JACOBS & FAULKNER (No.2)
[2012] FMCAfam 1515
•17 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JACOBS & FAULKNER (No.2) | [2012] FMCAfam 1515 |
| FAMILY LAW – Parenting – interim orders – difficulties of time and distance – disclosures made by young child about Father – further interim parenting orders – conduct of Father’s solicitors – impact of appeal on proceedings – provisional admission of expert report obtained by Father where there is already a report from court-appointed expert – superfluous submissions. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(1) & (2), 60CC(3), 60CC (3)(a) – (d), (f), (i) Federal Circuit Court of Australia Rules 2001, r.15.12 |
| Byrd v Byrd (2012) 46 Fam LR 511 Sigley v Evor (2011) 44 Fam LR 439 |
| Applicant: | MS JACOBS |
| Respondent: | MR FAULKNER |
| File Number: | CAC 130 of 2011 |
| Judgment of: | Neville FM |
| Hearing date: | Written Submissions |
| Date of Last Submission: | 7 December 2012 |
| Delivered at: | Canberra |
| Delivered on: | 17 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Schetzer Constantinou Melbourne |
| Solicitor/Advocate for the Respondent: | Mr Naumann |
| Solicitors for the Respondent: | Walsh & Blair, Wagga Wagga |
| Independent Children’s Lawyer: | Ms N Legal Aid NSW |
ORDERS
Parenting Orders
Further interim parenting orders in relation to the children X (born 2 July 2004) & Y (born 4 July 2008) be as per annexure A to these orders.
Dr K's Report
The Report of Dr K, filed in these proceedings on behalf of the Father, shall be provisionally admitted for the sole purpose of forwarding it to Dr L for comment.
For the purposes of order 2 of these orders, the ICL is requested to forward to Dr L a copy of Dr K's report and further, to request Dr L to provide a note to the Court to advise whether any of the recommendations of Dr L set out in his Report dated 1st June 2012 (Exhibit B) are affected by the contents of Dr K's report, and if so, in what way.
For the purposes of order 3 of these orders, the request to the ICL in relation to Dr K's report is to await the determination of the appeal filed by the Father in these proceedings on 19th October 2012.
Updated Family Report
Pursuant to section 62G(2) of the Family Law Act1975 (‘the Act’) the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act, pending the determination of the appeal lodged by the Father on 19th October 2012.
Future Conduct of the Proceedings
By 12 noon on 18th December 2012, the parties and the ICL are requested to confirm to the Court in writing, by a note not exceeding one (1) page, whether (and if so why or why not) the currently listed trial dates commencing 8th May 2013, should be vacated. Whether the trial dates should be vacated, as indicated by the Court, shall be determined 'on the papers' in Chambers. In the absence of any submission of the specified length being filed by the date and time specified, the maxim 'silence will be taken to indicate consent' (qui tacet consentire videtur) shall apply.
Notation & Direction (in Chambers)
A.The Court directs that, within 14 days of the date of the Father’s return to Australia (or 20th September 2013 – which-ever is the earlier date), the solicitor for the Father provide the Father with copies of all judgments of this Court delivered in these proceedings, together with the judgment of the Full Court of the Family Court of Australia and the transcript of the hearing before the Full Court.
B.The Court further directs that, by 18th October 2013, the solicitor for the Father confirm to the Court in writing that the judgments and transcript referred to in Notation A have been so provided to the Father.
IT IS NOTED that publication of this judgment under the pseudonym Jacobs & Faulkner (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 130 of 2011
| MS JACOBS |
Applicant
And
| MR FAULKNER |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
These reasons in relation to parenting orders that concern two young children were necessarily somewhat attenuated at the time for the reason that the appeals registry ‘called’ for the file pursuant to the Father’s appeal filed on 19th October 2012. In that appeal the Father challenged my refusal to discharge the independent children’s lawyer (“the ICL”) on the ground of her [alleged] apprehended bias. Accordingly, when requested to provide written reasons the Court then did not know when or how that might occur because the Court did not have the file until the appeal was dealt with or otherwise disposed of.
