HERTWIG & HERTWIG

[2019] FamCA 1053

FAMILY COURT OF AUSTRALIA

HERTWIG & HERTWIG [2019] FamCA 1053

FAMILY LAW – PRACTICE AND PROCEDURE – Interim – Where the Applicant lives in Thailand with the children of the parties – Where the Respondent sought to engage a Thai law firm to provide evidence in respect of Thai law for the purposes of the trial – Where the parties could not reach agreement through the process provided by the Court for the selection of the firm – Where the firm initially suggested by the Respondent is to be the firm which he is to engage should he decide to engage a firm to provide expert evidence on Thai law.

APPLICANT: Ms Hertwig

RESPONDENT: Mr Hertwig

INDEPENDENT CHILDREN’S LAWYER: Elizabeth Rayment

FILE NUMBER: BRC 2437 of 2016

DATE DELIVERED: 17 April 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 17 April 2019

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: Self-represented
(by telephone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Rayment (by telephone)

ELR Law

Orders

1. That paragraphs 8, 9, 10 and 11 of the Orders of Justice Forrest made 6 February 2019 be discharged.

2. That the father shall, by 4.00 pm AEST on Thursday, 18 April 2019, finalise the list of questions that he wishes to ask the Thai law firm in respect of Thai law that is relevant to the determination of this parenting matter.

3. That by no later than 4.00 pm AEST on Thursday, 18 April 2019 the father shall submit his revised list of questions to the Independent Children’s Lawyer and to the mother by email.

4. That the mother may, if she so wishes, produce a revised, that is, reduced, list of questions that she wishes to ask the Thai law firm in respect of Thai law that may be relevant to the determination of this parenting matter and submit any such reduced revised list to the Independent Children’s Lawyer and the father by email by no later than 4.00 pm AEST on Thursday, 18 April 2019.

5. That the Independent Children’s Lawyer shall, as soon as possible after 4.00 pm AEST on Thursday, 18 April 2019, send a PDF document to the father by email, copied to the mother, that melds the two sets of questions into the one document in a manner that permits an identification of the two separate lists of questions, but not of attribution of the particular set of questions to the particular parent who wrote them.

6. That the father shall be responsible thereafter for engaging, retaining and briefing the law firm J Firm Thailand to provide answers to the questions and in doing so, he shall, unless with further agreement of the Independent Children’s Lawyer and the mother, limit his communication with the firm to written communication only that he copies into the mother and the Independent Children’s Lawyer.

7. That the father shall request J Firm Thailand to finalise their answers to all of the questions in writing as soon as practicable, but by no later than close of business on Friday, 10 May 2019.

8. That the father shall instruct J Firm Thailand that he will be solely responsible for the payment of their fees and that he is to pay those fees before the written answers are to be provided to him.

9. That the father shall also instruct J Firm Thailand that after he has paid their fees for the provision of the answers, that they are to provide copies of their answers, by email, to him, the mother and the Independent Children’s Lawyer simultaneously.

10. That the father shall also inform J Firm Thailand that the author of the written answers will probably be required to give oral evidence by telephone and may be cross-examined by counsel or the Independent Children’s Lawyer, the mother and the father themselves, at the hearing of the matter on one of the three days from Monday, 27 May to Wednesday, 29 May 2019, and he shall tell them that unless they are willing and able to make themselves available for that, they should not take on the retainer.

11. That any application by the father for an order that any part of the costs he incurs in briefing J Firm and obtaining their expert advice be paid by the mother, shall be made to the Judge at the conclusion of the trial.

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 Hertwig & Hertwig 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 2437 of 2016

Ms Hertwig

Applicant

And

Mr Hertwig

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. On 6 February 2019, at a trial management event that I presided over, I made some eighteen orders preparing this particular parenting dispute for trial. After having discussed the matter with the Independent Children’s Lawyer (“ICL”) who is in the matter and the two parents of the subject children, who both are without legal representation, at least to this point in time in these proceedings, I listed the matter for a three day trial to commence before me at 10.00 am on Monday, 27 May 2019. 

2. I made orders as I usually do at trial management events in respect of the filing and serving of evidence, namely the parties’ affidavits, in preparation for the trial. Also, after some discussion on that day, I determined to make some orders pertaining to the obtaining of some expert evidence on the law of Thailand to be adduced at the trial. This was done at the principal submission of the father that such evidence was necessary, a submission that I effectively accepted in circumstances where the mother is seeking parenting orders from the Court that the three children of the parties continue to live with her in Thailand as they have been doing for some time up to this particular point in time. The father submitted to the court that some expert evidence about Thai law might indeed be relevant to the Court’s determination of whether that proposed set of parenting orders was in the children’s best interests.  Furthermore, when asked about it on the day, the mother indicated to the Court that she did not have any problem with a Thai law expert being engaged. 

