Grant and Aiden (No 2)

[2017] FamCA 833

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO. 2) [2017] FamCA 833

FAMILY LAW – CHILDREN – where the mother filed an Application in a Case while the trial was part-heard seeking various procedural and interim substantive orders – where the Court adjourned the hearing of the application on the mother’s application, but only for one day – where the mother’s application was devoid of merit and was dismissed – where the father and the Independent Children’s Lawyer both then sought costs orders against the mother – where the mother is ordered to pay the father’s costs on a party/party basis – where the respondent mother’s impecuniosity is not a bar to a costs order against her – where the costs application of the Independent Children’s Lawyer was dismissed

Evidence Act 1995 (Cth) s 135

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) rr 1.08, 5.03, 5.05, 15.64B, 15.65

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 1 September 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 1 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Trapski Family Law

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

1. The Application in a Case filed by the mother on 23 August 2017 is dismissed.

2. The mother shall pay the father’s costs of and incidental to the hearing of the failed Application in a Case filed on 23 August 2017 on a party/party basis in the sum agreed or assessed.

3. The Independent Children’s Lawyer’s application for costs against the mother is dismissed pursuant s 117(4)(b) of the Family Law Act.

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 Grant & Aiden (No 2) 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 NEWCASTLE

FILE NUMBER: MLC 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. On 4 February 2011, final parenting orders were made between the parties in respect of their only child, a daughter now 10 years of age. The parties’ adherence to the orders broke down in March 2016, when the mother relocated with the child from Victoria to Queensland without notice to the father. The father successfully obtained a recovery order in April 2016, but it could not be executed until June 2016. Since then, the child has lived with the father in Victoria and interim orders were made to reflect that fact. The mother remained living alone in Queensland.

2. The trial of the current proceedings began in March 2017 before Macmillan J and ran for seven days before it was adjourned part-heard in May 2017. The trial is due to resume before Macmillan J on 18 September 2017. However, a little over a week ago, on 23 August 2017, the mother filed two applications. The first was an Application-Contempt. It was heard and dismissed yesterday.  The second was an Application in a Case. It was heard today and is the subject of these reasons.

Adjournment

1. Yesterday, the mother sought an adjournment of the hearing of the Application in a Case because she said she was not ready. The adjournment was granted, but not for the duration the mother wanted (Order 3 made on 31 August 2017). The hearing was only adjourned overnight rather than to one of the days next week she nominated, which days were unsuitable for the Independent Children’s Lawyer (“ICL”) and the father’s lawyer. The mother is unemployed, so she is available at any time. The mother protested that an adjournment of only one day was unfair to her but, while she may genuinely feel that way, there was no objective unfairness. 

2. By the Application in a Case, the mother seeks to do various things:  discharge the ICL, strike out the family report and a single expert report, discharge existing interim orders, re-instate the past final orders made in February 2011, and stay the current proceedings. The mother’s case is that, if she succeeds with any of those applications, the trial will not be able to resume on 18 September 2017 and perhaps not at all. Axiomatically, her application deserves urgent attention so the parties’ time and money is not wasted preparing for the resumption of the trial if that is not going to happen. 

3. The mother filed her Application in a Case on 23 August 2017, presumably expecting it would be given urgent attention. It was listed for directions before Macmillan J the very next day. On 24 August 2017, Macmillan J ordered:

   The mother’s Application in a Case filed 23 August 2017 be listed for hearing before Justice Macmillan at 10 am on 18 September 2017 or as may be otherwise advised on short notice. 

   (emphasis added)

4. Macmillan J realised she would be away for some time between 24 August and 18 September 2017 and therefore left open the prospect of another judge dealing with the mother’s interlocutory application, in her Honour’s absence, before the trial was due to resume. The Application in a Case was listed for hearing before me yesterday on 48 hours’ notice to the parties and the ICL. The mother sought an adjournment which was granted, but only until today. She was informed the reasons would be given today and these are those reasons.

5. The mother’s complaint that she was unready was unconvincing. She emphasised she was unrepresented, but she has been without legal representation in the litigation for a long period – at least for the whole of 2017. She knew from Macmillan J’s order made on 24 August 2017 that the hearing could be called up on short notice at any time before 18 September 2017. She has a duty to ensure her readiness for court events (r 1.08(1)(c) of the Family Law Rules 2004 (Cth)) and to assist in the just, timely and cost-effective disposal of the case (r 1.08(1)(g)).

6. When she filed the Application in a Case she knew, by reason of the orders she sought, it needed swift determination. There is no evidence the mother tried to settle the interlocutory dispute with the father before she filed the Application, so she presumably considered she need not have done so because the issue was urgent (r 5.03(2)(c)), which is all the more reason for her to be ready for the hearing. When filed, her Application was made returnable before the trial judge the very next day, because the Registrar was satisfied the reason for urgency was significant and credible (r 5.05(4)(a)).