The appeal having been determined (in May 2013), in favour of the ICL and against the Father’s appeal, together with an order for costs against the Father, the Court is only now in a position to provide written reasons in relation to the parenting orders made last December – oral reasons having been given at that time.[1]
[1] The Full Court’s decision (Bryant CJ, Ainslie-Wallace & Watts JJ), in its sanitised form, is Faulkner & Jacobs [2013] FamCAFC 83.
The further, interim parenting orders sought relate to the two children of the relationship, X (born (omitted) 2004 and therefore now aged 9) and Y (born (omitted) 2008 and therefore now aged 5).
Formally, there are three matters that require the Court’s determination:
(a)Whether the report of Dr K should be admitted into evidence, (a matter already discussed at some length in the judgment under appeal);[2]
(b)By whom, and when, should a family report be prepared - Dr L or a family consultant? Further, but unrelated, issues arise that I mention at the end of these reasons; and
(c)Whether and if so how the Father’s time with the children, but especially Y, should be increased?
[2] See Jacobs & Faulkner [2012] FMCAfam 1015.
A. Admission of Dr K's Report?
As I have already indicated, to a considerable degree, the procedural issues, and some substantive matters, were traversed at significant length in the judgment of this Court of 21st September 2012, which was then under appeal. It remained the fact that unless and until the appeal was determined or otherwise resolved that judgment was (and is) determinative of the Rules of this Court and their application to Dr K’s report. Accordingly, the Father’s submissions which continue to assert that Dr K’s report does not require the leave of the Court pursuant to rule 15.12 of this Court’s rules must be taken to be incorrect and have no application.[3]
[3] In the result, and in the light of the unsuccessful appeal, the Father’s submissions in relation to leave not being required for Dr K’s report, contrary to this Court’s Rules, must be confirmed as wrong.
The Mother and the ICL continue to oppose the admission of Dr K’s report. It is sufficient to note for current purposes that the ICL opposes the admission on the basis that, among other things, it traverses the same ground as is set out in the report of the Court- appointed expert, Dr L. In passing, notwithstanding the exhaustive submissions of the Father on this and all other matters, it does not appear to have been addressed, or certainly not directly so, what Dr K’s report adds to Dr L’s report.[4]
[4] Dr L’s report has previously been admitted into evidence as Exhibit B.
In all of the circumstances, in any event and with a view to expediting at least one aspect of the case, the Court proposes the following course in relation to Dr K’s report. As occurred in relation to the Application in a Case that was the subject of the reasons delivered in September 2012, I propose again to admit Dr K’s report provisionally for one specific purpose and that is to ask the ICL to refer it to Dr L (a) to request him to review it and (b) to provide the Court with a note as to whether anything in Dr K’s report alters or otherwise in any way affects the conclusions reached and the recommendations made in Dr L’s original report.[5] However, this course shall not occur until after the appeal is determined.
[5] The provisional admission of an expert report, albeit in property proceedings, was the course taken by Le Poer Trench J in Byrd v Byrd (2012) 46 Fam LR 511.
A [further] Report – and by Whom?
In relation to this issue, the Father and the ICL propose that Dr L prepare an updated report. The Mother proposes that a family consultant prepare a full family report. All parties acknowledge that there will be a reasonably substantial cost should it be the case that Dr L prepare an updated report.
For my part, and given that Dr L will in due course be preparing a further note for the Court, there is some benefit in a full family report being prepared by a family consultant who has not been embroiled in all of the contest and issues up to this point.
Accordingly, the Court orders that a full family report be prepared by Ms D (or some other family consultant) as had previously been agreed by everyone. However, that report too must be put on hold until after the appeal is determined because it would obviously be superfluous, and there would be a risk of the report being rather stale, if it was to be prepared reasonably soon and for whatever reason the appeal was not able to be determined for quite some time hence.[6]
[6] Whoever does the family report, and what-ever other documents are provided, the Court requests that the ICL provide that person with copies of any and all reports by Dr L, and of all judgments, both from this Court and the Full Court, issued thus far in the proceedings.
Children’s Time with the Father
The orders sought by the parties and the ICL are set out below.
