. So I make no orders in relation to the balance of the application.
These reasons will be sent to the state Magistrates’ Court in time for the hearing next week.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 March 2018.
Associate:
Date: 9 March 2018
0
0