7. The mother’s reprieve with an overnight adjournment fairly balanced the prejudice she said she would suffer by reason of such a short adjournment with the prejudice the father and ICL would suffer by reason of a longer adjournment in the face of the looming resumption of the part-heard trial.

Proposal and Evidence

1. The mother moved on her Application in a Case filed on 23 August 2017. The Application was filed through the Court’s electronic portal. It comprises 27 pages, some of which are the mother’s affidavit affirmed on 23 August 2017. In addition to that evidence, the mother relied upon some pages of the transcript of the proceedings before Senior Registrar FitzGibbon on 29 July 2016, which she tendered (Exhibit M1). 

2. The mother additionally sought to tender in evidence the notebooks produced on subpoena by two officers of the Australian Federal Police. The asserted point of the tender was to contrast the recorded perceptions of the officers with the asserted perception of the father about a particular event, which contrast the mother contended would prove the father lied. Unfortunately for the mother, it would do no such thing. The child was recovered from the mother by the Australian Federal Police in June 2016. The father thought the mother’s conduct at the time the child was taken from her elevated the child’s stress, whereas the mother said the officers’ notebooks would reveal their recorded opinions that, in fact, it was the father’s conduct which increased the child’s stress. Even if the police officers honestly believed that to be so, their belief is not objective proof of the fact and, even if it was objective proof of the fact, it was not determinative of the interim orders made in 2016 to reverse the child’s residence. The tender of the police notebooks was designed to prove the interim parenting orders, providing for the child to instead live with the father, were erroneously made in reliance upon evidence that the mother’s conduct, rather than the father’s conduct, elevated the child’s stress when the recovery order was executed. The mother’s tender of the notebooks was rejected pursuant to s 135(c) of the Evidence Act 1995 (Cth), since any probative value of the notebooks was substantially outweighed by the danger it would result in an undue waste of time.

Removal of the ICL

1. The mother wants an order discharging the ICL, but does not specify whether she wants another ICL appointed. She claimed in her affidavit:

   I seek an order for all recommendations or things done by the ICL to be halted by injunction or stopped, and the ICL directed to do so.

2. This application is made in the context of the substantive trial being part‑heard after seven days of hearing so far. The ICL has been an active participant in the trial to date. In her affidavit, the mother claimed:

   [2] I believe that [the ICL] is prejudicing the mother in these proceedings in favour of the father and has misled the court and suppressed important evidence.

   [3] The circumstances attached might cast doubt on the ability of the ICL to act in an independent and unfettered was it in the best interests of [the child] (Annexure A).

3. The mother elaborated her grievances in Annexure A to her affidavit as follows:

   The independent children’s lawyer in this matter…has deliberately misled the court, acted unethically and unprofessionally and is unable to carry out the tasks properly, and the court can be satisfied to the requisite standard that her ability to act in [the child’s] best interests are significantly compromised…the independent children’s lawyer…made a conscious decision to suppress evidence from the court, compromising the safety and welfare of [the child] while cleverly advancing the father’s application and ignoring the burden of proof.

4. On deeper analysis of the detail of the mother’s grievances, they collectively incorporate the following:

   (a)The ICL taking over from another ICL in August 2016 and familiarising herself with the former ICL’s file, which the mother found objectionable;

   (b)The ICL’s failure to provide all documents produced on subpoena to the single expert, regardless of whether such documents were produced to the Court before or after the single expert prepared his report in January 2017;

   (c)The ICL’s instructions to the single expert not being in accordance with the mother’s version of past events;

   (d)The ICL’s failure to subpoena records from the child’s psychologist, either at all or in a timely way;

   (e)The ICL’s moderate delay in filing her Case Outline in advance of the commencement of the trial; and

   (f)The ICL’s failure to notify the mother’s adult sons of a subpoena she issued to the police to produce records related to them.

5. Suffice to say, even if those allegations were proven in all respects (which finding is not now made), those aspects of the ICL’s conduct provide no proper foundation for the mother’s hyperbolic claims that the ICL deliberately misled the Court or acted unethically and unprofessionally. The ICL may simply take a different view of the case from the mother. She may consider the child’s best interests warrant orders of a different complexion from those proposed by the mother, but that does not make the ICL biased, wicked or incompetent.

6. The mother could and can issue a subpoena for any extra documents she thinks relevant, with the leave of the Court. Any gap in the instructions given to the single expert can be filled by her cross‑examination of the single expert. He has not yet been cross-examined in the trial.