Orders sought by Mother:
That the Parenting Orders made on 29 November 2011 in the Federal Magistrates Court be discharged.
That the children X ("X") born (omitted) 2004 and Y ("Y") born (omitted) 2008 live with the mother.
That after completion of the courses set out in Orders 6 and 7 Y spend time with the father:-
Each alternate Saturday from 10.00 am until 4.00 pm for a period of three (3) occasions only, with changeover to occur at the (omitted) Children's Contact Service, such time to commence as soon as the Contact Centre is available to provide this service and to coincide with Orders 4.1.
Thereafter, for a period of four (4) occasions, each alternate weekend such time to coincide with Order 4 below from 3.00 pm Friday until 4.00pm Saturday and for the purpose of such time:
The father ensure that the paternal grandmother or paternal aunt be present in his home, including being in the father's home overnight to assist in reassuring Y.
For the purposes of such time, the father collect Y with X from X's school on Friday afternoon, and return Y to the (omitted) Contact Centre on Saturday afternoon.
For a period of four (4) occasions, from 4.30pm Friday to 4.00pm Saturday and such time does not require the paternal grandmother or paternal aunt to be present.
For the purposes of such time, the father collect Y with X from X's school on Friday afternoon, and return Y to the (omitted) Contact Centre on Saturday afternoon.
Then thereafter until further order with X from 3pm Friday until 4.30pm Sunday with the father to collect both children at the commencement of such time from X's school and the children are to be returned to the maternal grandmother inside the front gates at “(omitted)” farm.
That X spend time with the father:
From 3pm Friday until 4.30pm Sunday with the father to collect X at the commencement of such time from X's school and the children are to be returned to the maternal grandmother inside the front gates at “(omitted)” farm.
In the event that a weekend includes a Public Holiday, the father's time shall be extended to include that day.
For Easter school holidays:
from 4.30pm final day of school term 1 until 4.30pm on the following Friday.
Easter weekend from Friday 4.30pm (Good Friday) to Sunday 4.30pm (year about) if Easter does not fall in the 1st week in even years.
For July school holidays:
from 4.30pm on X's birthday (or if the day is a non-school day from 3.00pm) until 4.30pm on 9th July.
For September school holidays:
from 4.30pm final day of school term 3 until 4.30pm on the following Friday.
For Christmas school holiday period:
from 2.30pm Christmas day 2013 – with the father to collect X at "(omitted)" front gate until 4.30pm 2 January 2013 (changeover to occur with collection from the Mother's residence).
from 10.00am 12th January 2013 to 4.30pm 24th January 2013, with both changeovers to occur inside the front gates of the Mother's residence.
If the father's time falls on the Mother's Day weekend X is returned on Saturday at 4.30pm to spend Sunday with his Mother.
If not otherwise with the father on Father's Day weekend from 4.30pm on the Saturday until 4.30pm on the Sunday.
That the party that is not caring for the children shall have telephone communication on Thursday and Monday nights between 7.00pm-7.30pm.
That forthwith the father is to enrol in and complete a recognised post separation parenting course and provide the mother with a certificate of completion.
That forthwith the father is to enrol in and complete a recognised anger management course and provide the mother with a certificate of completion.
The father shall ensure X's dietary requirements are met and provide food for him in accordance with his special eating regime as specified by his doctors and nutritionist. The father shall not introduce any other foods for X.
The father will ensure X has appropriate rest and sleep time and will ensure regard is had to X's health before undertaking activities with X or travel with X.
Each parent shall communicate with the other and keep the other party advised of all information in relation to any medical care or treatment for either child which may occur while the child is living with or spending time with that party.
Orders Sought by Father
That the Husband's Application in a Case filed 2 July 2012 insofar as it relates to Interim Parenting arrangements be listed with priority for an urgent interim hearing, such interim hearing be heard in the Canberra registry ("the interim hearing").
That to the extent that it is necessary, the Affidavit and Report of Dr K of Dr K filed 18 April 2012 be admitted into evidence.
That paragraph 8 of the parenting orders dated 28 November 2011 be discharged.