3. It was initially the father’s proposition, probably sourced in the fact that he was unrepresented and has not had legal advice and was unaware of the practice of the Court pertaining to expert witnesses and their evidence, that he engage, effectively on an adversarial basis, such an expert. I quickly and respectfully disabused him of the notion that that was appropriate in this case and moved to the point of making orders that effectively enabled such expert evidence to be adduced from an independent single expert witness in the proceedings, one effectively engaged to provide answers to questions about Thai law to both of the parties and indeed the ICL. 

4. I made a set of orders, namely from paragraph (5) through to paragraph (13) of those orders made on 6 February, that provided the process by which the single expert in Thai law was to be selected, engaged, briefed and paid for. That timetable gave the parties effectively until Friday, 17 May for such expert evidence to be obtained and filed in the proceedings, of course, sufficiently in time for the trial commencing on 27 May some ten days thereafter. 

5. Today is Wednesday, 17 April. Just a few days ago, I am not exactly sure of the date now, the Court was contacted by the Independent Children’s Lawyer asking could I list the matter urgently for further consideration, apparently on the basis of a stalemate having been reached in respect of the selection, briefing and engagement of the single expert in Thai law. In the circumstances of that request, I determined it appropriate to list the matter urgently for hearing this afternoon, bearing in mind the timetable that I provided in those orders of 7 February 2019, much of which has already passed. 

6. No affidavit evidence was filed by anyone, not that I required any to be filed, but I am saying that to explain where the information came from that I am now about to recite and rely upon in respect of the making of my determination here today as to a way through this current impasse. Nevertheless, notwithstanding the fact that no affidavit was filed, earlier today the mother caused a written document to be sent through to the Court through my associate, which she copied to the ICL and the father, in which she sets out over several pages, her position in respect to the circumstances that have transpired. 

7. At the start of the hearing this afternoon, the ICL told me that effectively what has happened, (something which I already knew from having read, or had some idea of at least from the mother’s perspective after I read her document), was that in accordance with the directions previously made by me, the father had provided a list of the names of three separate law firms in Thailand to the mother for her to choose one from. That was as I had ordered.  After the mother had chosen the particular firm from that list, the father subsequently changed his mind, or at least if I could put it in a more neutral way, determined it seems that he no longer considered that particular firm appropriate to provide the expert evidence that was sought or is sought, notwithstanding the fact that he had put them on the list in the first place. It seems that after he determined that the mother’s choice of firm was no longer appropriate to ask the questions of, the matter has not been able to move any further forward. 

8. As I understand the situation, after he informed the ICL and the mother of that position, the ICL suggested to the parties that they try and reach some sort of agreement as a compromise in terms of resolving the matter quickly so that the matter can still proceed to trial in late May. That has not been able to be achieved. As I observed in February on the last occasion the matter was before me and again today, it seems that at least in this point in time, it is a fair observation that the mother and father in this case are not able to agree on very much at all and so it is probably too much to expect them to agree or to reach a compromise in circumstances where they have hit a roadblock. This explains the need for the matter to be brought back before me and for me to make more determinations today that move the matter forward, the principle aim being to get the matter heard and determined and get the parties out of this list of pending cases and the impasse that they have apparently reached in respect of their parenting of the children as quickly as possible.

9. When I asked the father what his proposal was in respect of moving the matter forward, he said, and I interpose here to say that he had already conceded to me, that it his mistake caused this problem making it his responsibility and no one else’s. He proposed two alternatives for moving the matter forward. One was that he pick another panel of three firms from which the mother would choose one, or, alternatively, he would simply just pick one other firm to replace the one that the mother had actually chosen and present the panel to her again with the same two names that were previously on there that she clearly chose not to pick, and a new one. Knowing of the fact that she apparently clearly does not want one of the other two, adopting that course would then, as I have said during the course of argument, provide him with the opportunity to simply put in place a firm of his particular choice knowing that the mother objected to the other two. 

10. The mother (and also the ICL) effectively submitted that the matter should just proceed as was expected by the orders that I made; namely that the firm that the father put on the list that the mother actually chose, should be the firm that he is now “stuck with”, if I can use that expression, and they be engaged as quickly as possible so that the matter can still proceed to trial later in the month of May. 

11. Having heard what I have heard this afternoon, I have determined that the path submitted for by the ICL and the mother is the appropriate path, particularly again observing the concession made by the father that without any sworn affidavit evidence to support it or more clearly explain it, that this is a mistake of his doing and one that he is completely responsible for. As I said during the course of the exchange of submissions and discussion in the matter earlier this afternoon, sometimes when we make mistakes in life we actually have to live with them. In the circumstances where this matter is listed for trial only a few weeks away, this in my view is a mistake, if it genuinely was one as the father asserts, that he is now going to have to live with.

12. Accordingly, I order as follows.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 April 2019.

Associate: 

Date:  24 May 2019