7. The mother deposed she has already made a complaint about the ICL to the Commissioner for Privacy and Data Protection. Presumably the investigation of that complaint will take its course, but these proceedings need not be stalled in the meantime. 

8. The weakness of the mother’s contentions was ultimately revealed by the concession in her affidavit as follows:

   All the above circumstances might cast doubt on the ability of the ICL to act in an independent and unfettered way in the interests of the child. 

   (emphasis added)

9. While such circumstances might do as the mother alleges, I seriously doubt it on the available evidence. The application for Order 1 in the Application in a Case is dismissed.

Family Report

1. The mother sought that the family report dated 24 February 2017 be struck out, but her complaint is procedurally misconceived. 

2. The trial judge determined the admissible evidence in the trial at its commencement in March 2017. The affidavits relied upon by the parties were identified, as were the other documents relied upon by the ICL. Those documents included the most recent family report and the report of the single expert. The evidence has already been read by the trial judge and, furthermore, the parties and their lay witnesses have been strategically cross-examined by reference to both the evidence admitted and that which has been excluded. 

3. The mother now complains the family report was deficient in various respects but, if that was always her position, she either abstained from objection to the admission of the family report at the start of the trial or, alternatively, her objection was made and overruled. In either case, it is not now open to the mother, seven days into the trial, to either make or re-visit her objection to the admissibility of the family report. Her only recourse is to cross-examine the family consultant to expose the alleged deficiencies in her evidence. 

4. The mother asserted in her affidavit:

   The issues set out in this complaint relate to a family report and cannot be addressed through a cross-examination process at court.

5. I do not agree. Her complaints about the manner in which the family consultant chose to interview her, the father, and the child can only possibly be made good through cross-examination (if at all). Her complaints about the family report are not manifestly valid. Any alleged deficiencies of the family report need to be exposed by testing the family consultant.

6. The mother also asserted in her affidavit:

   The consultant was required to properly assess and then maintain the status quo of where [the child] has lived for past 10 years and not the present place where the child is presently living.

7. Obviously enough, the family consultant was not required to do any such thing.  The child’s residence was reversed when the recovery order was executed in June 2016. The family report was prepared in February 2017, shortly after the family consultant consulted with the family. The family consultant had no obligation other than to prepare a report for the Court pursuant to the instructions with which she was issued. Her report comprises a series of factual assumptions, recitation of representations made to her by the parties, the child and others, her observations of interactions between family members, and the expression of her professional opinions.

8. The mother interpreted the family consultant’s ultimate opinion as follows in her affidavit:

   The consultant reports her view that the child has come to terms that there will only be one parent in her life.

   in respect of which opinion the mother retorted in her affidavit:

   The personal statement [just quoted above] is unprofessional, beyond the expertise of the consultant and is indicative of an appearance of bias and neglect of professional standards of practice and procedures.

9. The family consultant’s expression of an opinion about the child is entirely unexceptional and does not, of itself, indicate bias or incompetence. The application for Order 2 in the Application in a Case is dismissed.

Single Expert Report

1. The mother also seeks that the single expert report, dated 23 January 2017 be struck out. The comments already made about the family report are equally apposite to the mother’s application in respect of the single expert’s report.

2. The mother’s complaints about the single expert are expressed as follows in her affidavit:

   [10] [The single expert] could not make an accurate assessment of the father when the ICL suppressed 200 pages of mental health issues of the father from him and the father was untruthful to [the single expert].

   [11] [The single expert] made comments about me which he should not have when he had not seen me for 8 years.

3. If the single expert was not given relevant documents then the mother can furnish to him any documents she desires during or in advance of his cross-examination by her. She knew the terms in which the single expert was instructed by the ICL in January 2017 (Exhibit ICL2) and did not refute the ICL’s contention that she was invited to provide to the single expert any documents she perceived contained “facts that [she could] argue in support of [her] case” (Exhibit ICL1).

4. The mother has not yet sought it, but if she wishes, I would grant leave extending time for her to either confer with the single expert under r 15.64B or pose questions to the single expert under r 15.65 of the Family Law Rules 2004 (Cth).

5. If the mother believes the father gave an untruthful account to the single expert, presumably she has already cross-examined the father about his alleged mendacity and, when the trial resumes, she will have the opportunity to cross-examine the single expert about any change in his professional opinions if he assumes the father gave him false information in particular respects.

6. The application for Order 3 in the Application in a Case is dismissed.

Parenting orders

1. The mother apparently wants the interim orders made in 2016 (which reversed the child’s residence) discharged. She anticipates that the former orders made in February 2011 would then be revived to fill the vacuum. If that occurred, the child would be taken from the father to live with the mother.