That until further Order Y spend time with the Father as follows:
For a period of four (4) weeks, each Saturday from 10:00am to 4:00pm with changeover to occur at the (omitted) Children's Contact Service, such time to commence Saturday 30 June 2012;
Thereafter, and as from 27 July 2012 for a period of four (4) weeks, each alternate weekend from 3:15pm on Friday until 4:00pm Saturday and for the purposes of such time:
The Father ensure that either the paternal grandmother or paternal aunt be present in the Father's home overnight to assist in reassuring Y, but noting there is no necessity for there to be any supervision of the Father's behaviour or conduct; and
For the purposes of such time, the Father collect Y with X from X's school on Friday afternoon, and return Y to the (omitted) Contact Service on Saturday afternoon;
Thereafter and as from Friday 21 September 2012 and until further order with both children from 3:15pm Friday until 4:30pm Sunday with the Father to collect both children at the commencement of such time from X's school and the Mother to collect the children from the (omitted) restaurant at (omitted) at the conclusion of such time.
That the Mother keep the Father advised at all times of the name and contact details of any medical practitioner upon whom either child attends from time to time and authorise the same to liaise with the Father as to any diagnosis, treatment, medication, therapy or other prescribed or recommended treatment for either child as a consequence of such attendance.
Such further or other Order as deemed appropriate by this Honourable Court.
Orders Sought by the Independent Children’s Lawyer
That the Parenting Orders made on 29 November 2011 in the Federal Magistrates Court be discharged.
That the children X ("X") born (omitted) 2004 and Y ("Y") born (omitted) 2008 live with the Mother.
That Y spend time with the Father:-
Each alternate Saturday from 10.00 am until 4.00 pm for a period of three (3) occasions only with changeover to occur at the (omitted) Children's Contact Service, such time to commence as soon as the Contact Centre is available to provide this service.
Thereafter, for a period of four (4) occasions, each alternate weekend such time to coincide with Order 4 below from 3.00 pm Friday until 4.00pm Saturday and for the purpose of such time:
The Father ensure that the paternal Grandmother or paternal aunt be present in his home, including being in the Father's home overnight to assist in reassuring Y.
For the purposes of such time, the Father collect Y with X from X's school on Friday afternoon, and return Y to the (omitted) Contact Centre on Saturday afternoon.
For a period of four (4) occasions, from 3.00pm Friday to 4.00pm Saturday and such time does not require the paternal Grandmother or paternal aunt to be present.
For the purposes of such time, the Father collect Y with X from X's school on Friday afternoon, and return Y to the (omitted) Contact Centre on Saturday afternoon
Then thereafter until further order with X from 3pm Friday until 4.30pm Sunday with the Father to collect both children at the commencement of such time from X's school and the children are to be returned to the mother or her representative at the (omitted) restaurant in (omitted).
That X spend time with the Father:-
From 3pm Friday until 4.30pm Sunday with the father to collect X at the commencement of such time from X's school and
until such time as Order 3.4 herein is operational X is to be returned to the Mother or her representative inside the front gates of the Mother’s residence.
upon the commencement of Order 3.4 X is to be returned with Y to the Mother or her representative at the (omitted) restaurant in (omitted).
In the event that a weekend includes a Public Holiday, the father's time shall be extended to include that day.
For Easter school holidays:
from 4.30pm final day of school term 1 until 4.30pm on the following Friday.
Easter weekend from Friday 4.30pm (Good Friday) to Sunday 4.30pm (year about) if Easter does not fall in the 1st week in even years.
For July school holidays:
from 4.30pm on X's birthday (or if the day is a non-school day from 3.00pm) until 4.30pm on 9th July.
For September school holidays:
from 4.30pm final day of school term 3 until 4.30pm on the following Friday.
For Christmas school holiday period:
from 2.30pm Christmas day 2013 – with the father to collect X at "(omitted)" front gate until 4.30pm 2 January 2013 (changeover to occur with collection from the Mother's residence).
from 10.00am 12th January 2013 to 4.30pm 24th January 2013, with both changeovers to occur inside the front gates of the Mother's residence.
If the Father's time falls on the Mother's Day weekend X is returned on Saturday at 4.30pm to spend Sunday with his Mother.
If not otherwise with the Father on Father's Day weekend from 4.30pm on the Saturday until 4.30pm on the Sunday.
That the party that is not caring for the children shall have telephone communication on Thursday and Monday nights between 7.00pm-7.30pm.
The Father shall ensure X's dietary requirements are met and provide food for him in accordance with his special eating regime as specified by his doctors and nutritionist. The Father shall not introduce any other foods for X.
The Father will ensure the children have appropriate rest and sleep times and will ensure regard is had to the children's health before undertaking activities with the children or travel with the children.
Each parent shall communicate with the other and keep the other party advised of all information in relation to any medical care or treatment for either child which may occur while the children are living with or spending time with that party.
Observations
I note that in the light of Dr L’s report, all parties agree that the children’s time with their Father should increase. The disagreement relates primarily to the stages and some matters related to that increase. It follows from what has been said earlier that, but for the challenge to the ICL’s continuing involvement in the matter, the Court would have been in a position to consider this issue quite some months ago. I am certain that Mr Faulkner’s solicitors would have (or should have) apprised him of this.
The determination of parenting orders requires consideration of the legislative pathway. I set out below [3] – [6] of Brown J’s judgment in Mazorski v Albright and respectfully adopt it for its overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course, be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c):[7]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[7] (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; & Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[8]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[8] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly approved Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Further, to the degree that the Court is required to and can follow the legislative pathway in the currently circumscribed circumstances, and noting that no formal findings can be made at this juncture, it is sufficient to note that the Court has had particular regard to paragraphs 77-81, 89, 124-128, 129-130 of the report of Dr L.
For my part, in addition to the matters covered in Dr L’s report, and for the reasons advanced by the independent children’s lawyer, the orders she seeks for the time that the children spend with their Father should be taken as the orders of the Court. The Court accepts as the basis for these orders the reasons provided by the ICL.
Two further matters may be mentioned here.
First, because of the appeal having been lodged the Court may take judicial notice that in the ordinary course, it will likely not be heard before the currently scheduled hearing dates in May 2013. I am not aware of there having been any application for expedition of the appeal. With the benefit, to some degree, of hindsight, this is also to say (as I have already remarked) that, but for the appeal, final orders would likely now be in place and the parties free of the litigation. What must presumably be the more concerning for the parties is that, given how the appeal was conducted, with concessions being made and or grounds of appeal being abandoned, the appeal has delayed the conclusion of the matter by perhaps more than 12 months, with whatever attendant cost has been incurred by all.
Secondly, because of the central role of the ICL in the matter, I could not see how the current hearing dates could be maintained while ever the appeal remained to be determined. Accordingly, subject to receiving a note from each of the parties and the independent children’s lawyer of no more than one page by 12 noon tomorrow as to whether the trial date should or should not be vacated, I would be proposing to make an order in Chambers to vacate the trial dates and that the matter be relisted on a date within [approximately] 28 days of the determination of the appeal.
Miscellaneous Matters
The final matters to note do not relate (or relate directly) to any substantive issue before the Court. They arise as follows.
First, by way of general observation, the current proceeding, in my view, is a relatively uncomplicated parenting dispute where the parties disagree about the current and future parenting arrangements for their two children. In this respect it is unremarkable in relation to most other parenting cases. Indeed, like hundreds of other parenting cases dealt with by the Court every year there are competing contentions and allegations.
There is some expert evidence involved, as there is in most cases, of one kind or another. Understandably - and properly so - the case and the issues involved are important to the parties. That is as it should be; and as with most cases, it is keenly fought. The keenness of the contest really only becomes a question of degree and kind. In all of these respects it is, as I have said, a somewhat typical or standard parenting case with which the Court deals almost every day. In saying this it is in no way either to criticise or to lessen the importance of the matter and the issues raised in it.
Nonetheless, as with all registries of this Court around the country it is one of hundreds of cases all competing for the always strained resources of the Court. And as with all cases, the Court endeavours to deal with it as expeditiously as possible. At the mention of the matter in Wagga Wagga on 10 October 2012, Counsel for the Father adverted to this in certain respects when he said:[9]
The husband [sic] does want the matter dealt with and he wants the matter dealt with the sooner the better.