2. The mother clearly misses the point of the trial, which began in March 2017 and will resume in September 2017. The purpose of the trial is to thoroughly evaluate and test the evidence to determine what orders will meet the child’s best interests. It would be anomalous and incongruent to decide peremptorily, in the middle of the part-heard trial, to return the child to the mother’s care. That result might follow at the end of the trial, but equally it may not. The stability of the child should not be compromised before the trial judge completes the trial.

3. The interim orders in 2016 were made by the Senior Registrar. The mother’s complaints that he “may” not have had power to make the orders and it “could be said” he misapplied the law when making the orders are baseless. If the mother was aggrieved about an absence of power or an appealable error when the interim orders were made, her potential remedies lay in a review or an appeal, but she did neither.

4. The application for Order 4 in the Application in a Case is dismissed.

Stay of proceedings

1. The mother sought a stay of the proceedings.

1. She simply deposed:

   [23] Stay of Proceedings

   [24] The father has provided no evidence to substantiate his initiating application before this court to warrant any change in a residence order. A residence order has been in place since 4 February 2011 that provided that [the child] lives with me. Considerable time has elapsed since these final orders were made. This is an abuse of process.

   [25] There are factors that have not been disclosed to this court at previous hearings which would have been material. The father is in contempt of this court and I have made application to this court for a stay of proceedings until this injunction is heard and my application for contempt of court.

2. First, the father is providing evidence in the trial to prove the basis for the relief he seeks. The mother is free to test the evidence as she sees fit.

3. Second, the orders made in February 2011 were fundamentally breached by the mother and the orders were suspended. Fresh interim orders were made in 2016 reversing the child’s residence, pending the outcome of the current trial.

4. Third, the mother has not demonstrated any abuse of process.

5. Fourth, if “factors” were not disclosed at previous hearings, the trial gives the mother the opportunity to rectify the deficiency.

6. Fifth, yesterday it was found the father was not in contempt.

7. The application for Order 5 in the Application in a Case is dismissed.

Costs

1. Following dismissal of the mother’s Application in a Case, both the father and ICL made applications for costs against the mother.

2. In respect of the parties, as the mother and father, but not the ICL, are in these proceedings, s 117(1) of the Act provides they should ordinarily bear their own costs. Nonetheless, s 117(2) of the Act provides that, if the circumstances are deemed to justify it, the Court is at liberty to make a costs order, but in those circumstances must take into account the factors prescribed by s 117(2A) of the Act.

3. There are two countervailing features of the evidence which engage factors under s 117(2A) and influence the outcome of the father’s application. The mother relies upon s 117(2A)(a), to the effect that her financial circumstances are so parlous she should be absolved from any liability for costs. Conversely, the father relies upon s 117(2A)(e), to the effect the mother has been “wholly unsuccessful” with her application. I am satisfied the latter factor carries greater weight in the context of these proceedings than the former and so the mother should pay costs, notwithstanding her impecuniosity. If it were otherwise, a party’s impecuniosity would enable him or her to litigate with impunity, which cannot be a rational policy consideration.

4. Whilst I take into account the mother’s unverified assertion that she has no income (apart from a Centrelink benefit) and no assets, for the same reasons given in respect of the costs application successfully sustained against her yesterday, I am satisfied she has an income-earning capacity and she has given no explanation as to why it is not fulfilled. In an affidavit she placed before the Court yesterday, the mother deposed to her qualifications and experience and explained her ability over the last 10 years to pay private school fees for her now two adult sons and also the child who is the subject of these proceedings.  Obviously, she has some way of meeting discretionary expenses.

5. The application made by the mother was not merely wholly unsuccessful, it was utterly devoid of merit. It was unnecessary for the father’s lawyer or the ICL’s counsel to make submissions in response to the mother’s submissions.  Although the mother may not have appreciated the lack of merit in her application, the objective fact is sufficient to warrant a costs order being made against her. 

6. As already noted, s 117(1) of the Act provides the ordinary rule in respect of the parties’ costs, but since the ICL is not a party to the proceedings she is not bound by the same presumption. However, the Court undoubtedly has power to make a costs order in favour of the ICL because s 117(3) so provides.

7. Section 117(4)(b) of the Act provides that:

   …in proceedings in which an ICL for a child has been appointed, if…the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer…the court must not make a costs order under [s 117(2)] against that party in relation to the costs of the independent children’s lawyer.

8. The Court is also mandated by s 117(5) of the Act to disregard the funding of the ICL by a legal aid scheme, which is designed to protect the public purse. However, being satisfied the mother would suffer financial hardship if she had to bear a proportion of the ICL’s costs, I am obliged by s 117(4)(b) to dismiss the ICL’s application for costs.

9. For those reasons, I make the following orders.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 1 September 2017.

Associate: 

Date:  18 October 2017