[9] See Transcript (10th October 2012) p.12.
I simply observe, without comment, that nine days later the current appeal was filed, with it presumably having been prepared some days beforehand. I repeat: every party is entitled to conduct his or her case as they deem appropriate, including lodging any appeal. However, the reality is that actions have consequences. Appeals, by their nature, take time, and appeals in relation to interlocutory matters, such as here, necessarily impact upon the time-table for the final hearing.
Secondly, in relation to the fundamental principle regarding procedural fairness, it is quite common, as the Court has done here, to notify parties of any decisions which may, but I emphasise not must, be relevant to the issues in dispute. This has happened on a number of occasions in the current proceeding already.
In separate emails to the solicitors for the parties, and to the ICL, dated respectively 30th November and 4th December 2012, the Court brought to their attention two [then] recent decisions of the Full Court – Lindsay & Baker [2012] FamCAFC 189 and Byrd v Byrd (2012) 46 Fam LR 511. Both of these cases involved issues of expert evidence and its admission, including the conditional admission of the expert’s report in Byrd.
The purpose of the Court emails, as stated, was to bring these cases to the attention of practitioners. There was no requirement to comment directly on the cases at all. Indeed, the latter email said: “When replying to the previous email [of 30th November] regarding expert reports, HH has suggested that the parties (and the ICL) may wish also to consider the Family Court decision of Byrd v Byrd…”
It will be immediately apparent from the terms of the [last] email that it was solely for the sake of courtesy and information that the Court brought the cases to the attention of practitioners. Comment was invited, not demanded, as deemed appropriate by the lawyers.
In submissions of 21 pages filed by the Father on 7th December, at page 7, the solicitors for the Father stated:
From the husband’s perspective his legal advisers are surprised in the extreme by such a request and say that Lindsay & Baker not only has no impact but is irrelevant to the matter currently before the Court for determination. That his Honour perceives that Lindsay & Baker may have some impact means that unfortunately a detailed examination of the case is required to support the husband’s position.
If the solicitors for the Father were “surprised in the extreme” because the Court brought two cases to the attention of solicitors, the Court is troubled if not alarmed by that surprise. Why experienced lawyers would be so surprised by the Court seeking to ensure that parties have an opportunity to comment on a case, if they so wish, verges on the disturbing. There is no suggestion that the Court would rely on the cases mentioned; nor is there any suggestion, let alone any requirement, that comment be made. A single sentence would have sufficed to say something to the effect that, in their view, the case or cases have no relevance.
Then, on page 15 of the Father’s 7th December submissions, the following was stated:
Again, from the husband’s perspective his legal advisers are surprised in the extreme by such a request and say that Bird & Bird [sic] not only has no impact but is irrelevant to the matter currently before the Court for determination. Again, that his Honour perceives that Bird and Bird [sic] may have some impact means that unfortunately a detailed examination of the case is required as it appears that his Honour may be inviting a cost application be brought against legal practitioner [sic] prior to submissions even being considered and prior to a determination of the matters currently before the Court.
No legal practitioner is named, thus making it rather opaque to whom the submission is directed. In any event, the submission borders on the provocative. It is alarmingly presumptuous. It also borders on contempt suggesting, on its face, either that the Court is seeking to conduct the proceedings in a certain way, and/or that the Court is seeking to promote a certain course of conduct by one or other party, and/or that matters have already been, or risk being, predetermined. Notwithstanding the presumption and the provocation of the submission, I make no such findings in relation to any of these matters. If any of them need to be re-visited in the future, they can be.
In any event, I pose the question, I hope not unreasonably: ‘how have the Father’s solicitors divined such an otiose, bordering on the offensive, purpose or presumption?’ It is unfortunate that it is not explained in the many words that have been spilled in these submissions. The lengthy submissions are misconceived and proceed on a false or erroneous series of premises. I need not repeat the paragraphs on pages 7 and 15 to which I have referred, save to highlight the most benign of the two:
That his Honour perceives that [the two cases named] may have some impact means that unfortunately a detailed examination of the case is required to support his Honour’s course.
The assumption stated, as I have indicated, is false and utterly without foundation; the submissions are predicated upon this false assumption. In their detail and in their focus it is a quite pointless exercise. Moreover, if the Father’s solicitors were so concerned about whatever the Court’s disposition may or may not be before embarking on such a doubtlessly costly exercise, and I fear a rather wasteful one, they could simply (and much more cheaply) have checked with my Chambers to clarify the situation. This did not occur, as one might otherwise have expected from experienced solicitors.
Neither the Mother’s solicitors, nor the ICL, took the course of preparing voluminous submissions. Indeed, there is never any requirement to provide extended notes on any case referred to, and there was certainly no requirement for any extended study on this occasion. Respectfully, the submissions are excessive in the extreme and utterly disproportionate. They assist no one, least of all the Court.
Part 44 of the High Court Rules provide that submissions by an Appellant, and similarly by a Respondent, “must not exceed 20 pages”. I have previously noted that the submissions filed on behalf of the Father in relation to the two cases brought to the attention of his lawyers exceed 20 pages. This is not a High Court case. Indeed, the submissions are oppressive and should never have been filed. They go to no substantive issue in the matter. One might very likely blanch at the cost of their preparation, leaving aside the extra attention and resources required by everyone else to consider them.
Two further brief observations regarding the submissions that were filed by the Father on 7th December 2012 are apposite.
First, if lawyers in the hundreds of other matters produced submissions of the kind and volume of those filed here the wheels of justice and the disposal of cases would very quickly grind to a halt. Secondly, what is known is that the extremely and needlessly long submissions filed on behalf of the Father were prepared by such experienced solicitors. One would not expect such a needless expense to have been incurred by all from family law practitioners of such experience. In other circumstances, I suggest that there could be some risk of an adverse order for costs.[10]
[10] In this regard, see generally (by way of sample only, and certainly not for any submission): G & G (a law firm) & McMurphy (2012) FamCAFC 134; Harris v Villacare Pty Ltd (2012) NSWSC 452; Modra (by his next friend, Modra) v Victoria (Department of Education and Early Childhood Development and Department of Human Services) (2012) 291 ALR 429; Rakete v Rakete (2013) 48 Fam LR 325.
By reference to the appeal before the Full Court to which I have earlier referred, in the Postscript to these reasons I provide extracts from the Full Court’s judgment, and from the transcript of the appeal, which express similar concerns about the way the matter was conducted before that Court.
Conclusion
I return then to the principal issue of the trial dates and whether they should be vacated because of the [then] yet to be listed or determined appeal. In my view, the dates should be vacated. As a matter of procedural fairness, I give the opportunity to the parties and the independent children’s lawyer to give an indication by midday tomorrow, by a note not exceeding one page, whether the course that I have proposed should be followed. If so, why, and if not, why not.
By applying the old legal maxim, “he who is silent is deemed to consent” (qui tacet consentire videtur), made famous by Thomas More’s reply under cross-examination by Cromwell, noted in Robert Bolt’s play, A Man For All Seasons, no reply from either of the parties or the ICL shall be taken as agreement with the course proposed.
All of that said, I make the orders I have indicated; by way of summary they are as follows. First, the interim parenting orders in relation to the time that the children spend with the Father will be as proposed by the ICL. Secondly, Dr K’s report will be provisionally admitted for the sole purpose of forwarding it to Dr L for comment. In this regard, the ICL is requested to forward it to Dr L to ask him to comment on it and to provide a note to the Court to advise whether any of the recommendations of Dr L set out in his report dated 1 June 2012 (exhibit B in the proceedings) are affected by the contents of Dr K’s report and if so in what way.
The request and direction to the ICL is to be stayed pending the determination of the appeal by the Father in the appeal lodged on 19th October 2012.
In relation to the updated family report, pursuant to section 62G of the Family Law Act1975, Ms D (or such other family consultant who may be appointed) is requested to prepare a full family report on a date and time to be fixed - also pending the determination of the appeal.
Finally, in relation to the future conduct of the proceedings, by 12 noon on 18th December, the parties and the independent children’s lawyer are requested to confirm to the Court in writing, by a note not exceeding one page, whether and if so, why or why not the currently listed trial dates, commencing 8th May 2013, should (or should not) be vacated.
Whether the trial date should be vacated as indicated by the Court shall be determined on the papers in Chambers. In the absence of any submission being filed by the date and time specified, the maxim in relation to ‘silence indicating assent’ shall apply.
The Court so orders.
Postscript
In the light of the concerns raised in these and the earlier [September 2012] reasons, it is apposite to note the following concerns from the judgment of, and the transcript of the proceedings before, the Full Court in relation to the Father’s recent unsuccessful appeal.
First, in the light of the concessions made during the hearing of the appeal, and ultimately what remained of it, the Full Court said, at [43] and [44]:
[43] This is a matter in which the father requires leave to appeal. It was asserted in the father’s written argument that leave was not required because “the orders made finally determine the Husband’s rights in respect to his application”. This contention is palpably incorrect, and we reject it.
[44] Given the concessions made by counsel for the appellant, it is clear that there is no merit in the appeal and leave will be refused. We add that even had those concessions not been made, the appeal as propounded was, in our view, wholly without merit, brought on a fatally-flawed premise, and we would otherwise have refused leave to appeal.
Secondly, in the course of the hearing of the appeal, both the Chief Justice and Ainslie-Wallace J expressed their concern about the conduct of, and allegations made by, the Father’s solicitor. Their Honours said:
BRYANT CJ: Sorry. Mr Nicholson, could I just say this to you, which I hope you passed on to your instructing solicitor, and it’s a matter of some concern to me. The affidavit is at page – she swore an affidavit in this matter, in support of ‑ ‑ ‑
AINSLIE-WALLACE J: Page 68.
BRYANT CJ: ‑ ‑ ‑ the application – in support of the application for disqualification. And it’s a strange affidavit for a couple of reasons. It isn’t usual – in my experience, at least – for somebody to swear to matters relating to the disqualification application. They’re usually matters that are put by way of submission and the first and most obvious reason for that is because it is an objective test, not a subjective one. So the relevance of the writer’s views are pretty much nil. It’s appropriate to point out matters of fact but the views of the writer would be relevant in a matter in which it is the objective person sitting in the back of the court, reasonably informed. That’s the first thing. But the second thing is that not only does she not do that, she actually expresses the views as being her own. That is her views about the – not a client’s views – her views about what she alleges is bias on the part of the independent children’s lawyer. Paragraph 6 and on.
It’s with great reluctance to admit, I have been able [sic] to escape forming the view and I advised the husband.
Your quite appropriate concessions this morning, Mr Nicholson, leave the position with – to put it fairly neutrally – very little foundation and if this were counsel making a submission about fraud or something without proper foundation, it would be a serious matter for the relevant authority to deal with.
AINSLIE-WALLACE J: Warranting, had counsel made a baseless allegation of fraud at a case, it would be a matter for disciplinary proceedings.
BRYANT CJ: And that the solicitor makes it is equally serious. Speaking for myself, I don’t propose to take the matter any further but it would be useful for you to convey that to the instructing solicitor, I think, Mr Nicholson, because it is not a practice that should be continued. And it may not be in the interests of her career for her to continue with such a practice…
The observations of the Full Court do not require comment.
However, in the light of the comments of the Full Court, and by this Court, for the sake of completeness, the Court directs that, within 14 days of the date of the Father’s return to Australia (or 20th September 2013 – which-ever is the earlier date), the solicitor for the Father provide the Father with copies of all judgments of this Court delivered in these proceedings, together with the judgment of the Full Court of the Family Court of Australia and the transcript of the hearing before the Full Court. For the sake of convenience, the Court will provide a copy of the transcript.
The Court further directs that, by 18th October 2013, the solicitor for the Father confirm to the Court in writing that the judgments and transcript to which I have just referred have been so provided to the Father.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 18 September 2013
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